Originally published in TIA Daily.
The Meaning of the Ninth Amendment
Editor’s Note: The folks at the Jefferson Area Tea Party asked me to represent them on Wednesday at a celebration of the 219th anniversary of the Bill of Rights. Speakers were asked to read one of the amendments in the Bill of Rights and talk about its importance as a protection for our liberty. I chose the Ninth Amendment, and the article below is based on my remarks.—RWT
The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Ninth Amendment is the least used, least recognized article of the Bill of Rights—which is a shame, because in my view it is the most important.
It is the least understood because it is abstract rather than concrete, and because it is open-ended rather than particular. But this is what makes it so important. While the other amendments are stated in legal terms, like the terms of a contract, the Ninth Amendment is stated in terms of political philosophy. It doesn’t address the specific powers granted to government or specific limitations on those powers. It names the principle behind those powers and those limitations: the principle of individual rights.
The Ninth Amendment is about the spirit of the Constitution. It is about how to understand and interpret all of the other provisions of the Constitution.
It is no surprise, therefore, that the Ninth Amendment is widely denied and disparaged today, both by the left and by the right.
On the right, Robert Bork famously compared the Ninth Amendment to an inkblot, the idea being that the meaning of the “other rights retained by the people” is so mysterious and inscrutable as to be of no use in interpreting the Constitution.
But its meaning is not mysterious at all. The Ninth Amendment is an appeal to political philosophy—and not just any political philosophy. In mentioning the rights retained by the people, the Ninth Amendment is referring to a philosophy of individual rights—as developed by the English philosopher John Locke and proclaimed in America by Thomas Jefferson—which was well understood by the Founders and expressed in the nation’s founding document, the Declaration of Independence.
But what Bork was responding to, in dismissing this appeal to political philosophy as subjective, was the prevailing jurisprudence of the left, which constantly seeks to reinterpret the fundamental law of the land in a way that reads the left’s agenda—which is actually antithetical to the philosophy of individual rights—into the Constitution.
We got a flavor of that in the recent confirmation hearings for the newest justice on the Supreme Court, Elena Kagan, in an exchange where a Republican senator asked her whether she thought there were “natural rights” that preceded the Constitution. She dodged the question by saying that her own views were irrelevant because she had to decide cases based only on what is in the Constitution.
Her answer was intended to make her look as if she was in favor of sticking to the Constitution, even as she refused to affirm the philosophy of individual rights. But the Ninth Amendment tells us: affirming natural rights is sticking to the Constitution.
The Declaration of Independence established the Lockean theory of individual rights as the official political philosophy of the United States. The Ninth Amendment followed up by establishing that philosophy as the official standard for interpreting the Constitution.
As I said, the Ninth Amendment is abstract and general. Its importance is not in any particular clause establishing any particular right. Instead, its significance is in its view of the basic relationship between the individual and the state. For the people, there are a few actions that are forbidden, but the rest of life is a clear field of action unobstructed by the state. For the state, the reverse holds true: there are a few fields of legitimate action, marked out by the enumerated powers explicitly granted to Congress in the Constitution—but everything outside those fields is blocked off. For the people, the default condition is freedom of action. For the government, the default is constraint and limitation. For the people, that which is not forbidden is permitted. For the government, that which is not permitted is forbidden.
James Madison, the Father of the Constitution and chief author of the Bill of Rights, put it this way, specifically in talking about the role of the Bill of Rights and of the Ninth Amendment: “the powers [of the federal government] are enumerated, and it follows, that all that are not granted by the Constitution are retained; that the Constitution is a bill of powers, the great residuum being the rights of the people.”
The Ninth Amendment is not widely understood or acknowledged today, but it is still alive in the mind of anyone who understands this basic attitude toward the powers of government. Let me cite just one recent example. I am sure you have already heard about the recent ruling striking down the individual mandate in ObamaCare, the provision forcing individuals to buy health insurance. The best thing about the ruling was the judge’s approach to the question. The usual approach of today’s left-leaning jurists and politicians is to say: so long as there is nothing in the Constitution explicitly blocking me from doing something, I can do it. The assumption behind this ruling is the opposite: that unless the power to impose an individual mandate is already established in the Constitution, then it is not allowed.
Here is the climactic sentence of the judge’s opinion: “A thorough survey of pertinent constitutional case law has yielded no reported decision from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product.” That is Ninth Amendment thinking. It says: I looked in the Constitution for specific authorization to do this, and I didn’t find it. Then I looked through all of the established interpretations of the Constitution, and I didn’t find it there, either. And if I can’t find it, then you can’t do it.
The Constitution is more than just a collection of legal clauses. Beyond the letter of the law is the spirit of the law, which is a whole philosophy about the limitation of government power by the principle of individual rights. This is what I call the Constitutional creed, and the Ninth Amendment is the central statement of that creed.