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U.S. Constitution: Ninth Amendment
FindLaw ^ | Unknown | Unknown

Posted on 11/24/2009 2:11:37 PM PST by Jacquerie

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those.

(Excerpt) Read more at caselaw.lp.findlaw.com ...


TOPICS: History; Reference
KEYWORDS: constitution; ninth; rights; unalienable
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To: Jacquerie
The issue is not whether we have other rights. The issue, for me, is whether the federal government has any authority to enforce or constrain those rights. I agree that the right to defend oneself is a 'natural right,' but in he absence of the 2nd Amendment, it wouldn't be the federal government's job (or authority) to enforce it.

Your point about SCOTUS confusing things is, of course, correct. I think you can make a direct linkage from the 17th Amendment in 1913 to the problems we face today. The 17th Amendment changed the Senators from representatives of the States into representatives of the people (therefore redundant with the House of Representatives, with the positions dependent not on sustaining the States in their authority but on concentrating power in Washington). A generation later Roosevelt was trying to pack the Supreme Court with those who didn't care what the Constitution actually said - and then didn't have to because the federal-government-empowered Senate approved enough Justices to get what he wanted anyway. And a generation later we had LBJ and the beginning of state socialism. And a generation later we have a blatant socialist as president. As a result of that degradation, even Robert Bork, at his confirmation hearings, said he thought the 14th Amendment made the 10th Amendment moot. That's like saying that if we have a law that says you have to drive on the right side of the road, that makes speed limits moot.

As Reagan said, liberty is always only a generation away from being lost. In our case, it's been lost in stages rather than all at once, but we now face exactly the kind of state socialism that has caused more human misery than any other human invention.
21 posted on 11/25/2009 7:23:15 AM PST by Phlyer
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To: Phlyer
Yeah, the 17th was an incredible mistake. That decade was awful. WWI, the 16-18th Amendments fundamentally changed the relationship between citizen and government. FDR was a constitutional catastrophe.

As for our rights and the 9th Amendment, it was only this past summer that I did some serious reading as to its background.

I came to appreciate much more the times and education of our founders/framers and how close we came to losing the Revolutionary War. There isn't a single throw away line in either the Declaration or Constitution.

“That to secure these Rights, Governments are instituted among Men” is a near forgotten clause. It means that the purpose of government is to secure our Unalienable, Natural Rights and nothing else!

During the ratification debates in the individual states, nine of them required additional rights be added to the Constitution. Defense of our Natural Rights was a common demand and it appeared in the final bill as the 9th Amendment.

A close examination of the Constitution shows that it “flows” directly from the Declaration in that our Founders and people in the several states were deeply concerned with our Natural, God given rights that are superior to man made law.

As demonstrated by tyrannies throughout history, they get into trouble and lose popular support when they deprive the people of their Natural Rights.

IMHO, the Natural Rights enumerated are: Exclusive right to the profit of one’s writings and inventions, habeas corpus, freedom of the press, speech, the right to peacefully assemble, keep and bear arms, to petition our government, to be secure in our persons, paper and effects against unreasonable searches and seizures, speedy public trial, to be confronted by the witnesses against us.

In addition are negatives that would infringe on our Natural Rights, protection against ex-post facto laws, double jeopardy, self incrimination, deprivation of life, liberty or property without due process, taking of private property for public use without just compensation, excessive bail, cruel and unusual punishment.

Our government is rapidly closing in on additional abuses of our Natural Rights. Without specifically knowing the Ninth, the people innately see the danger, that something is very wrong and want to stop Obama.

22 posted on 11/25/2009 1:29:19 PM PST by Jacquerie (Start with five hundred and thirty five ropes on 535 lamp posts in Washington DC.)
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To: Jacquerie
"I just imagined 535 lamp posts in DC. Each had a rope. "

For 15 years I've been supportive of about 20 guillotines lined up in front of the Capital. Each with waiting lines of about 50-100 "customers"....

Remember, besides the congress-critters there is the federal court bench and political appointees to the bureaucracy to clear out....

The ultimate Tea Knitting Party...

23 posted on 11/25/2009 11:26:57 PM PST by SuperLuminal (Where is another agitator for republicanism like Sam Adams when we need him?)
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To: SuperLuminal

Quite right. So much work. So little time.


24 posted on 11/26/2009 2:03:43 AM PST by Jacquerie (Support and defend our Beloved Constitution.)
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To: Jacquerie
"I just imagined 535 lamp posts in DC. Each had a rope."

Prologue.
25 posted on 11/26/2009 2:19:27 AM PST by shibumi (" ..... then we will fight in the shade.")
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To: Jacquerie
IMHO, the Natural Rights enumerated are: . . .

Sorry, but I'm a Constitutional literalist. There is no "opinion" about the enumerated rights. They are or they are not listed and explicit. That's what makes them 'enumerated' rights.

Obviously, most of your list can indeed be found in the Constitution, including (as you correctly point out) in the body of the Constitution and not just in the Bill of Rights. But just as you cannot 'create' an enumerated right, so if you are attempting to 'enumerate' them (by saying something like "The . . rights enumerated are:") you can't leave any out . . .unless you're trying to say that things not in your list, though 'enumerated' are not 'Natural' in some way - a distinction that I don't find particulary compelling.

Why go on about something where we agree on the underlying issue that "Governments are instituted among Men . . to secure these Rights"? Because the underlying problem is in the loose and government-serving (rather than serving the people) interpretation of the words as written. Your argument would be stronger, at least to me, if you focused it on what the Constitution says rather than using part of what the Constitution says as justification for something that the Constitution does not, in fact, mention (like "Natural Rights" as a phrase).
26 posted on 11/27/2009 7:30:10 AM PST by Phlyer
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To: Phlyer
As a literalist, what then is the meaning of the Ninth Amendment?
27 posted on 11/27/2009 8:10:50 AM PST by Jacquerie (Support and defend our Beloved Constitution.)
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To: Jacquerie
As a literalist, what then is the meaning of the Ninth Amendment?

Before I get to the 9th Amendment specifically, your question deserves a bit of context. As I indicated in my previous post, if there are multiple 'rules' that apply to a situation, then the correct solution is one that meets all the rules, not just selected ones that justify what you want. As a result, the 9th Amendment must be understood in the context of the other Amendments. To that end, I see the 9th and 10th Amendments as a pair of rules that must be addressed together.

So, the 9th says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

And the 10th says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

I think the literal interpretation of those says, There are rights for 'the people' which are not enumerated, and the power to exercise and enforce those rights - since it is not explicitly delegated to the United States (Federal Government) nor prohibited to the States - is reserved to the States or to the people.

The short form of that is, "Any right not explicitly addressed in the Constitution is none of the federal government's business."

I do see room for interpretation in the Constitution, but at the level of an honest interpretation of the words as literally as practical. The "press" as it was recognized at the time of ratification did not include electronic media, but I am very comfortable with the idea that the freedom of the "press" outlined in the 1st Amendment applies to electronic media. Similarly, there is an implied right to vote when qualifications for voting are outlined.

Underlying my interpretation is the principle that the most important words in the Constitution are "We, the People." It doesn't start as "We, the Lawyers and Judges," or "We, the landed gentry of Virginia." It is our contract with ourselves, to be administered by the federal government. Each citizen has a "right," a "privilege and immunity" to believe that if he reads that contract, he can expect it to be applied as the written words would be understood in simple English by the average literate citizen. There is no room for judge-made law to supersede the plain language of the Constitution, especially through 'shadows' and 'penumbra'.

The key to the 9th is to establish that there are things that are outside the scope of the Constitution, and the key to the 10th is to say that anything not explicitly in the Constitution is none of the federal government's business.
28 posted on 11/27/2009 10:49:34 AM PST by Phlyer
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To: Jacquerie
Agreed. It's often stated that the Supreme Court is the final arbiter of things Constitutional. That is a power they arrogated to themselves. This is supposedly the "check" on the other branches. Yet the other branches are likewise entitled to their own "check" on the other branches. The executive branch has the authority to ignore the dictates of the judicial branch, the legislative branch can enforce compliance through threat of impeachment. The Congress can also exercise its check on the judiciary also through impeachment.

As direct representative of the People, it is high time Congress stopped being directed by an unelected bureaucracy of a single deciding justice-king.

29 posted on 11/27/2009 12:07:23 PM PST by Sgt_Schultze (A half-truth is a complete lie)
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To: AmericanHunter
The States had their advocates and allowed them to be stolen by permitting their representatives to pass the 17th amendment.
30 posted on 11/27/2009 12:17:25 PM PST by Sgt_Schultze (A half-truth is a complete lie)
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To: Phlyer
The following are portions of your comments to this thread.

“I agree, but this discussion, and most of those on the 14th Amendment, ignore the importance of the 10th Amendment.”

“So if there is a right to privacy (and I believe there is) that does not mean we give up the right (10th Amendment)”

“Roe v. Wade is not just that it's immoral (and therefore 'bad') but that it directly violates the 10th Amendment”

“So while I agree that the 9th Amendment provides the room for additional rights than those enumerated, it does not in itself negate an enumerated right - including the enumerated right in the 10th Amendment. “

“Bork, at his confirmation hearings, said he thought the 14th Amendment made the 10th Amendment moot.”

“I see the 9th and 10th Amendments as a pair of rules that must be addressed together.”

“And the 10th says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

“the key to the 10th is to say that anything not explicitly in the Constitution is none of the federal government's business.”

Okay, you are obviously a thoughtful person. I assure you that the Ninth is independent of the Tenth and going on a length about the 10th, 14th and 17th is irrelevant to the Ninth. At the same time you apparently do not believe what I have written regarding the Natural Law basis of our founding, Constitution and the Ninth. They are impossible to understand without familiarity with Natural Law, derived from the law of our Creator.

I bring this up because it was only after reading Levin’s Liberty & Tyranny that I began a study of the philosophical basis of our founding. I avoided internet sites.

Among the books I found informative were, “The Rights Retained by the People,” Edited by Randy Barnett, Cato Institute 1989.

“Written on the Heart,” The Case for Natural Law, by J. Budziszewski, InterVarsity Press, 1997.

31 posted on 11/27/2009 2:59:02 PM PST by Jacquerie (Support and defend our Beloved Constitution.)
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To: Jacquerie
you apparently do not believe what I have written regarding the Natural Law basis of our founding, Constitution and the Ninth.

It's not that I don't believe what you have written - either in the sense that you understand natural law or that it guided the Framers who wrote the Constitution. It's just that the words as written exist independently of the rationale that led to them. And it's the words as written that constitute 'the law' that governs us.

I also agree that the 9th exists independently of the 10th, but the 10th is not irrelevant. For example: Suppose the 9th is exactly as written, and therefore it includes (by implication, at least) some of those rights you consider "Natural Law" but which are not enumerated and explicit.' But now change the 10th to say, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the United States, to be defined and interpreted by the Congress and the Judiciary."

It changes utterly the value of those 'unenumerated rights' that are implied by the 9th Amendment. They now exist - as they always and inherently exist, as "Natural Law" if that's the way you want to label them - but they are totally subject to federal government control because the federal government has authority and "power" in all areas that are not explictly defined. Therefore our 'unenumerated rights have no practical value except as the imperial federal judiciary deigns to allow us to pretend that they mean anything. In short, an unenforceable right may be noble and logical, but it has no practical value.

The 2nd Amendment is the most fundamental, because the right to bear arms is what makes the difference between citizens and serfs. The 10th should be the next most important because it is what should be keeping the federal government from meddling in 99% of the interactions between citizens. If those two are strongly obeyed by the federal government, the rest - including the 'Natural Law' issues like the right to self-defense - would be respected and reliably available to the citizens.


32 posted on 11/27/2009 4:11:01 PM PST by Phlyer
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