Replies

This is a copy of the presentation that I gave last night on the ninth amendment at the Patriots of the Republic Room on Paltalk. Next week - Monday, the tenth will be presented.

Someone suggested that these two should have been presented at the same time because they are so entwined. Yes and No.

One (the ninth) is dealing strictly with the rights retained by the people which are different from those retained by the state or federal governments. They are clearly delineated in the Constitution and also are the rights that are granted to us by GOD.

The Framers of the Constitution wanted to make sure that we, the people would be protected from such abuses as those delinated towards the end of my presentation. The ninth is a reminder to the government that they are to protect our rights.

Because of the laxity on the part of the people, we are experiencing the very abuses and infringements that the Framers tried to protect us from.

Monday
22 July 2002

Amendment IX
presented by Dixie Sass

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

In Other Words:

The listing in the Constitution of certain rights (those we have already heard about, i.e., speech, religion, assembly, gun ownership, speedy trial, reasonable bail and etc.), shall not be construed (to understand or explain the sense or intention of, usually in a particular way or with respect to a given set of circumstances) to deny (to disclaim connection with or responsibility for) or disparage (to lower in rank or reputation or to depreciate by indirect means or to speak slightingly about) others retained (to hold secure and intact) by the people

Prior to the Constitution was a document called the Articles of Confederation. This document gave the States more power in governing and the Federal Government less. To centralize the government and give it more power in governing these United States, he suggested that we have a document that delineated the exact responsibilities of the federal government. Out of this came the Constitution, a blueprint for the three branches of government - the Executive, Judicial and Legislative, with a system of checks and balances which would keep each from usurping the authority of the other.

Madison had been in favor of having a Bill of Rights, provided that it was framed NOT to imply powers "NOT MEANT TO BE INCLUDED IN THE LISTING OF THESE RIGHTS".

To quote President Madison in a letter to Thomas Jefferson, speaking of the Bill of Rights " I have not viewed it in an important light... (1) because I conceive that in a certain degree, the rights in question are reserved in the manner in which federal powers are granted. (2) because there is a great reason to fear that positive declaration of some of the most essential rights could not be contained in the requisite latitude. I am sure that the rights of conscience, in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power."

By including the ninth amendment, President Madison and the framers specifically made it clear that the Bill of Rights, by implication could not and does not contain any guarantee of a right or provision of infringement nor increase the powers of the federal government in other areas of the Constitution and the Bill of Rights.

The ninth amendment seems to be the least used and the least abused as well as the most used and most abused. While going through various searches, I came across the case of Griswold V.S. Conn.

This was about a statute prohibiting the use of contraceptives which was voided as an infringement of the privacy laws.

Justice Douglas's opinion said: "Specific guarantees in the Bill of Rights have penumbras (a body of rights held to the guaranteed by implication in civil Constitution). Formed by those guarantees that help give them "life and substance."

Justice Douglas returned to the body of the ninth in an attempt to support " the thought that these penumbra rights are protected by one amendment or a complex of amendments despite the absence of a specific reference."

Justice Goldberg in concurring devoted several pages to the ninth. While reading it, one sentence jumped out - " To hold that a right so basic and fundamental as the right of privacy in marriage may be infringed, because that right is not guarantee in so many words by the first eight amendments to the Constitution is to ignore the ninth amendment and give it no effect. Moreover, a judicial construction that this fundamental right is not protected by the Constitution, because it is not listed in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the ninth amendment."

He goes on to say that the framers believed there are fundamental rights that exist and are "not expressly enumerated in the first eight and an intent that the list of rights included there not be deemed exhaustive."

In the same decision, Justice Black stated "privacy is a broad abstract and ambiguous concept."

To paraphrase Justice Black, the ninth amendment is a broad abstract and ambiguous concept. It can be used in conjunction with the other amendments to help define those gray areas. It can be used as a matter of conscience to form rulings on morals, ethnicity, citizenship, right to live or die as we see fit, hate privacy and etc. It is not so much infringed upon as it used to define infringement by the other eight amendments.

The rights covered by the ninth and also the tenth are rights that are to be protected, not granted by the government - life, liberty and the pursuit of happiness. They cannot be taken away, but it seems that government has forgotten that with various infringements.

We have seen that with the land grabs in Washington State, Nevada, Ohio and West Virginia.

We have seen it with the passing of the Campaign Finance Reform, Wade vs Roe, Sexuality being taught in schools, prayer being denied in public schools and other public venues, submission to drug tests, disclosure of finances, medical information disclosures, denial of cannabis for medical purposes, catering to pedophiles, catering to criminals, verbal sexual harassment, TIP and VIP, hate crimes (good grief all crimes are "hate"), the list goes on and on and on. Perhaps the two greatest test will be with the formation and implementation of the Homeland Security and the Cyberworld and what can and cannot be put out over the 'net.

I will end with two quotes, one from CIA.org:

" This amendment is so weak today that I will not ask what infringements there are on it but rather what exercise of it exists at all? What law can you appeal to a court to find you not guilty of violating because the law denies a right retained by you? "

Calvin Massey, in his book THE SILENT AMENDMENT says "The ninth amendment and the constitutions unenumerated rights, argues that it is now "impossible to achieve the amendments original function of limiting the implied powers of the federal government because of the modern expansion of federal powers." Massey also argues "that these unenumerated rights include both natural and positive rights protected in State Constitutions."

As there are strength and weaknesses in the first eight amendments, so are there strengths and weaknesses in the last two - those strengths and weaknesses are you and I because we are the only ones who can guard these rights and preserve, protect and defend. If we don't take to heart the legacy that our forefathers gave us, why then Ladies and Gentlemen, we have lost the republic, we could not keep it. Perhaps there is to much interpretation of what we THINK these gentlemen wanted and not enough understanding of these very simple words.

To some extent the 10th amendment and the ninth overlap with respect to enumeration - as Bigun will tell you next week that was another concern of Madison's...

In light of all that has happened in the year past, we have a more urgent task now than ever. Ladies and Gentlemen the floor is open to discussion...

NOTES

Id. at 488, 491, 492. Chief Justice Warren and Justice Brennan joined this opinion. Justices Harlan and White concurred id. at 499, 502, without alluding to the Ninth Amendment, but instead basing their conclusions on substantive due process, finding that the state statute ''violates basic values implicit in the concept of ordered liberty,'' (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Id. at 500. It would appear that the source of the fundamental rights to which Justices Douglas and Goldberg referred must be found in a concept of substantive due process, despite the former's express rejection of this ground. Id. at 481-82. Justices Black and Stewart dissented. Justice Black viewed the Ninth Amendment ground as essentially a variation of the due process argument under which Justices claimed the right to void legislation as irrational, unreasonable, or offensive, without finding any violation of an express constitutional provision.
In United Public Workers v. Mitchell, 330 U.S. 75, 94 -95 (1947), upholding the Hatch Act, the Court said: ''We accept appellant's contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments [is] involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. Thus we have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth, and Tenth Amendments.'' See Ashwander v. TVA, 297 U.S. 288, 300 - 11 (1936), and Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143 -44 (1939). See also Justice Chase's opinion in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798), and Justice Miller for the Court in Loan Ass'n v. Topeka, 87 U.S. (20 Wall.) 655, 662 -63 (1875).
Notice the recurrence to the Ninth Amendment as a ''constitutional 'saving clause''' in Chief Justice Burger's plurality opinion in Richmond Newspapers v. Virginia, 448 U.S. 555, 579 -80 & n.15 (1980). Scholarly efforts to establish the clause as a substantive protection of rights include J. Ely, Democracy and Distrust--A Theory of Judicial Review (Cambridge: 1980), 34-41; and C. Black, Decision According to Law (New York: 1981), critically reviewed in W. Van Alstyne, Slouching Toward Bethlehem with the Ninth Amendment, 91 Yale L. J. 207 (1981). For a collection of articles on the Ninth Amendment, see The Rights Retained by the People: The History and Meaning of the Ninth Amendment (Randy E. Barnett, ed., 1989).

The rights covered by the ninth and also the tenth are rights that are to be protected, not granted by the government - life, liberty and the pursuit of happiness. They cannot be taken away, but it seems that government has forgotten that with various infringements.

We have seen that with the land grabs in Washington State, Nevada, Ohio and West Virginia.
We have seen it with the passing of the Campaign Finance Reform, Wade vs Roe, Sexuality being taught in schools, prayer being denied in public schools and other public venues, submission to drug tests, disclosure of finances, medical information disclosures, denial of cannabis for medical purposes, catering to pedophiles, catering to criminals, verbal sexual harassment, TIP and VIP, hate crimes (good grief all crimes are "hate"), the list goes on and on and on. Perhaps the two greatest test will be with the formation and implementation of the Homeland Security and the Cyberworld and what can and cannot be put out over the 'net.

---------------------------

All the federal 'laws' & the court decisions about the bolded activities on your list are infringments on individual rights, - and should be fought against by the states in their check/balance role on behalf of their citizens. That states DO NOT do so tells the political tale.

Roe v wade is about state infringements on an individual right, [to abort] and the sex and prayer in school flaps are also about local/state infringments.
-- Again, states are free to challenge the constitution on what exactly construes an individual right, but to many of us, it is self evident enough to account for the lack of such challenges.

Thus, on roe/wade/religious type issues we see no constitutional challenges on the basis of self interest, and on federal infringments we see none because of state/federal political collusion.

We's in deep trouble.