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I really appreciated being challenged in my positions related to the eighth amendment. I would love to have people continue to let me know when they think I’m off base. As I read the Ninth Amendment I see it as a great example of why Hamilton was concerned about the side effects of having a bill of rights. At first glance it sounds very good that:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Indeed in some ways it would seem that this is the most important of the amendments in the Bill of Rights – how would it be if our rights were limited to those specifically enumerated. It is important that any assumption be that people retain rights not already enumerated.
Unfortunately I think that this amendment is the activists (and activist judges) best friend. Using the ninth amendment as a foundation they find it easy to argue in favor of such rights as the right to legal recognition of previously unheard-of family structures. Of course the right to form such attachments is a true right, but the right to legal recognition of those – not so much. How about the “right” to health care (or any other segment of a social safety net)? Definitely not.
I might not be so worried about such manufactured “rights” if it were not for the fact that these artificial rights are often used as a weapon to trample upon the true natural rights that are supposed to be protected by our Constitution.
2 replies on “Constitutional Amendment IX”
Here is a simple rule of thumb that should inspire great humility and restraint in the drafting of public policy (including laws and regulations): The most perverse interpretation will eventually be applied all public policies.
I’m sure that I’m not the first to coin this axiom. But I think it is one of the most demonstrably true political axioms.
When the Bill of Rights was negotiated, the 9th Amendment simply meant that the federal government was precluded from exceeding its mandate as specifically enumerated in the Constitution (as amended). Period. As you note, however, this amendment has been applied in such a way as to create almost the exact opposite effect.
That’s a great rule of thumb. (It’s too bad it is so accurate and dependable.)