"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
James Madison's addition to the Bill of Rights was added to protect rights "retained by the people" not listed in the other ten amendments comprising the Bill of Rights. Written simply enough for common understanding by the public, the twenty-one words of the Ninth Amendment have spawned controversy ever since ratification in 1791.
The notion that the people retain rights not subject to government intrusion or denial has been hard to accept by entrenched politicians who prefer to ignore the Ninth's freedom mandate.
The noble declaration of rights found in the Ninth Amendment has spawned dozens of books, treatises, and law review articles. Constitutional scholars have waxed eloquently about the protection afforded to the public by the Ninth despite its contemporary infrequent use in litigation.
One of the first legal essays on the Ninth Amendment was written in 1833 by Supreme Court Justice Joseph Story in his book Commentaries on the Constitution of the United States. Story devoted a chapter to the Ninth Amendment titled "Non-Enumerated Powers."
Story wrote: "Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to state authorities, if invested by their constitutions of government respectfully in them; and if not so invested, it is retained BY THE PEOPLE as a part of their residuary sovereignty."
Calvin Massey, author of Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights, wrote more recently in 1995: "If the original intention of the amendment was to confine government power, the reason for doing so was entirely to preserve rights. We have failed to confine those powers, partly because we now regard the affirmative assertion of rights as the vehicle for controlling the unwarranted assumption of governmental power. Thus, the only way the Ninth Amendment can be applied in our times to accomplish its original purpose is to regard the amendment as an independent source of individual rights."
Stephen Hampton, author of a law review article titled Sleeping Giant: The Ninth Amendment and Criminal Law has penned, "The Ninth Amendment establishes United States citizens have unenumerated rights, rights not listed in the Constitution."
N. Stephan Kinsella wrote another law review article called Taking the Ninth Amendment Seriously and said, "In my view, if the Ninth Amendment is to be judicially enforceable…it ought to be recognized that the Ninth Amendment essentially protects unenumerated natural rights in the same way enumerated rights are protected, as long as the natural right can be identified with sufficient certainty."
Randy Barnett has authored a law review article titled The Ninth Amendment: It Means What It Says, where he describes the Ninth as a "pregnant passage" and "the purpose of the Ninth Amendment was to ensure the equal protection of unenumerated individual natural rights on a par with those individual natural rights that came to be listed 'for greater caution' in the Bill of Rights."
Probably the strongest proof of the Ninth Amendment's viability and intent to protect individual rights from government intrusion is the fact that 32 states have adopted "baby Ninths" into their state constitutions.
The Tenth Amendment, the home of states' rights, is well known, understood, and often cited. Meanwhile, the Ninth Amendment, the home of the people's rights, has fallen into disuse by a legal system afraid to open a treasure chest of retained rights. However, the Ninth Amendment has been a part of the Bill of Rights for over 200 years, has not been repealed, and despite all the legalisms written about it remains a simple twenty-one word articulation of the people's rights.
Pornographers cite the First Amendment, gun owners cite the Second Amendment, criminal suspects cite the Fifth Amendment, it is time for the American public to cite the Ninth Amendment to stop abuses of our freedoms.Permission granted to reprint