Sep 3 2009

Does the Ninth Amendment hold water?

 

Some amendments in the Bill of Rights of the U.S. Constitution leap to mind much quicker than others.

First Amendment protections often get cited — speech, religion, the press, assembly and petitioning government. And most folks know the Second Amendment gives them the right to “bear arms.”

But among the 10 amendments that make up the Bill of Rights, the Ninth Amendment might represent the most elusive — for recall and for legal scholars and judges.

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

Basically, the framers of the Constitution said that while they specifically outlined certain freedoms in the Bill of Rights, many more exist — too many to list. Politics came into play, too. Federalists believed that “enumerating” some freedoms and not others might imply that the others would become government’s property — to bestow or not as it chose.

Through the years, the courts have wrestled with what constituted an unnamed freedom.

When the founders crafted the Bill of Rights, a way to enforce it did not exist. The Supreme Court did not exist. Today, we hear a lot of arguments against “unenforceable” rules and regulations.

Further muddying the water: The Ninth Amendment lacks any roots English common law. It’s unique, a product of those who framed the Constitution.

So, where have the courts fallen through the years with regard to the “validity” of the Ninth Amendment?

“Strict constructionists” usually discount the Ninth’s binding power. But most justices embrace it, and use it to protect rights that seem to come with the Constitution. Common examples include the right to privacy (beyond illegal search and seizure guaranteed by the Fourth Amendment, Griswold v. Connecticut, 1965) and the right to access government business (somewhat implied in the First Amendment).

Meanwhile, federal courts often must handle petitions that seek recognition of rights that are "retained by the people," which include a range of potential personal freedoms. I find that trend one likely to grow.

So, my questions today are these: If you were seated at the table when the Bill of Rights was drafted, what personal freedoms not listed in the bill would you have included? Or would you have taken the Ninth?

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