Many people are familiar with the array of specific rights that are explicitly stated in the Constitution, Bill of Rights and subsequent Amendments to the Constitution.
For example, virtually everyone has heard of Freedom of Religion, Speech and the Press; the Right to Bear Arms; Protection from unreasonable Search & Seizures; and, the Protection of rights to Life, Liberty & Property, which are specifically enumerated in the Constitution.
Equally important, however, are the so-called “unenumerated” rights which are also protected in the Ninth Amendment to the Constitution, for that is where most of Americans’ “protected” rights reside.
The Ninth Amendment reads as follows:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
In essence, the Ninth Amendment, which was the creation of James Madison, attempted to assure that the Bill of Rights was not seen as simply granting to the people only those specific rights enumerated in the other Amendments that comprise the Bill of Rights. For a better understanding of the real meaning and importance of the Ninth Amendment, it is helpful to turn to Madison’s own words, as explicated by Prof. Randy E. Barnett.
“When opponents of the Constitution objected to the absence of a Bill of Rights, the Federalists argued that this additional protection was unnecessary because the Congress was not given any power to violate the rights retained by the people. ‘Why, for instance,’ asked Hamilton, ‘should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?’ The Federalists also argued that adding a Bill of Rights would be dangerous because the rights or liberties of the people were unenumerable and any rights omitted would be rendered insecure.
Despite their arguments, the Federalists were forced to promise a Bill of Rights to obtain enough support for ratification of the Constitution. When James Madison sought honor this commitment in the first Congress, he was faced with solving the difficulty that he and his Federalist allies had noted just two years earlier. As soon as any particular rights or liberties were explicitly enumerated, the status of those left out became unclear. Were only the enumerated rights to be protected and the unenumerated rights left unprotected? Here is how Madison stated the problem when he introduced his proposed amendments to the House of Representatives:
It has been objected also against the Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a Bill of Rights into the system; but I conceive, that it may be guarded against.
Madison then referred the members to the portion of his proposal that read:
The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
Eventually, all of Madison’s proposals were referred to a Select Committee of the House, which decided to list the amendments after the body of the original Constitution rather than insert them within the text. From this committee emerged the current text of the Ninth Amendment, which replaced the ‘diminish the just importance’ language with the stronger phrase ‘deny or disparage.’ While there are modern day controversies surrounding the laws flowing from the Bill of Rights, the history and circumstances surrounding the Ninth Amendment are clear.”
In retrospect, certain provisions of the Constitution are rule-like enough to be applied directly in many cases without the need of any intermediate doctrine. The most often cited example of this is the provision limiting the presidency to persons who are at least 35 years of age. In contrast to this type of unambiguous prescription, other provisions, like the Equal Protection and Due Process clauses, are abstract and general in nature, and some choice must be made among the various possible ways of putting them into effect. Still other provisions, such as the Ninth Amendment to the Constitution, explicitly refer to standards or principles that lie outside the text; and, therefore inferentially authorize supplementation of that text by other materials. Since the Ninth Amendment deals directly with our “unenumerated rights”, it is important that we have some notion what rights were actually meant to be protected.
Americans would benefit greatly from considering what those unenumerated rights are that they want to preserve.
