The Amendments Series: The Ninth Amendment-To Deny or Disparage

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The Ninth Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others [rights] retained by the people.”

In other words, just because a right isn’t explicitly mentioned in the Bill of Rights does mean the government has free rein to violate those unmentioned rights. I’ve said this 100 times over so I’m pretty much beating a dead horse here–but hey, this is the Ninth Amendment!

While many of the amendments in the Bill of Rights were directly the result of Anti-Federalist demands, the Ninth Amendment was a Federalist demand.

The Federalist’s concern

The Anti-Federalists were concerned that, without a Bill of Rights, the government would quickly violate American’s rights and property. In other words, they believed that if there was no specific or detailed list of rights the government could not violate, the government, in its hunger for power, would see this as an excuse and opportunity to violate rights and property.

However, the Federalists were concerned about the exact opposite type of abuse (It’s fascinating to see how the two opposing perspectives balanced each other so beautifully to create the Constitution we now have).

They’d written a Constitution with specific enumerated federal government powers. As I’ve said many times before, the Constitution acts as a job description for the federal government. It lists the areas in which government can make law. Any area outside of those specific, defined areas, is an area that the federal government has no right, no power and no legal authority to make law.

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So, rationally then, the Federalists believed that the Constitution, as it stood, was sufficient to prevent government abuse of rights and property.

Why? They had severely confined federal power to a very select few topics.

Madison said, “The powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”

Think of it this way.

Government is only allowed to make laws about a select few topics.

There is no topic, about which they can make law, that has anything to do with a person’s right to own a gun or run a business or get married.

This means Congress can never make a law that violates someone’s right to their gun business or marriage because those topics are not listed as topics Congress can make laws about.

Why? Because the government cannot make a law that would touch or affect these specific areas. It is beyond the government’s jurisdiction.

This caused them to believe that if the Constitution were to list the specific rights that government was not allowed to violate, the government would then see this as opportunity to violate any right not listed in that list of rights.

The Heart of the Matter

The founders thought of Americans as free, independent and responsible people. In other words, Americans were responsible for their own lives, liberty, and choices, even if they didn’t handle that life, liberty or choice responsibly.

Americans had a right to their property, which means their bodies and the work of their hands. So, Americans didn’t need government for anything more than to simply protect that property and provide a peaceable, lawful environment in which to succeed.

This means that “rights” are hard to innumerate. Why? Because the “rights” that Americans had were indefinable. They had a right to life, and liberty and the pursuit of happiness. That meant they had a right to pursue their own choices, unfettered by government.

statue of liberty

The rights that government must not violate are innumerable because they are inherent in a person’s being. They had a “right” to make their own decisions.

It is a right to one’s own body and one’s own property.

A right to one’s own education as he or she sees fit, a right to one’s own type of housing, a right to take care one’s own health as he or she sees fit—-and the list goes on and on.

Key difference here. It’s not a right to healthcare, it’s a right to choose one’s own healthcare as they wish—unhindered by government. It’s not a right to education, but rather a right to pursue education as they wish—unhindered by government.

For example:

Let’s look at the right to make one’s own healthcare decisions. With little to no government interference, people had a right to take care of themselves physically… or not.

The founders did not believe that it was the government’s job to see that an individual maintained their health. So, they did not include healthcare as one of the topics that Congress could make laws about. In fact, they believed if Congress made laws about healthcare, they would be infringing upon one’s freedom and right to take care of/ govern, their own health.

What about education? According to the founders, education was up to the individual and family to figure out. Therefore no enumerated power in the Constitution gave the power to Congress to make laws about education.

These were areas outside of the federal government’s jurisdiction. As I said, to make laws about them would be violating someone’s rights.

Rights vs Rights

Do you get the picture? The Fourth Amendment is not saying that the Americans had this vast slew of “rights”, such as a right to housing, healthcare, cellphones, welfare etc—that the government was supposed to provide and subsequently protect.

No, Americans had a right to live life, unhindered and untouched by government. They had a right to make their own decisions and suffer their own consequences, good or bad.

Hear it from their own words. Madison says of the Bill or Rights: “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.”

The right—to live freely and make one’s own decisions without government interference—is difficult to enumerate. The Federalists knew this. They also knew that if government enumerated specific rights, it was entirely plausible that the government would see other “rights” that are not mentioned in that list, as fair game.

For instance:

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The Bill of Rights does not explicitly protect the right of people to choose how they want to be educated. (Again, pay attention to my wording here. The Bill of Rights does not guarantee education and never should. If it did, it would actually be intruding on the individuals’ right to provide education for himself, as he sees fit).

So, since the Bill of Rights never explicitly outlines that Congress should never make a law dictating one’s personal education choices (again, shouldn’t need that right explicitly listed since nowhere in the enumerated powers is Congress given the right to make laws about education) Congress has taken it upon themselves to make laws about education.

The Federalists wanted to avoid this type of encroachment and therefore wrote the Constitution in a way to specifically limit federal power. They added the Ninth Amendment into the Bill of Rights as an extra precaution against such encroachment.

So, I’ll restate the Ninth Amendment. It says, simply:

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

Hopefully, with the context I’ve laid out, you understand why the Federalists included this amendment. The Federalists felt no need for a Bill of Rights because they’d already explicitly told Congress what topics it could make laws about. Since, however, the agreed to include a Bill of Rights, they felt compelled to add in the Ninth Amendment explicitly forbidding government from infringing upon all the other rights implicit in the Constitution—given its severe law-making limitations.

The founders knew the trickery of human nature with power and knew that Congress would try to use the Bill of Rights as a shield, hiding when they made laws (aka: providing healthcare, education, welfare at the like) about topics they were not Constitutionally given the power to make laws about.

In other words, Congress could say, “Well, we didn’t violate any of the ten critical Bill of Rights with this healthcare law!” hiding the fact that they have violated one’s right to choose their own healthcare freely—subsequently violating the Ninth Amendment and Constitution.

Conclusion

In this article, I’m giving you my professional interpretation of this amendment. It’s likely not one that you will find in many other places. In fact, this amendment is all but ignored by most legal scholars today because of its lack of specificity.

Many scholars have come up with their interpretations and you are welcome to read them here. I believe that these interpretations touch on some important aspects of the Ninth Amendment but miss the heart of it.

american flag under a cloudy sky

Unfortunately, because many legal scholars, judges and justices have gotten so caught up in the specific application or the specific rights the amendment protects rather than the heart—the right to freely live—this amendment holds little to no power today, in the courts or in the federal government.

Perhaps the American citizens need to remember the heart of this forgotten amendment in order to compel government to also remember the heart of it.

Because, at this point, the government has trampled all over the “right” to life, liberty and the pursuit of happiness, the “right” to live freely without government inference, the right to make our own decisions. And the sad part?

Government has done so because the people have demanded it. People are lazy, careless and selfish and if they don’t have to take responsibility for things, they won’t.

Perhaps it’s time we start taking responsibility for our own lives again. We don’t need so much government. If we stop demanding so much law, government will stop providing so much law.

Let’s not forget what Madison says about our responsibility as citizens; “All power is originally vested in, and consequently derived from, the people.”

The Liberty Belle

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