Wednesday, July 1, 2009

It is not a "Bill of Rights", but a "Bill of Wrongs" III

The Ninth Amendment to the Constitution reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Juxtaposed against the previous eight amendments, the Ninth Amendment is a basic statement of the inherent natural rights of the individual and a recognition of individualism which is no where else stated in the Constitution and is the cardinal virtue of democracy . . .

Not surprisingly, the federal government – though its Article III judicial branch – has been loath to recognize and construe these inherent rights for to do so would necessarily prohibit the federal government from infringing upon them. Indeed, when cited, the Ninth Amendment has been construed to be a limitation on the federal government’s power – like the first eight amendment – rather than an articulation of the residual inherent rights of the individual not collectively ceded to the federal government for the stated purposes of the Constitution – “We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Simply put, the Ninth Amendment is a covenant between the People and the federal government that these unenumerated personal rights were to be recognized and protected by the federal government. Regrettably, as the history of litigation under the Ninth Amendment makes clear, this has not been the case.


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