As opposed to the rest of our Bill of Rights, the Ninth Amendment is unfortunately regarded as something of a head-scratcher.
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
This amendment admits the Constitution does not enumerate all of our God-given individual or societal rights. There are more, and they are ours.
In his Origins of the Bill of Rights, (1999) Leonard W. Levy examined James Madison’s distillation and shepherding of the various suggested amendments the states attached to their constitutional ratifications. From Madison’s speech of June 8th 1789, Levy concludes the Ninth Amendment attached the Constitution to the Laws of Nature posited in our Declaration of Independence. “Contrary to cynical legal scholars of today, the ideas of the preamble to the Declaration did not go out of fashion in a decade and a half; and those ideas were as appropriate for writing a frame of government as for writing a (legal) brief.”
Yet the Ninth quietly slipped into dormancy. It wasn’t reawakened until 1965 when scotus Associate Justice Goldberg relied on it in his concurring Griswold v. Connecticut opinion, which established a “marital right to privacy.” Since then, the judicial justification of various sexual practices and mores relied on fanciful interpretations of the Fourteenth Amendment. Clearly, even though scotus is in the habit of creating social justice rights, it has been reluctant to dip very often from the Ninth Amendment well.
Yet a jurist no less eminent than the late great Robert Bork was also somewhat flummoxed as to the Ninth’s meaning, application and relationship to the rest of the Constitution. In one of the few dignified exchanges of an otherwise Animal House Senate Hearing on his nomination to the scotus in 1987, Judge Bork suspected the Ninth Amendment ought to be read as companion to the Tenth Amendment, with both provisions serving to protect the retained rights of the people. That was as far as he could go.
However, there was one aspect to the Ninth Amendment of which Bork was sure; no court had legitimate power to determine and apply any rights not enumerated in the Constitution. His appointment was doomed by this honest and open refusal to join the scotus’ social justice clique, which was then, and is now, more than willing to impose its Leftist passions on society.
If scotus cannot add to enumerated rights, who or what entity can? Is the Constitution actually silent on this issue?
For every law there is a lawgiver, and our supreme Law of the Land was “ordained and established” by We The (Sovereign) People. In a process developed over a long colonial history, our Constitution wasn’t imposed by a foreign or domestic conqueror; nor was it enacted by common legislative statute or judges. Special conventions of the sovereign’s delegates by the several states ratified our governing document.
Soon after, a Bill of Rights was added to the Constitution by rules established by the lawgivers, We The People. Seven of the seventeen amendments since the Bill of Rights recognized new or retained rights.
Since the sovereign people are clearly the lawgivers, who over time gave breath and life to newly discovered rights, and the Constitution does not delegate power to the scotus to act as lawgiver, the scotus cannot assume such power, nor do it under a claim of interpreting the Fourteenth Amendment.
Since Marbury v. Madison, scotus has claimed power to interpret the Constitution. While it has never claimed judicial power to amend the Constitution through enumeration of additional rights, it has done so in fact through rogue interpretations of the Fourteenth Amendment. Its abortion and homosexual marriage opinions violate the Laws of Nature and Nature’s God. As such, they are morally unenforceable and void. On the other hand, notice that no formally attached Constitutional amendment infringes on higher law.
It is precisely because the Declaration’s Law of Nature is attached to the Ninth Amendment that scotus avoided declaring a right to homosexual marriage as an unenumerated right within the Ninth Amendment. Leftists cannot admit the existence of Natural Law. To fight on such unfriendly and hostile ground would admit subservience to God and His Laws. Recall that the people of California twice ensconced marriage as between a man and woman: once via statute and again through Constitutional amendment. The social justice warriors of scotus discarded this fundamental law of California as breezily and with as little thought as one flicks lint off a sweater. Their hostility is further evidenced by Associate Justice Ginsburg’s reference to foreign law, so as to avoid the higher laws cited in our Declaration.
Where Robert Bork associated the Ninth Amendment with the Tenth Amendment, I associate the Ninth Amendment also with Article V. Taken together, they prod their readers to consider how the Laws of Nature direct individuals as well as society.
Now more than ever, the sovereign American people must come to recognize the late hour, that wholesale confiscation of what Constitutionally and by the Law of Nature belongs to them isn’t a bad movie, it is here.