Over the next few squibs I will show why Scotus has no Constitutional business fabricating rights. As opposed to its assumed authority to invent rights, it is instead duty-bound to defend the Constitution. Like the rest of the Bill of Rights, the Ninth Amendment deserves equal protection from the Scotus. Despite this presumption, Scotus has generally interpreted the Ninth Amendment in a manner that denies the sovereign people’s prerogative to assert the rights that Scotus is Constitutionally bound to accept.1
Background. Thanks to the assurances of James Madison and other Federalists, the draft Constitution made its way unscathed through a rough and tumble ratification process. Enough fence-sitters and Anti-Federalists took these honorable men at their word, that the first Congress would propose a Bill of Rights through Article V.
Along with their ratifying certifications, most state conventions submitted amendments to the Constitution. Contrary to modern assumptions, the establishment of government under the Constitution was not a sure thing. While the influence of Anti-Federalists slowly weakened after the eleventh state, New York, ratified on July 26th 1788, Madison was sufficiently spooked by Patrick Henry and other leading opponents that he came around somewhat to their thinking, that a properly designed package of amendments would do no harm to the functioning of Constitutional government, yet better secure the people’s liberty.
On display in their amendments, the leading men of the states shared a common purpose: secure the rights of the grantors, the sovereign people. While we are all familiar with Amendments 1-8, and 10, the basis and intent of the Ninth Amendment is not so clear. On closer consideration we’ll find that it ranks alongside “We the People” and Article V in setting forth who has the ultimate, supreme earthly power above Congress, the President, Scotus, and the Constitution itself.
Ninth Amendment-related proposals from the State Ratifying Conventions:2
New York. That all power is originally vested in, and consequently derived from, the people, . . . That the enjoyment of life, liberty, and the pursuit of happiness are essential rights, which every government ought to respect and preserve.
North Carolina. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.
Pennsylvania. . . . and that every reserve of the rights of individuals, made by the several constitutions of the states in the Union . . . shall remain inviolate, except so far as they are expressly and manifestly yielded or narrowed by the national Constitution.
Rhode Island. That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.
Virginia. That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people . . .
The First Constitutional Congress. On June 8th 1789, Madison submitted a draft Bill of Rights to the House of Representatives, which in turn passed it on, along with modifications, to the Senate and on to the states for ratification. These early events highlight the importance of Article V to fine tuning the Constitution.
So, with various inputs from the states, James Madison proposed the following amendment:
“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.”3
Roger Sherman, Connecticut delegate to the Federal Convention, representative in the first Congress, and member of the select committee that considered Madison’s proposals, suggested: “The powers of government being derived from the people, ought to be exercised for their benefit, and they have an inherent and unalienable right to change or amend their political Constitution, whenever they judge such change will advance their interest and happiness.”
After a summer of editing and debate, the wise men of the first Constitutional Congress, on September 25th 1789, finished what history recognizes as the Ninth Amendment:
Incredible. Compared to the wordy and somewhat cumbersome submissions from the states and the erudite Madison and Sherman, the Ninth Amendment is both succinct and masterful. Notice that it makes no mention of power. Congress separated out the matter of delegated powers and gave it its own amendment, the Tenth.
Like much of the Constitution, which provides detail only where necessary, the Ninth does not specify how the people are to enumerate retained rights. What is clear is that the great principle of federalism did not limit the expression of rights to the federal Constitution. As distinct republics, the people of the states did not dispossess themselves of the right to set forth additional rights after ratifying the Constitution.
Did you read in the Ninth Amendment, or anywhere else in the Constitution, of Scotus’ responsibility for asserting the rights retained by the people?
Neither did I.
1. Barnett, R. E. (1989). The Rights Retained by the People – The History and Meaning of the Ninth Amendment. Fairfax, VA: The Cato Institute George Mason University Press. 2.
2. Ibid., 356-380.
4. Barnett, 351