The following is an excerpt from Daniel A. Farber's forthcoming book, Retained by the People: The 'Silent' Ninth Amendment and the Constitutional Rights Americans Don't Know They Have (Perseus Books, 2007), available April 30.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. —Ninth Amendment
Everyone knows about the First Amendment right of free speech and the Fifth Amendment right to avoid self-incrimination. Even the once-forgotten Second Amendment, with its "right to bear arms," has reemerged in public debate. But few people know about the Ninth Amendment, which reaffirms in broad terms rights "retained by the people." Indeed, the Ninth flies so far under the radar that it has rarely been mentioned even by the Supreme Court.
What a pity. Even more, what a terrible oversight: the Ninth Amendment bears directly on such modern-day constitutional issues as abortion, the right to die, and gay rights.
The Ninth Amendment is key to understanding how the Founding Fathers thought about the liberties they expected Americans to enjoy under the Constitution. They did not believe that they were creating these liberties in the Bill of Rights. Instead, they were merely acknowledging some of the rights that no government could properly deny.
The history of the Constitution reveals the purpose of the Ninth and the Founders' intent: to protect what constitutional lawyers call unenumerated rights -- those rights the Founder assumed and felt no need to specify in the Bill of Rights. Unenumerated rights include, for example, the right to privacy. In the America of today, unenumerated rights account for freedoms like a woman's right to abortion. ...
The truth is that anyone interested in the political and legal issues of the day can and should look to the Ninth Amendment for guidance.
The Ninth Amendment is paired with an almost equally forgotten provision, the Privileges or Immunities Clause (P or I Clause) of the Fourteenth Amendment, which draws from the same intellectual roots. The Ninth Amendment is like the rest of the original Bill of Rights: it speaks only to limits on federal power rather than to the powers of state governments. Limitations on state governments came along later, with the post-Civil War Fourteenth Amendment. Thus, the Ninth Amendment addresses the federal government; the Fourteenth addresses the states.
The human rights vision that survived the Civil War and was confirmed by the Fourteenth Amendment consciously complements that of the Founders. Confronting what these provisions really mean has the potential to reshape the way we think about the Constitution.
In particular, a look at this history helps us address the very controversial question of Supreme Court reliance on foreign law. The Framers thought that fundamental rights were embedded in what they called "the law of nations," and we should follow their lead in seeking inspiration abroad. However, their openness to foreign law is not universally shared today. When Justice Kennedy referred to foreign law in two judicial opinions on the issues of homosexuality and the death penalty, he was subject to an onslaught of criticism from legal commentators. Many of those same commentators question whether the United States is bound by international human rights laws, such as the Geneva Convention's prohibitions on mistreatment of prisoners. ...
The Ninth Amendment and the debate over fundamental rights
Standing alone, the Ninth Amendment does not make any specific law unconstitutional. It is an explanation, not a command -- like the FAQs found on many Web sites. In this case, the Frequently Asked Question is: "The Bill of Rights provides a list of specific rights that are protected from invasion by the federal government. Does this mean that the federal government can violate other rights if they aren't on the list?" The Ninth answers, "No. The Bill of Rights is not complete. Other rights exist, and the federal government must respect them." Indeed, as a supporter of the Constitution pointed out at the Pennsylvania ratification convention, "Our rights are not yet all known," so an enumeration was impossible. While it is true that history often fails to provide clear proof of what the Framers believed, there are exceptions. The Ninth Amendment is one of them.
How is all this playing out on our most vital constitutional front, the Supreme Court, today? The Court is sharply divided over whether the Constitution provides broad protection for human rights and just what those rights are. On one side have been those Justices who believe that the Constitution does give such broad protection--not just to those freedoms explicitly listed in the Bill of Rights but to other fundamental aspects of liberty. In honoring not merely the Framers' text but the intent behind it, these Justices have supported, for example, the right to abortion, the right of gays to have sexual relationships, and the right to die. More generally, these Justices have proclaimed: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
These Justices also honor the Framers' intent by looking beyond our national borders to seek the parameters of liberty. For example, in striking down a Texas law against homosexual conduct, the Court found it significant that the right to engage in homosexual relationships has "been accepted as an integral part of human freedom in many other countries." On today's bench, Justice Stevens has been a leading advocate of this view. However, its most influential voice is that of the more conservative Justice, Anthony Kennedy. Kennedy, a Reagan appointee, has become the bÃªte noire of movement conservatives because he has so firmly defended basic rights and linked those rights to international law.
The opposing side is led by Justice Antonin Scalia, another Reagan appointee. As a former law professor at the University of Chicago and the University of Virginia, and now as a judge, Scalia has spent years working out an elaborate constitutional theory of originalism. He has consistently dissented from the entire line of human rights cases, arguing that abortion, gay rights, and end-of-life decisions should all be left entirely to the political process. This is a view that has powerful backing outside the Supreme Court. President Bush has renewed calls for strict construction of the Constitution (by which he means strict limits on individual rights, but apparently not strict construction of the powers of the presidency!).
More extremist views, replete with threats of impeachment or other unprecedented actions to rein in judges, can be found in Congress and among the Right's cultural leadership. Nothing is more anathema to these critics than the Court's reliance on foreign judicial precedents as a source of guidance in interpreting the Constitution. Justice Scalia warned of the Court's "dangerous" references to foreign law, adding that "this Court ... should not impose foreign moods, fads, or fashions on Americans." He and his fellow critics see no connection between broader conceptions of human rights and constitutional law. They refuse to look seriously at what the Framers believed, how they saw the world.
Some conservatives also seemingly misunderstand the very idea of constitutional rights. Are basic rights like free speech or privacy created by the U.S. Constitution? For many conservatives, these rights are merely the historical product of particular language adopted a century or two in the past; they have no broader roots or implications. If so, Justice Kennedy was surely wrong in the Texas sodomy case when he examined a much broader range of sources, including how states interpret their own constitutions, the actions taken by state legislatures to decriminalize sodomy, and the rulings of international tribunals. These sources are relevant only if we ask a broader question: "Are there good grounds for considering this to be a basic human right?" If that is the question, then actions by state legislatures, state judges, and international human rights tribunals are all persuasive authorities. The Founders certainly understood the law of nations and basic liberty in this way.
Rephrasing the question in these terms also rebuts another powerful argument against providing constitutional protection for human rights. Justice Scalia and others have argued that going beyond the specifics of the Bill of Rights would give the Supreme Court unlimited discretion to decide what parts of liberty are fundamental. This was the real concern that led Judge Bork to call the Ninth Amendment an inkblot: the fear that if we paid any attention to the Ninth Amendment at all, we would be mesmerized into giving the federal judiciary a blank check. This is much less problematic if the courts are guided by a broader community of opinion, including our own state decision makers as well as international authorities.
To see what is at stake, consider a 1927 Supreme Court case that upheld compulsory sterilization. The Virginia statute involved in the case established a procedure for sterilizing people with mental retardation who lived in state institutions, based on the idea that mental disability was inherited. The statute was challenged by a woman who was about to be sterilized. As later historical research revealed, she actually did not have a mental disability at all; she simply had been sent to an institution by her foster parents because she had become pregnant. In any event, the Supreme Court could not see any problem with the Virginia statute: "It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. ... Three generations of imbeciles are enough." By 1935, over 20,000 forced sterilizations had been performed in the United States as a result of this decision.
If mainstream conservatives like Bork and Scalia are right, there is no constitutional barrier to these laws, because the Framers failed to predict this abuse and explicitly ban it. This is exactly the kind of reasoning that the Ninth Amendment was designed to guard against. A better understanding of the Ninth Amendment can do a great deal to clarify the current debate over fundamental rights, laying a firm foundation for the views of Justice Kennedy and other leading judges. Correspondingly, a true understanding of the Ninth Amendment is deadly to Justice Scalia's position.
Libertarians, who dislike government regulation of all kinds, agree with part of my argument, and I have found much of their historical research useful. They, too, would find the Amendment to be a source of real legal guidance. But they swing too far in the opposite direction from conservatives like Scalia. While Scalia wants the Ninth Amendment to protect nothing, the libertarians want it to protect virtually everything. They see in it the basis of a revolutionary return to the small government ideas of the early nineteenth century. But this is a gross overreading of the Amendment. It was meant to protect fundamental human rights, not just the right to do whatever you want whenever you want.
...[H]ere are some of the things I believe are among the unenumerated rights protected by the Constitution under the Ninth Amendment, backed up by the Fourteenth:
- The right to engage in private sexual acts between consenting adults. The Supreme Court was completely correct to strike down state sodomy laws.
- The right of reproductive autonomy, including the use of contraceptives and access to abortion as well as freedom from forced sterilization. Abortion is not an absolute right. The state can regulate to protect potential life, particularly later in pregnancy, so long as the burden placed on the pregnant woman is not too severe.
- The right to an adequate basic education. The Supreme Court has explicitly rejected this as a fundamental constitutional right, but many state courts have interpreted their state constitutions to protect this right. The Supreme Court would do well to follow their lead.
- The right to travel within the United States and to enter and leave the country freely (subject to clearly demonstrated national security needs).
- The right to government protection from private violence: when the government knows of the violence and has the resources to deal with the problem, it cannot simply sit on its hands. The Supreme Court has ruled that the state has every right to sit by while a Libertarians, who dislike government regulation of all kinds, small boy is beaten into a permanent coma by his father, even though the state knows all about what is going on. I would overturn that decision.
- The right to refuse unwanted medical treatment, including the right of terminally ill patients to reject life support.
But not everything is protected as a fundamental right. Here are some things that are not:
- The right of a terminally ill patient to prescribed medication with which to commit suicide.
- The right of businesses to be free from government regulation of their contracts with employees and customers.
- The right of individuals to use their property however they want, without regard to the public interest.