Denying and Disparaging the 9th Amendment

On September 22, 2006, in General, by Neil Stevens

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

Our Constitution has accumulated many amendments over the years. Some are beloved by all (like the 1st), some are beloved by some and hated by others (like the 2nd), and some are just followed without any controversy (like the 3rd).

One amendment has been shoved under the bus by all though. That one is the 9th, and I wish it weren’t so, but it doesn’t get enough respect.

I understand why the left denies and disparages the 9th amendment. That’s easy: they see ‘rights’ as alternately tools to be used by judges to achieve policy goals that cannot be won with elections, or as responsibilities of the government as a representative of classes of people collectively. That is about the only meaning the word can have with them, after all. Alien to them is the concept of an absolute natural order or, Sagan forbid, a deity-given order of how things are and should be.

So for them, such a broad amendment stating facts about the world, steeped in a concept of humanity that is contraindicated by their worldview, is nothing more than an “inkblot.” It’s easy for them to declare that, too. When you have a “living Constitution,” some parts grow beyond their text (1st, 14th) while others shrink (2nd, 9th, 10th, Article 1,…).

The right’s opposition to the amendment is harder to understand logically, though. We’re the steady opponents of judicial activism, determined champions of an enduring Constitution, and last supporters of textualism in Constitutional interpretation. Why, then, do some of us hop onto the bandwagon and declare the 9th to be “meaningless?”

Unfortunately I think the reason is emotional. We’ve been hit over the head so many times by an activist Judiciary finding excuses to use their self-proclaimed supremacy over the Legislature and the Executive, that we’ve forgotten that our view of rights is not the same as theirs. We see “rights” in a Constitutional law context and cringe just on reflex.

What we should be doing instead is upholding the 9th along with the rest, but with the constantly-needed reminder that rights and the role of the Judiciary do not change with the makeup of the Supreme Court. We ought not shy away from our otherwise-principled respect for the document as it is written, just because we fear runaway judges perverting it into a blank check for activism.

Judges can make us politically miserable with or without the 9th amendment. Does anyone actually think that the absence of the 9th would have made the Roe court go the other way? I don’t. So let’s not fall into the trap. The 9th amendment should be as cherished by proponents of a family and community-centered society, as opposed to a government-centered one, as much as proponents of limited government embrace the 10th amendment.


Comments are closed.

Nima Jooyandeh facts.