Unenumerated Rights

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UNENUMERATED RIGHTS

The starting point for interpreting the ninth amendment is its text: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The text and the rule of construction that requires plain meaning to be followed clearly establishes the existence of unenumerated rights. Why would the Framers have included an amendment that protects such rights in the midst of the bill of rights, which specifies rights in the first eight amendments?

The Framers scarcely had an alternative after they botched an explanation for their failure to have included a bill of rights as part of the original Constitution. They protected a few rights in it, but ignored most; and they subsequently made several frail and foolish explanations instead of confessing misjudgment and promising subsequent amendments. As a result they placed ratification in serious jeopardy. The Constitution was finally ratified only because crucial states, where ratification had been in doubt, accepted a pledge that a bill of rights would be added to the Constitution in the form of amendments.

the federalist #84 presented a commonplace ratificationist argument that boomeranged and made necessary a provision safeguarding unspecified rights. According to alexander hamilton, a bill of rights was unnecessary and even dangerous, because by containing exceptions to powers not granted, it would provide a basis for repressive legislation. For example, to say that liberty of the press ought not be restricted furnished "a plausible pretense" for the very power feared, a power to legislate on the press, because a provision "against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government." Equally dangerous, the omission of some right in a catalogue of rights allowed the assumption that it was meant to be unguarded. james madison, oliver ellsworth, and james wilson, among other leading Framers, made the same damaging argument.

Their logic, which nearly undid their cause, surely merited public rejection. They proved that the particular rights that the unamended Constitution protected—no religious tests, bans on bills of attainder and ex post facto laws, and trials by jury in criminal cases, among other rights—stood in grave jeopardy because to specify a right implied a power to violate it. Moreover, the inclusion of some rights in the Constitution implied, contradictorily, that all unenumerated ones were relinquished. The unsatisfactory arguments by ratificationists imperiled their cause and obliged them to reconsider.

Madison switched to the cause of amending the Constitution with a bill of rights in order to appease the fears of the people. When he rose in Congress to propose constitutional amendments, he asserted that the Constitution must "expressly declare the great rights of mankind." He acknowledged that a major objection to a bill of rights consisted of the argument that "by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure." This claim had become a ratificationist cliché that self-destructed because the Constitution explicitly protected several rights exposing all those omitted, including "the great rights of mankind" to governmental violation. Madison's solution was the simple proposal that became the Ninth Amendment. It was, he said, meant to guard against the possibility that unenumerated rights might be at risk as a result of the enumeration of some. By excepting enumerated rights from the grant of powers, no implication was intended and no inference should be drawn that rights not excepted from the grant of powers were at risk. As Madison phrased his proposal, it read as follows: "The exceptions [to power] 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.…"

What were the unenumerated rights retained by the people? They had to be either "natural rights" or "positive rights," to use Madison's own terms. He distinguished "the preexistent rights of nature" from those "resulting from a social compact." He mentioned freedom of "speach" (sic) as a natural right, but failed to include it in his recommendations. (A committee rectified this oversight.) His omission illustrates his acknowledgment of an important right that briefly fell within the unenumerated category. In Madison's thinking, this category also included the natural right of the people to govern themselves and to alter their government when it was inadequate to its purposes. Those purposes embodied another unenumerated natural right: governments are instituted to secure the people "in the enjoyment of life and liberty, with the right of acquiring and using property and generally of pursuing and obtaining happiness and safety." Madison had borrowed from the preamble of the declaration of independence, which expressed opinions on natural rights that were shared by virtually all Americans and were central to the meaning of the Ninth Amendment.

Its text meant what it said; its context consists of the widespread endorsement of natural rights at the time of the framing of the Bill of Rights. state constitutions referred to natural rights. Virginia's 1788 recommendations for amendments to the Constitution did so also, as had New York's and North Carolina's. At the Pennsylvania ratifying convention, James Wilson, second only to Madison as an architect of the Constitution, quoted the preamble of the Declaration of Independence and added, "This is the broad basis on which our independence was placed; on the same certain and solid foundation this system [the Constitution] is erected."

The Framers also believed that all people had a right to equal justice and to equality of rights before the law. That slaveholders subscribed to such opinions proves the inconsistency of some of the Framers and their inability to transform their societies. But abraham lincoln understood when he described the creation of a new nation "conceived in liberty and dedicated to the proposition that all men are created equal." The Ninth Amendment embodied the principle of equality as well as that of liberty. Madison himself, when presenting his recommended amendments, spoke of "the perfect equality of mankind." Other natural rights that were unenumerated included the right, then important, to hunt and fish; the right to travel; the right to associate freely with others; and the right to intimate association or privacy in matters concerning family and sex, at least within the bounds of marriage. Such rights were fundamental to the pursuit of happiness.

In addition to natural rights, the unenumerated rights included some that were positive, deriving not from "Nature's God," but from social compacts that created governments. What positive rights were familiar when the Ninth Amendment became part of the Constitution, yet were not enumerated in the original text or the first eight amendments? The right to vote and hold office, the right of free elections, the right not to be taxed except by consent through representatives of one's choice, the right to be free from monopolies, the right to be free from standing armies in time of peace, the right to refuse military service on grounds of religious conscience, the right to choose a profession, and the right of an accused person to an initial presumption of innocence and to have the prosecution shoulder the responsibility of proving guilt beyond a reasonable doubt—all these were among existing positive rights protected by various state laws, state constitutions, and the common law; and all were unenumerated. Any of these rights, among others, could legitimately be regarded as rights of the people before which the powers of government must be exercised in subordination.

In addition to rights then known, the Ninth Amendment probably had the purpose of providing the basis for unknown rights that time alone might disclose. Nothing in the thinking of the Framers foreclosed the possibility that new rights might claim the loyalties of succeeding generations. As edmund pendleton, Virginia's chief justice and a leading ratificationist, mused when the Bill of Rights was being framed, "May we not in the progress of things, discover some great and important [right], which we don't now think of?"

Without doubt, to read the Ninth Amendment as a cornucopia of unenumerated rights is an invitation to judicial activism. As Professor John Hart Ely has written, if natural rights in particular are read into the amendment, it does not lend itself "to principled judicial enforcement." But neither do enumerated rights—natural or positive. freedom of speech and due process of law, to mention one of each kind of right, have resulted in some of the most subjective result-oriented constitutional jurisprudence in our history. The fact that judicial decisions can be unprincipled or biased does not detract from the principle expressed in a right, whether or not it is enumerated.

If the Ninth Amendment instructs us to look beyond its four corners for unenumerated rights of the people, as it does, it must have some content. To read it as if it is merely the converse side of the tenth amendment is to confuse the two amendments, as did Professor Raoul Berger. He spoke of "the ninth's retention of rights by the states or the people." It is the Tenth Amendment that reserves powers, not rights, to the states or to the people. The Ninth Amendment, according to Berger, "was merely declaratory of a basic presupposition: all powers not "positively' granted are reserved to the people. It added no unspecified rights to the Bill of Rights." In fact, however, an explicit declaration of the existence of unenumerated rights is an addition of unspecified rights to the Bill of Rights. Confusion between the Ninth and Tenth amendments originated with proposals for amendments by Virginia in 1788. Moreover, Madison himself argued that the line between a power granted and a right retained by the people amounted to the same thing if a right were named. Unenumerated rights, however, are not named, and no affirmative power has been delegated to regulate or abridge them.

Without doubt, the Ninth Amendment and its problem of identifying unenumerated rights continue to bedevil interpreters, on and off the bench. Courts do continue to discover rights that have no textual existence and might be considered unenumerated, but for the judicial propensity to ignore the Ninth Amendment and make believe that some unspecified right under discussion derives from a right that is enumerated. Opponents of such rights howl their denunciation of judicial activism. Court-invented rights exceed in number the rights enumerated. Judges have composed rights great and small, including the miranda rules, the right to engage in nude dancing with pasties and G-string, the right to engage in flag desecration, the right to secure an abortion, or the right against the invasion of an expectation of privacy.

So long as we continue to believe that government is instituted for the sake of securing the rights of the people and must exercise its powers in subordination to those rights, the Ninth Amendment should have the vitality intended for it. The problem is not so much whether the rights it guarantees are as worthy of enforcement as are the enumerated rights; the problem, rather, is whether our courts should read out of the amendment rights worthy of our respect, which the Framers might conceivably have meant to safeguard, at least in principle.

Leonard W. Levy
(1992)