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Why They Fear the Ninth Amendment
Tibor R. Machan
Quite interestingly many politicians are afraid of the Ninth Amendment of
the US Constitution. Many of their intellectual cheerleaders in the
academy and media show equal disdain for this portion of that legal
The Ninth Amendment states, unambiguously, that there exist individual
rights Americans have that are not explicitly listed in the Constitution:
?The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.?
Why should the Constitution make this point anyway?
people have innumerable rights and to list them all is impossible, whereas
listing the powers of government, which in the American system are taken
to be limited, restricted to just a few, can be listed without having to
produce a mammoth document.
I mean, just consider: You have the right to brush your teeth, to smile
at your significant other, to whistle your favorite tune, to worship the
devil, and on and on and on?everyone has these rights as free adult men
and women. That is what a free country is about, having virtually
unlimited rights to do what one wants, barring the right to violate other
The powers of government in such a free country, in
sharp contrast, are
confined to what it takes to protect these innumerable individual
rights?to keep criminals and foreign aggressors at bay.
This may not have been spelled out in the US Constitution?although it was
made very clear in the Declaration of Independence?but the idea is exactly
what has been identified so closely with American political philosophy and
legal theory. It?s about individual rights?the freedom to do as one will,
provided that one is acting peacefully, non-aggressively.
So why then are all these sophisticated people, such as Professor Robert
George of Princeton University?writing in the Sunday, September 18, 2005,
issue of The New York Times?so eager to evade the Ninth Amendment? Why,
curiously, are Left leaning politicians the only ones bringing it up these
days, even though they actually disagree with the individualist philosophy
behind the Ninth other then in some very special cases?
On this last matter, just consider. People like Joseph Biden and Teddy
Kennedy make a lot of a right to privacy with reference to issues such as
abortion and gay marriages, but is this really consistent with their big
government philosophy? If a woman has the right to seek and obtain an
abortion (from someone willing to provide one), why is she not free so
seek and obtain marijuana or even harder drugs or hire anyone she wants in
her business? Why are we free to join in same sex unions and have them
declared marriages but not, in say, be free to discriminate against people
we do not want to hire to work for us? That, too, would be a choice that
someone with the right to privacy ought to enjoy, after all.
The limited scope of the right to privacy the Left embraces is indicative
that most of the Left is no different from most of the Right?such as
Justice Antonin Scalia and Robert Bork?who dislike the Ninth Amendment.
They all fear that taking the Ninth Amendment seriously would communicate
to the American people a simple but undeniable fact: The American Founders
had pretty much meant to treat them as free adult men and women, not wards
of the Nanny State. And if this is so, what role do these politicians all
have in our lives? Not a very important one, apart from perhaps standing
firm in defense of our liberties, to protect our innumerable individual
rights to do with our lives as we but not they choose.
The Right doesn?t want politicians to be forbidden
from banning assisted
suicides and gay marriages; the Left doesn?t want politicians to be
forbidden from banning the freedom of contract between employer and
employee if it doesn?t meet the requirement they want to place on
employment (for example, a minimum wage). You can just examined the
thousands of pieces of legislation passed by federal, state, county all
the way to municipal politicians to see that I am right. If the Ninth
Amendment were acknowledged as part of the federal constitution, along
with the idea that this constitution has a very broad reach indeed since
it is supposedly the law of the land, all these laws would have to be
considered unconstitutional. All these politicians would have to be
considered acting in violation of the basic laws of the land.
In short, taking the Ninth Amendment to the US
seriously implies that politicians would have no just powers to do 99% of
what they are doing. That is why they and their cheerleaders in the
academic world insist on ignoring and belittling this most freedom loving
provisions of the most freedom loving?though by no means infallible--legal
document in human history.