Rights, the Constitution, and the Ninth Amendment

Tibor R. Machan

Before the US Constitution there was the Federalist Papers and before that the Declaration of Independence and before that John Locke’s political works and those of some others. The lineage involved most fundamentally a theory of basic human rights—natural rights, as Locke had called them, meaning they exists as a feature of our very humanity and membership in a human community.

There was debate as to whether any of these rights should even be listed in a constitution lest people in the future would think that only the listed ones exist. So as to disabuse people of this notion, the Ninth Amendment was crafted saying that unenumerated—that is, unmentioned—rights exist, let’s not forget it.

In our time the Ninth Amendment has been roundly neglected—some have dubbed it “the forgotten” Ninth Amendment as a result. Quite oddly, such stalwart originalist jurisprudential thinkers as Antonin Scalia and, previously, rejected nominee Robert Bork, have expressed strong disdain toward the Ninth. When I ask my friends with jurisprudential expertise how this can be, they answer that folks like Scalia and Bork worry that if the Ninth Amendment is taken seriously, it will open the door to justices creating rights out of thin air. They often think this about those justices who have claimed to find the right to privacy in the US Constitution by way of the Ninth (as in Griswold v. Connecticut, the 1965 decision that invalidated the state’s ban on selling contraceptives).

Yet this concern is artificial or based on a misguided conception of rights, at least our basic ones. As the Ninth Amendment puts it, the unenumerated rights “are retained by the people”—they exist, period. They are not subject to being invented, created out of thin air. When, as reported, Scalia and Bork have concerns about the Ninth Amendment’s opening the door to the invention of rights by justices, this shows that Scalia and Bork do not take the founders’ and framers’ words seriously. The latter didn’t worry about justices inventing rights because they held that these rights existed; they could be identified as an objective fact of our lives in human communities.

Even with the current muddled understanding of individual rights—usually dubbed “human” rights, suggesting that they may have nothing to do with individualism as Locke and the Founders thought—it is widely taken that the rights do indeed exist. That is how it makes sense to criticize the various regimes around the globe that fail to honor human rights. Failing to honor rights—to respect and protect them—can only make sense if they exist even apart from being acknowledged in a country’s legal system. Such a legal system is misguided to the extent it fails to recognize such rights.

Similarly, the justices of the US Supreme court, or actually all persons, who think of rights as possibly subject to being invented if they aren’t listed in the US Constitution have a mistaken understanding of rights. Basic human individual rights, such as those to life, liberty, private property, privacy, etc., are not subject to being invented when not mentioned in the US Constitution. They exist although not mentioned and in various cases the justices would need to discover or locate—not invent—them.

For instance, does a human being have the right to privacy? Well, is human nature such that in their community lives people require their own realm of authority, their own sovereignty—self-government—with respect of various aspects of their lives? Of course they do—that’s what being a responsible moral agent amounts to. So the right to privacy exists. It stands as a bulwark against meddlesome other people, especially governments.

This is all discernible by understanding human nature, or so the founders and framers believed. So originalist justices should have no problem about the matter. As I have noted before, it is curious that in America those on the political Left would keep insisting that we have a right to privacy. It is those who profess respect for the American political tradition who should be most loyal to this and all other rights we have.

The correct way to view the issue raised by the Ninth Amendment is to see the US Constitution as mainly enumerating limited powers for the government, with the citizens having rights to do anything that those limited powers may not intrude upon. We have the right to dance, to sing, to write books, to garden, to travel, to make love to anyone who will make love to us in return, to teach anything someone hires us to teach them—yes, to do anything that isn’t violating any rights of others.

That is the meaning of a constitution of liberty and the Ninth Amendment alerts us to this in unambiguous terms indeed.