The Ninth Amendment--Waterblot or Watershed
by Roger M. Firestone, 33 KCCH
rfire@jtan.com
http://mastermason.com/rfire

10159 Turnberry Place

Oakton, VA 22124-2847

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

"...no more interpretable than a waterblot on the Constitution." These words came from former U.S. Circuit Court of Appeals Judge Robert Bork in giving his opinion of the meaning of the Ninth Amendment to the Constitution of the United States. Many of the Amendments found in the Bill of Rights have stirred up controversy, but it is hard to find another whose very existence a noted jurist and Constitutional scholar has suggested is unnecessary. Were the Founding Fathers nodding off after their hard work on the Constitution itself and its first eight Amendments? Has the Ninth Amendment been made irrelevant by two centuries of history, as happened to the provision on the quartering of soldiers? Or is there a deeper meaning to this Amendment that modern scholars have overlooked--or worse, found inconvenient, as limiting their desires to expand the power of the state?

The history of the Ninth Amendment, together with the Tenth, derives from that of the rest of the Bill of Rights, which is in turn derived from that of the Constitution itself. During that Philadelphia summer of 1787, the members of the Constitutional Convention crafted a document that was intended to grant to the Federal government only a limited set of powers, being solely those explicitly mentioned or enumerated. A debate ensued between the Federalists and Antifederalists over the possibility of misconstruction of such a document. Having so recently thrown off the yoke of tyranny in the form of the English monarch, many Americans were wary of assuming another such burden--the state of Rhode Island did not even send delegates to Philadelphia.

The Federalists argued that the limited powers of Congress guaranteed the freedom of the states and individuals; wrote Hamilton, "Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?" The Antifederalists were unconvinced and demanded that the traditional freedoms of Englishmen be guaranteed by a Bill of Rights. The Federalists countered that an enumeration of rights in such a bill would be even more dangerous, because the omission of some right would imply that it did not exist. The Antifederalists responded with the Ninth Amendment, covering the possibility of omissions. And for most of two centuries, the Ninth Amendment played no role of importance in judicial decisions.

Today, we find ourselves just where the Antifederalists warned us we would be. Broad construction of the Constitution has given us a Federal government of vast scope and power. Much of the situation is due to the Civil War and its aftermath, whereby the individual states, seen by the Founders as bulwarks of liberty for their citizens against the central government, became oppressive entities instead. Other wars, the Great Depression, and similar national challenges have invariably led to expansion of Federal power. For over five decades past, the courts have often granted Congress the ability to do what it wished in increasing its control over the economic and personal life of Americans.

During this period, a great deal of litigation has been brought by citizens demanding that their rights be protected. In nearly all of these cases, courts have looked to the explicit wording of the first eight amendments in the Bill of Rights to determine if such rights exist, just as was feared by those opposing such a Bill. Would courts have found any citizens' rights at all without the Bill? The record on the Ninth Amendment is not encouraging: Much of the jurisprudence that exists referencing the Ninth Amendment seems to deny that it guarantees anything of Constitutional importance (Metz v. McKinley, D.C.Ga 1984 583 F. Supp 683, aff. 747 F.2d 708 and Charles v. Brown, D.C.Ala 1980, 495 F.Supp 862). The two most significant decisions supporting an unenumerated right (that of privacy) were Griswold v. Connecticut (birth control) and Roe v. Wade (abortion). Of these, the latter continues to be a source of major public controversy, and the former was impaired by Justice Douglas's regrettable phrasing referring to "emanations and penumbras," terminology still being derided 25 years later by the Wall Street Journal. Judicial suspicion of the Ninth Amendment kept him from asserting a positive and unequivocal right of the citizen to be left alone by the state.

Such decisions, along with mainstream legal writing (e.g., Russell L. Caplan's Virginia Law Review article [69:2 p 223ff 1983 March]) on the Ninth Amendment show what seems to be a denial of the philosophical foundations of the American Republic. Caplan's view, that the Ninth Amendment served only to protect the constitutions and common law of the states, a role now superseded by the Federal government, gives too little credit to "the people" so often and so clearly mentioned in the Constitution and Bill of Rights. These writers and theorists look to Thomas Hobbes, whose view (in Leviathan) of man in a natural state as living a life "solitary, nasty, brutish, and short " is widely quoted, and John Locke, who said that individuals would, out of "Necessity, Convenience, and Inclination" contract to live in political communities, giving up some of their natural rights for the privilege of protecting other rights.

But these British philosophers did not write the document that created the United States--Thomas Jefferson did! The Declaration of Independence went well beyond the European writers of the Enlightenment to state that natural rights, coming from our Creator, are unalienable--they cannot be given away by "social contract." Nor do governments have any intrinsic right to govern for some Lockean "Public Good" but only to secure the rights of individuals and then only with the consent of the governed. It is these natural rights of individuals that the Bill of Rights, including the Ninth Amendment, is designed to protect.

Today's enormous central government, its vast power and resources, and its reach into every corner of American life was not part of the Jeffersonian vision of 1776 in Philadelphia, nor that of his fellow Virginians who traveled there again eleven years later to write the Constitution. Those Virginians, such as Patrick Henry and George Mason, who argued most strongly for the Bill of Rights, knew that the individual would require defenses against the authority of the state. Today, we have their efforts as a legacy and caution. The battle now is not between the Republicans and Democrats, which are merely parties, nor between liberals and conservatives, who dispute over values, but, as it always has been, between liberty and tyranny: Whether the values of some shall be imposed on others by the state or whether the rights of individuals, coming from their Creator, are supreme. Despite the efforts of some to "deny or disparage" its meaning, the Ninth Amendment stands, not as a waterblot, but as a watershed, separating those who would yield to despots from those whose whose highest ideal is the Divine gift of freedom.

I thank my father, Linn J. Firestone, 32, an attorney-at-law, for his invaluable assistance in researching this article.

This article first appeared in the Scottish Rite Journal, which is published by the Supreme Council, 33, of the Ancient and Accepted Scottish Rite for the Southern Jurisdiction of the United States.