The Ninth Amendment: The Value of Our Unenumerated Rights
by David John Marotta | 12-16-2012
Yesterday was the 221th anniversary of the Bill of Rights, taught in
every school in America. Interestingly, certain rights are not
enumerated, and yet people still benefit from them.
Thomas Jefferson did not take part in the Constitutional Convention. He
wrote to James Madison that the omission of a Bill of Rights would be a
major mistake. "A bill of rights," he said, "is what the people are
entitled to against every government on earth."
Madison wasn't convinced. He called specifying rights a "parchment
barrier." In other words, a Bill of Rights is just dried ink on paper.
History has taught us that despots worry more about controlling the
military and defeating freedom-loving gun owners than about words on
a piece of paper.
Madison's primary strategy to preserve our rights was to give
Congress an unlimited veto over state laws. A second tactic was to
create a council made up of the executive and judicial branches
"The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others
retained by the people."
whose sole job was to veto federal laws. It is interesting to consider
Madison's emphasis on vetoing laws that encroach on rights and
freedoms. Today too many people's first reaction to problems is to
exclaim, "There ought to be a law!"
Ultimately, Madison favored the Bill of Rights. He thought it would be educational and believed breaking the paper barrier might rally revolution
against an oppressive government in the future. Jefferson had persuaded Madison it would help make the judicial branch the guardian of individual
rights. All these arguments have proven useful to help maintain our liberty.
The Ninth Amendment is my favorite: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people."
Many of us are familiar with our First Amendment rights. Much political debate surrounds our Second Amendment rights. But few of us ever think
about how the Ninth Amendment preserves all of our rights not cited in the Constitution.
In some ways it is unfortunate these rights were not specified in the first place. On the other side of the debate, certain benefits claimed to be the
rights of every citizen contradict personal liberties.
For example, there is no right to health insurance because that would curtail the freedom of all citizens by burdening them to pay for it. Nor is there
a right to earn a specific wage regardless of one's desire to be a poet despite a lack of talent. Rights limit what government can do. They do not
burden people with things they must do.
What are some examples of these unenumerated rights? Some of them were established by Supreme Court rulings in the last 100 years. These
include the presumption of innocence in criminal cases, the right to travel within the country and the right to privacy, especially marital privacy.
These rights, although never enumerated, have found a home in the Ninth Amendment.
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But we do not enjoy several rights found in the constitutions of other countries. One such right protects the privacy of personal correspondence.
Much of the Patriot Act would be unconstitutional if such a right was specified. Much in the act may be unconstitutional even without such an
enumerated right.
The right to property is not listed. Therefore we can have a tax on net worth.
Perhaps there should be a right to freedom of thought, conscience, religion and belief or at least a right to refuse to kill. That would change the
drafting of conscientious objectors. It would also change the situation when nurses and doctors in public facilities are asked to assist in abortions.
Perhaps there should be a right to freedom of expression including the freedom to seek, receive and impart information and opinions of any kind in
any form. If there were, public university professors would not be fired or demoted when they fail to conform to what their institutions deem the
politically correct perspective.
Perhaps there should be a right not to be penalized without a law. If there were one, Rick Wagoner, chairman and CEO of General Motors, would not
have been fired when the government decided to take over his company.
Perhaps all public agents should be held to an accounting. Then we would know where the missing billions of dollars of TARP money went. We would
also not need to demand an accounting and audit of the Federal Reserve Board. It would be ours by constitutional right.
Perhaps there should be a right to equality under the law. If there were, suggestions of positive discrimination on ethnic grounds would be rejected
because they would establish categories of people that would, by birth, enjoy greater rights. Or perhaps there should be a right to equality of
taxation. If there were, tax legislation or practices that make some unwarranted differences between citizens would be struck down as
unconstitutional.
In Virginia we just passed a law that gives veterans and senior citizens preferential property tax treatment. I have nothing against either group, but
we left out schoolteachers.
All of these freedoms appear in the constitution or bill of rights of other countries. Perhaps my favorite is the freedom of education article in the
constitution of the Netherlands. It gives parents the right to determine the education of their children even when the government is paying for it.
That is, private vouchers are part of the safeguard included with the public funding of education.
Additional rights could include the right to a government that lives within its means--a balanced budget amendment. Or the right to a limited
government so government spending can't exceed a given percentage of the country's gross domestic product. Or perhaps the right to a stable
currency so we aren't required to pay capital gains on government-created inflation.
I hope these ideas surrounding the Ninth Amendment leave you with an idea of how critical it may be to defend our unenumerated rights.
Marotta Wealth Mangagement, Inc. of Charlottesville provides fee-only financial planning and asset management. Visit www.emarotta.com for more
information. Questions to be answered in the column should be sent to [email protected] or Marotta Wealth Management, Inc., 1000 Ednam
Center, Charlottesville, VA 22903-4615.
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