Sunday Philosophy: The Ninth Amendment and Natural Rights

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

The purpose of the Ninth Amendment was to confirm that while there were individual rights specifically named in the Constitution and the rest of the Bill of Rights, nobody should conclude that our rights were limited to those mentioned.  In other words, there are many other rights that are retained by the people in addition to those mentioned.

What’s both troubling and amazing about the wording here is that because those “other” rights aren’t enumerated, it’s left up to succeeding generations to declare, argue over and defend those rights.  The Ninth Amendment gives us a great deal of flexibility to adapt to the times and incorporate new human knowledge and understanding, as well as to continue to debate ideas that are important to us.

But that’s not really what it’s all about.  It was “self-evident” to the signers of Declaration of Independence that there are “unalienable rights, among these are Life, Liberty and the Pursuit of Happiness.”  That “among these…” part means that there are others that must have been so obvious and universal to the writers that they didn’t need to be comprehensively listed.  The conclusion therefore must be that they weren’t setting up a system where new rights could be interpreted or legislated into being.  They were simply making sure that the God-given rights all men were born with would be acknowledged and defended from meddling by the federal government.

In a time when modern liberals and progressives are finding new “rights” in the Constitution (such as rights to abort pregnancies, or rights to health insurance, or rights to fundamentally redefine words, etc.), it’s useful to understand what the people who gave us this country considered obvious at the time.

First of all, unalienable rights are rights that come directly from God that no government can infringe upon without being subject to His justice.  They are natural rights, in that we are inherently born with them.  An individual can forfeit his or her natural rights, but they cannot be taken away.

Some of the natural rights that every individual has that weren’t enumerated in the Declaration or the Constitution include:

The right to bear arms for self-defense.
The right to own, develop and dispose of property.
The right to make personal choices.
The right to free conscience.
The right to choose a profession.
The right to choose a spouse.
The right to produce children.
The right to assemble.
The right to petition.
The right to free speech.
The right to a free press.
The right to enjoy the fruits of one’s labors.
The right to improve one’s position through barter and sale.
The right to contrive and invent.
The right to explore the natural resources of the earth.
The right to privacy.
The right to provide personal security.
The right to provide nature’s necessities–air, food water, clothing, and shelter.
The right to a fair trial.
The right of free association.
The right to contract.

*List borrowed from The 5000-Year Leap, pp125-126

There are two things that all of these have in common.  The first is that they all make sense.  They all appeal to our fundamental idea of fairness.  Nobody who isn’t an authoritarian oligarch or Marxist ideologue will look at any of those and think that they’re bad or unfair.  We know instinctively that there’s truth here.

The second thing that they have in common is their reinforcement of the “unalienable rights” that were mentioned in the Declaration: Life, Liberty and the Pursuit of Happiness.  We have the right to live our lives, and to procreate to continue life.  We have liberty to use our God-given faculties of reason and creativity, as well as the God-given resources of the Earth, to improve our lives and make ourselves happier.  Frederic Bastiat, a French liberal theorist, wrote, “Life, liberty and property do not exist because men have made laws.  On the contrary, it was the fact that life, liberty and property existed before that caused men to make laws for the protection of them in the first place.”

In the context of the time and understanding of the founders, the Ninth Amendment doesn’t represent a source of any rights at all.  As Harvard constitutional law professor Laurence Tribe stated, “it is simply a rule about how to read the Constitution.”  Judges and politicians should not leverage its vagueness to create new rights and laws, such as a “right” to abortion or anything else.  Instead, it should be acknowledged as it was intended:  each individual human being was created equally, with individual rights and individual responsibilities, that were given to us by none other than God Himself.  And no government can be considered just that takes those rights away.

More Information:
The 5000-Year Leap by W. Cleon Skousen
Ninth Amendment Wikipedia Page
The Law by Frederic Bastiat