Machan's Musings - Why They Fear the Ninth Amendment
by Tibor R. Machan
Quite interestingly, many politicians are afraid of the Ninth Amendment of the U.S. Constitution. Many of their intellectual cheerleaders in the academy and media show equal disdain for this portion of that legal document. Why?
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? Because, actually, 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 and restricted, 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 people’s rights.
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 U.S. 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 than in a few 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, say, 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 -- and 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 examine the thousands of pieces of legislation passed by federal, state, county, and 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 as acting in violation of the basic laws of the land.
In short, taking the Ninth Amendment to the U.S. Constitution seriously implies that politicians would have no just powers to do 99 percent 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 provision of the most freedom-loving -- though by no means perfect -- legal
document in human history.
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