US Constitution - 9th Amendment
Bill of Rights -- 9th Amendment
Preliminary note: This article is a work-in-progress. I did not finish it on my original deadline; life intervened and it needs a great deal more work. Rather than delay any longer (and to force myself to take further action) I publish it here (a) in draft and (b) incomplete. Stay tuned for updates and emendations!
Well, this one should be fun. The shortest Amendment - only 21 words - with enough misunderstanding and controversy surrounding it that I should be able to upset both left and right, conservatives and liberals, to a very high degree!
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Before we start pulling in analyses from various sources, and muddying the waters, let's have a quick review. Our Rights come to us from our Creator (or by virtue of our humanity, for atheists), and both pre-date and supersede the Constitution. To secure our Rights, governments are instituted, deriving their JUST powers (only the ones they are given jurisdiction over by the Constitution - the enumerated powers - and when properly voted on and signed into law) from consent, and whenever any form of government becomes destructive of this end it is the right and the duty of the people to alter or to abolish it.
When people enter into a society, it is by voluntary consent -- and along with this voluntary consent they retain to themselves the right to revoke that consent (else it isn't really consent at all, is it? - but rather one or another type of coercion). This is the source from which comes the duty to alter or to abolish a government turned destructive of rights.
So why does this Amendment even exist? What was its purpose?
One of the major opposition arguments against ratification of the Constitution was the fear that a central government would not hesitate to trample on any right that was not specifically enumerated - especially since it really is impossible to enumerate ALL the rights of natural persons. Yet others felt that, since the new federal government was one of limited and enumerated powers, a bill of rights would be absurd -- some even said dangerous!
This latter concern was not without merit. Some court cases have questioned - without definitive answer - how it can be determined that a right is "fundamental" and therefore protected. Since we are not legal minds trying to see seventeen sides of a two-sided problem, let us use common sense to ask: What are some of the defining characteristics of rights, that we may determine later what is a right and what is a privilege disguised and masquerading as a right? One topic that will be of great use to us here is to keep in mind the statement of principles that the Constitution was written to implement: the Declaration of Independence.
A right, if you recall from Badnarik's definition in one of the early articles in this series, is, "something you can do without asking for permission." Alternatively, it is something you can do (or have) without involving ANYONE else. If the obtaining or exercising of a "right" requires action by another person -- chances are very strong that you are not dealing with a right at all, but merely a privilege. Areas where the federal government is given no jurisdiction both prohibits federal action in those areas and implies, by inevitable concatenation, that those areas are among those "retained by the people" - or possibly one of those left to state control. Further, all rights are INDIVIDUAL and not "collective" -- so if the discussion turns on the "rights" of groups -- it is not a discussion of rights at all.
So we can eliminate from consideration any soi-disant "right" which requires actions by another person, which applies to groups rather than individuals, which requires permission (even tacit) from outside oneself -- or which requires other persons to change any facet of their private lives or beliefs in order to accommodate these false "rights." (N.B.: I do not say a requirement to change *action* - you may *believe* that your deity requires human sacrifice, but other people's right to their own lives prohibits you from acting on that belief - yet you may continue to believe it!)
The First Law of Nature, from whence (according to Cicero) Natural Rights spring, is the "Duty of Self-Preservation" and this leads directly to the first rights enumerated in the Declaration of Independence: Life, Liberty, and Property -- together with the right (and the duty) to support and defend those first three rights in the best manner possible.
References:
US Constitution
http://law.justia.com/constitution/us/007-amendments.html
http://law.justia.com/constitution/us/amendment-09/
Writings of James Madison
Commentaries of Justice Story
http://constitution.findlaw.com/amendment9/amendment.html
http://www.revolutionary-war-and-beyond.com/9th-amendment.html
http://www.alternet.org/story/50404/the_%27silent%27_ninth_amendment_gives_americans_rights_they_don%27t_know_they_have/
http://www.heritage.org/constitution/#!/amendments/9/essays/162/rights-retained-by-the-people
Founder's Constitution, Vol Five (Amendments 1 - XII), ed. Kurland & Lerner, Liberty Fund 1987
©2014 by the author
Preliminary note: This article is a work-in-progress. I did not finish it on my original deadline; life intervened and it needs a great deal more work. Rather than delay any longer (and to force myself to take further action) I publish it here (a) in draft and (b) incomplete. Stay tuned for updates and emendations!
Well, this one should be fun. The shortest Amendment - only 21 words - with enough misunderstanding and controversy surrounding it that I should be able to upset both left and right, conservatives and liberals, to a very high degree!
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Before we start pulling in analyses from various sources, and muddying the waters, let's have a quick review. Our Rights come to us from our Creator (or by virtue of our humanity, for atheists), and both pre-date and supersede the Constitution. To secure our Rights, governments are instituted, deriving their JUST powers (only the ones they are given jurisdiction over by the Constitution - the enumerated powers - and when properly voted on and signed into law) from consent, and whenever any form of government becomes destructive of this end it is the right and the duty of the people to alter or to abolish it.
When people enter into a society, it is by voluntary consent -- and along with this voluntary consent they retain to themselves the right to revoke that consent (else it isn't really consent at all, is it? - but rather one or another type of coercion). This is the source from which comes the duty to alter or to abolish a government turned destructive of rights.
So why does this Amendment even exist? What was its purpose?
One of the major opposition arguments against ratification of the Constitution was the fear that a central government would not hesitate to trample on any right that was not specifically enumerated - especially since it really is impossible to enumerate ALL the rights of natural persons. Yet others felt that, since the new federal government was one of limited and enumerated powers, a bill of rights would be absurd -- some even said dangerous!
This latter concern was not without merit. Some court cases have questioned - without definitive answer - how it can be determined that a right is "fundamental" and therefore protected. Since we are not legal minds trying to see seventeen sides of a two-sided problem, let us use common sense to ask: What are some of the defining characteristics of rights, that we may determine later what is a right and what is a privilege disguised and masquerading as a right? One topic that will be of great use to us here is to keep in mind the statement of principles that the Constitution was written to implement: the Declaration of Independence.
A right, if you recall from Badnarik's definition in one of the early articles in this series, is, "something you can do without asking for permission." Alternatively, it is something you can do (or have) without involving ANYONE else. If the obtaining or exercising of a "right" requires action by another person -- chances are very strong that you are not dealing with a right at all, but merely a privilege. Areas where the federal government is given no jurisdiction both prohibits federal action in those areas and implies, by inevitable concatenation, that those areas are among those "retained by the people" - or possibly one of those left to state control. Further, all rights are INDIVIDUAL and not "collective" -- so if the discussion turns on the "rights" of groups -- it is not a discussion of rights at all.
So we can eliminate from consideration any soi-disant "right" which requires actions by another person, which applies to groups rather than individuals, which requires permission (even tacit) from outside oneself -- or which requires other persons to change any facet of their private lives or beliefs in order to accommodate these false "rights." (N.B.: I do not say a requirement to change *action* - you may *believe* that your deity requires human sacrifice, but other people's right to their own lives prohibits you from acting on that belief - yet you may continue to believe it!)
The First Law of Nature, from whence (according to Cicero) Natural Rights spring, is the "Duty of Self-Preservation" and this leads directly to the first rights enumerated in the Declaration of Independence: Life, Liberty, and Property -- together with the right (and the duty) to support and defend those first three rights in the best manner possible.
References:
US Constitution
http://law.justia.com/constitution/us/007-amendments.html
http://law.justia.com/constitution/us/amendment-09/
Writings of James Madison
Commentaries of Justice Story
http://constitution.findlaw.com/amendment9/amendment.html
http://www.revolutionary-war-and-beyond.com/9th-amendment.html
http://www.alternet.org/story/50404/the_%27silent%27_ninth_amendment_gives_americans_rights_they_don%27t_know_they_have/
http://www.heritage.org/constitution/#!/amendments/9/essays/162/rights-retained-by-the-people
Founder's Constitution, Vol Five (Amendments 1 - XII), ed. Kurland & Lerner, Liberty Fund 1987
©2014 by the author