Legal Eagle

The Forgotten Ninth Amendment
By: Steven H. Atherton, Esq.

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

The Ninth Amendment to the Constitution does not specifically identify any individual rights like the eight amendments that precede it, rather the Ninth Amendment sets forth a rule of construction that is to guide one when interpreting the Constitution. It makes the drafter's intent clear that the enumeration of certain rights in the body of the Constitution¹ or in the Amendments thereto shall not be considered to be exhaustive or all inclusive, but rather illustrative. Moreover, when read in conjunction with the Tenth Amendment² the principal of individual sovereignty and a limited government of delegated powers is firmly established. Therefore the Ninth Amendment, when interpreted in accordance with the Tenth Amendment, should be read as establishing a rule of construction that demonstrates that the Constitution, as a whole, should be construed to mean that the people retain all powers (i.e. right or authority) not delegated to the United States by the Constitution nor delegated to their respective State governments by the several State Constitutions.

If the people retain all powers not delegated to their respective governments (national, state and local), then the question becomes what rights and/or powers do the people retain? The answer is not uniform throughout the United States because of differences in State Constitutions and local government charters. For the most fundamental statement of principle, however, one looks to the Declaration of Independence, where Thomas Jefferson penned the following:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness -- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed. . .

In these few phrases, our forefathers acknowledged the fundamental truth that all men are created equal³ and are endowed by their Creator with certain unalienable rights, that among these (i.e. without limitation) are Life, Liberty and the Pursuit of Happiness. Moreover, they clearly stated their view that the only legitimate purpose for any government is to secure men's unalienable rights, for the Declaration of Independence goes on to state "that whenever any Form of Government becomes destructive of these Ends [i.e. securing man's unalienable, God-given rights], it is the Right of the People to alter or to abolish it. . ." Thus we see that while there may be some differences between States and/or localities the same basic mission for government applies to all.

The Constitution and Bill of Rights represent a more thorough, but (according to the Ninth Amendment) not an exhaustive exploration of the unalienable rights given to Man by the Creator. Other rights that have been recognized include, the right to privacy, the right to travel, the right of self-defense, the right to pursue one's occupation of choice, the right to marry, and the right to bear children. Surely many other rights exist as well, but most of our rights exist not in the form of positive declarations of such rights, but rather as implied rights and/or powers that are retained by people when not delegated. This concept, as well, derives from the Declaration of Independence where our forefathers made it clear that government derives all of its just authority from the consent (i.e. the act of granting one's permission or approval to another by the exercise of one's free will) of the people.

In 1789, the people of this country instituted amongst themselves the national government by entering into a social compact or covenant entitled the Constitution of the United States of America. In the Constitution it sets forth in a straightforward manner the Powers that the people "consented" to give to the government. The only creative powers that the people consented to give the national government related to Congress' power "[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers [referring to those set forth in Article I, Section 8], and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof" (emphasis added). Thus the implied powers of the U.S. government are strictly limited to those "necessary and proper" for carrying into execution the powers expressly given to it by the people. No other implied powers can be "justly" exercised by the government without the people consenting thereto through the amendment process set forth in Article V of the Constitution.⁴ Therefore, according to the Ninth Amendment, "we the people" retain all rights and/or powers not delegated⁵ willingly to our local, state and/or national governments in our various Constitutions and other organizational documents and all of our God-given unalienable rights, which include (without limitation) Life, Liberty and the Pursuit of Happiness, regardless of any delegations to the contrary that we may have made.

¹ For example, Article I, Section 9 of the Constitution prohibits Congress from passing any bill of attainder or ex post facto laws. A bill of attainder is a legislative act that applies only to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial. An ex post facto law is a law which is passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed (e.g. imposes a criminal penalty for an act, which when it was committed, was innocent). Article I, Section 9 also provides that "[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it' and that "[n]o title of nobility shall be granted by the United States." These provisions further protect the individual and support the fundamental truth, adhered to by our founding fathers, that "all men are created equal." Article I, Section 10 extends the above prohibitions to the governments of the several states. In addition, Article I, Section 10 implicitly recognizes an individual's right to contract by prohibiting any state from passing any "law impairing the obligation of contracts."

² The tenth amendment reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

³ Obviously, it would appear that at least some (if not a majority) of our forefathers did not consider as equals blacks, gypsies, Chinese and, perhaps others as well. This error was addressed (if not corrected) shortly after the Civil War.

⁴ According to the Constitution the people cannot "consent" to an amendment of the plain language and meaning of the Constitution by electing representatives, senators and/or a president who enact legislation and/or otherwise exercise powers not given to them under the Constitution. Nor can the courts amend the constitution by judicial decisions that in any way change the plain language and meaning of the Constitution.

⁵ In this article I have analyzed the scope of implied and creative powers in the U.S. Constitution, but have not addressed that issue at the State or local government level. For information, on the scope of implied and/or creative power delegated to your State and/or local government you will need to review your State Constitution and local charter. The same interpretive tools should apply, particularly those drawn from the Declaration of Independence relating to "consent" of the people, the mission of government, and the description of man's unalienable rights.