PRESERVING THE 'NATURAL RIGHTS' OF INDIVIDUALS

The Forgotten Ninth Amendment

The Ninth Amendment to the Constitution, sometimes referred to as the
"Forgotten Amendment," provides, in its entirety, that, "The
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." This
overlooked and unappreciated Amendment affirms, in a simple and
eloquent manner, the framers intent to protect our individual
autonomy against the tyranny of the majority as exercised through the
power of government.

During the debate on the Constitution, the Antifederalists argued
against adoption based, in part, on the lack of a bill of rights. The
Federalists countered that an enumeration of specific individual
rights was unnecessary because the government that the Constitution
was creating would be limited to the powers specifically set forth in
the Constitution and, therefore, could not impinge upon any such
unenumerated rights. James Madison, one of the principal architects
of the Constitution, also feared that enumerating certain rights
would "disparage those rights which were not placed in that
enumeration."

To ensure passage of the Constitution, the Federalists acceded to the
demands of the Antifederalists and promised to support a bill of
rights. Madison drafted what became the Ninth Amendment in order to
ensure against the danger of future interpreters of the Constitution,
especially legislators and the executive branch working at the
bequest of the majority, using the enumeration of certain rights to
argue that the unenumerated rights were excluded under the maxim of
expressio unis est exclusio alterius- to express one is to exclude
the others.

The contemporaneous writings of Madison and other framers evidence
that the rights referred to in the phrase "the rights retained by the
people" are "natural rights," i.e., the inalienable rights
individuals possess in nature before they form a government, such as
the famous triumvirate of right to life, liberty and the pursuit of
happiness that Jefferson cobbled from the writings of John Locke.

For example, in Madison's notes for the speech he made to the House
explaining the proposed bill of rights, he references "natural rights
retained as speach (sic)." Similarly, a proposed bill of rights that
Roger Sherman drafted provided that: "The people have certain natural
rights which are retained by them when they enter into Society (from
the state of nature)."

The framers did not attempt to enumerate man's natural rights in the
Ninth Amendment, or elsewhere, because they recognized the
impossibility of such an endeavor. Thus, the question is what are our
natural rights, which are, by definition, protected by the Ninth
Amendment? This question must be answered by simply deciding whether
the right at issue is one that a sovereign individual would possess
in a state of nature, i.e., in the absence of government.

The restraint on natural rights is that an individual does not have
the natural right to take any action that involves the use of fraud,
force or coercion or to undertake any action that violates the common
law principles involving contracts, torts and property.

Using this basic framework, one can readily identify a wide range of
unremunerated natural rights that the Ninth Amendment protects. These
natural rights would necessarily include, but not be limited to, such
diverse rights as the right to: privacy; own private property, enter
into contracts; engage in economic activity or a lawful occupation
without the burden of protectionist economic regulations;
self-medication, including altering one's state of consciousness by
use of tobacco, alcohol or marijuana; as well as the right to be left
alone, which necessarily includes the right not be forced to pay for
the medical care, welfare or education of others.

Unfortunately, all levels of government today routinely violate these
natural rights to some degree. Instead of ignoring the Ninth
Amendment, courts must begin to utilize it to safeguard our
individual autonomy. The fact that the courts have not used the Ninth
Amendment to protect our natural rights does not mean that we have
somehow forfeited, through non-use, this important shield. For
example, the first time the Supreme Court used the First Amendment to
invalidate an act of Congress was in 1965.

The Ninth Amendment constitutes a firewall that protects vital
individual rights against the imposition of majoritarian rule. As we
slip further and further under the spell and false allure of the
social welfare system, we need to rediscover the foundation upon
which this country was founded that the individual is more important
than government and the wishes of the majority. The Ninth Amendment
is a good place to start this journey.