Unenumerated Rights

Author:Leonard W. Levy

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The starting point for interpreting the NINTH AMENDMENT is its text: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The text and the rule of construction that requires plain meaning to be followed clearly establishes the existence of unenumerated rights. Why would the Framers have included an amendment that protects such rights in the midst of the BILL OF RIGHTS, which specifies rights in the first eight amendments?

The Framers scarcely had an alternative after they botched an explanation for their failure to have included a bill of rights as part of the original Constitution. They protected a few rights in it, but ignored most; and they subsequently made several frail and foolish explanations instead of confessing misjudgment and promising subsequent amendments. As a result they placed RATIFICATION in serious jeopardy. The Constitution was finally ratified only because crucial states, where ratification had been in doubt, accepted a pledge that a bill of rights would be added to the Constitution in the form of amendments.

THE FEDERALIST #84 presented a commonplace ratificationist argument that boomeranged and made necessary a provision safeguarding unspecified rights. According to ALEXANDER HAMILTON, a bill of rights was unnecessary and

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even dangerous, because by containing exceptions to powers not granted, it would provide a basis for repressive LEGISLATION. For example, to say that liberty of the press ought not be restricted furnished "a plausible pretense" for the very power feared, a power to legislate on the press, because a provision "against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government." Equally dangerous, the omission of some right in a catalogue of rights allowed the assumption that it was meant to be unguarded. JAMES MADISON, OLIVER ELLSWORTH, and JAMES WILSON, among other leading Framers, made the same damaging argument.

Their logic, which nearly undid their cause, surely merited public rejection. They proved that the particular rights that the unamended Constitution protected?no RELIGIOUS TESTS, bans on BILLS OF ATTAINDER and EX POST FACTO LAWS, and TRIALS BY JURY in criminal cases, among other rights?stood in grave jeopardy because to specify a right implied a power to violate it. Moreover, the inclusion of some rights in the Constitution implied, contradictorily, that all unenumerated ones were relinquished. The unsatisfactory arguments by ratificationists imperiled their cause and obliged them to reconsider.

Madison switched to the cause of amending the Constitution with a bill of rights in order to appease the fears of the people. When he rose in Congress to propose constitutional amendments, he asserted that the Constitution must "expressly declare the great rights of mankind." He acknowledged that a major objection to a bill of rights consisted of the argument that "by enumerating particular exceptions to the...

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