Happy Bill of Rights Day! And My Thoughts on the Ninth Amendment and the Enumeration of Rights.

December 15th, 2009

On December 15, 1791, the first 10 Amendments in the Bill of Rights were ratified.

While it is important to remember what the Bill of Rights stands for, I think what may be of even more significance is what the Bill of Rights does not stand for. I will not regale you with the lengthy history of the Bill of Rights, but suffice to say that in our early Republic, not everyone was in favor of a Bill of Rights.

Those in favor of a Bill of Rights argued that enumerating rights was necessary to ensure that a future tyrannical government could not infringe certain liberties the people possessed. If a right was listed, it could not be infringed. Liberty FTW!

Those who opposed the Bill of Rights argued that by enumerating certain rights, they were implicitly excluding, or at the least, diminishing other rights retained by the people. Thus, a future tyrant could say, well, rights A, B, and C, are listed, so I can’t infringe that right. but rights D, E, and F are not listed, so I can infringe them. Liberty FTL!

For those of you who suffered through and remember  Law School Latin, they feared the Expressio unius est exclusio alterius (The express mention of one thing excludes all others) cannon. In other words, those opposing the Bill of Rights thought the listing some rights would exclude all other rights. Furthermore, in light of the broad conception of liberty pervading the Enlightenment, many considered the task of enumerating every single right the people possessed would not only be impossible, but futile.

The Ninth Amendment was intended as a solution to this quandary. The Ninth Amendment provides:

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

In plain English, just because some rights are listed, does not exclude other rights.

But what are these other rights? And how can we know what they are if they are not enumerated?

According to Randy Barnett and others, the Ninth Amendment refers to certain pre-existing or natural rights that inhere in and are retained by the people. According to this approach, the 8 Amendments enumerated in the Bill of Rights are but a small subset of the freedoms we all possess. The Ninth Amendment makes it clear that despite this enumeration, the other rights still exist, and they cannot be “construed [by the government] to deny or disparage” these rights.

Others emphatically disagree with Randy, and argue that the Ninth Amendment merely reverses the expressio unius canon, but does not refer to any exterior corpus of natural rights the people retained.

Both sides have very compelling arguments, so I’m not going to even attempt to weigh in on this topic here. I once tried to challenge my uber-smart con law professor about this in Founder’s Constitution. My brain hurt afterward.

Anyway,  it is important to remember on the day we celebrate the Bill of Rights the significance, and potential danger, of enumerating rights.

Check out Tim Lynch’s take on Bill or Rights Day at [email protected]