In my previous essay, I discussed how our Founding Fathers created a Republic where “We the People” are the most sovereign entity in the United States, not the federal government. In this essay, I discuss the importance of the Ninth Amendment to protect citizens unenumerated rights and how the Ninth Amendment and other means to protect unenumerated rights (Privileges and Immunities Clause) have been disparaged. This has resulted in more power being funneled to the federal government at the expense of the citizens.

The Framers of the Constitution faced a conundrum. The states refused to ratify their cleverly crafted document without a Bill of Rights guaranteeing the protection of the privileges and immunities of all citizens. Privileges and immunities are synonymous with fundamental rights. Fundamental rights are those rights which are essential for a free society. The Framers, however, did not want to include a Bill of Rights. The Framers concluded drafting such a document would be impossible. After all, how could anyone detail all the rights of mankind. People literally had thousands of rights. Just about any legal action a person may partake in their daily lives could be deemed essential to a free society. Thus, the plan was to write a Bill of Rights to include the most essential and necessary fundamental rights such as the right to free speech, to religious liberty or liberty of conscious thought, to justice or due process of the law, to own and sell property, and the right to bear arms or self-defense.

The Framers feared however, such a list of rights would leave many more important fundamental rights unprotected. Many of the Framers objected to a Bill of Rights because the Framers feared unenumerated rights (or rights not listed in the Bill of Rights) would not be protected or protected as vigorously as those rights enumerated in the Constitution. Ultimately, there are many important and essential fundamental rights which are not included in the Bill of Rights such as the right to obtain knowledge, to contract, to marriage, to travel, to raise a family, and to work a lawful occupation to name a few.

To resolve the conundrum posed by enumerating only some rights, James Madison proposed the Ninth Amendment which reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Ninth Amendment is, in my opinion, synonymous with liberty and is the most magnificent and ingenious 21 words of the Bill of Rights and the Constitution. The Ninth Amendment was a catch all provision to protect all fundamental rights of humanity.

Why, then, did Congress pass, for example, the Fourteenth Amendment’s Privileges and Immunities Clause (synonymous with fundamental rights) or the Nineteenth Amendment granting United States citizens over 18 years of age with voting privileges? Shouldn’t the rights contained within those amendments be encompassed in the Ninth Amendment? One would think so, but constitutional law has made a mess of things. For example, Chief Justice John Marshall’s decision in Barron v. Baltimore in 1833 complicated matters. Marshall held the Bill of Rights did not pertain to the states, but only to laws initiated by the federal government. Thus, the Fourteenth Amendment’s Privilege and Immunities Clause was a necessity to repudiate Barron and to protect citizens from state laws which may infringe on fundamental rights. The story gets much messier when the 1873 Slaughterhouse Cases, discussed in a latter essay, essentially redacted the newly passed Privileges and Immunities Clause from the Fourteenth Amendment.

The other reason the Fourteenth and Nineteenth Amendments were ratified was the Ninth Amendment was basically redacted from the Bill of Rights due to lack of use and precedent. During his confirmation hearing to the Supreme Court, Robert Bork was asked about the Ninth Amendment. Bork essentially told congressional members the amendment was redacted or the actual word he used was the amendment was an inkblot. Nevertheless, Madison had a purpose for writing and including the Ninth Amendment in the Bill of Rights. Ignoring the Ninth Amendment has done a great disservice to not only the Constitution, but as we shall learn in other essays, protecting unenumerated fundamental rights of citizens.

The Ninth Amendment’s lack of use may be explained by two reasons. First, many law experts claim the amendment is ambiguous or the so-called experts are uncertain of the true meaning behind the amendment. Ambiguity of the Ninth Amendment is nonsense since the amendment is self-explanatory and information explaining why James Madison included the Ninth Amendment in the Bill of Rights is readily available. Second, many jurists are afraid to open pandora’s box because the jurists are uncertain of how the other side will use the amendment. For example, liberals and conservatives may use the amendment to protect things which are not fundamental rights. However, those fears have already been realized when the Supreme Court protected fictious rights without the use of the Ninth Amendment. Courts generally rely on a fictitious doctrine called Substantive Due Process to protect our rights instead of using the Ninth Amendment and overruling the Slaughterhouse Cases to reinstate the Privileges and Immunities Clause.

Substantive Due Process uses the Due Process Clause of the Fourteenth Amendment to both identify and protect unenumerated rights. That said, the intended purpose of the Privileges and Immunities Clause was to identify rights while the Due Process Clause was to be used to protect our rights. But the Court chose to invent a doctrine instead of overruling the Slaughterhouse Cases or simply using the Ninth Amendment to protect our rights.

Of course, the scholars’ apprehension or fear of how the Ninth Amendment would be used could have easily been averted. Legislators and courts could simply define the criteria an unenumerated fundamental right must possess to be elevated to constitutional protection through the Ninth Amendment. In 1997 the Supreme Court finally attempted to define the properties of fundamental rights in Washington v. Glucksberg. In Glucksberg, the Court held fundamental rights had to be “deep rooted in American culture and history.” Unenumerated rights are addressed in another essay.

Jurist interpretation of “deep rooted in American culture and history” was also open to much criticism because some believed that meant going back a mere 20 to 30 years and only a simple majority of the people need to accept the proposed right for it to garner constitutional protection. These lax interpretations would erroneously protect government entitlements such as health insurance as a right. Most people make a common mistake by suggesting all rights are guaranteed to citizens. We should be able to pursue rights without government restraint, but they are never guaranteed. In fact, people can decline pursuing rights such as gun ownership. We must remember, governments cannot create or improve rights because that usually encompasses the labor (tax) of one to purchase that right for another. Since everyone has the same rights, they are not based on any demographic makeup of the populous. In fact, the government should not be in the business of taking sides on we look and think such as the government push for DEI, sexuality, and preferred classes of people. Think about it, every government antidiscrimination law to protect some demographic classification is discriminatory! The sole reason people consent to a limited constitutional government is for protection and safety of the one important thing citizens have in common – our rights.

I believe the most essential criteria a right must have would follow natural law principle that a right should be agreed upon unanimously. Some will dispute the unanimity criteria because that would seem to suggest controversial things such as religion and guns are not protected rights. I disagree, religious freedom protects more than religion since it is the same as the right to conscious thought. The right to conscious thought protects all our beliefs. Besides, religious liberty protects atheists from believing in any god, it does not just protect religion. As far as guns are concerned, no one will dispute everyone has a right to self-defense and self-preservation of their self, family, and property. And guns are deemed essential by many citizens for self-defense and self-preservation. Limiting citizens from methods that could be useful for self-defense could result in damage and loss of their self, family, and property.

The Ninth Amendment is so magnificent and powerful, the amendment could have been used as the vessel to support the two biggest civil rights movements in United States history: Ending slavery and passing women’s suffrage. You heard right, there was no reason to pass the Thirteenth, Fourteenth, Fifteenth and Nineteenth Amendments since those amendments should be encompassed in the Ninth Amendment. But legislators and jurists have not only complicated matters, but these politicians have also done a grave injustice to protect unenumerated fundamental rights by redacting the Ninth Amendment and Privileges and Immunities Clause.

The opinions shared here do not necessarily represent the official position of the Libertarian Party. These editorial articles have been submitted by Libertarians across the country, and featuring these topics does not represent an endorsement of the content therein.