Pubdate: Sun, 12 Nov 2000
Source: Durango Herald, The (US CO)
Copyright: 2000 The Durango Herald
Contact:  1275 Main Ave., Durango, Colorado
Website: http://durangoherald.com/
Author: William E. Zimsky
Note: William E. Zimsky is an attorney with the Durango firm of Abadie
& Zimsky.

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.
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MAP posted-by: Kirk Bauer