Monday, March 23, 2009

The "Silent" Ninth Amendment

Daniel Farber discusses the Ninth Amendment in Retained By the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have.

The Bill of Rights ensures all Americans free speech, the right to trial by jury, and many other important rights. Do additional rights exist, and is the government obliged to recognize them? Is there a right to privacy? To engage in homosexual acts? To marry? Legal scholar Daniel Farber says the express purpose of the Ninth Amendment was to recognize "unenumerated" rights such as these. Yet this amendment has never been the basis for a Supreme Court decision.

Simply put, the Ninth states that human rights precede government. The law does not grant these rights and therefore has no authority to take them away. Advocates of "original intent" who demand that the courts recognize only the limited set of rights explicitly listed in the constitution are in fact advocating the opposite of what the Framers intended - they had the foresight to realize they could not possibly anticipate every issue that might arise or what values their descendants would find worthy of protection.

Providing critical new support for controversial Supreme Court decisions dealing with abortion, homosexuality, and the right to travel between states, Farber's view doesn't neatly track any political agenda, including his own, making his conclusions challenging for both liberals and conservative. About 45 minutes.

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