The Ninth Amendment

Anytime I refer to historical documents, I do so with trepidation.  Philosophers notoriously misinterpret history, and historians have an equal ineptitude in fields of philosophy.  The recent reaffirmation of allegiance to the Constitution has been propagated by expressions of affection or revulsion reflecting marginal comprehension of its content.  We have looked at images of the segmented snake and given rebirth to the Tenth Amendment and States Rights, and demagogic reference to secession and nullification.

The founding of our democracy involved 13 sovereign colonies drafting Articles of Confederation, soon supplanted by a Constitution establishing Federal authority.  In the Bill of Rights, they not only drafted guarantees of individual rights, but also reserved certain un-enumerated powers reserved to the States, or the people.  With our recent emphasis on the Tenth Amendment, the Ninth Amendment has been ignored by legislators and the courts.  It has often been referred to as the “silent amendment.”

The Founding Fathers did not see the Ninth Amendment as creating certain liberties, but rather acknowledging some of the rights that no government could properly deny.  This has been the history of the evolution of human and civil rights in voting eligibility, gender equity, emancipation, integration, and rights beyond the imagination of the monolithic demography of 18^th century political theory.

For example, the Ninth and Tenth Amendments were ratified by the several states from 1789 to 1791, at a time in which the dignity of some individuals was diminished by 40%, for the purpose of enumeration for proportional representation.  That exception to interpretation of the Ninth Amendment was in theory rectified by the Fourteenth Amendment after emancipation.  The three amendments defining or extending the rights of individuals and states are as follows:

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

(X) The powers not delegated to the United States by the Constitution, nor prohibited by to the States, are reserved to the States respectively, or to the people.

(XIV,1b)  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws.

South Carolina recently observed an anniversary of the “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union” during which prominent political figures were called upon to defend or repudiate attitudes voiced in defense of secession or nullification.  “The guarantees of the Constitution will no longer exist; the equal rights of the States will be lost.  The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy.”

Throughout our years in school, and general conversation, we all have listened to a polarized debate as to the cause of the Civil War.  Was it States Rights?  Was it Slavery? This question is a matter of regional semantics, with a nuance of subjective validity, but intrinsically inseparable.

In U. S. history, nullification is a doctrine expounded by the advocates of extreme States Rights.  It held that states have the right to declare null and void any federal law that they deem unconstitutional.  The doctrine was based on the theory that the Union is a voluntary compact of states and that the federal government has no right to exercise powers not specifically assigned to by the U. S Constitution.

The Fourteenth Amendment recognizes, and imposes some restraint, on the potential conflict of rights between states and individuals.  This includes the phrases “due process of law” and “equal protection of law.”  It was passed as part of the three Amendments (with XIII and XV) effecting abolition, citizenship, and voting rights related to race and involuntary servitude.

Those who defend the heritage of the South and its traditions of life style and chivalry, do so within the shadow of the Confederacy with some measured restraint.  We want to believe that racial conflict is a vestige of extremism of another time.  Our attention to the Ninth Amendment, largely ignored by the courts, has raised new voices of state and regional politics.  The conflict of will between master and slave has been replaced by conflict of privilege in other matters of economics, religion, and status.  Many affirmations or denials of human dignity not foreseen in 1789 or 1866, will be continue to be debated within the context of those historic amendments.  We may be on the eve of a legislative and judicial transition from, or toward, the “denial or disparagement of other rights retained by the people.”