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Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have First Edition Edition

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ISBN-13: 978-0465022984
ISBN-10: 0465022987
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Editorial Reviews

From Publishers Weekly

Farber, a constitutional law professor at the UC-Berkeley law school (Desperately Seeking Certainty), challenges the Supreme Court's current jurisprudence regarding "fundamental rights," arguing that rather than relying on the Constitution's due process clause, these rights—which touch on many controversial issues like abortion, consensual sex, gay marriage and the right to die—would better be supported by the Ninth Amendment. That amendment says that the enumeration of certain rights in the Constitution "shall not be construed to deny or disparage others retained by the people." Farber deals with the tricky question of what rights are fundamental (he concludes there is a right to terminate unwanted medical intervention but not a right to assisted suicide) and the legal basis for such rights. He also makes lucid and convincing criticisms of particular Supreme Court approaches in abortion rights, for instance. This is potentially an important book that offers a new approach to how courts should interpret the Constitution when balancing fundamental individual rights against government incursions, an approach Farber believes will hold up better to challenges than a due-process approach. Farber writes well for the general public and succeeds in building a case that will resonate with both liberals and populist-conservatives. (May)
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About the Author

Daniel Farber earned his J.D. from the University of Illinois. He clerked for Judge Philip W. Tone of the United States Court of Appeals for the Seventh Circuit and for Justice John Paul Stevens of the United States Supreme Court. He is one of the ten most frequently cited American legal scholars. Currently teaching at theUC-Berkeley Law School, he lives in Oakland, California.
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Product Details

  • Hardcover: 256 pages
  • Publisher: Basic Books; First Edition edition (May 1, 2007)
  • Language: English
  • ISBN-10: 0465022987
  • ISBN-13: 978-0465022984
  • Product Dimensions: 9.4 x 6.5 x 0.9 inches
  • Shipping Weight: 15.2 ounces (View shipping rates and policies)
  • Average Customer Review: 3.3 out of 5 stars  See all reviews (6 customer reviews)
  • Amazon Best Sellers Rank: #126,899 in Books (See Top 100 in Books)

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Customer Reviews

Most Helpful Customer Reviews

18 of 21 people found the following review helpful By Tobias CD Novak on October 22, 2007
Format: Hardcover
This book is all I expected it to be and more. The first review that was posted was entirely off the mark (please see my comment responding to his post and you will see why).

The thing that struck me most about this book was how thoroughly the author has researched the topic at hand (the 9th amendment). Indeed, we don't talk much, if at all, about the 9th amendment in our K-12 education, and courts seldom mention its existence.

Farber makes a very strong case for using the 9th amendment as a basis for defending fundamental human rights. He spends roughly the first quarter of the book talking about the concept of "natural law" and "the law of the nations," which basically means the idea that human beings have fundamental rights and that those rights cannot be given by any legislation; legislation is merely affirmation of those rights, and any legislation/court decisions that invalidate those rights are invalid.

Farber cites various judges, legislators, legal scholars, and more from the beginning of our nation (and even before) up until the current day. This is not a book that is trying to "convert" anyone to the left OR the right. It is merely a book that recounts history as it relates to the 9th amendment (and the 14th amendment, which was a natural extension of the 9th) and argues that the Founding Fathers intended the 9th amendment to be a "disclaimer" that there are more human rights than just the ones listed in the constitution (hence "enumerated" versus "unenumerated" rights).
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7 of 9 people found the following review helpful By Omer Belsky on April 28, 2008
Format: Hardcover Verified Purchase
"The enumeration in the Constitution, of certain rights, shall not be constructed to deny or disparage others retained by the people".

What does the Ninth Amendment to the US Constitution mean? In "Retained by the People", Daniel Farber, a Constitutional scholar (and a co author of Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations, an insightful commentary on America's leading Constitutional Theorists) argues that it is an instrument for discovering "fundamental rights" that all Americans (or possibly all people) posses. The courts - especially US Supreme Court - should use the ninth amendment as a fitting instrument for declaring executive acts and congressional laws unconstitutional and thus void.

All this, Farber claims, is in the original meaning of the Ninth Amendment. As Drafted, the constitution of the United States did not contain a Bill of Rights. When its absence was pointed out, some opposed the idea of a Bill of Rights by arguing that specifying some rights would imply that no other rights existed. The framers, heirs to a tradition of Natural Rights ("All men are endowed by their creator with certain inalienable..."), feared that a Bill of Rights could undermine other rights. Thus, the Ninth amendment means exactly what it says: That the rights mentioned explicitly in the Bill of Rights are just examples, a selection from a wider variety of rights that the people retain.

Farber's account raises more questions than it answers: If "the people" retained individual rights, among them "life, liberty, and the pursuit of happiness", how could the US support slavery?
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9 of 14 people found the following review helpful By Brian on May 9, 2009
Format: Hardcover
Daniel Farber is convinced that the Ninth Amendment embodies a whole slew of rights to be discovered and enforced by federal judges. Farber's book seems like an attempt to convince people that government by unelected philosopher kings is better than local, republican self-government. It is an attempt to justify judicial legislation in the past and in the future.

Instead of a limitation on federal power (the amendment's entire purpose), Farber sees a better way: The Ninth Amendment can be used as a SOURCE of federal power.

Farber concedes that the court's use of the "due process" clause to enforce individual rights against the states is not in accord with that clause's purpose. The social outcomes and judicial philosophizing that the court produced through substantive due process, however, can be justified in another way. A more appropriate mechanism to protect unlisted, "fundamental," "natural rights," Farber claims, is the Ninth Amendment.

Farber argues that Madison's amendment was intended to be used by federal courts to enforce "natural law" principles; the Fourteenth Amendment had this intent as well. After presenting unconvincing evidence that this was so, Farber then attempts to provide rules and guidelines on how imaginary rights can be interpreted. One starts to wonder: What's the point of even having a written constitution and elected representatives in Farber's fantasy world of policy-inventing judges? And somehow, in Farber's view, a radical libertarian reading of the Ninth Amendment goes too far; we can't just have a free-for-all, just enough to cover the judicial legislation produced by substantive due process, and maybe a little bit more. The arbitrariness of "interpreting" imaginary rights becomes apparent in Farber's book.
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