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5.0 out of 5 stars
Rights That Are Retained but Not Listed in the Bill of Rights Except in the Ninth Amendment, June 6, 2008
RIGHTS RETAINED BY THE PEOPLE edited by Randy Barnett is a good anthology of papers examining the Ninth Amendment and what are known as unenumerated rights or those rights not specifically listed in the US Constitution(ratified in 1787)or the Bill of Rights (ratified in 1791). Until 1965, the Ninth Amendment was never an issue in the U.S. Supreme Court when the Supreme Court Justices used the Ninth Amendment to overturn a stupid Connecticut law outlawing seeking or prescribing birth control methods or medicine.
The background to the successful appeal of the Connecticut law took place when a physician was arrested and convicted for prescribing birth control to a married couple. His conviction was appealed to the U.S. Supreme Court and the Connecticut law was overturned by a 7-2 decision. Then Chief Justice Goldberg concurred with the majority who basically argued that the Connecticut law violated Fourth Amendment protections of unreasonable search and seizure. Interferring with husbands'/wives' decisions re family planning is NONE of the government's business. The Ninth Amendment got attention in this case when Justice Goldberg used the Ninth Amendment to concur. Basically Justice Goldberg argued that family planning and whether or not parents decide to have children are unenumetated rights. His arguement contended that marriage, the size of a family, etc. were unenumerated rights and protected by the Ninth Amendment via the Incorporation Doctrine of the Fourteenth Amendment. Since then, the Ninth Amendment has received attention from Constitutional historians and legal scholars. The title of the 1965 Supreme Court case was Griswald vs. Connecticut. One wonders why a prosecutor would even take such a stupid case. Another interesting case along similar lines was Loving vs. Virginia(1967)whereby a married couple in Virginai were arrested and convicted for violating a Virginia law forbidding mixed race marriages. They were told to spend prison time or leave the state. The Lovings in effect said, "None of the above" and appealed their case to the U.S. Supreme Court whereby the Virginia statute was overturned by a 9-0 U.S. Supreme Court deicsion. The Ninth Amendment was used in part the Supreme Court's reasoning in this case.
Mr. Barnett did not just deal with these cases. He examined James Madison's thought re the Bill of Rights and the Ninth Amendment. This is interesting reading. Madison and those who supported him had to deal with fact that not all rights could be including in any constitution or bill of rights. Some of these rights existed in the Common Law, and the Ninth Amendment was intended to protect these rights.
Prof. Corwin's views was the best paper in this anthology. Corwin did a detailed examination of what may be called unenumerated rights, and his research and piece are solid. Those interested in unenumentated rights would find Corwin's inclusion in this book informative and useful.
Prof. Berger's piece in ths book is the worst. According to Berger, men and women have no personal rights or even common law rights if a majority of neighbors or legislatures differed. In other words, Berger would have people and especially dissenters subject to majoritarian tyranny. The well known Mr. Bork also disagreed that there were no unenumetated rights. Mr. Bork argued that whatever the majority wanted was the law regardless. The implications of such "reasoning" are dangerous.
Without examining all the papers in this book, readers should know why the Ninth Amendment is important. Recent state court decisions and an atmosphere charged with political corretness make the Ninth Amendment very important. For example, a recent California court decision outlawed home schooling in that state. As this reviewer stated elsewhere, there is no way to enforce this law. Parents' decisions re childrens' learning falls under protection of both the Fourth Amendment and Ninth Amendment. Some people have been legally penalized for what they debated in schools and colleges because someone whined that their phony sensitivity had been harmed. This type of situation falls under protection of the First Amendment, Fourth Amendment, and possibly the Ninth Amendment. Changes via the electronic media and the internet require how these are legally protected,and the Ninth Amendment can be legally reasoned to deal with this phenomena on a case-by-case basis.
This book was first published in 1991, and it is still important. The author is knowledgable and writes well. At a time when serious government challenges are mounted against individual rights and politically correct ideologues are demanding what people can and cannot think, the Ninth Amendment and unenumerated rights are crucial.
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0 of 2 people found the following review helpful:
5.0 out of 5 stars
A superb collection, July 6, 2008
Since there is little product info on this book, the first thing I want to do is give you a table of contents:
Introduction: James Madison's Ninth Amendment by Randy Barnett
1. Speech to the House explaining his proposed Amendments with notes
for the Amendments Speech by James Madison
2. The "Higher Law" Background of American Constitutional Law by
Edward S. Corwin
3. The Ninth Amendment of the Federal Constitution by Knowlton Kelsey
4. The Forgotten Ninth Amendment by Bennett B. Patterson
5. Are there "Certain Rights...Retained By The People"? by Norman Redlich
6. Natural Rights and the Ninth Amendment by Eugene M. Van Loan, III
7. The Ninth Amendment by John Hart Ely
8. The Ninth Amendment by Raoul Berger
9. On Reading the Ninth Amendment: A Reply to Raoul Berger by Simeon
C.R. McIntosh
10.The History and Meaning of the Ninth Amendment by Russell L. Caplan
11.Federalism and Fundament Rights: The Ninth Amendment by Calvin Massey
12.On Reading and Using the Ninth Amendment by Charles L. Black, Jr.
Appendix A. Roger Sherman's Draft of the Bill of Rights (the Bill of Rights as they came out of Committee to be approved by Congress and sent to the States for ratification)
Appendix B. The various Amendments to the Constitution proposed by some of the State Ratifying Conventions (Massachusetts, New Hampshire, New York, Pennsylvania, South Carolina and Virginia all submitted suggestions for amendments as nonbinding parts of their ratifications. North Carolina and Rhode Island refused to ratify until the Bill of Rights was ratified.)
Appendix C. Justice Goldberg's Concurring Opinion in Griswold v. Connecticut.
Enough of that. To whatever extent, if there is a revival of interest in the Ninth Amendment and its meaning, it is due to the work of Barnett, and the writings in this book. Goldberg's opinion in Griswold indicated the possibility that the Ninth could be used as the foundation for the right to privacy among other possibilities. That set off a debate in legal circles. This book deftly follows the history of that debate (it is largely chronological in sequence) and outlines the main positions.
Barnett's introduction is worth the price of admission alone. The is the first book of his that I have read. He is, I believe, arguing from a libertarian point of view which is not mine. I have to admit that the logic of his argument is quite compelling. He sums up the arguments throughout the articles and clears up some of the confusion surrounding
the definition of natural rights, its relationship to positive law and to what extent the Founders intended the Federal government to protect unenumerated rights either from itself or the states. I found all of the articles to be very well thought out with the exception of Berger's who gives a reading of the Ninth that I can only call perverse. Berger seems to feel that the Ninth outlines an area of "no-power", i.e., the Federal government can neither diminish nor protect those rights retained by the people. If I am reading Berger correctly, he seems to feel that the Ninth was put into the Constitution as a reminder to the people about their Article V ability to amend the Constitution (p. 205). Berger is not alone in his (conservative) perversity. In the liberally perverse corner, we have Simeon McIntosh. McIntosh, who is otherwise quite interesting, wants to assert that the "concept of justice" is the "forming principle" of the Constitution (p. 239). I would argue for liberty being the forming principle but that's just me.
It becomes apparent in reading this book that one's position on the Ninth Amendment is effected both by one's beliefs in regards to "natural" rights and in regards to a right to privacy. If one believes in natural rights that are prior to government and/or the right to privacy, the Ninth Amendment has to be considered an essential part of the Constitution to you. Each of the authors in this collection (again with the possible exception of Berger whose essay really is a mess) writes
cogently and passionately for their position. This is a masterful collection that should be part of the library of students of the Constitution. Barnett has published a second volume of essays that I will review as soon as I can afford the darn thing.
One final comment- everyone should read that ratifying statements of the various State Ratifying Conventions that Barnett very considerately provides. Madison always said that one had to look to the Ratifying Conventions for the original intent of the Constitution. Here it is people. Gobble it up.
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