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

~ Dan Farber (Author)
Key Phrases: unenumerated rights, foreign law, tal rights, Ninth Amendment, Fourteenth Amendment, United States (more...)
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Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have + A Matter of Interpretation: Federal Courts and the Law (The University Center for Human Values Series) + Active Liberty: Interpreting Our Democratic Constitution
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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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Product Description

An original and wide-ranging argument for an overlooked part of the Constitution--the "subversive" Ninth Amendment--and why it is crucially important.

The Ninth Amendment lurks like an unexploded mine within the Bill of Rights. Its wording is direct: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." However, there is not a single Supreme Court decision based on it. Even the famously ambitious Warren Court preferred to rely on the weaker support of the Fourteenth Amendment's Due Process Clause for many of its decisions on individual rights. Since that era, mainstream conservatives have grown actively hostile to the very mention of the Ninth Amendment.

Daniel Farber, a law professor at the University of California at Berkeley, makes an informed and lucid argument for employing the Ninth Amendment in support of a large variety of rights whose constitutional basis is now shaky. The case he makes for the application of this unused amendment has profound implications in almost every aspect of our daily lives.

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Product Details

  • Hardcover: 256 pages
  • Publisher: Basic Books (April 30, 2007)
  • Language: English
  • ISBN-10: 0465022987
  • ISBN-13: 978-0465022984
  • Product Dimensions: 9.3 x 6.3 x 1.2 inches
  • Shipping Weight: 15.2 ounces (View shipping rates and policies)
  • Average Customer Review: 3.2 out of 5 stars  See all reviews (5 customer reviews)
  • Amazon.com Sales Rank: #461,285 in Books (See Bestsellers in Books)

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Daniel A. Farber
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Front Cover | Front Flap | Table of Contents | First Pages | Index | Back Flap | Back Cover | Surprise Me!
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unenumerated rights, foreign law, tal rights
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Ninth Amendment, Fourteenth Amendment, United States, Due Process Clause, Justice Kennedy, New York, First Amendment, Immunities Clause, Founding Fathers, Thirteenth Amendment, Chief Justice Rehnquist, James Madison, Justice Brennan, Civil Rights Act, Grandma Moore, New Orleans, Second Amendment, Warren Court, American Revolution, Chief Justice Marshall, Jack Rakove, Patrick Henry, Republican Party, Tenth Amendment
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12 of 15 people found the following review helpful:
5.0 out of 5 stars A remarkable book; must-read!, October 22, 2007
By Tobias CD Novak (Burlington, VT, USA) - See all my reviews
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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). In fact, he spends time discussing how the Bill of Rights was a controversial addition to the Constitution--the Founding Fathers feared that if they listed some rights in the Constitution, that the government might end up invalidating or violating OTHER rights that are NOT listed.

And, surprise surprise, the government has, over time, defended many atrocities against its people (segregation in schools, Jim Crow laws, laws against private sexual behavior, laws mandating forced sterilization, laws banning married couples from using contraception, and so on) on the basis that, since these things weren't mentioned in the constitution, they must not really be violations of fundamental rights.

He does not speak to ALL of these things in the book--I am merely trying to get his main point across, which is that the Bill of Rights was not meant to be an exhaustive, complete list of rights; it was meant to enumerate certain rights, and the 9th amendment was added to protect against the possibility of government violating rights based on the fact that they weren't mentioned.

In addition to making a remarkably well-researched argument, Farber has a writing style which lends itself to any listening ear, regardless of whether you are a lawyer or not. So many writings dealing with issues of law are dry, difficult to read, and cumbersome to non-lawyers (and even lawyers!) Farber has a writing style that engages the reader, and, while some of the topics may be things that it takes at least a basic high school level education to comprehend fully (if someone knew NOTHING about the Constitution it might be difficult to understand some of the things in the book), a person wouldn't need more than a basic high school education to comprehend at least MOST of what he is trying to say.

Farber's book could not have been published at a more timely moment in history. I suggest that anyone interested in the future of human rights pick up this book. I couldn't stop reading it once I started, and I am confident that many of you will have the same experience.
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4 of 5 people found the following review helpful:
3.0 out of 5 stars Much Ado about an Amendment, April 28, 2008
By Omer Belsky (Haifa, Israel) - See all my reviews
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"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? Remember that the federal government enforced contracts regarding slaves, actively helped slave-owners reclaim fugitive slaves, and legislated slave codes for Washington D.C. and Federal territories. A leading historian of Antebellum America called the Pre Civil War United States The Slaveholding Republic: An Account of the United States Government's Relations to Slavery. Where was the Ninth Amendment?

There are at least two elements which Farber ignores.

First, at times at least, Legal scholars saw Natural Law as dispositive - that is, it reigned only in the absence of a specific, man made law that overruled it. A dispositive Natural Law cannot be used by the Supreme Court as a basis for overruling laws. (see Don Fehrenbacher's The Dred Scott Case: Its Significance in American Law and Politics).

Second, the Constitutional order envisioned by the Founders was very different from the one America has today. First, it's far from certain that Judicial Review of Federal legislation was intended (see Leonard Levy's Original Intent and the Framer's Constitution). The idea of the Supreme Court's supremacy - that the Constitution means whatever the Supreme Court says it means - was controversial up to Lincoln's day. And the Court did not routinely step up to defend personal rights: When the Federalists passed the Alien and Sedition Laws, which severely limited the freedom of speeches, nobody went to the Supreme Court to try and overrule the Laws. Today that would be unthinkable... but those were different times.

Thus we should not think that we can directly apply the meaning of the US Founders to the present context, even if we were to perfectly understand them. But Farber is no Originalist. He believes that judges should use the ninth amendment to secure liberties to people because judges have a role - to protect minorities against the majority. I agree with Farber that the main justification of Constitutional Law is the need to check's the government's power. But how can judges tell which rights people have under the Ninth Amendment?

Farber's answer is that Judges should look to "emerging consensus" and specifically to "the views of other federal and state judges, of legislators throughout the country. And judges and lawmakers around the world" (p. 95-96). This is an unsatisfying answer, to say the least.

"Trendspotting" is a game played without any rules. It's a big world out there, and surely one can always find the legislatures, lawmakers, public opinion leaders, etc, to create one's "emerging consensus". Reality, alas, does not progress linearly towards greater freedom and prosperity: there are always cross currents, changing circumstances, wrong turns, new pieces of information, etc. What seemed like a trend yesterday looks like an accidental "bleep" today. Take gay's rights - is there a trend towards more freedom for Homosexuals? How could you tell? There's clearly a very strong anti-gay movement in the US. Increasing Abolition of Sodomy laws may mean that states are acknowledging that people have the rights to be gay - but they may also be recognizing that prosecuting homosexuals is inefficient and too time consuming to be worth the while. Is there a world wide trend for more toleration of homosexuals? Well, not if you consider the Muslim world, where it is practically universally banned; And not just in Muslim countries: Homosexuality is illegal in India, the world's largest democracy. If you'll want to find a trend, you will, especially as there are no limits on where to look. And even if an increasing number of Americans think that sodomy shouldn't be outlawed, is that enough for declaring anti-Sodomy laws unconstitutional? If a majority of Americans were to decide that the war against drugs is pointless and unwinable, would we want the Supreme Court to declare a constitutional right to use crack?

Farber offers an optimistic, Panglossian view of the judicial system. "Judges have been engaging in reasoned judgment for centuries". Well, have they? Given that there are scantly any ways of assessing judicial performance, it's hard to say. But we do know that there's a great deal of skepticism about the role Judges play in politics - just see how many books about the US Supreme Court have been published recently. And what's the point of a Constitutional Jurisprudence which says little except "Right on then, keep up the good work"?
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4 of 6 people found the following review helpful:
2.0 out of 5 stars Judicial Despotism, May 9, 2009
By Brian (Iowa) - See all my reviews
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 is simply 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, must be justified in some other 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.

To see just how much the ratifiers insisted on retaining most issues in the states, and how jealous they were of federal power, see Kevin Gutzman's The Politically Incorrect Guide(tm) to the Constitution (Politically Incorrect Guides) For a demonstration that the Fourteenth Amendment did not have the sweeping scope as Farber claims, see Raoul Berger's The Fourteenth Amendment and the Bill of Rights

Raoul Berger once wrote that the Ninth Amendment is a "Beckoning Mirage." Daniel Farber demonstrates how tempting this mirage can be, and provides a great insight into the mode of thinking that favors an unwritten constitution where judges are free to create and enforce their own versions of "good" social policy. For that insight, I give this book two stars.
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5.0 out of 5 stars Excellent Service!!!
Order was received faster than I expected and book was as promised! Would gladly purchase from this seller again!
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1.0 out of 5 stars Hijacking the Ninth Amendment
I've only thumbed through the book, but did watch Farber speak on Book TV (CSPAN-2) for an hour. Both tell me that his approach to the ninth amendment is an unscholarly attempt... Read more
Published on October 22, 2007 by Stephen J. Chalke

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