Norm Pattisposts a review of Daniel A. Farber’s Retained by the People: The “Silent” Ninth Amendment and the Constitutional Rights Americans Don’t Know They Have, (Basic Books, New York: 2007). 

You remember the 9th, don’t you?  Come on, tell the truth.  You know there has to be a 9th Amendment because you’re really good a counting to 10, but you can’t remember what it says.  Don’t feel bad.  You’re not alone.  That’s because nobody uses the 9th.  You never hear anybody in a movie say, “I plead the 9th!” 

The Ninth Amendment says:

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

It’s relative short, and has no highly controversial or hotly contested phrases.  It reflects a concern and understanding that the founders appreciated, but that we have long since forgotten.  It’s about time that we dusted it off.

The People see the government as omnipotent.  Because of this, no one questions the power that the government asserts over the People.  This is not only wrong, but dangerous, as our forefathers understood.  It’s the foundation for tyranny of a government over the people.  The government exists only to the extent we allow it to exist.  Or so the theory goes.

You can’t fight City Hall is an old adage, and one to which most people subscribe.  It’s too much, too difficult and too unlikely to win to be worth the effort.  Groups that form to do so are usually seen as a bunch of malcontents and outcasts.  We want to be part of the winning group, not the angry unhappy group.  So we go along to get along.

Having kids studying American Government is a great way to keep current with the Federalist Papers, and they have plenty to say about why our Constitution puts the breaks on government.  Everyone should read them, especially people who seek our vote to national office.  I doubt most of them have. 

Even our beloved judges tend to write about the “rights” of the government.  Of course, the government has no rights.  People have rights.  There are a few that we have allowed the government to take charge over, giving them authority and power to act in our interests.  Then there’s that darn elastic clause that gets trotted out to rationalize the seizure of power when none was given.  What is necessary is one thing; what is proper is quite another.  When in doubt, ask the People.  After all, they’re our rights.

Norm urges lawyers to start including 9th Amendment claims in all 42 USC 1983 actions.  He’s absolutely right.  The Bill of Rights numbered 10 for a reason, and each amendment should be given its due.  It will likely be a while before any judge takes notice of a 9th Amendment claim, but bear in mind that the 2nd Amendment’s RKBA was carved in stone until, suddenly, it wasn’t and everything turned on its head awaiting the decision in Heller. 

Not that I’m paying dues to the Federalist Society, but there is much to be said about giving each of the first 10 amendments a look-see.  Thanks for the reminder, Norm.