On September 17th we celebrate America’s 237th Constitution Day honoring the oldest (by far) charter of government extant. Most constitutions fail within 20 years. Our Constitution’s most important words are its first three, “We the People”. Have you ever wondered why they are the only words emblazoned in giant supersized script? Those three words are truly radical and astounding; they mean all power emanates from we the people – not from some king or government. In an age of monarchs and despots, those three words must have scared the bejesus out of them.

 

Our Constitution, which is just 4,543 words on 4 sheets of paper, contains many provisions that are largely unknown by most Americans. This Constitution Day I am focusing on the Ninth Amendment, which in its entirety states:

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

History of the Ninth Amendment

The Federalists believed a bill of rights was unnecessary because the Constitution granted government only certain specific and enumerated powers. They argued that listing some protected rights may be misinterpreted to mean all unnamed rights were unprotected. However, several states were so distrustful of government, they made their ratification of the Constitution contingent on a bill of rights.

The wording of the Ninth Amendment is amorphous. There are similar provisions in the Constitution such as the “due process” clause in the Fifth and Fourteenth Amendments and the “necessary and proper” clause in Article 1, Section 8. The Ninth Amendment refers to “reserved” rather than “enumerated” rights and hence holds less sway; it is rarely cited in Supreme Court cases. It was mentioned in Griswold v. Connecticut1 when the court ruled there is a right to privacy. However, assertions of unenumerated rights have nearly always failed at the federal level.

Fortunately, the constitutions of most states (including Florida) also contain provisions nearly identical to the Ninth Amendment; these are referred to as baby ninth amendments – and are being used increasingly by public interest legal organizations to thwart government infringement on unenumerated rights.

Power of the Ninth and Baby Ninth Amendments

The Ninth Amendment2 has the power to be a dynamic force for protecting individual rights. Our perception of rights is constantly evolving in the age of social media, artificial intelligence and the human genome. Also, government is intruding more and more on our rights as it becomes a leviathan state. The architects of the Constitution could not have known about rights that did not then exist. In fact, the American people have more rights than any government could ever list.

Following are some rights that currently are being restricted by government and are ripe for Ninth Amendment challenges.

• The right to earn a living without excessive and unnecessary government restrictions. For example, hair braiders should not need cosmetology licenses.
• The right to work for less than the minimum wage and if under minimum age.
• The right not to have your assets seized without due process. Many states confiscate cash from citizens without charging them with a crime.
• The right to control your property such as no minimum building size.
• The right to work from home without government imposition of OHSA restrictions, banning of window signage, parking and other mandates.
• The right to be free from government surveillance on your own property.
• The right to operate a food truck without draconian government regulation.
• The right to make and sell baked goods in your home kitchen without having to install a commercial kitchen or be subject to government inspections.
• The right to due process before being declared incompetent or having restrictions imposed on travel, marriage, health care and hiring an attorney.
• The right to make and sell caskets and to provide memorial services.

All of the rights listed above are routinely violated by governments and they represent only the tip of the iceberg. The Ninth Amendment can limit the power of government and protect Americans’ unenumerated rights. It is time to put it to work.

Constitution Day 2024

On September 17th we celebrate the United States Constitution. Even with its imperfections cited supra, it is the best charter of government crafted by the hand of man to define the relationship between man and the state. It has endured 237 years precisely because it is based on the correct understanding of human nature; its systems of separation of powers and checks and balances are pure genius.

The Preamble to the Constitution lists first among its objectives – to form a more perfect union. The Ninth Amendment can play a greater role in protecting our unenumerated rights and thereby to form a more perfect union.

Happy Constitution Day 2024 from More Liberty – Less Government!