Before you all go scurrying to your Constitution let me quote the 9th Amendment. The amendment which is part of our Bill of Rights simply states the following: ” The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The genius of James Madison in writing this for what has been for over a century an obscure part of our rights, was that he was smart enough and wise enough to change his mind in accepting the idea that having a bill of rights was necessary. Secondly, by writing this amendment he acknowledged two things, one that the Constitution was not a mere document that did not leave room for the reality of change, changing times and circumstances but he also by writing this amendment is saying to future generations that there was no original intent written in concrete, not to be changed or amended in the future.
James Madison who rightfully has been called the Father of the Constitution, originally stated in the Federalist Papers that there was no need for a Bill of Rights. In his famous speech before Congress on June 8, 1789, Madison gave his reasons for why he had changed his mind and had decided that a Bill of Rights was necessary in order to secure our rights.
The Ninth Amendment was left vague for the following reasons: ” The Ninth Amendment served as a definitive solution to the ratificationists’ problem of how to enumerate the rights of the people without endangering those that might be omitted. The amendment served also as a device for Congress to avoid making a systematic enumeration when framing the Bill of Rights.” see ORIGINAL INTENT AND THE FRAMERS CONSTITUTION by Leonard Levy page 274.
So what are the unenumerated rights? Not until 1965 did the court, our Supreme Court look to the 9th Amendment for guidance when the court held that privacy was an unenumerated right. The court set aside a state law making the use of contraception a criminal offense, using as part of its reasoning the idea that the law violated a women’s privacy and for the first time mentioned the 9th Amendment as part of the rulings justification.
One can assume from reading people like Madison and Jefferson that a right, not enumerated needed to be a natural right or at a minimum a positive right. Even in the Declaration Of Independence, Jefferson stated that AMONG these rights are life, liberty and the pursuit of happiness. In the writings of the founders it is clear that the Constitution was intended to be a living document whereby the changing world would necessitate flexibility if the document would remain relevant in the future. No one could expect the founders of our system to anticipate life changing as it did over time. If we would have insisted on being inflexible our Constitution would have lost its relevance. We would still have only propertied white men voting and the choices for the U.S. Senate would still be made by state legislatures but times changed and the enfranchisement of our citizens evolved so that each and every citizen now has the right to vote and enjoy the liberty, life and the pursuit of happiness that we were promised. The change in who votes and chooses our Senators increased the peoples right to make these decisions of who would represent our interests in the United States Senate.
Many unexpected events and many unexpected changes in the subjects that our national government oversees such as environmental issues, the President’s dominance in foreign policy, the size of the bureaucracy, the power of the Federal Reserve Board in determining economic policy, the internet, the 13th, 14th and 15th Amendments have taken place and could not have been predicted. The increase in our population has put a burden on our political structure to provide for the general welfare and have introduced 21st Century issues that could not have been anticipated.
What rights that have not been enumerated, and will become the new issues for the courts and our system of government to debate? Will the right to have an education become a right under the 9th Amendment or will the right to have good health become a legal issue or has it already become part of the unenumerated rights that are not part of our lives?
James Madison was a political genius who defined what our Bill of Rights are and in his leaving the 9th Amendment vague he has left open the possibility that our rights will further evolve over time and continue to grow.
We continue as a people and as a nation to attempt to make a more perfect union. Don’t drop out of the political discussion if your side of an issue or debate loses in the court of appeals the will of the majority. Each and every American should be part of the discussion. When we increase the rights of others, we should not have any malice towards those who through the political process have seen their point of view defeated by either the elective process or by the decisions of our Supreme Court. It is not worthy of our fellow citizens if in defeat they attempt to become the victims. Slaveholders were never victims but rather they just could no longer victimize others. Let us maintain our dignity and respect the law and the changes that take place as long as the changes are supported by the will of the majority. We can no longer have a civil society if a defeated minority refuses to accept the changes and continues on insisting on maintaining their biases and bigotry in spite of what is now the law of the land.