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Amendment IX: Rights Retained by the People

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

The Framers of our Constitution were so concerned about civil liberties that they wished to do everything conceivable to protect our future freedoms and guard against government encroachment. But some Framers, as we have seen, opposed a declaration of rights because it might appear that these were the only rights the people possessed. The Ninth Amendment remedied this by providing that rights not listed were nonetheless maintained by the people.

The Ninth Amendment represents two of the most significant themes of our Constitution. The first is popular sovereignty, which holds that a government exists only to serve the interests of its people because the people themselves are the source of the government’s power. Popular sovereignty—the belief that the power to govern flows upward from the people, rather than downward from the rulers—is a hallmark of America’s freedom. This means that our rights are inherently ours, and we the people created our government to protect them. The government did not, nor did it ever, have the power to grant us our rights. This amendment assures that the national government never forgets this important principle. As James Madison noted, “The ultimate authority resides in the people alone.” And as the Declaration of Independence affirms, “Governments … deriv[e] their just Powers from the Consent of the Governed.” 

The second theme is the “presumption of liberty.” No one should ever be forced to bear the burden of proving why he or she should be able to exercise a particular right. Because the people are the source of the government’s power, the government should always bear the burden of showing why a right should be restricted whenever it attempts to restrict one. After all, the Declaration of Independence states that we are “endowed…with certain unalienable Rights…among these are Life, Liberty, and the Pursuit of Happiness…”

In sum, the Ninth Amendment serves as a meaningful check on federal power and a significant guarantee of individual liberty. It is also an important reminder that the rights guaranteed in the Bill of Rights, along with the limitations placed on the government, were never intended to be an exhaustive list; rather, the Bill of Rights is merely a starting point. The Founders understood that the balance of power should always fall in favor of the people, not the government. Indeed, the real power and authority under our Constitution, as clearly demonstrated in the Ninth Amendment, rests in those three revolutionary words: “we the people.”


The Ninth Amendment Today


The government continues to pass more and more laws that restrict our freedoms, and government officials claim they have an “important government interest” in doing so. All the while, courts have all but ignored the Ninth Amendment, usually claiming that it is impossible to interpret its limits. As our homes are taken by the government, police intrusively break into our residences without even knocking or announcing their presence and government agents listen in on our phone conversations and read our emails, the freedoms enshrined in the Bill of Rights are in jeopardy, including those not specifically named but protected nonetheless by the Ninth Amendment. When the government can violate the non-enumerated rights granted in the Ninth Amendment, it is only a matter of time before it will trample the enumerated rights of the people, as explicitly spelled out in the rest of the Bill of Rights.  

Yet it is up to the American people to reclaim the rights that are being taken away from them by the government. Unless more people take a stand for their liberties, it won’t just be the Ninth Amendment that is ignored.

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