Evening star. [volume] (Washington, D.C.) 1854-1972, 1956-02-05
Maybe Ninth Amendment
Is Most important Of All

these rights. but cannot grant them.
For the people had them before
any government. local. State or
national, existed.
The American Constitution EMU
merates some Of the rights, but
the Ninth Amendment afiirms that
others. unspecified. are retained by
the people.
Accidents Of history have obscured
the Ninth Amendment.
Mr.. Patterson, who apparently Is
the first man to make thorough
study of the Ninth Amendment, be-
lieves 1t was confusion that buried
1t. One key mistake was made by
the Supreme Court in 1888 when 1t
miscounted the amendments. The
Ninth was ruled merely to be an
other restriction on the Federal
Government, though what the court
had in mind was the Seventh (trial
by jury.
Other court decisions were based
on that error. It was not until
1890 that the Supreme Court caught
up with the mistake, but by then
lawyers were vastly disinterested in
the apparently useless amendment.
When cited at all, the Ninth
usually was Jumped with the Tenth
another error, for the Tenth deals
with poiDers reserved to the States.
or to the people, and the Ninth
refers to rights retained. by the
people.
The fact is. the Ninth has moth.
ing to do with the Bill-of Rights re-
strictions on Federal powers or with
reservation Of State powers.
A study Of history mokes clear the
incoming Of the forgotten omend-
ment.
The Constitution was ratified. of
course, without mention Of most
personal rights. Washington, Ham
ilton and Madison said these nat
ural rights existed with or without
the Constitution, so there was no
need to list them. They warned
that to list any would be to imply
that only those on the list existed.
There was popular clamor for
a stated guarantee of rights, how
ever, so Madison wrote out all he
could think Of. They became the
Bill Of Rights.
To that list he added the Ninth
Amendment, to insure that all
would know the people had more
rights than were set down in the
Constitutions or its amendments.
What is the potentioI value Of the
Ninth Amendment?
Obviously the founding fathers
believed other rights existed and
were Just as sacred as the rights
to freedom Of religion and press,
to trial by jury and so forth.
No one can say today what these
other rights are. but perhaps they
include such things as the right
to work. the right to privacy, the
right to participate in Government
by having your vote counted equally
with your neighbours, the right to
political asylum, the right to travel
abroad.
Or there may be a natural right
TO bar persons Of another race from
your company-or q natural right
to come and go as you please, re-
CARELESS Of race.
All these rights have been claimed
recently and may exist, though they
are not mentioned in the Constitu-
ton, unless perhaps by implication
in the Ninth Amendment.
There is another potential value
to the Ninth. II natural rights exist
and are retained by the people, then
clearly the States have no more
power to infringe on those rights
than does the Federal Government.
So Supreme Court decisions which
have stretched the "due process"
clause of the Fourteenth Amend
ment out Of shape in order to secure
State compliance with Bill of Rights
guarantees are unnecessary
II the Ninth Amendment means
what 1t says. then the people retain
their natural rights whether they
are set down in the Constitution or
not. and no government, local, State
or Federal, can legally deny these
rights.
Securing recognition rights is a
long, slow process.
II we all retain natural rights
which are not now listed, how do
we get them acknowledged?
The mechanism would be some
thing like this: A man denied q
passport would announce 1t was his
natural right under the Ninth
Amendment to travel and would
hale Uncle Sans passport officials
into court. The burden would be
on the Government to prove that
the man had no such natural right
or that the Government could
properly regulate that right.
II the Supreme Court said that
the right to travel was indeed one
Of the rights retained by the peo-
pie. as specified in the Ninth
Amendment. then another right
would be permanently secured.
There must be lots of such
rights-or else the Ninth Amend
ment means nothing.