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Constitutional : The Proper Construction and Application of the Ninth Amendment in Defense of the “Natural of Man”

Lucas Drill

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I. Introduction Upon the founding of this country, the constituent members of what would become the declared: We hold these to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, and the pursuit of Happiness.1 With these words, the U.S. established itself as the first democratic nation to certify the existence of the natural rights of man. This philosophy holds that all human beings inherently possess an array of which cannot be granted to, or assumed by, any . In the and the Bill of Rights, the people of a new and independent country created a system of government wherein the state possesses certain specific, even sweeping powers, but where the citizens also retain certain prerogatives which the government may not invade. Often lost in the ensuing and evolving debate over the extent of governmental power, and the limits which the rights of its citizens placed upon it, is a seemingly innocuous, and arguably overly legalistic, provision in the Bill of Rights. It memorializes the notion articulated in the preamble to the Declaration of Independence that we should never consider exhaustive any list of the natural rights of man and the boundaries they place upon the government: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”2 The meaning, scope, and majesty of this Ninth Amendment to the Constitution of the United States, and its potential impact on the country’s jurisprudence in the twenty-first century, is the subject of this article. Throughout the political and legal history of the U.S., much of the debate concerning the tension between governmental power and has justifiably focused on the meaning and extent of the rights enumerated in the first eight amendments to the Constitution. At first blush, the enumeration of those rights appears comprehensive; one struggles to articulate a liberty that does not appear among them. However, one of our most cherished rights, the right to , is just one example of a right not specifically mentioned in either the Constitution or the Bill of Rights. Granted, the Fourth Amendment stipulates that we have the right to be free from warrantless searches, but few would argue that such is the extent of our .3 Rather, most Americans would undoubtedly agree that this right encompasses many aspects of self- determination, including the right to live as one chooses. These “unenumerated” rights are exactly what the Ninth Amendment enshrines and protects. The Ninth Amendment, above all else, expressly recognizes the existence of individual liberties not enumerated in the U.S. Constitution and its subsequent amendments. We should, therefore, categorize all unmentioned rights, unless explicitly within the scope of the government’s constitutionally enumerated powers, as natural and within the scope of the Ninth Amendment’s protection. Given this, it seems curious that few Supreme Court cases have discussed the Ninth Amendment, and that when, on the rare occasions they have done so, they have interpreted it to state a truism so obvious that they basically relegate it to the status of a rule of construction. Consequently, rather than using the Ninth Amendment as a touchstone of a school of constitutional analysis whose underlying assumption is that the government has only the powers granted to it by

1 U.S. Declaration of Independence (1776). 2 U.S. Constitution Amendment IX. 3 U.S. Constitution Amendment IV. 2 the people and that the people retain all else, in practice, the Supreme Court has generally validated the expansion of federal power since the tenure of Chief Justice John Marshall. Nevertheless, there are those who believe that the Ninth Amendment is not just a rule of interpretation. Instead, it is properly seen, and should be construed by the courts, as a bulwark against undue governmental interference in people’s private lives. Read literally, the Ninth Amendment can be invoked by persons defending individual liberties across the political spectrum. While many issues may implicate other provisions of the Constitution and the Bill of Rights (including the Fourteenth Amendment), the Ninth Amendment is a largely unexplored provision that encapsulates the “natural rights” theory fundamental to this country’s foundation. This article begins by defining natural rights as those that are, in the words of , “unalienable,” or rights that enacted do not, and cannot, limit.4 These are typically, but not exclusively, rights that affect the individual and his/her familial dependents. In this view, government can only limit those rights that intrude on the natural rights of others. The theory of natural rights is based on the political philosophy of John Locke5 and others who, in the seventeenth and eighteenth centuries, refined a concept dating back to the Greek stoics as a challenge to the prevailing monarchical forms of government where all power resided in the sovereign, and people only had such rights as were granted them by royal fiat which, of course, could be revoked at any time. The U.S. Constitution actually represents a marriage between natural rights theory and the “Social ” of Jean-Jacques Rousseau, wherein a government derives its power from the consent of the governed, who cede certain rights to the government in order to establish a political and , but nevertheless retain all other rights not specifically granted to the government.6 The Bill of Rights, adopted almost immediately after the ratification of the Constitution, is the primary vehicle for protecting those rights, and the Ninth Amendment should serve to defend against government usurpation of the rights not enumerated in the First through the Eighth Amendments. Next, this article explores the origins and history of the Ninth Amendment. This section begins with an analysis of original proposals for the Ninth Amendment and debates surrounding those proposals. It then flows into an examination of similar state constitution provisions modeled on the Ninth Amendment, the so-called “Baby Ninths,” an area in which Anthony Sanders provides the lion’s share of the research and writing. Based upon that work, this article briefly reviews the history of the Baby Ninths, but primarily focuses on actual and hypothetical litigants’ abilities to use these analogs as foundations for arguing in favor of recognizing their judicially- established individual protections at the federal level through the Ninth Amendment.7 This review reveals history’s strong suggestion that the proper interpretation of the Ninth Amendment is that it protects individual as opposed to collective rights, and that when a conflict arises between an overreaching governmental power and individual liberty, all doubts should be resolved in favor of such liberties, for they are the wellspring of our civil society. This article continues its review and analysis by delving into the modern interpretation of the Ninth Amendment by the Supreme Court, which has cited the Amendment on several

4 U.S. Declaration of Independence (1776). 5 Tuckness, Alex. “Locke’s Political Philosophy.” Edited by Edward N. Zalta, Stanford Encyclopedia of Philosophy, Stanford University, 11 Jan. 2016. 6 Rousseau, Jean-Jacques. The . 1762. 7 Sanders, Anthony B. “Baby Ninth Amendments and Unenumerated Individual Rights in State Before the Civil War.” Mercer Review, vol. 68, 2017, pp. 389–443. 3 occasions, especially in late-twentieth century opinions. Through this examination, we see that the Supreme Court’s interpretation is rather vague and uncertain. Although the Ninth Amendment clearly protects individual liberties (particularly privacy), the Court has yet to attempt to categorically define what those liberties are and where they end. Interestingly, the Supreme Court seems to prefer the use of the Fourteenth Amendment over the Ninth when addressing unenumerated rights. This seems odd given that, unlike the Fourteenth Amendment, the Ninth Amendment speaks directly to this topic, while the Fourteenth focuses only on the powers of individual state , and not on the substantial reach of the national government into our daily lives. Consequently, this Article presents an argument in favor of establishing a new relationship between the Ninth and the Fourteenth Amendments, with the former providing the intellectual underpinning for the latter in cases involving unenumerated rights. Indeed, the Fourteenth Amendment, when dealing with unenumerated rights, appears to lack intellectual bite, and using it often requires an overly-strained reading of the Amendment’s language. Conversely, the Ninth Amendment contains the necessary teeth in cases establishing or defining the parameters of any liberties not expressly guaranteed by the U.S. Constitution. Therefore, only the Ninth Amendment provides a textual foundation for the protection of unenumerated and developing rights.8 Perhaps due to the paucity of specific court precedents, or maybe in spite of it, modern academic debate surrounding the Ninth Amendment is quite vigorous. There are several resounding voices in this arena, and they are all in fairly constant conversation. Perhaps the most widely recognized voice is that of Akhil Amar, who interprets the Ninth Amendment as focusing on the communal, rather than individual, rights of “the people” identified in the text when those people operate as a body politic.9 On the other hand, consistently maintains, as largely does this paper, that the amendment “means what it says,” which is to say that its purpose is to protect and defend individual liberties.10 There are several other academics who routinely write on this subject, and this article reviews their work and discusses their nuanced understandings of the Ninth Amendment. This list includes Thomas McAffee, who argues for a “residual rights” reading of the Amendment grounded in the that the Ninth Amendment protects rights already established but not constitutionally enumerated.11 Also included is Kurt Lash, who believes that the Ninth Amendment has more to do with “” and people specifically as citizens of different states, rather than people as or a collective in and of themselves.12 Finally, it includes Louis Seidman, who views the Ninth Amendment as “unsettled,” leaving the question of unenumerated rights, or even the fact of their existence, to future generations of people and as yet unwritten caselaw to answer. 13

8 U.S. Constitution Amendment XIV. 9 Amar, Akhil Reed. “The Popular-Sovereignty Amendments.” The Bill of Rights: Creation and Reconstruction, Yale University Press, 2008, pp. 119–133. 10 Barnett, Randy E. “The Ninth Amendment: It Means What It Says.” Texas Law Review, vol. 85, no. 1, Nov. 2006, pp. 2–82. 11 McAffee, Thomas B. “The Original Meaning of the Ninth Amendment.” Columbia Law Review, 1990, pp. 1215– 1320. Scholarly Commons @ UNLV Law. 12 Lash, Kurt T. “The Lost Jurisprudence of the Ninth Amendment.” Texas Law Review, vol. 83, no. 3, Feb. 2005, pp. 597–716. 13 Seidman, Louis Michael. “Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism.” Georgetown Law: Faculty Working Papers, ser. 10-11, Mar. 2010, pp. 1–40. 10-11. 4

With an understanding of the Ninth Amendment as the principal champion of individual rights established, this Article offers possible future applications of the amendment in the area of currently developing rights. In addition to the already largely established right to privacy, the seems to be acknowledged in the academic sphere. Here, Lawrence Oldaker engages with the idea that given that education is a cornerstone of building a well-functioning society, not only must children receive the tools to learn, but their parents should be supported in a desire to enroll their children in schools of their choice, either public or private.14 Definitionally, however, the scope of the Ninth Amendment cannot end at already articulated and debated rights. Instead, this Article proposes an understanding of the applications of the Ninth Amendment using the general phraseology of Article 3 of the ’ Universal Declaration of as protecting the right of individuals to be secure in their person.15 While this right is intentionally broad, this article will provide some practical specifics of its proposed function. For example, with a rapidly developing virtual realm, technological developments are, as usual, outpacing the law, and traditional libel and laws in the U.S. may not go far enough to protect an individual’s reputation. We can implement a solution within our legal system loosely based on laws protecting reputation in countries other than the U.S. through the Ninth Amendment. Similarly, the Ninth Amendment and the right to may be used to protect individuals from forced association. For example, while many states have established, or are in the process of establishing, the “”16 and other protections against obligatory associations in trade unions as a condition of , in many others, individuals often do not have the ability to protect their assumed right to independence in or out of the workforce. Finally, this article concludes that not only should we interpret the Ninth Amendment as protecting unenumerated individual rights, but that we should see the Amendment’s protections as a lens through which to view the Constitution and the Bill of Rights as a whole.

II. Understanding Natural Rights The concept of natural rights in the U.S. is incorporated into the preamble to the Declaration of Independence, which declaims that “among” the “unalienable” rights of man are “life, liberty, and the pursuit of happiness.”17 At the time Thomas Jefferson penned this statement, the U.S. was a group of loosely related colonies governed by the English monarchy, yearning for independence. Jefferson believed, and publicly stated in the Declaration of Independence, that the English crown was infringing upon the right of the “United States” to govern themselves. To him, it was clear that this nation, following a yet-to-be-defined legal system (first temporarily established in the Articles of , and later superseded by the Constitution and its Amendments), had the right to be autonomous. In Jefferson’s time, the discussion of natural rights, and the idea of human behavior in a state of nature, began with the writing of Thomas Hobbes. In his work, , Hobbes described his vastly pessimistic view of human nature: “every man is enemy to every man … and

14 Oldaker, Lawrence Lee. “Privacy Rights, School Choice, and the Ninth Amendment.” Brigham Young University Education & Law Journal 1993, Issue 1, Columbia University Libraries. 15 Universal Declaration of Human Rights. United Nations, 2015. 16 “Right-to-Work.” NCSL, National Conference of State Legislatures, 2017. 17 U.S. Declaration of Independence (1776). 5 the life of man [is] solitary, poore, nasty, brutish, and short.”18 In order to avoid the predictable outcomes of the natural state of man, Hobbes posited the need for, and the origins of, government. Hobbes’ version of government, however, was not an institution where the strong exerted power over the weak. Instead, Hobbes claimed that people are naturally relatively equal, and that government must stem from the willingness of people to give up some rights, while keeping other, natural rights. Unfortunately, Hobbes never provided a list of those rights. Approximately forty years later, posited the idea that natural rights consist of “life, health, liberty, [and] possessions” and, therefore, peaceful government exists only by the “consent of the people.”19, 20 Another philosopher, Jean-Jacques Rousseau, built upon the of Hobbes and Locke. Rousseau, unlike Hobbes, believed that human nature was largely good. Instead of needing government to control chaos, Rousseau believed that a government’s purpose was to provide a more structured order in which individuals could flourish. Rousseau’s social contract is built upon the common interests of individuals, both people and government, and combines the theories of natural rights with the consensual relationship between the governors and the governed.21 In sum, the Natural Rights, as they were understood by the framers, are best defined as those rights that must not be limited by or consigned to a government. These rights usually offer individuals the ability to control their own actions, provided that their exercise does not impinge upon the rights of others. Many scholars interested in natural rights, including those who see natural rights as a precursor to the Ninth Amendment, have written on the subject. While a complete survey of seventeenth- and eighteenth-century political philosophy is beyond the scope of this article, it is obvious that the work of these scholars, particularly that of Locke, profoundly influenced Jefferson, and thus, the articulation of our nation’s idea of a founding governmental ethos. What is equally clear and crucial to the thesis of this article is that Locke’s natural rights, and therefore, the rights protected by the Ninth Amendment, are the rights of individuals qua individuals, and not of a group of individuals functioning as a body politic. Just as the United States’ earliest invocation of natural rights justified the establishment of an independent single nation, separate from its colonial rulers, so too did John Locke describe each person, as opposed to the people as a collective, as free from governmental interference bound only by their willingness to be governed (provided that the government does not impede the ability to exercise natural rights). This becomes clear through an examination of the specific natural rights Locke chose to enumerate. “Life” and “health” are deeply personal. There cannot be a collective interpretation of these rights because society, as a group, can neither be dead nor sick. Even if a modern principle like universal healthcare is applied to the analysis, each individual must be treated separately, for each ailment is unique. “Liberty” and “Possessions” are similar. While liberty can conceivably be tied to a societal context, such as the collective U.S. declaring its independence, mandatory membership in a collective is inherently antithetical to the concept of . Each individual is unique, and while there certainly exist common interests, the acknowledgment of value in and the protection of the rights of the few (and the rights of the one) against the many defines liberty. Likewise, “possessions” are largely individual, although, like liberty, the right can be collectively exercised. Regardless of the mode of exercise, however, the notion of is inherently

18 Hobbes, Thomas. Leviathan. XIII. 9. 1651. 19 Locke, John. Second Treatise of Government. II. 6. 1690 20 Id. at VIII. 112. 21 Rousseau, Jean-Jacques. . II. 1. 1762. 6 exclusionary because possession of a res by one, be it an individual or collective one, eliminates the possibility of concurrent possession by others. Thus, possession may be either individual or collective, but it cannot be both, and if individuals have a right to possession, then the objects of that right, as the Fifth Amendment recognizes, are protected from an assertion of dominion by the collective government.

III. Origins of the Ninth Amendment The Ninth Amendment was, as were the other amendments in the Bill of Rights, not only based upon the philosophical concept of natural rights, but it arose from the more pressing (at the time) debate between Federalists, who favored a strong constitution and federal government, and the Anti-Federalists, who preferred a weaker central government in favor of states’ rights. The Bill of Rights, itself, was championed primarily by the Anti-Federalists who feared that the ratification of the U.S. Constitution would grant too much power to the federal government in derogation of the ability of states to primarily govern themselves. The Anti-Federalists also feared the government’s potential to strip away the rights that they had so fiercely fought to gain through independence from the British monarchy. Alexander Hamilton, a prominent Federalist, strongly argued against the necessity for a Bill of Rights. He claimed that “the Constitution is itself in every rational sense, and to every useful purpose, a Bill of Rights.”22 In fact, Hamilton believed that the preamble to the constitution, which was, and continues to be, as much a part of the document as any other Article, secured rights for the people outright: “We the people of the United States… to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the U.S..”23 While the Anti-Federalists as a whole were inclined to postpone ratification of the Constitution until they were guaranteed (or convinced) that their state and individual liberties would be secure, , a leading Anti-Federalist (the other being Thomas Jefferson, who first enshrined the concept of natural rights to the written political history of the U.S. through the Declaration of Independence) tended to agree, at least somewhat, with Hamilton’s sentiments. For this reason, as Madison penned the rest of the proposed amendments to the Constitution that were to make up the Bill of Rights, he included a provision which recognized the existence of the unenumerated rights mentioned in the Constitution’s preamble: The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.24 This proposed amendment, albeit broad, claimed not only that the other provisions in the Bill of Rights explicitly limit the federal government, but that rights not enumerated were equally as important and significant as those that the Constitution and its amendments stated in text. While this exact wording was not adopted and the express notion that such rights place limits on the power of government was removed from the eventual text (the Ninth Amendment states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others

22 Hamilton, Alexander. Federalist, No. 84. 28 May 1788. 23 Ibid. 24 Madison, James. Annals of Congress, House of Representatives, 1st Congress, 1st Session, June 8, 1789, Washington, DC: Gales and Seaton, 1834. 7 retained by the people”), the Ninth Amendment carries the same intent: to secure the individual rights of the people from the potential tyranny of the federal government.25 In addition to the debate surrounding the Bill of Rights and the Ninth Amendment, phraseology protecting unenumerated rights similar to the Ninth Amendment can be found in various state constitutions and are known as “Baby Ninths.” On this topic, scholar Anthony Sanders has done much, if not all, of the work in researching their origins and development. Sanders traces the history of Baby Ninths to the period before the American Civil War.26 The earliest of these Baby Ninths, the one found in Alabama’s state constitution, is one of the most interesting. It opens, in part, identically to the Ninth Amendment: “this enumeration of certain rights shall not be construed to deny or disparage others retained by the people.”27 Not only is this the first of the Baby Ninths to parrot Ninth Amendment text, but the legislators of Alabama went on to combine this clause with another that further solidifies individual liberties by declaring provisions impinging upon the rights of the people as void.28 In this , Alabama made express the notion of rights as limitations on the power of government included in Madison’s original draft of the Ninth Amendment. After Alabama’s adoption of its Baby Ninth, other states followed suit. Maine passed a provision that reads, “…the enumeration of certain rights shall not impair nor deny others retained by the people.”29 Tennessee, California, Ohio, Maryland, and Minnesota all held their own state constitutional conventions to debate, and possibly include, their own versions of Baby Ninths modeled after the Amendment found in the Bill of Rights. Each of these states, from across the political spectrum and located in various regions across the United States, undoubtedly valued the need to protect the unenumerated rights of the people living within their borders. Even more fundamental is the greater frequency of judicial enforcement of these Baby Ninths in state law. In Alabama’s 1838 case of In re Dorsey, three judges ruled that the state’s Baby Ninth protected an applicant to the Alabama bar from swearing an oath against duels.30 Here, one justice even went so far as to assert that the Baby Ninth “…protected ‘any’ rights, enumerated or not, and should be given a ‘large and liberal interpretation.’”31 In Arkansas, the state Supreme Court ruled in Ex parte Martin that the state’s Baby Ninth could be used to provide landowners with compensation for temporary flooding caused by a levee project.32 In California, the state’s Baby Ninth was used in 1857 to find “an adverse possession statute unconstitutional” in the case of Billings v. Hall.33 These state cases provide a basis on which to view Baby Ninths and, thus, the Ninth Amendment on the federal level, through the lens of protecting unenumerated, and most often individual, rights. Perhaps just as crucially, each of these state cases was decided before the existence of the Fourteenth Amendment. Thus, no vehicle existed to invoke the protections of the

25 U.S. Constitution Amendment IX. 26 Sanders, Anthony B. “Baby Ninth Amendments and Unenumerated Individual Rights in State Constitutions Before the Civil War.” Mercer Law Review, vol. 68, 2017, p. 1. 27 Id. at 23-24. 28 Ibid. 29 Id. at 26-27. 30 Id. at 56. 31 Id. at 58. 32 Id. at 59. 33 Id. at 60. 8

U.S. Constitution against the actions of a state legislature. Most importantly for purposes of this article, the very existence of the Baby Ninths provide evidence that the framers, and the generation of those who immediately succeeded them, understood the phrase, “the people,” in the Ninth Amendment to refer to individuals rather than groups of people acting as separate bodies politic, i.e., states; for if the latter were the case, then the adoption of the Baby Ninths by those very bodies politic would have been superfluous.

IV. The Ninth Amendment in Modern Case Law While the Ninth Amendment is a relatively rare citation used by the Supreme Court, there do exist cases that rely on either its direct text or its principles. The following five are the Court’s most recently published cases. In United Public Workers v. Mitchell, decided in 1947, the Court held that the Hatch Act, which prohibits federal employees from engaging in political activities, did not violate the Ninth Amendment. In doing so, the Court articulated the test which still governs Ninth Amendment cases to this day: The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.34 Essentially, the Supreme Court ruled that in times of conflict between enumerated powers and claimed unenumerated rights, the enumerated powers prevail, which is arguably contrary to the hierarchy of natural rights versus governmental powers as understood by the framers. While this decision declared enumerated federal powers superior to unenumerated rights, it also provided a much-needed interpretation of the Ninth Amendment, clarifying its limitations under current caselaw. However, the analysis stopped short of addressing the power of the Ninth Amendment in cases involving implied governmental power. If, as the court questioned, it could not side with a hypothetical right invoked under the auspices of the Ninth Amendment against a Congressional enactment grounded in an enumerated power, how would the Ninth Amendment fare in the case of a claimed unenumerated right competing not against an enumerated power, but a policy which the government argued was necessary for the progress of civil society? The Supreme Court’s answer came eighteen years later, in Griswold v. Connecticut, when the Court overturned a Connecticut law banning contraception on the basis that it violated a right to marital privacy despite the fact that the Constitution enumerates no such right. Technically, the majority opinion stated that such a right is found in the “penumbras” and “emanations” of other enumerated rights, such as the First Amendment’s guaranty of and the Fifth Amendment’s right against self-incrimination, but a concurring opinion by Justice Arthur Goldberg specifically relied upon the Ninth Amendment for the foundation of such right, saying that it was among the rights “retained” by the people.35 Justice Goldberg, with Chief Justice Warren and Justice Brennan joining, concurred: The Ninth Amendment…since 1791…has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed

34 United Public Workers v. Mitchell (1947). 35 Griswold v. Connecticut (1965). 9

because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment, and to give it no effect whatsoever.36 Articulating the Supreme Court’s view of the proper role and function of the Ninth Amendment at that time, Justice Goldberg asserted that not only can rights be essential regardless of enumeration, but that it is the Ninth Amendment, in particular, that protects these essential rights. The Supreme Court explicitly recognized not only the existence of the Ninth Amendment, but its place in the pantheon of jurisprudence: “…moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment.”37 Griswold was shortly followed by Roe v. Wade, in which the Court held that the right to privacy trumped a state ban on all . Although the trial court found that the right was guaranteed by the Ninth Amendment, the majority opinion declined to adopt that rationale and, instead, relied upon the Fourteenth Amendment’s concept of personal liberty and its restriction of state action. Furthermore, in a concurring opinion, Justice William O. Douglas flatly rejected the trial court’s reasoning, unequivocally stating, “The Ninth Amendment obviously does not create federally enforceable rights.”38 Given this discrepancy between Griswold’s concurrence and the Court’s eventual reliance on the Fourteenth Amendment (not to mention the scathing statement of Justice Douglas), Roe marked perhaps the most prominent shift towards relegation of the Ninth Amendment to the forgotten footnotes of case law. Roe did reaffirm, however, that not only do unenumerated rights exist, but they are enforceable and protectable, particularly in the cases where the right to privacy is implicated in a person’s individual medical decisions. Thus, the Supreme Court was channeling the Lockean formulation that natural rights include the . In 1986, in a move that turned away from the previous precedents of Griswold and Roe, the Court in Bowers v. Hardwick stunningly refused to hold that the right to privacy extended to cover homosexual activity in the home. Interestingly, although the Ninth Amendment was specifically argued by one of the parties to the case, the majority opinion completely ignored the issue, which is precisely what the Griswold concurrence argued should be avoided. Justice Harry Blackmun, who authored the majority opinion in Roe, dissented from the decision on the basis of the right to privacy, but, following his previous stance, again grounded that right in the Fourteenth Amendment. The Ninth Amendment was mentioned only in passing in the Justice’s disagreement over the Court’s refusal to even consider the argument. This decision, including its dissent, continued the trend the Court established in Roe of ignoring the obvious place of the Ninth Amendment in matters relating to the assertion of unenumerated individual rights.39 In 2003, the Court overruled Bowers in the case of Lawrence v. Texas. In this case, the Court invalidated a statute criminalizing homosexual activity on the basis that it violated the right to privacy, but once again found that such right flowed from the Fourteenth Amendment. Unfortunately, the Ninth Amendment was not mentioned at all in the case. To some, Lawrence put the final nail in the coffin entombing the Ninth Amendment in the graveyard of Supreme Court opinions.40

36 Ibid. 37 Ibid. 38 Roe v. Wade (1973). 39 Bowers v. Hardwick (1986). 40 Lawrence v. Texas (2003). 10

V. Ninth Amendment vs. Fourteenth Amendment The Supreme Court’s contemporary reliance on the Fourteenth Amendment in the privacy cases at the expense of the Ninth is curious, to say the least, because the former does not contain any reference to unenumerated rights. Rather, the Fourteenth Amendment states in relevant part: ...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.41 Given that the Fourteenth Amendment does not address unenumerated rights and the Ninth specifically does, the Supreme Court’s stubborn refusal to rely upon the latter Amendment in cases where it has recognized a previously unenumerated right seems inexplicable. Accordingly, this article proposes the recognition of a new relationship between the Ninth and Fourteenth Amendment in order to establish a more solid legal foundation for the protection of unenumerated rights. While, undoubtedly, the Fourteenth Amendment should serve as the means through which unenumerated rights are protected from the impositions of state legislatures that may seek to diminish individual liberties, the Ninth Amendment must be used as the teeth with which the Supreme Court bites. As the only Amendment (and sole provision within the entire U.S. Constitution) to mention the unenumerated rights of “the people,” the Ninth Amendment stands alone as the single declarative basis for securing the individual liberties on which this nation’s independence was established. As written by Justice Goldberg in his concurrence in Griswold v. Connecticut, “…the Ninth Amendment shows a belief of the Constitution’s authors that exist that are not expressly enumerated in the first eight amendments, and an intent that the list of rights included there not be deemed exhaustive.”42 In this way, Justice Goldberg recognized that the Ninth Amendment is the foundation for the recognition and protection of the natural rights of individuals beyond those explicitly stated in the Constitution. Justice Goldberg further asserted, “…as any of this Court’s opinions knows, this Court has held, often unanimously, that the Fifth and Fourteenth Amendments protect certain fundamental personal liberties from abridgment by the Federal Government or the States.”43 Just as the Fifth and the Fourteenth Amendments could be, and are used, to protect rights which are enumerated within those amendments or elsewhere in the Constitution, the Ninth Amendment secures those same types of “fundamental personal rights” despite their absence from the text of the document.44 When the Court follows its own precedent of protecting established, yet unenumerated, rights from impairment by state, as opposed to federal, action, the analysis must begin with the Ninth Amendment as the constitutional basis upon which such protective actions are founded. Without the Ninth Amendment, it is likely that the Court’s decision would be intellectually and, therefore, judicially undermined in the future, as it would lack the textual support recognizing the existence of rights outside of the Constitution’s written language. Only with the regular use of the Ninth Amendment in case law, and the acknowledgment of its rightful place in jurisprudential

41 U.S. Constitution Amendment XIV. 42 Griswold v. Connecticut (1965). 43 Ibid. 44 Ibid. 11 analysis, can the concept of the protection of unenumerated individual liberties truly take hold in the United States.

V. Modern Academic Debate Even though the Ninth Amendment is largely ignored by today’s Supreme Court, the academic debate surrounding its meaning, and even its relevance, is dynamic. Essentially, the debate is divided into five categories of interpretive approaches: Akhil Amar’s collective rights, Randy Barnett’s individual rights, Thomas McAffee’s residual rights, Kurt Lash’s federalism, and Louis Seidman’s unsettled view.45,46,47,48,49 While there exist multiple scholars in every tranche of the argument spectrum, these five scholars typify the thinking of their respective groups. Of the five theories, federalism and residual rights are perhaps the least intellectually supportable. Kurt Lash, through a federalist lens, argues that the Ninth Amendment’s jurisprudence should consist largely of that which is now credited to the Tenth Amendment, which claims that rights not granted to the federal government are left to the states.50 However, instead of making an explicit states’ rights argument which is more properly analyzed under the Tenth Amendment, Lash argues in favor of “a modest proposal” that combines individual and collective rights to create a Ninth Amendment dichotomy between people as citizens of a given state and citizens of a single nation.51 While this may initially appear sound, closer scrutiny reveals that it inappropriately merges the meanings of two separate amendments, the Ninth and the Tenth, which the framers intended to address as completely different issues. Furthermore, by striking a balance between individual and collective rights, the federalist argument falls short of completely understanding either. To be both “individual and majoritarian” in a view of liberties is neither practical nor correct. While we can conceivably apply individual liberties to communities as groups of individuals, a majoritarian point of view denies a person’s ability to be uniquely free. Likewise, McAffee’s residual rights theory seemingly fails to grasp the underlying meaning of the Ninth Amendment. McAffee wrestles mainly with the historical intent of the Ninth Amendment before finally settling on the conclusion that unenumerated rights must exist and should be enforceable. McAffee, however, does not consistently engage with the question of who are “the people” that the Ninth Amendment references, and to whom, specifically, those enumerated rights apply. Consequently, while the residual rights theory is correct in its assertions concerning the

45 Barnett, Randy E. “The Ninth Amendment: It Means What It Says.” Texas Law Review, vol. 85, no. 1, Nov. 2006, pp. 2–82. 46 McAffee, Thomas B. “The Original Meaning of the Ninth Amendment.” Columbia Law Review, 1990, pp. 1215– 1320. Scholarly Commons @ UNLV Law. 47 Amar, Akhil Reed. “The Popular-Sovereignty Amendments.” The Bill of Rights: Creation and Reconstruction, Yale University Press, 2008, pp. 119–133. 48 Lash, Kurt T. “A Textual-Historical Theory of the Ninth Amendment.” Loyola Law School Los Angeles Legal Studies Paper, no. 2007-17, Mar. 2007, pp. 1–38. 49 Seidman, Louis Michael. “Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism.” Georgetown Law: Faculty Working Papers, ser. 10-11, Mar. 2010, pp. 1–40. 10-11. 50 Lash, Kurt T. “A Textual-Historical Theory of the Ninth Amendment.” Loyola Law School Los Angeles Legal Studies Paper, no. 2007-17, Mar. 2007, pp. 37–38. 51 Ibid. 12 existence of rights outside the text of the Constitution, its analysis of the principles of the Ninth Amendment remains incomplete.52 Louis Seidman’s unsettled view, in which he questions the appropriateness of the Ninth Amendment to serve as a legal platform for the protection of unenumerated rights, deserves carefully scrutiny.53 Seidman admits the existence of unenumerated rights, but he does not believe that the Ninth Amendment can be invoked to protect such rights. This is problematic particularly because the Ninth Amendment is the only text that specifically refers to unenumerated rights and recognizes that they remain in the hands of the people. If Seidman correctly desires to allow future generations to develop their own understanding of the scope of individual rights without reference to the Ninth Amendment, the breadth of those rights will undoubtedly atrophy. Without textual support for rights that are not yet recognized, these rights cannot be permanently protected in the courts, even if they are created by legislatures. Indeed, questions weighty as those pertaining to individual liberties cannot be consigned to the vagaries of the next . The final two theories, collective rights as championed by Akhil Amar and individual rights as spearheaded by Randy Barnett, provide the most insight into the conflict between definitions of the phrase, “the people,” as it is used in the Ninth Amendment. Both views accept the Ninth Amendment as a genuine foundation for the protection of unenumerated rights in the United States; they radically diverge, however, as to the identity of the beneficiaries of these rights. Amar, in his book, The Bill of Rights, claims that the Ninth Amendment is a “Popular-Sovereignty Amendment” because the phrase, “the people” is used in its collective sense in other provisions of the Constitution, particularly in the Tenth Amendment and in the preamble.54 Although Amar would disagree, to define “the people” as consistently meaning a majoritarian collective in all cases would be to ignore the context in which the phrase is used. “We the people” in the preamble of the U.S. Constitution is not explicitly defined as alluding to a collective. The introduction, just like the phrase, “the people” in the Ninth Amendment, could just as easily refer to a group of individuals standing together for common benefit. This is the beauty of an individual rights perspective of the Ninth Amendment. It is reasonable to assume that the authors of the Bill of Rights would not include redundancies. Therefore, with the Tenth Amendment clearly referring to the rights of states, i.e., a collective of people as a whole, the Ninth must logically protect the rights of the same people in their capacity as individuals. This approach does not discredit the assumption that the collective is also protected by the Ninth Amendment because if the rights of individuals are protected, those individuals could join together to form a group with their rights uncompromised. If roles reversed and only the rights of the collective were worthy of protection, however, the majoritarian nature of the rights would stifle any individual dissent and imperil the liberties of the few who do not wish to stand with the group, even when the rights they seek to claim affect only themselves. Given his work in describing an individualistic, “it means what it says,” approach to the Ninth Amendment, Randy Barnett would most certainly agree.55

52 McAffee, Thomas B. “The Original Meaning of the Ninth Amendment.” Columbia Law Review, 1990, pp. 1215– 1320. Scholarly Commons @ UNLV Law. 53 Seidman, Louis Michael. “Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism.” Georgetown Law: Faculty Working Papers, ser. 10-11, Mar. 2010, pp. 1–40. 10-11. 54 Amar, Akhil Reed. “The Popular-Sovereignty Amendments.” The Bill of Rights: Creation and Reconstruction, Yale University Press, 2008, pp. 119–120. 55 Barnett, Randy E. “The Ninth Amendment: It Means What It Says.” Texas Law Review, vol. 85, no. 1, Nov. 2006, pp. 2–82. 13

VII. Developing Rights Through the Ninth Amendment While the Ninth Amendment is unique among Constitutional provisions in its recognition and protection of the unenumerated rights of the people, other formulations, expositions, and lists of natural individual rights exist in declarations of rights worldwide. These alternate catalogs of rights demonstrate that the framers, and particularly James Madison, correctly understood that the enumerated rights in the first eight amendments of the Bill of Rights was far from exhaustive, and certainly provide carefully considered suggestions for additional natural rights potentially suitable for recognition and protection under the Ninth Amendment. Shortly after the adoption of the U.S. Constitution, a Declaration of the Rights of Man was issued in in 1789. In it, natural rights and, more specifically, unenumerated natural rights, are defined in two related ways. First, the Declaration asserted that “…the aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to .”56 While this version clearly echoes the previous Lockean/Jeffersonian formulation, even to the point of specifically including Locke’s idea of a right or obligation of , the French added a to their list: security. The Declaration of the Rights of Man then goes even farther and defines the right of liberty thusly: [L]iberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights.57 In this way, the right to liberty, and by extension, many of the other rights deemed to be natural, are protected for the sake of individuals and, perhaps for the first time, the Declaration reflects an official (or quasi-official) recognition of the idea that the only limitation on the exercise of natural rights by a given individual is the impact that exercise has on the enjoyment of natural rights by another individual. Thus, contrary to the Supreme Court’s holding in United Public Workers v. Mitchell, the Declaration of the Rights of Man suggests that even an enumerated governmental power is inferior to the natural rights of the individual. This detailed articulation of the liberty right is buttressed by the inclusion of the right to security in the list. Although society can and should contribute to the safety of individuals, thus creating the condition for the free exercise of the liberty right, a person’s security is ultimately the right and responsibility of the individual. This concept was reaffirmed more recently in the United Nations’ Universal Declaration of Human Rights. Article 3 of the Declaration is an amalgam of the Locke and Jefferson, as well as French, formulations, stating that “everyone has the , liberty, and security of person.”58 Curiously, although Jefferson listed “life” as the first of the natural rights, most of the rights enumerated by the framers in the Bill of Rights are concerned with the protection of liberty interests, or even Locke’s property interests (removed by Jefferson in favor of the pursuit of happiness), rather than overt life interests, with the possible exceptions of the Fifth Amendment’s injunction against deprivation of life without due process of law, and the Eighth Amendment’s proscription of cruel and unusual punishments. Perhaps a further exploration of the natural right to security of person through the aegis of the Ninth Amendment would result in a more thorough understanding of the parameters of the natural right to life. The right to be secure as a person, as that notion may be developed in future caselaw under the Ninth Amendment, would presumably be intentionally broad, just as our current understanding

56 Declaration of the Rights of Man (1789). 57 Ibid. 58 Universal Declaration of Human Rights. United Nations, 2015. 14 of the bounds of the right to privacy far exceed the express limitations imposed on the government in the Fourth Amendment. Courts might examine individual circumstances and rights that fall under the umbrella of using a “bubble test.” If, as formulated in the Declaration of the Rights of Man, the exercise of a right, specifically security, does not infringe upon the rights of others, then it must be recognized and protected by the courts. Although myriad examples might be used to illustrate the Ninth Amendment’s application to the security of person, this article proposes three potential rights that it will put to the “bubble test.” The first example is the already developing right to an education, and specifically the right of parents to choose schools, either public or private, that they believe better allow for their child’s academic development. In this space, Lawrence Oldaker grapples with the principles of school choice and the perceived right of to secure their child’s future through education in reasonable way they see fit. Although at the time of his writing, Oldaker had apparently concluded that the Ninth Amendment could not protect such rights of parents due to the Supreme Court’s recent insistence on ignoring the Ninth Amendment, the right to an education and school choice using an individualist security of person approach under the Ninth Amendment should at least be the subject of reconsideration.59 If one concedes, if only because the of the proposition is self-evident, that education is foundational in the evolution of a just and productive society and essential to the ability of a person to achieve security, the right to an education, and the mode of its delivery (provided that there are minimum standards that every child must meet in various academic subjects), seem to easily fall within the penumbra of a life/security interest. Moreover, the assertion and protection of such a right passes the “bubble test” because the child’s right to have access to education and the ’s right to guide that education do not, at least necessarily, infringe upon the rights of others. This is especially true if the same funds are used to pay for public and private education and budgets are managed wisely to avoid unfair tax increases. In the same way, we can develop two new rights: freedom from attack upon reputation and freedom from association.60,61 The first proposed right would be loosely based on the European Union’s recognized . The right to be forgotten (and thus the right to protect one’s reputation) asserts that “individuals have the right to ask search engines to remove links with personal information about them. This applies where the information is inaccurate, inadequate, irrelevant, or excessive.”62 Of course, this right, like the above right to education and school choice, would need to pass the “bubble test.” While the First Amendment protects freedom of and the press, these rights are not absolute. This is seen through current legal definitions of libel, defamation, and slander, which circumscribe First Amendment protections and proscribe the misuse of information in an unfair method to harm individuals.63,64,65 Similarly, the right to protection of reputation would work as an analog to the First Amendment, only enjoining the

59 Oldaker, Lawrence Lee. “Privacy Rights, School Choice, and the Ninth Amendment.” Brigham Young University Education & Law Journal 1993, Issue 1, Columbia University Libraries. pp. 75. 60 The analog of the existing First Amendment right. 61 Article 12 of the United Nation’s Declaration provides that “no one shall be subjected to… attacks upon his honor and reputation. Everyone has the right to the protection of the law against such… attacks.” Article 20 provides, in part, “no one may be compelled to belong to an association.” 62 “Factsheet on the ‘Right to Be Forgotten’ Ruling.” European Commission. 63 “Libel.” LII / Legal Information Institute, Cornell Law School. 64 “Defamation.” LII / Legal Information Institute, Cornell Law School. 65 “Slander.” LII / Legal Information Institute, Cornell Law School. 15 sullying of an individual’s reputation if deemed unfair under certain clear legal standards. In this way, only the individuals being targeted have something to lose, and their exercise of the right to protection of reputation does not infringe upon the legitimate rights of others. An example of the potential application of this right comes in the form of the publication of mugshots. In an ongoing class action against websites and news outlets publicizing and charging these individuals up to thousands of dollars for the removal of mugshots, a claim is made that once the people have served their sentence, or in some cases, have been acquitted of all charges, the mugshots should not continue to appear in the public sphere.66 Current laws do not extend far enough to protect these claims without a recognized right to protect one’s reputation because technology and data sharing is evolving much more quickly than the legal system in the United States. Consequently, a right to protection of reputation can be established and applied on a case-by-case basis and, thus, an individual may protect his/her ability to live securely, notwithstanding a recognized right to which, in these extreme cases, actually interferes with the exercise of the countervailing natural right. The next proposed right, freedom from association, is inspired by Article 20 of the United Nation’s Universal Declaration of Human Rights, which states that “no one may be compelled to belong to an association.”67 Associations come in many forms, such as political groups, recreational clubs, unions, and homeowners’ associations. While most associations are voluntary, some are obligatory. This is particularly interesting considering the rising interest in the “right to work” and the idea that being compelled to join a union should not be a prerequisite for various fields of employment. Essentially, while there is no way to literally force association, in some states, “an employee can be forced to pay certain union dues or be fired from his or her job.”68 Right to work proponents suggest that even if a union provides a beneficial service to the employee, it should be up to the individual to decide whether those protections are worth the cost of association.69 This is especially true if union dues are used in ways with which the employee may disagree, such as political donations.70 While unions themselves largely oppose the right to work, when put to the “bubble test,” the individual’s decision to disassociate does not infringe upon the rights of the union; the liberty only affects the union by limiting its power over the individual and its stream of income. The recent case of Janus v. American Federation of State, County, and Municipal Employees, Council 31, argued before the U.S. Supreme Court on February 26, 2018, squarely addressed the right to freedom from association and, thus, presented a perfect opportunity for a case to be decided under the Ninth Amendment, rather than on the basis on which it was argued.71 In Janus, the Petitioner asserts that the Court should overrule its 1977 decision in Abood v. Detroit Board of Education. There, the Court validated the practice of public employee unions charging non-members “fair share” or “agency” fees (a reduced amount of dues that union members pay).72 These ostensibly cover the costs the union incurs in negotiating with governmental

66 Kravets, David. “Shamed by Mugshot Sites, Arrestees Try Novel Lawsuit.” Wired, 12 Dec. 2012. 67 Universal Declaration of Human Rights. United Nations, 2015. 68 “Know Your Rights.” National Right to Work Foundation, National Right to Work Legal Defense and Education Foundation, Inc., 2017. 69 Ibid. 70 Sherk, James. “Workers Can Opt Out of Union Dues.” The Heritage Foundation, 2017. 71 Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018). 72 Abood v. Detroit Board of Education (1977). 16 agencies because those contracts inherently benefit all public employees, so to do otherwise would arguably give the nonmembers a “free ride.”73 Janus’ argument endeavors to persuade the Court to find that contract negotiations with public bodies constitute a form of political speech, and that under the recent Supreme Court decisions of Harris v. Quinn (2014) and Knox v. SEIU, Local 1000 (2012), Janus cannot be compelled to support speech with which he does not agree.74 The Supreme Court ruled on the matter on June 27, 2018. In a 5-4 decision, it overturned existing precedent and held that public employees who are not union members cannot be forced to pay “agency fees” to unions which negotiate contracts on behalf of all public employees.75 The majority opinion, written by Justice Alito, provides that all public union activities are inherently political and that, therefore, forcing nonmembers to contribute to the union violates their First Amendment “right of silence” (the right against being forced to say something [or fund the publication of statements] in which one does not believe).76 This decision continues the trend of this Court (and particularly Justice Alito, who authored the Citizens United opinion) to expand the scope of First Amendment rights. Given the fact that the First Amendment explicitly guaranties only freedom of, not freedom from speech, however, the case could have, and perhaps should have, been decided under the Ninth Amendment’s protection of unenumerated rights, and specifically the right to be free from association. Although the First Amendment protects the freedom to associate and its analog, the freedom from association is not mentioned in our organic law; as we have seen, the latter is recognized in other documents such as in Article 20 of the United Nations’ Universal Declaration of Human Rights as a right that inherently belongs to all persons.77 “Fair share” or “agency” fees clearly compel someone who does not want to belong to the union to do so in all but name only, and to support that union’s activities, regardless of one’s personal preferences. State laws which permit the imposition of these fees plainly violate the inherent natural right to be free from association, and the Supreme Court should deem these laws to be violative of the Ninth Amendment for that reason. Today, the grassroots movements to begin implementing these rights exists. The right to an education and school choice is being debated on the national level. The right to protection of reputation is being asserted in lower courts and has recently been elevated to class action status.78 Likewise, the right to freedom from association is building momentum through legislative recognition of the right to work enacted in 28 states. With a more broadly recognized understanding of the Ninth Amendment as the preferred vehicle for protecting the natural right to security of person, rights protecting such unenumerated rights would have a genuine, straightforward path for development.

VIII. Conclusion Although natural rights and social contract theories were originally seen as mutually exclusive (Rousseau argued that inalienable rights were unnecessary to the existence of a constitution which memorialized the contract), they clearly exist side by side in the United States.

73 Ibid. 74 Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018). 75 Ibid. 76 Ibid. 77 Universal Declaration of Human Rights. United Nations, 2015. 78 Kravets, David. “Shamed by Mugshot Sites, Arrestees Try Novel Lawsuit.” Wired, 12 Dec. 2012. 17

If government only exists through a partial cession of natural rights to an institution created by the consent of the governed, then those remaining un-ceded rights should be paramount in any conflict between the power of the creature created by the citizenry, and the rights which are the source of that power. Thus, the Ninth Amendment provides substantial evidence that the goal of the framers was to protect the rights of individuals against the government, and even against the tyranny of majority rule. When the thirteen colonies declared their independence from England, political philosophers had espoused that persons acquired natural rights at birth, and that these rights placed limitations upon the monarch because they could not be granted to the . For the colonists, the first contemporary formulation of the theory appeared in Thomas Hobbes’ Leviathan (1651), but in Hobbes’ view, the untrammeled exercise of rights by man in a state of nature would inevitably lead to “a war of all against all,” rendering existence “solitary, poore, nasty, brutish and short.”79 For a man to preserve and extend his life, he would, therefore, surrender some of those rights and agree to certain obligations in order to form a civil society, thus formulating a “social contract.” Some forty years later, John Locke, in his Second Treatise of Government (1690), took a less dim view of the outcome of natural rights because, unlike Hobbes, Locke believed that humans were inherently reasonable and tolerant. Foreshadowing the preamble to the Declaration of Independence, Locke stated that everyone had a natural right to defend his “Life, Health, Liberty, or Possessions,” and that humans had a right, and even an obligation, to revolt if a ruler attempted to usurp these natural rights.80 Many believe, as do I, that Locke’s writings heavily influenced the drafters of both the Declaration of Independence and the Constitution. While most expositions on natural rights are of a particular type, virtually every thinker has put his or her own variation on the specific components of those rights. Thomas Jefferson substituted the “pursuit of happiness” for Locke’s “property,” but openly stated that his list was not meant to be all-inclusive;81 the French, in their Declaration of the Rights of Man of 1789, listed “liberty, property, security and resistance to oppression;”82 and although the Articles of Confederation were almost exclusively concerned with the relationship of the individual states to the federal government, it nevertheless declared that a citizen of any state would be entitled to the “privileges and immunities” of a free citizen of any state, thus foreshadowing the virtually identical provision of the Fourteenth Amendment.83 Rather than attempting to create yet another list of natural rights, this article suggests that they are best understood as all rights that are not (and cannot be) limited by enacted laws. These are typically, but not necessarily, rights that only affect the individual and his/her familial dependents, specifically the general right to be secure in our persons. Understood in this way, government can only limit those rights that intrude on the natural rights of others but cannot impose such limitations simply because it serves the purpose of the government. In the first eight amendments of the Bill of Rights, the framers attempted to list every individual right important to them at the time. Undoubtedly mindful of Jefferson’s wise reservation in the Declaration of Independence (“… that among these are…”), the framers did not stop there, but further included the Ninth Amendment. Notably, the Ninth Amendment, written by James

79 Hobbes, Thomas. Leviathan. XIII. 9. 1651. 80 Locke, John. Second Treatise of Government. II. 6. 1690 81 U.S. Declaration of Independence (1776). 82 Declaration of the Rights of Man (1789). 83 U.S. Articles of Confederation (1781). 18

Madison, was not originally proposed as it was ratified.84 In fact, the original proposal much more closely resembled the rule of construction which some judicial opinions have nevertheless called the amendment as it was eventually ratified: The exceptions here or elsewhere in the constitution made in favor of particular rights, shall not be so construed as to diminish the just importance of the rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations on such powers, or as inserted merely for greater caution.85 Madison’s proposal was sent to a committee of the House of Representatives (on which Madison served), and the final version of the ratified Ninth Amendment came from that committee. It provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This much simpler and more declarative version clearly states that other, non-enumerated rights exist and, therefore, the specification of rights in the first eight amendments or elsewhere in the Constitution cannot be deemed either exhaustive or as the only limitations on the power of the federal government. Like Randy Barnett, this article believes that the Ninth Amendment means essentially what it says, and that the Amendment serves to protect the liberties of people as individuals.86 Experience taught the framers that it was not possible to list every natural right possessed by individuals simply in their capacity as human beings. The Ninth Amendment consequently cloaks those unenumerated rights with the same protections given to those rights that the framers saw fit to specify elsewhere in the Constitution and in the Bill of Rights. Despite the seemingly straightforward meaning of the Ninth Amendment, Supreme Court opinions of the last hundred years almost seem to negate its importance. Only a handful of opinions have directly cited the Amendment. Even then, almost all are referred to in tandem with the Fourteenth Amendment, which the Justices seem to imply constitutes a more compelling source of substantive law, despite the fact that its text does not directly address the subject of either the existence or scope of retained rights. At best, existing case law seems to establish a right to privacy based upon the Ninth Amendment and protect that right primarily in the areas of activities largely confined to private residences. Whatever the historical validity of the analyses espoused by those who believe that the Ninth Amendment focused on collective, residual, or other, rather than individual, rights may have been, it seems safe to say that the Supreme Court settled that debate in favor of individual rights. Regardless of whether the Ninth Amendment is referred to by name in majority, concurring, or dissenting opinions, or only alluded to during the analysis of the privacy cases, each one of those references is found in a passage concerning individual rights. Not one of those references even hints at the thought of saying that the Ninth Amendment has no applicability to a given situation based upon the fact that the Amendment applies only to situations where “the people” are operating as a political collective. If nothing else, these passing references, modest as they are, validate the viewpoint that the rights of individual persons is the subject matter of the Ninth Amendment. A discussion of the Baby Ninths, analogs of the Ninth Amendment present in 33 out of 50 state constitutions, written about extensively by Anthony Sanders, further illuminates this

84 U.S. Declaration of Independence (1776). 85 Madison, James. Annals of Congress, House of Representatives, 1st Congress, 1st Session, June 8, 1789, pp. 451 - 53, Washington, DC: Gales and Seaton, 1834. 86 Barnett, Randy E. “The Ninth Amendment: It Means What It Says.” Texas Law Review, vol. 85, no. 1, Nov. 2006, pp. 2–82. 19 understanding of unenumerated rights. Sanders claims the Baby Ninth amendments are perhaps more justiciable and enforceable than the Ninth Amendment in the Bill of Rights because, as creatures of state constitutions, they cannot, under any set of circumstances, be seen as addressing the rights of the collective citizenry acting as a body politic within their own states. Thus, their very existence confirms that those who adopted them also understood the Ninth Amendment as protecting individual rights. This disposes, once and for all, of any distraction concerning this issue which might be raised in future litigation, thus giving the Ninth Amendment more clarity when it finally receives its due in the course of Supreme Court jurisprudence. We require a new paradigm for the relationship between the Ninth and Fourteenth Amendments. Despite the latter’s preferred status by the Supreme Court as the vehicle for the extension of rights, the Fourteenth Amendment does not actually mention unenumerated rights. It is, therefore, intellectually and judicially inappropriate to use the Fourteenth Amendment, alone, in such cases. In contrast, as the analysis in this Article points out, the Ninth Amendment explicitly protects the unenumerated rights of “the people” and, specifically, the rights of individuals.87 Accordingly, we should cite the Ninth Amendment as the foundation for the recognition and protection of such unenumerated rights, and invoke the Fourteenth Amendment to protect such properly recognized rights from infringement by state governments. Essentially, the Ninth Amendment provides the Fourteenth with the necessary strength, and we must acknowledge the symbiotic relationship between the two Amendments. Only through the recognition of such a relationship can we make a logical case for citing the Fourteenth Amendment in matters involving questions of unenumerated rights.88 Reflecting on the Ninth Amendment as well as on individual rights in general yields a recommended future application of the Ninth Amendment in the development of rights in the United States. Inspired by rights enumerated around the globe, such as in the United Nation’s Universal Declaration of Human Rights, but not found in the United States’ own constitution or Bill of Rights, this Article proposes that we use the Ninth Amendment to protect the right of individuals to be secure in their person. While this interpretation is purposefully expansive, this article has offered some possible examples. In addition to the already developing right to an education and school choice, as articulated by Lawrence Oldaker, and the right to privacy as discussed by the U.S. Supreme Court, the Ninth Amendment vis-à-vis the rights to protection of reputation and freedom from association should be brought to the forefront of debate.89 Viewing an individual’s reputation as a right, we can use the Ninth Amendment to reform current libel and defamation laws in order to protect individuals from an evolving and continued threat to their ability to function as productive members of society, particularly given our age of the when a representation can reach billions in the click of a button. Likewise, the right to freedom from association would allow individuals to control their relationships in the workplace and in their private lives, and constrain the activities of oftentimes-large private groups that attempt to proscribe limits upon individuals’ actions. In this way, we could invoke the Ninth Amendment to protect the right to security of person, thus shaping future debates about the extent of governmental, and even majority, power in the United States.

87 U.S. Constitution Amendment IX. 88 U.S. Constitution Amendment XIV. 89 Oldaker, Lawrence Lee. “Privacy Rights, School Choice, and the Ninth Amendment.” Brigham Young University Education & Law Journal 1993, Issue 1, Columbia University Libraries. 20

The Ninth Amendment is not a one-off historical anachronism aimed at protecting nonexistent rights. Instead, the Ninth Amendment is a powerful tool that we should use more frequently in order to expand the definition of individual rights. In fact, the Ninth Amendment is a lens that we can and should apply holistically to the Constitution and the Bill of Rights, demanding that we deem the individual rights of the citizens paramount to the enumerated powers granted to the federal government by those same citizens who created it.