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Byron Williams: The power of the silent amendment

Byron Williams: The power of the silent amendment

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James Madison, the primary author of the U.S. Constitution and the fourth president of the U.S. from 1809 to 1817. 

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

With last week commemorating the 233rd anniversary of the creation of the Constitution, it might be a worthy exercise to focus on the amendment that literally protects nothing, but tangentially is invaluable. The Ninth Amendment stands as the unobtrusive guardrail that prohibits us from concluding every right that can be enumerated has already been enumerated.

I call the Ninth Amendment the “Calvin Coolidge” of the Bill of Rights. The 30th president privately was a man of few words, earning the nickname “Silent Cal.” Similar could be said for the amendment that confers no specific rights, such as freedom of speech or due process, but rather an invaluable conduit so that liberty could keep pace with the ever-evolving American experiment as it interprets the scope of the Constitution.

At its inception, the Constitution did not contain a Bill of Rights. Its primary author, James Madison, opposed the Bill of Rights, feeling it was unnecessary and dangerous. It was unnecessary, in Madison’s view, because the Constitution itself was a “Bill of Rights” and the federal government had the power to place limits on speech and religious liberty. He thought it dangerous because if a right was not written down, the people might wrongly assume it wasn’t protected.

Advocates for the Bill of Rights, most notable, George Mason of Virginia, wanted certain protections clearly stated in the Constitution. Mason asserted that rights not given to the general government were retained by the states, but felt that alone would not suffice. “We must have such amendments as will secure the liberties and happiness of the people on a plain, simple, construction, not on a doubtful ground,” Mason said.

Though Madison changed positions, his concern about the inherent dangers persisted, hence the Ninth Amendment.

Whatever the Ninth Amendment’s impact on the American landscape, it has hardly been the plain, simple, construction that Mason advocated. Unlike the first eight amendments, the Ninth, along with the 10th Amendment, which reserved powers not delegated to the federal government by the Constitution to the states, provided the provisions for constitutional interpretation.

But for those who embrace originalism, the belief that the original intent of the artisans should be adhered to in later constitutional interpretation or strict constructionism, which holds constitutional interpretation must apply the text only as it is written, the Ninth Amendment becomes intellectually problematic.

Judge Robert Bork suggested the Ninth Amendment ought to be read as a companion to the 10th Amendment, with both provisions serving to protect the retained rights of the people in the states. Bork believed judicial enforcement of the Ninth Amendment alone was inappropriate.

Bork’s reference to the Ninth Amendment as an “inkblot,” to justify dismissing its relevance, demonstrates the paradoxical conundrum it creates for those wishing to apply the text only as it is written. As for original intent disciples, doesn’t the language of the Ninth Amendment offer room for interpretation beyond what Madison captured on parchment?

It is unlikely someone would decry their Ninth Amendment rights have been violated nor would any accredited law school spend a semester reviewing landmark Supreme Court cases based solely on the Ninth Amendment.

Nowhere in the Constitution does “right to privacy” explicitly appear, but its status as a protected right is bolstered by the Ninth Amendment. The landmark Supreme Court case Griswold v. Connecticut, which effectively legalized birth control by protecting women’s privacy, was based largely on the Fourth and the Ninth Amendments.

The Court held there should be a “zone of privacy” guaranteed by constitutional freedoms — a penumbra derived by implication from other rights. Griswold, therefore, becomes the precursor to Roe v. Wade, which protects women’s right to choose abortion.

It is the Ninth Amendment that lends constitutional heft to the ratification of the 13th, 14th and 15th Amendments, also known as The Reconstruction Amendments, along with the 19th Amendment, which prohibits denying voting rights on the basis of gender.

The ratification of the 14th Amendment, which affirms due process and equal protection, placed additional limits on the powers originally conferred by the 10th Amendment.

In its silence, the Ninth Amendment has been our constitutional bolo knife that clears the overgrown foliage that would impede liberty. Though it has aided in the outcomes of judicial interpretation that many might deem controversial, it has also made possible the notion of liberty to expand beyond its original intent.

“The Ninth Amendment,” as Harvard law professor Laurence Tribe offers, “is not a source of rights as such; it is simply a rule about how to read the Constitution.”

The Rev. Byron Williams (byron@publicmorality.org), a writer and the host of “The Public Morality” on WSNC 90.5, lives in Winston-Salem.

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