The Right to Privacy In the Constitution The Forgotten Ninth Amendment

Patrick Henry, of Virginia, opposed ratifying the Constitution. Such opposition was instrumental in the development of the Bill of Rights. Henry later vigorously supported the Federalists against calls to give the States the right of nullification.

Patrick Henry, of Virginia, opposed ratifying the Constitution. Such opposition was instrumental in the development of the Bill of Rights. Henry later vigorously supported the Federalists against calls to give the States the right of nullification.

In theory, the Constitution is valid from beginning to end. But in reality, we all know some parts of it are, to borrow Orwell’s famous phrase, more equal than others. Sometimes this is because certain provisions are so intricately tied up in the business of self-government that we can’t help but return to them over and over again. The First Amendment and the Equal Protection Clause are good examples of that, while the provision against quartering troops in private residences probably doesn’t feel as relevant today.

Other parts have huge ramifications for how our country runs day-to-day but we rarely, if ever, do anything but take them for granted. The Senate, for example, is a peculiar institution: Wyoming’s 575,000 residents receive as much representation as California’s 38 million. That’s odd. When the Union was established the largest state (Virginia) was only about 12 times bigger than the smallest state (Delaware). The greatest gap is now a factor of 66. But no one suggests restructuring the Senate: it’s too much at the heart of our political life and rejigging it would be a colossal shock to the system.

So that provision, like many others, continues to shape our lives.

But today, I’d like to draw your attention to an even less-talked-about part of the Constitution that the last few weeks have brought to mind. Most people are familiar with a version of the story that emphasizes how, after the Framers drafted the Constitution and sent it to the states for ratification, some of the people demanded that a Bill of Rights be included. The short version simply moves on to the fact that such a bill was ultimately ratified in the form of the first ten Amendments.

But an often-forgotten element of that episode was the vehement opposition in some quarters to a Bill of Rights, and it wasn’t because those opposed were hostile to the principles enshrined therein. Rather, delegates argued that what they were setting up was – in contrast to the British system they had just won independence from – a government of limited and enumerated powers. What, then, was the point of saying that the government couldn’t interfere with the press or establish a religion? The Constitution gave the federal government no such powers in the first place, so prohibiting it from doing things it couldn’t do anyway was, at best, redundant.

At worst, they argued, it risked implying that whatever was not explicitly prohibited was implicitly allowed – which was, in many ways, the opposite of what the Framers wanted to achieve.

In the end, of course, those in favor of the Bill of Rights won on the argument that it was better to be on the safe side and lay down some clear markers for what the Congress could not even consider. But the Ninth Amendment was included as a compromise. It reads:

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

In other words, Americans retain certain rights by virtue of being Americans, or human beings, or the inheritors of English Common Law – not just by virtue of those rights being enshrined in the Constitution. Seen this way, the Constitution is neither a floor nor a ceiling for the rights we enjoy, but merely a particularly well-lit signpost within the fog.

It’s not too difficult to see how far we’ve strayed from that ideal. In the past few weeks, I’ve heard time and time again – in discussions regarding the recently-revealed surveillance programs – that Americans don’t have a Constitutional right to privacy. And many readers will be familiar with that same debate as it applies to anti-sodomy laws as well as the legal reasoning behind Roe v. Wade.

The argument that there is no explicitly protected right to privacy in the Constitution is taken as tantamount to the Constitution being silent on the right to privacy. But it isn’t silent; just read the Ninth Amendment:

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

Denying and disparaging the right to privacy because it isn’t explicitly enumerated in the Constitution seems to be exactly what a lot of politicians and pundits are doing these days. And, more generally, it seems that, through legal precedent and political efforts, the country has, in fact, moved decisively towards the assumption that the Congress is empowered to pass legislation it deems appropriate and necessary unless it is specifically barred from doing so.

James Madison was the first author of the amendments that were ultimately adopted as the ‘Bill of Rights’. Madison thought the exercise unnecessary and possibly dangerous, but wanted to avoid a potentially divisive and destructive Constitutional Convention called by the states.

James Madison was the first author of the amendments that were ultimately adopted as the ‘Bill of Rights’. Madison thought the exercise unnecessary and possibly dangerous, but wanted to avoid a potentially divisive and destructive Constitutional Convention called by the states.

Does this mean that the opponents of the Bill of Rights were correct after all? Probably not. Our country’s history seems pretty clear on the fact that the Bill of Rights has served to constrain government in respect to persons. It turns out that the President and the Congress don’t need much encouragement to see their own powers through an expansive lens. I doubt very much that the Bill of Rights contributed meaningfully to that tendency.

But, in some ways, the curious bit is that the Bill of Rights included no meaningful enforcement mechanisms. Later, when the fight for rights was mostly between people and their own states, Amendments included an empowering clause which allowed Congress to enforce the Amendment through appropriate legislation. But these early Amendments, limiting Congress itself, had no similar component. This is all the more remarkable because the drafters of these texts probably didn’t envision the principal of judicial review that has since emerged.

But upon further review, the reason for this is obvious. It was the people themselves who, in the final analysis, would act as a bulwark against the government’s excesses. Representative government was the tool, and if the Congress strayed too far from the people’s own understanding of which rights they still retained, then the ballot box was the remedy.

As Abraham Lincoln put it:

We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.

In the end, if you don’t like what your representatives have say about your rights – that is, if they don’t represent you very well – then don’t forget to register to vote.

For more information on the Constitution’s ratification, check out some of the books on the Media page.

Follow Pedro on Twitter @IamPedroA.

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