The 9th amendement and rights most Americans never knew they had


The libertarian legal theorist Randy Barnett has written about the "unenumerated rights" retained by the citizen in the 9th Amendment of the US constitution. Now it seems that some lawyers on the left are starting to take notice. Here is an extract from a new book by Daniel A. Farber, "Retained by the People: The 'Silent' Ninth Amendment and the Constitutional Rights Americans Don't Know They Have" (Perseus Books, 2007). Whilst a libertarian wouldn't agree with all his retained rights he is on the right track. Here is a passage:
"Libertarians, who dislike government regulation of all kinds, agree with part of my argument, and I have found much of their historical research useful. They, too, would find the Amendment to be a source of real legal guidance. But they swing too far in the opposite direction from conservatives like Scalia. While Scalia wants the Ninth Amendment to protect nothing, the libertarians want it to protect virtually everything. They see in it the basis of a revolutionary return to the small government ideas of the early nineteenth century. But this is a gross overreading of the Amendment. It was meant to protect fundamental human rights, not just the right to do whatever you want whenever you want."
He is correct to say that Justice Scalia "strictly" interprets the constitution by recognizing only the rights enumerated, whereas a true interpretation of "original intent' would have to offer some explanation for the presence of the 9th amendment in the Bill of Rights and to what it refers. Silence by Scalia...

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Posted: Mon - April 23, 2007 at 08:27 PM        

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