The Ninth Amendment, and A House Divided

You Can’t Change One Thing

Even if you are a forthright pervert.

In Why the Federalists Hated the Bill of Rights written by Murray Rothbard, we read about the aggressive fight that the Federalist had against any limit and any restriction on the scope and power of the centralized Federal government.

(The scam that was the Constitutional Convention is also discussed in book form here, and in brief articles/excerpts in

The Tenth Amendment was supposed to be the great weapon that the designers of the Bill of Rights were to use against the ever-expansionist claims of the Federal empire. However, as noted by Rothbard,

This amendment did in truth transform the Constitution from one of supreme national power to a partially mixed polity where the liberal anti-nationalists had a constitutional argument with at least a fighting chance of acceptance. However, Madison had cunningly left out the word “expressly” before the word “delegated,” so the nationalist judges were able to claim that because the word “expressly” was not there, the “delegated” can vaguely accrue through judges’ elastic interpretation of the Constitution. This loophole for vague “delegated” power allowed the national courts to use such open-ended claims as general welfare, commerce, national supremacy, and necessary and proper to argue for almost any delegation of power that is not specifically prohibited to the federal government—in short, to return the Constitution basically to what it was before the Tenth Amendment was passed. The Tenth Amendment has been intensely reduced, by conventional judiciary construction, to a meaningless tautology.

The quest for centralized power continued unabated.

However, there came a time when the desire to eliminate/kill the future — to reduce the cost of enjoying women — conflicted with the desire to secure the power of the state against all challenges. Thus, it was time to rediscover the Ninth Amendment:

Ironically, the most potentially explosive weapon of the anti-nationalists was ignored then and for the next 175 years by the public and the courts. This was the Ninth Amendment, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” With its stress on the rights of the people, rather than on state or federal power as in the Tenth Amendment, the Ninth Amendment is even more acutely the answer to the Wilsonian argument than the Tenth. The enumeration of rights may not be so construed as to deny other unenumerated rights retained by the people.

The Ninth Amendment has unfortunately (a) erroneously been held to apply only to the federal government and not also to the states, and (b) has been reduced to a simple paraphrase of the Tenth Amendment by the courts. But then why have a Ninth Amendment that simply repeats the Tenth? In truth, the Ninth Amendment is very different, and no construction can reduce it to a tautology; unlike the formulaic Tenth Amendment, the Ninth emphatically asserts that there are rights which are retained by the people and therefore may not be infringed upon by any area of government. But if there are unenumerated rights, this means that it is the constitutional obligation of the courts to find, proclaim, and protect them. Moreover, it means that it is unconstitutional for the courts to allow a government infringement on any right of the individual on the grounds that no express prohibition of that act can be found in the Constitution. The Ninth Amendment is an open invitation—nay, a command—to the people to discover and protect the unenumerated rights and never to allow governmental invasion of rights on the ground that no express prohibition can be found. In short, the Ninth Amendment expressly commands the judge to be “activist” and not “literal” in the construction of rights retained by the people against government encroachment.

Moreover, if it is asked what “other rights” were intended, the context of the time dictates but one answer: they meant the “natural rights” held by every human being. But a commandment that the courts are duty-bound to protect all of man’s natural rights, enumerated or retained, would reduce the powerful scope of government action to such a degree as to give the last laugh to Herbert Spencer over Justice Oliver Wendell Holmes, who was in the early twentieth century to twist the strict constitutional judges of their day from holding that the Constitution endowed the individualist-libertarian social philosophy of Spencer’s Social Statics (1851). While the taunt was directed against enabling the judges’ personal preferences into Fundamental Law, the spelling out of the implications of the Ninth Amendment might well reinstate Social Statics, and on a far firmer legal and constitutional basis.2

Misconstrued as it was, the Ninth Amendment lay forgotten and made no impact whatever on American history until the year 1965. Then, suddenly, the Supreme Court, in a landmark of constitutional law, rediscovered the lost amendment and relied on it in Griswold v. Connecticut (1965) to prohibit the states from interfering with the individual’s “basic and fundamental” right to marital privacy (in outlawing birth-control devices). The enormous implications of the decision for constitutional law and for wider liberty in the U.S. were adumbrated in the concurring opinion of the Justice Arthur Goldberg (agreed to by the Justice William Brennan and Chief Justice Earl Warren):

The concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted, and that it embraces the right of marital privacy, though that right is not mentioned explicitly in the Constitution is supported both by numerous decisions of this Court, referred to in the Court’s opinion, and by the language and history of the Ninth Amendment….

The Ninth Amendment to the Constitution may be regarded by some as a recent discovery, and may be forgotten by others, but, since 1791, it 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 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. 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….

Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government, though not specifically mentioned in the Constitution.3

Satan’s house is truly divided: the dream of comprehensive control conflicts with the dream of private, cost-free pleasure. “The One and the Many”, once again.

The solid majority of Americans of all races and economic strata remain uninterested in the actual Rule of Law, or actual Justice: they just want Free Stuff. Fair enough: the solid majority of Christians, clergymen and laymen alike, prefer mysticism, escapism, and building their tiny (but profitable and ego-stroking) religious empires to the difficult and laborious work of expanding the authority of God’s Law-Word into the real world.

But as a minority of Kingdom Expansionists slowly grows, they are presented with opportunities to force the enemy to live up to his own rules. The New Order is a legal mess, as well as morally busted and an economic joke and utterly sterile. There are numerous peaceful ways to push a failing social order out of the way of the King of Kings, decade by decade.

There are just no cost-free ways of doing so.

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