Ninth Amendment (was Re: Spy planes was: Transhuman fascists?)

Date: Tue Apr 04 2000 - 00:19:38 MDT

Notwithstanding their apparent dispute about the meaning of the 9th
Amendment, I will happily agree with both Mike and Greg.

The former, I think, correctly finds in the 9th Amendment a neat
encapsulation, now too seldom appreciated, of the Founders' appreciation for
natural rights. A large and growing body of scholarship--see, e.g., several
of Randy Barnett's writings--confirms that the Founders' meant for the 9th to
sharply limit government power and to preserve our rights to person and
property. That said, I must say that I do not necessarily agree that the 9th
covers privacy rights writ large. Rather, it protects citizens against
privacy-invading trespasses to person and property committed by agents of the
State. The Ninth by no means forbids, say, private databases of shopping

Mike wrote:

> > But only in that most courts today seem to have total ignorance or
> > distain for the 9th Amendment, and are drifting away from the founders
> > concepts of Natural Law. Under the 9th, any rights not enumerated in the
> > Constitution are retained by the people, as individuals, so it follows
> > that since privacy is not explicitly mentioned, it is a 9th Amendment
> > right.

Greg wrote:

> I don't read the IXth ammendment this way. The text says:
> The enumeration in the Constitution, of certain rights,
> shall not be construed to deny or disparage others
> retained by the people.
> I'm no constitutional law scholar, but this just seems to say "The fact
> a subject is addressed in the Constitution doesn't mean that it excludes
> other rights the people may have," or alternatively, "the Constitution is
> not an exhaustive enumeration of rights."

Since I don't see what Greg disputes in Mike's interpretation, I'm willing to
go along with his paraphrasing. Now, if like some jurisprudes, Greg intends
to claim the 9th does not cover *individual* rights, I'll have a bone to
pick. Ditto if he thinks that the Founders did not have natural rights in
mind; scholarship has quite firmly established that matter, in my opinion.


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