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The Forgotten Amendment - April 8, 2002

By James L. Hirsen, J.D., Ph.D.
contributor to

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

Nowhere in the Constitution is the principle of limited government more focused than in that rarely discussed amendment of the Bill of Rights: Amendment IX. But this "forgotten" amendment is one that makes evident the underlying basis of the highest law of our land.

The Declaration of Independence, the footing upon which the Constitution was built, states that rights are "endowed by our Creator." This is an acknowledgment that inalienable rights do not come from any man-made instrumentality such as government.

But a question that seemed to plague the founding fathers is the following: How does one go about creating a list that contains all of the natural rights of an individual?

Looking back, for our forefathers the term "rights" had very little in common with modern-day distortions of the word. These days we find the designation being attached to patients, retirement, education and even animals.

It's a far cry from the concept that those who penned the Constitution debated. "Rights" in the founders' determination were regions of individual and state sovereignty in which the federal government could not intrude. This was because the government had not been granted the authority to do so.

The Constitution was never intended to create rights. Instead it was meant to convey specific and limited powers to a new government.

When it came to natural rights, the founding fathers split into two camps. One camp wanted a constitution that had a declaration of fundamental rights. The other camp opposed the idea of such a declaration.

Those who resisted a bill of rights included James Madison and Alexander Hamilton. Their objections were twofold: A bill of rights was unnecessary and it could create unintended government power.

Hamilton wrote about these points of contention in the Federalist Papers (No. 84) stating that a bill of rights is "not only unnecessary in the proposed Constitution, but would even be dangerous."

Relying upon the enumeration of powers in Article I, Hamilton's view was that a bill of rights was not necessary because the Constitution did not grant the government the power to interfere with natural rights.

Hamilton put it this way: "For why declare that things shall not be done which there is no power to do?" He feared that a bill of rights "would furnish, to men disposed to usurp, a plausible pretense for claiming that power."

Those who stood opposed argued that it would be impossible to list all rights, so a bill of rights would be incomplete. They thought it would be dangerous to have an incomplete list because that would leave the government unrestrained regarding rights not listed.

When presenting his proposed amendments to the House of Representatives, Madison alluded to this controversy. He said, "It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

The clause to which Madison referred was the text of the Ninth Amendment. In essence, the founders were trying to prevent any increase in government power by the addition of a bill of rights.

In the end, of course, the Bill of Rights became a part of the U.S. Constitution. The language of the Ninth Amendment focuses on individual sovereignty. The rights referred to in the text are those "retained by the people" as autonomous individuals.

The notion that the individual is more valuable than the collective was the impetus for our country's unique venture into freedom. And it's what continues to carry us forward. Remember the Ninth.

Reproduced with the permission of . All rights reserved

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James L. Hirsen, J.D., Ph.D.

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