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    The Ninth Amendment: Key to Understanding the Bill of Rights
    The Ninth Amendment: Key to Understanding the Bill of Rights
    The Ninth Amendment: Key to Understanding the Bill of Rights
    Ebook117 pages1 hour

    The Ninth Amendment: Key to Understanding the Bill of Rights

    By Duane L. Ostler

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    This book explains how the Ninth Amendment is the key to understanding rights in the United States. The founders created the Ninth Amendment to protect unlisted natural law rights as they were understood in their day. This amendment was never intended to allow future generations to create new rights. Rather, it was to safeguard the morality and natural rights of the founding generation. Unfortunately this understanding has been lost, and modern judges and scholars usually ignore this amendment, or misinterpret it. Meanwhile, the Supreme Court has rather strangely created new rights under the Fourteenth Amendment's "due process" clause. This is a direct contradiction of the method intended by the founders to recognize unlisted rights only through the Ninth Amendment's incorporation of natural law in their day. If the court were to return to the founders' intent regarding the Ninth Amendment, confusion over such issues as abortion and gay marriage would disappear, as both would simply be denied.

    LanguageEnglish
    PublisherDuane L. Ostler
    Release dateJul 21, 2014
    ISBN9781311986931
    The Ninth Amendment: Key to Understanding the Bill of Rights
    Author

    Duane L. Ostler

    Duane L. Ostler was raised in Southern Idaho, and has lived in Australia, Mexico, Brazil, China, Utah, the big Island of Hawaii, and—most foreign of all—New Jersey. He practiced law for over 10 years and has a PhD in legal history. He and his wife have five children and two cats.

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      Book preview

      The Ninth Amendment - Duane L. Ostler

      THE NINTH AMENDMENT: KEY TO UNDERSTANDING THE BILL OF RIGHTS

      By Duane L. Ostler

      Copyright 2014 Duane L. Ostler

      This book may not be reproduced, copied or distributed without the express permission of the author. This book may not be resold or given away to other people. If you would like to share this book with someone, please purchase an additional copy for each recipient. If you are reading this book and did not purchase it or have it purchased for you, please purchase your own copy. Thank you for respecting the work of this author.

      Cover art courtesy the Library of Congress:

      The flag that has waved 100 years, by Dominique C. Fabronius, 1876

      TABLE OF CONTENTS

      CHAPTER 1: Introduction

      CHAPTER 2: The Founders Easily Identified Ninth Amendment Rights

      CHAPTER 3: What was Debated and What was Not

      CHAPTER 4: Original Intent

      CHAPTER 5: Examples of the Founders' Views of Natural Law

      CHAPTER 6: The Right to Retain American Citizenship

      CHAPTER 7: The Right to Equal Protection of the Law

      CHAPTER 8: The Right to Vote

      CHAPTER 9: Presumption of Innocence and Proof Beyond a Reasonable Doubt

      CHAPTER 10: The Right of Access to Federal Courts

      CHAPTER 11: The Right to Associate with Others

      CHAPTER 12: The Right of Privacy

      CHAPTER 13: The Right to Travel Within the United States

      CHAPTER 14: The Right to Marry

      CHAPTER 15: The Right to Educate One's Children

      CHAPTER 16: The Right to Choose and Follow a Profession

      CHAPTER 17: The Right to Attend and Report on Criminal Trials

      CHAPTER 18: The Right to Refuse Unwanted Medical Treatment

      CHAPTER 19: Conclusion

      ENDNOTES

      OTHER BOOKS BY THE AUTHOR

      CHAPTER ONE: Introduction

      This book explains how the Ninth Amendment is the key to understanding rights in America. The Ninth Amendment states that other rights, not listed in the rest of the Bill of Rights, are also to be protected. The Ninth Amendment reads as follows: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

      This simple amendment is the key to understanding the nature of rights and protection of rights in America, as envisioned by the founders. Once a proper appreciation and understanding of the role of the Ninth Amendment is attained, the nature of rights is also clear. Likewise, with a proper perspective of the Ninth Amendment and of rights in general, the modern Supreme Court's inappropriate reliance on the Fourteenth Amendment due process clause is seen for what it truly is--a gross deviation from the way things were meant to be. But all that is needed to bring order out of the chaos created by the Supreme Court is to return to a true understanding and application of the Ninth Amendment.

      In 1789 when James Madison proposed a number of changes to the Constitution--what became the Bill of Rights--he made it clear that in selecting the proposals nothing of a controvertible nature ought to be hazarded.[1] The last thing he wanted was a protracted debate about amendments that was as likely to founder as it was to succeed.[2] Indeed, the Congressional Record confirms that the proposed provisions were not as heavily debated as some had feared.[3] The Ninth Amendment also was the focus of very little comment or debate.[4]

      The early unquestioned acceptance and understanding of the Ninth Amendment stands in stark contrast to the modern debate about its meaning and how to identify the rights it was intended to protect. Scholars and judges in recent times have frequently disagreed over the proper method to identify Ninth Amendment rights.[5] Other scholars assert that the Ninth Amendment was intended as a mere restatement of states' rights, or as a limit on federal powers rather than as recognition of inherent rights.[6] As one scholar noted, many believe the Ninth Amendment appears incapable of practical interpretation. No one has yet discovered a mechanism for empowering courts to identify the 'other [rights] retained by the people . . .'[7] Because of the difficulty modern judges and scholars have experienced in understanding the Ninth Amendment, it has largely been ignored by the courts. Only in recent years has the amendment been referenced by Supreme Court Justices, and even then, usually only as support after an independent basis for the decision at hand has been found.[8]

      Yet if the Ninth Amendment is such a complicated mystery and the rights it was intended to protect are so difficult to identify, why wasn't that very point raised against it in the congressional and state debates over its ratification 200 years ago? More to the point, was it intended by the Founders that the Ninth Amendment would be ignore, out of fear of its open-ended nature, or concern over the method or theory to be used in identifying rights? Were the Founders as uncertain of its meaning as the modern generation?

      This book seeks to answer these questions. Specifically, it asserts that the Founders did not consider finding rights under the Ninth Amendment difficult at all. Furthermore, if their understanding of rights and the ninth amendment had been followed the Supreme Court would not have gone as far afield as it has. For us today to know what unlisted rights were intended by the Ninth Amendment and how it was to operate, we need only consult the natural law rights understanding of the founding generation.[9]

      Chapters two through four of this book will discuss the only two comments by the Founders that even hinted there could be any problem in understanding the Ninth Amendment and the rights it was intended to protect. However, it will be seen that even these references in fact do not support any supposed difficulty in finding rights or misunderstanding of the role of this amendment. These chapters will also refute the rights/powers and states' rights view of the Ninth Amendment asserted by some scholars. Finally, these chapters will discuss the original intent of the Founders and their belief that such original intent should be followed by succeeding generations, particularly regarding the identification of Ninth Amendment rights. If this intent were to be followed, abortion and gay marriage would be instantly denied by the Supreme Court without further debate.

      Chapters five to nineteen will discuss specific examples of the rights understanding of the Founders and their views of natural law. These chapters will demonstrate with thirteen concrete examples that the Ninth Amendment and the natural law views of the Founders would have been a much better tool to find fundamental rights than the Fourteenth Amendment due process clause which has been used by the Supreme Court through the years. Hence, these chapters will demonstrate how a proper use of the natural law views of the Founders under the Ninth Amendment would eliminate most accusations of judicial activism today, and would put the substantive due process rights allegedly derived from the Fourteenth Amendment by the Supreme Court in their proper place.

      CHAPTER TWO: The Founders Easily Identified Ninth Amendment Rights

      As noted above, there is considerable disagreement among scholars about the purpose and meaning of the Ninth Amendment, and the best way to find the rights it was intended to protect.[10] Bennett B. Patterson, one of the first modern scholars to research the Ninth Amendment, has even maintained that the unenumerated rights [in the Ninth Amendment] permit of no exact definition. To attempt to define these rights would be contrary to the obvious intent and meaning of the amendment.[11]

      The Founders would have been surprised to hear such notions. Indeed, if Ninth Amendment rights were supposedly so hard to identify, why wasn't that very point raised against it by the Founders? After all, the members of Congress who debated the Ninth Amendment, and contemporary Founders who had the opportunity to comment on it, were extremely astute men, and certainly must have understood this problem if it indeed was considered to be a problem. Yet this alleged rights identification problem with the Ninth Amendment was actually not raised at all by any member of Congress!

      Indeed, the opposite notion is raised in a debate that took place in the House of Representatives on August 15, 1789 regarding the right to assemble. Representative Theodore Sedgwick asserted that listing the right to assemble in the First Amendment was inadvisable because it was a self-evident, unalienable part of free speech that did not need to be listed separately.[12] He went on to say that such trifles should not be included in a bill of rights. If they were, the result would be a very lengthy enumeration of rights such as, for example, a man's "right to wear his hat if he pleased; [and] that he might get up when he pleased, and go

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