May 31, 2007


Retained by the People: The “Silent” Ninth Amendment and the Constitutional Rights Americans Don’t Know They Have. By Daniel A. Farber. Basic Books. $26.95.

      It is the job of constitutional scholars to pick, nitpick and chip away at frequently unclear terminology to uncover the nuggets of truth within. This is an ongoing process and often a contentious one. For example, the Second Amendment’s statement that the right to bear arms shall not be infringed is preceded by the phrase, “A well regulated militia, being necessary to the security of a free state…” Does this mean that only well-regulated militias may bear arms? Or does it mean that the right to bear arms is absolute, but was enumerated in the Bill of Rights because of the importance of militias? Much legal ink has been spilled on this matter; much blood has been spilled, many argue, because no interpretation has been accepted as definitive.

      So what are we to make of the little-known, rarely discussed Ninth Amendment, which states, in its entirety, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”? On the face of it, this says that the fact that some rights are enumerated in the Constitution does not mean that those are the only rights the people have. But is this really what the amendment means? What is the implication of the phrase “or disparage”? What did the Founders think they were doing with this amendment – and why is the amendment notable by its absence from Supreme Court arguments and from lower-court discussions about the constitutionality of such asserted rights as privacy, child-rearing, gay marriage and many more?

      Daniel A. Farber, an attorney, former U.S. Supreme Court clerk and author of several books on legal and constitutional matters, argues in Retained by the People that the Ninth Amendment means just what the words say – if those words are understood in the context in which the Founders wrote them. The amendment means that people have numerous rights, only some of which are specifically listed in the Constitution, and that the Constitution in no way eliminates or limits those rights simply because it fails to mention them.

      Farber bases his arguments on history: the first half of his book discusses the notion of fundamental rights as the Founders understood it. Farber then examines the implications for the modern United States of accepting his reading of the Ninth Amendment. And it does have implications – for reproductive rights, end-of-life decisions, gay rights, education and more. Farber parses his analyses as closely as you would expect a lawyer to: for instance, he argues that terminally ill patients have the fundamental right to refuse unwanted medical treatment, but not to obtain drugs for assisted suicide; and that people of either gender and any sexual orientation have the right to do as they wish in their relationships, but that there is no fundamental right to unrestricted access to abortion.

      Although Farber is clearly more liberal than conservative – he offers harsh words for “social conservatives” and the views of onetime Supreme Court nominee Robert Bork and current Justice Antonin Scalia – his analysis is not really a political one (although he does his argument no good with snide asides against current officeholders). It is, however, rather abstruse, of interest to fellow lawyers and constitutional scholars but probably not to most lay readers. And Farber does not suggest any way in which his commentary could be adopted by sitting justices – except, by implication, that they could read this book and decide, on their own, to implement its arguments. The Ninth Amendment certainly deserves closer scrutiny than it has had in modern judicial settings, and Farber’s analysis could provide that if the right people were to read and accept it. But for anyone else, the book may come across only as an arcane (if well written) discussion of an amendment that itself seems to be something of a curiosity.

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