Ninth Amendment rights--breaking the silence

By Alan Keyes

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. (The Constitution of the United States, Amendment IX)

[In my WND column later this week, I will discuss in particular the application of the U.S. Constitution's Ninth Amendment to two issues that arise from the elitist faction's campaign to deny and disparage our Ninth Amendment rights, which are: the provisions of Obamacare that force people to fund, participate in, or make available healthcare practices their consciences condemn; and the general offensive under way to force the American people to accept, or refrain from disparaging, sexual practices that contradict and subvert the natural human rights of the God-endowed family. These campaigns are key objectives of the elitist strategy to replace America's constitutional self-government with an elitist tyranny, wherein the powerful rule without regard for right; and make justice a commodity which they discard or redefine as and when it suits their lust, greed, or ambition. The following discussion is intended to help readers think through the logic of Ninth Amendment rights. By applying this logic, conscientious Americans can effectively oppose ongoing efforts to deny or disparage their Ninth Amendments rights, so as to thwart the anti-American agenda of the elitist would-be tyrants who are working to eviscerate constitutional self-government of, by, and for the people of the United States.]

These days, if you ask an American how we know what our rights are, their answer is likely to make some reference to the U.S. Constitution. But among the provisions the Constitution makes to assure respect for the rights of the people, one plainly states that the people retain rights not enumerated in those provisions. This begs a question, doesn't it? How are we to know when we are dealing with a government law, decision, or action that "denies or disparages" such rights? The Constitution identifies itself (and the treaties and laws made in accordance with its provisions) as the Supreme Law of the land. Yet by acknowledging that people have and retain bone fide rights not enumerated in its provisions, the Constitution constrains the governments established by or subject to its provisions to do nothing that "denies or disparages" them.

Logically, the fact that the Constitution does not enumerate these rights means that its provisions are not the source of the legal authority that gives rise to them. Moreover, by forbidding any construction of its terms that denies or disparages them, the Constitution gives due deference to the authority from which they arise. It's as if a king or sovereign should make it clear that nothing he or she commands is to be construed to deny or disparage actions authorized by another sovereign, whose jurisdiction in this respect therefore remains unimpaired.

Because their bigoted understanding of human "law" forbids all reference to God's authority, the practitioners of legal positivism, who have come to dominate American jurisprudence, want to avoid the need to consider who this other sovereign must be. Thanks to this bigotry, the Ninth Amendment has become almost invisible in their constitutional jurisprudence. Sometimes seen (as in Griswold v. Connecticut), it is rarely heard from, and never relied upon. For this reason it has been dubbed the silent Amendment. For this reason too, even those who purport to hear from it end up discussing the "rights" it envisages in a way that has no constitutionally justiciable rhyme or reason.

Like the "natural born citizen" provision of the Constitution, which I have elsewhere frequently discussed, the Ninth Amendment depends upon the existence and logical application of God-endowed natural law. It cannot be construed without reference to the other Organic Laws of the United States, in particular, the American Declaration of Independence. The Declaration clearly identifies the sovereign authority whose provisions substantiate a claim of unalienable human right that all governments are obliged to respect. It is the authority of the Creator, who informs "the laws of nature and of nature's God"; who implements thereby the righteous sentences of "the Supreme Judge of the world." It commands human forces inspired by "a firm reliance on the protection of divine Providence...," as they implement the Creator's will.

According to the Declaration, all human beings are "endowed by their creator with certain unalienable rights." Because they come from the hand of God, these rights derive from an authority that supersedes, and is antecedent to, the authority of any government instituted by human action. The Ninth Amendment simply states, with emphatic clarity, the logically obvious conclusion that the Constitution of the United States is not to be construed to deny or disparage the rights endowed by God's provision, rights permanently retained by the people He has created.

Though this is logically consistent with America's founding premises, it still leaves us with a challenge, which must be met before Americans can assert a Ninth Amendment claim. How are we to recognize a bona fide Ninth Amendment right? The task of doing so is next to impossible if we accept the absurd illogic (dominant in our politics at the moment) that conflates right with freedom. In the strict sense of the term, we are free to do whatever we have sufficient power to do. In this sense, if I have sufficient power to take your wallet, steal your car, or take your life, I am free to do so. But only the insane self-righteousness of a thoroughly criminal character feels righteous indignation when such criminal acts are prevented or punished. Even when sustained for long periods by massively organized power, regimes of such character are not, on that account, less criminal. Indeed they are more monstrously so.

Conscience condemns freedom when it is employed without regard for right. But this means that freedom and right are not simply identical, whatever the lax usage of our time allows. Conscience responds in light of a standard so intrinsic to the way that we are made (our nature) that we feel its effects even when (indeed, especially when) we violate its precepts. Of course, long habit, particularly when instilled by and supported with the full weight of prejudicially fabricated human social institutions, can drown out the sentences of conscience, more or less permanently repressing their effects. Yet and still, some individuals remain susceptible to its voice. Despite their social circumstances, they display their heart's allegiance to the sovereign whose will seeks to preserve and perpetuate the integrity of human life even when custom barely adumbrates the distinctive boundaries that define the special meaning of humanity.

One of the most commonplace and nearly universal manifestations of this heartfelt allegiance constitutes the bond of family life, recognizable as such throughout the earth. The spectacle of parents grieving the loss of their children, or seeking against all probability to interpose themselves between their offspring and some source of danger, speaks with a grammar so immediate that its meaning needs no further explanation. This primordial spur toward human community acts upon us with the force of hunger, thirst, or breathing. It is imperious, almost irresistible, but somehow subtly voluntary nonetheless.

This is the force of natural obligation. What we do in response to that force, we do freely, in the sense of freedom from all self-conscious hesitation and constraint, as a river flows, or waves rise and fall. Yet as self-conscious beings, we may choose to restrain ourselves, and even to make that self-restraint into a second nature that reflects our sense of responsibility for the consequences. So we substantiate the possibility of self-conscious choice, whereby we resist or follow the inclinations of passion; heed, or else oppose and set aside, the prods and checks of conscience. This possibility arises with the capacity to regard both nature and conscience as curiosities, questions put to us that we cannot answer without taking into account the qualities that give meaning to our distinctive nature, setting apart our special contribution to the whole of things (nature itself).

We are human, but on that account we are made to choose for or against our humanity. We are bound to be what we are, yet capable of ignoring or rejecting that obligation. The difference between right and wrong, for us, lies in the end in our acceptance or rejection of the choice that makes us possible in the first place – the choice not simply our own, that is expressed in the voice of the Creator. Since God's voice proclaims that it is right for us to be here, the choice for God-endowed right affirms that possibility. It accepts the boundaries and limits that delineate the separate and distinctive way of being whereby the Creator constitutes our existence. This acceptance of God's will; this willingness, as it were to match our breathing (L. spirare) to the breath (L. spiritus) of God who made us, is the fruit of the indwelling spirit of the law which makes human self-government possible. The actions that we take in consequence of this righteous spirit of the law are right. They accord with the relations we are obliged to maintain, amongst ourselves and with the whole of things in order to preserve and perpetuate the distinctive existence each of us has in common with the rest of humanity.

So, to identify an unalienable right, we must first identify the obligation, entailed by some provision God makes for our existence as human beings, from which that right derives. As and when we choose to fulfill the obligation from which it derives, we exercise the right (put it into action). Because this exercise implements God's will for our nature, all creatures capable of consciously or self-consciously responding to His will are prohibited from denying or disparaging our action. In respect of our righteous action, they are obliged to leave us alone, to let us act freely. Thus each individual's unalienable right involves the freedom to act, but only if and when the freedom to act is being exercised to fulfill some natural obligation incumbent upon the individual on account of the will of the Creator.

It is common enough these days to encounter the view that a valid claim of right makes it incumbent upon others to respect the right. However, when right is conflated with arbitrary freedom, this leads to the absurd consequence that when one person chooses to do evil, others may not interfere. You don't need the experience of Dirty Harry to realize that, as a basis for human government, accepting such a notion of rights makes it impracticable to devise or properly enforce the laws required to establish even minimal security for persons or property. Because it minimizes the effect of the internal constraints of God-fearing conscience, it amounts to the imposition of government by superior force – might makes right. Not surprisingly, this self-destructive view of rights is precisely the one encouraged by self-serving elitists these days. No doubt, they expect the competition of really lawless power that results from it to favor their superior talents and abilities, as it has throughout most of human history.
© Alan Keyes