On the Ninth Amendment’s critical importance to the U.S. Constitution

Bennett B. Patterson’s book, “The Forgotten Ninth Amendment” (1955), contains many clear affirmations that the Ninth Amendment is “the most significant and forceful clause in the entire Constitution,” “a declaration of the sovereignty and dignity of the individual.” and “it is in fact the cornerstone of the Constitution.” These three claims are from page one; 84 pages follow.                                                                                                                                  

The Senate hearings  on nominee (now Justice) Ketanji Brown Jackson let us hear some disagreements over the Ninth Amendment. As I heard bits and pieces of the 20-plus  hours of questioning, the Ninth Amendment came up a lot of times, mainly from the mouths of worried Republicans.

Many well-argued paragraphs, indeed many articles and books, need to be written about why this is so very important for women and reproductive rights as well as rights to clean air, unpolluted water, unpoisoned top soil.  I will simply list here a few facts, writings, leads, that need following up by many citizens, lawyers and politicians. 

President Joe Biden believes in the rights/powers of the Ninth Amendment because it helped him block the appointment of Robert Bork to the Supreme Court in 1987. Biden, and many others, are not fully aware of all the “other unenumerated rights” that exist now and that may emerge in the future.

See “Joe Biden’s Secret Constitutional Weapon” by Ian Ward in Politico, 2/23/22.  Ward seems unaware of Bennett B. Patterson’s book, and Lynn Hunt’s.   

See Lynn Hunt’s book, “Inventing Human Rights: A History,” which shows how human rights emerge as they are being lost, or as people become aware that practices like torture are morally wrong even if both church and state approve of them, as they did in France, early 1600s. 

See Article One (out of 30) “Right to Equality” in the Universal Declaration of Human Rights (1948): “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood.”  And sisterhood . . . . (and in the spirit of extended family values I’d say). 

The Ninth Amendment also protects the 16-plus rights listed on page 20 of “Emergent” by c keil (me, copyright 2022 and just $8 at Lulu Press). I picked up some or most of those “rights” from a footnote in Randy Barnett’s edited book “The Rights Retained by the People,” which also contains the very valuable Appendix C. “Justice Goldberg’s Concurring Opinion” in Griswold v. Connecticut. Griswold is about a key right to contraception case leading to Roe V. Wade and the rights of women and men to privacy and to control over their own bodies.          

Charlie Keil is Professor Emeritus, American Studies, SUNY Buffalo” and author of “Urban Blues” and other books, including an anthropology of  music. He lives in Lakeville, Conn.