The Last of the Ninth

Although there are numerous individuals of sincere faith and moral probity in our midst, it is a legitimate question to wonder how many of them could list all 10 of the elements of The Decalogue or Ten Commandments. We know not to covet our neighbor’s BMW or iPod. Recent trials, press conferences, and national events to the contrary notwithstanding, we know not to bear false witness. We know about telling the truth and not working on the Sabbath. Most of us who have had the advantage of an effective upbringing have the cultural downloads; if we really need to find the number of a specific Commandment, we have at the very least Google, Ask.Com, and Wikipedia, right there on our laptop. Or Blackberry.

Although most of us are aware of the first 10 amendments to the United States Constitution, aka The Bill of Rights, it is a reflection on our political selves that the three best know, most commonly invoked relate to the right to freedom of speech, the right to bear arms, and immunity against self-incrimination.

Knowing the number of a commandment does not guarantee a greater morality nor does knowing The Bill of Rights by number make us more likely to appreciate the greatest entitlements of this country, our rights. Nor does such knowledge enhance the likelihood of our taking steps to protect these rights.

Often enough, our concept of conservatism centers on small government and pay-as-you go financing, a no-host bar, as it were. This concept is not wrong or flawed so far as it extends. Some bureaucratic presences are truly awful, so are spending binges. Equally often, our concept of liberalism also invites comparison with a party-like atmosphere, where the government runs the bar. Anything goes, sock it to the rich man, and free ride for Welfare mothers and malingerers.

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

That is the Ninth Amendment to The United State Constitution. It is what legal scholar Daniel Farber calls “the silent amendment,” in his new study from Basic Books, “Retained by the People.”

Each time a new District or Supreme Court nominee appears in confirmation hearings before the Senate Judiciary Committee, we hear from the nominee and the senators, variously trying to demonstrate their knowledge of Constitutional Law and their individual reading of it, and we are treated to disquisitions on what the Founding Fathers thought about the rights and liberties they expected Americans to enjoy under the umbrella of The Constitution. The Founding Fathers, so often and so passionately invoked by liberal, libertarian, and strict constructionist senators alike, “did not believe they were creating these liberties in the Bill of Rights,” Professor Farber writes [emphasis his]. “Instead, they were merely acknowledging some of the rights no government could properly deny.”

Welcome to the 21st century, which has so far seen a number of liberties given narrower definition for the legislative and legal equivalents of rezoning a prime stretch of coastal property. Under the tent of fear, parties in custody of the operational philosophy of the nation seek from The Constitution powers that will allow it to work its agenda.

In “Retained by the People,” Farber demonstrates how the Ninth Amendment has become a constitutional orphan, forgotten by most, reviled by quite a few others. Guess on which end of the spectrum the revilers stood?

Conservative (strict) and liberal construers of The Constitution tend to let the Fourteenth Amendment carry the due process freight when making their arguments, but you would think Conservatives, more often than not with residence in the States’ Rights grandstand, would like the notion of The Ninth. For historical reasons, and for the stare decisis (scrupulous following of precedent as a stepladder to logic), the Supreme Court has mostly stood in the shade of the Fourteenth Amendment rather than using the Ninth as a building block.

Farber’s arguments and platform lead a provocative trail, starting with an easy-to-follow chart of Constitutional Provisions. He wants more attention paid to The Ninth, particularly its applications to privacy-related issues, but also to establish the very existence of unenumerated rights.

The Supreme Court has walked on judicial egg shells regarding an individual’s stated wish and subsequent right to die; it has argued and cringed at the thought of rendering decisions in matters questioning whether consensual homosexual acts could be outlawed, whether states could outlaw a married couple’s use of birth control devices, and has not, Faber reminds us, found education to be a fundamental right. (On this last issue, education, Faber gives us a lovely peek at the differing opinions of two legendary Associate Justices of the Supreme Court, Thurgood Marshall and William J. Brennan.)

The right to government protection, the right to travel, the right to necessary information, and the right to privacy are areas Faber investigates, calling for closer, more specific visions of the way the Ninth Amendment protects us, all this in consideration of the reason it was articulated in the first place.

Professor Farber’s credentials to review these issues and interpretations are strong. Having clerked for a Justice of a District Court of Appeals and for a Justice of the U.S. Supreme Court, and ultimately professing Constitutional law, his commentary is no mere expression of a liberal or conservative bias but rather a call for a 21st century articulation of a document that has been, throughout its lifespan, as put upon, reviled, and ignored as the more articulated and farsighted legal visionaries in our Balkanized history.

As you may not be in political agreement with many of the political and legal agendas within our history, there are those thinkers and scholars nevertheless for whom you can give thanks for their loyal and considered thought as The Constitution was formed, informed, and ratified. Daniel Farber, happily unlawyerly and academically in his writing, stands before us in a sense asking habeas corpus for The Ninth Amendment. Help, help; I am being held prisoner without being charged. Let’s give The Ninth a fair hearing.


“California Girl” (Harper Torch) has been out and available for some time. So has its author, T. Jefferson Parker. Although some of his characters are brought back in new outings from time to time, Parker sets forth innovatively with each new novel of suspense. This one is a compelling 40-year slice of California history, starting in the Tustin/ Laguna Hills/San Clemente of the 1960s, following the resurgence of Richard Nixon, the spawning of the John Birch Society, and the inevitable pull of the Viet Nam War. A stunningly beautiful and emotionally complex young woman is discovered dead, and the trail to her killer takes us through the landscape of the ’60s, with its Red Scare, its music, its drive-in churches, and the California-ness all the other 49 states try to imitate but can’t. Parker is a major American crime writer.