EDITOR’S NOTE: This article is a follow-up to Forbidding Happiness, which discusses the infringement of the core Jeffersonian ideal the pursuit of happiness.
I recently discussed Thomas Jefferson’s affirmation of three fundamental rights: life, liberty, and (particularly) the pursuit of happiness. These are not the rights, however, that James Madison and the Founders chose to explicitly protect in the Bill of Rights. Rather than reiterating the Declaration’s broad statement, the Bill of Rights declaratively protects specific rights: religious practice, speech, the press, assembly, petitioning the government, guns, your home (from being used as a barracks), and privacy against government snooping. It, furthermore, sets rules and restrictions on the government’s prosecution of you for alleged crimes.
And, then, it does something else: It recognizes that you have rights beyond those explicitly listed, and protects those as well. That’s the 9th Amendment.
What might those be, and why weren’t they listed?
At the time of the Constitution’s drafting, there was debate as to whether any rights should be listed in the Constitution. The Constitution starts from a zero point, authorizing the government to do certain things, and only certain things. Nowhere does it authorize the government to infringe on individual rights, and under the zero-start premise, an authority that isn’t granted doesn’t exist, so the government, not having been granted the authority to infringe rights, could not do so. Some were concern that listing some rights would be used as an excuse to assert that others were not protected, or as protected.
Those in favor of a list won out, and I’d say it’s a VERY good thing they did. People today often forget, or don’t know in the first place, that the government is not permitted to do that which the Constitution does not authorize, and have a reverse attitude: “if the government is not specifically prohibited, they can do it.” I think the founders missed a couple rights for explicit protection, and they could have tightened a couple up some more, but they did a very good job overall. As for what they didn’t include…
It would be impossible to write a truly comprehensive list of rights, if exclusion was meant to indicate the absence of a right. As one Congressman of the time noted, such a list would need to include the right to wear a hat and the right to choose when to go to bed. Instead of such a list, they wrote the Ninth Amendment. It serves as both a catch-all for what wasn’t listed and as a reinforcement of the axiom that rights are inherent, that they are not granted by government, and that the Bill of Rights protects those inherent rights from government infringement instead of granting them (as many falsely assume).
Hats and bed times were intentional trivialities, but there are some unenumerated rights that are not trivialities today, given the state of war upon them.
Most of your economic freedoms, for example, have been legislated and regulated into near-nothingness, with permission required to engage in most and prohibition legislated against many. A right that requires permission or a permit is a right abridged. Your freedom of association i.e. the right to choose with whom you interact, has been severely curtailed when there is any sort of economic element. A recent high-profile example of this is the gay wedding cake squabble, but it goes way beyond the public accommodation principle that’s being enforced therein. Employers large and small walk a mine field whenever they hire, fire, or don’t hire someone. You may not sell or buy a good or service that hasn’t been blessed, in some way, by the government. Your right to enter into a contract is often limited by the nature of that contract, and if the contract is a marital one, the state is a third party to it. Even kids’ lemonade stands draw, nowadays, the ire of regulators Try to name an economic transaction completely free of government interference if you can. What you may come up with is very likely conducted without strict conformity to government’s rules, i.e. illegal, black market, or with the hope that no one’s looking.
Non-economic unenumerated rights include the right to move about freely, to defend yourself, your family, and your property against attack, to make decisions about personal health care, a broader right to privacy beyond 4A protections, the presumption of innocence, to own property (including the right to do with it as we please, marital privacy (itself a contractual matter), and to eat, drink, or otherwise put into our bodies that which we choose.
All these rights, enumerated and unenumerated, also rely on a core principle: that one’s rights do not supersede another’s. Thus, I cannot claim free exercise of my right when it violates free exercise of your right. This covers things like physical violence and trespassing, but more importantly, it undermines any argument for “positive rights” i.e. those where you demand to be given something of value from others (typically with government as the gun-toting middleman). Such positive “rights” (scare quotes deliberate) include the free health care, free schooling, a job, a specific or minimum wage, or preferential treatment based on some demographic factor. And, yet, all those and many more are bestowed upon some, to varying degrees, by a government that is happy and eager to curtail or deny your rights.
Lest we forget, the Constitution was designed specifically to restrict what government was permitted to do to a set list. An omnipotent government was deeply (and justly) feared by the Founders. But, today, we have more and more people clamoring for that omnipotence when it comes to their preferred issues. And, we have more and more people clamoring for continued and ever-growing violation of the aforementioned core principle of equality: Rights are to be prioritized by demographic markers. As Orwell warned, “some pigs are more equal than others.”
The rights of some were improperly infringed for the first century and a half of this nation’s existence, first by slavery, and then by Jim Crow laws. Infringement of other rights (in particular the right to eat, drink, smoke or otherwise consume what you wished) was often driven by racial, ethnic, and/or class animus. Pot prohibition, for example, was instigated by anti-Mexican sentiments, and later promulgated by anti-“jazz musician” (code for black) attitudes. The earliest anti-gun laws were meant to keep freed slaves from being armed. Ditto for minimum wage laws, which were meant to protect “white” jobs. Again, some pigs were more equal than others. Today, the same inequality exists, with different “less equal” people. Some have dubbed these the culture wars, and use the word “equality” to mean “legislated preferential treatment.”
In short, our rights are a mess, and while there has been a lot of positive progress in some areas (notably, minority rights in the 60s and gun rights in the past 30 years), the overall trend is one of fogging up the meaning of “rights” so severely that most people don’t even realize how badly some have been degraded. Moreso, many are all too willing to respond with “what if” extremes in defense of the terrible abridgment of rights that, two centuries ago, were so blatantly obvious they weren’t deemed in need of special protection.
Worse yet, there are far too many people in America who think that, if a right isn’t listed in the Constitution, it isn’t granted, and therefore doesn’t exist. That is the greatest peril to liberty I can imagine.
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Whenever I read about the process that the founders went through to write the constitution I can’t help but think of George Carlin’s line, “This country was founded on BS. Slave owners … who wanted to be free.” Those lofty principles that the writers wanted to codify meant less than nothing to those slaves, and it ALMOST makes the process a cruel joke. The prevailing view was that dark-skinned Africans were less than human or less equal. A view that persisted after slavery was abolished, as you rightly pointed out, leading to Jim Crow laws, laws against drugs and guns and more. There’s been slow, grudging improvement, but this inequality persists. If I was black I would scoff at such nuances as rights that are actually listed versus ones that are implied.
Lack of initial perfection does not invalidate the entire premise of individual liberty. Slavery was one of the great, huge, giant mistakes and tragedies of history – and it wasn’t by any measure solely an American phenomenon. In fact, fewer than 5% of the slaves kidnapped out of Africa were brought to America’s shores.
Does the existence of slavery, the fallibility of those who supported it, and the failure of those who opposed it to fully eradicate it at the outset of the American Experiment invalidate the entire premise of individual liberty? Hardly. The principles are correct and moral and just, and the only basis for a system of government that is just. The fact that it wasn’t gotten perfect from the get-go isn’t a reason to think otherwise.