Liberty and the Ninth Amendment

Published on 3 August 2022 at 06:42

Liberty is defined as the capacity to exercise our fundamental natural rights protected by non-arbitrary laws from a government with limited power that is bounded and controlled by a constitution. Fundamental natural rights are not only difficult to define but most Founders felt it was a futile effort to define them all in the Constitution because there are literally millions of fundamental natural rights such as the right to brush your teeth or take a shower. Thus, many Founders objected to a Bill of Rights because they feared unenumerated rights (or rights not listed in the Bill of Rights) would not be protected or protected as vigorously as those rights enumerated in the Constitution. To resolve this conundrum the Founders (James Madison) added the Ninth Amendment which reads:

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

The Ninth Amendment is the most magnificent and ingenious 21 words of the Bill or Rights and Constitution. The Ninth Amendment could have been used as the vessel to end slavery and support women’s suffrage. That is right, there was no reason to pass the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments since they are encompassed in the Ninth Amendment. Like Einstein and his cosmological constant, James Madison and his Ninth Amendment was centuries ahead of his time. Einstein’s cosmological constant uncovered Dark energy and the biggest mystery of the universe whereas, Madison’s Ninth Amendment revealed the solution for the abstract theory of natural law. Madison and Einstein both thought like God to discover the mystery behind His laws of science and human nature. Unfortunately, legislatures and courts very rarely use or rely on the Ninth Amendment. The reason for this is twofold. First, many law experts claim that they do not understand the amendment or they are uncertain of the true meaning behind the amendment. I feel the amendment is fairly self-explanatory and even I could unearth information as to why James Madison included it in the Bill of Rights. Second, many are afraid to open pandora’s box because they are uncertain of how the other side will use the amendment. For example, liberals and conservatives may use the amendment to protect things that are not fundamental rights. However, those fears have already been realized by protecting abortion without the use of the Ninth Amendment. Of course, this apprehension or fear of how the amendment would be used could have been averted by precisely defining the principles a fundamental right must own to be elevated to constitutional protection through the Ninth Amendment. Many of those principles a fundamental right should own include being undisputed, non-political, non-controversial, deep rooted in American culture and history, etc.

A right to protect all rights seems intuitive, but if the Ninth Amendment were intuitive then our legislators and courts would use it. In a sense, resolving both natural law and quantum science are difficult because they are paradoxes. For example, Schrödinger's cat can be assumed to be both alive or dead because of the uncertainty surrounding subatomic particles. Similarly, the uncertainty surrounding the Ninth Amendment’s use or meaning leaves many rights in limbo, neither protected or unprotected. Until courts and legislators resolve the Ninth Amendment paradox our fundamental rights will suffer and the scope and mission of the federal government will continue to be flawed. Likewise, until we resolve the uncertainty regarding subatomic particles, we may never understand the true nature of the universe and our reality.

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