Amendment IX to the U.S. Constitution
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Kennedy's Libertarian Revolution: Lawrence's reach
, by Randy Barnett
, National Review Online
, 10 Jul 2003
Comments on the Supreme Court decision in Lawrence v. Texas
invalidating sodomy laws and in particular on Justice Anthony Kennedy's majority opinion
"'Liberty' is obviously deeply rooted in our history and traditions. A right to use contraceptives is not. ... Whenever a particular liberty is specified, therefore, it is always subject to the easy rejoinder: 'Just where in the Constitution does it say that?' even though the Ninth Amendment specifies that 'The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.'"
Law as 'Reason' or as 'Violence'?
, by Butler Shaffer
, 17 Nov 2001
Compares modern "law" to ancient "law merchant" and describes various rationalizations used to justify the violence in the modern system
"Perhaps the best evidence for the incessant restriction of liberties under the Constitution is to be found in the 9th Amendment, a supposed 'catch-all' for all other liberties not enumerated within the Bill of Rights. Only a small handful of cases have ever found such additional 'rights' that were subject to 9th Amendment protections."
On the Origins of the Modern Libertarian Legal Movement
[PDF], by Roger Pilon, Chapman Law Review
Historical survey of libertarian influences on constitutional and other areas of law, from the mid-1970s to recent decisions
"... countless rights, only a few of which could have been enumerated in the document, are nevertheless recognized by and hence 'in' the Constitution because, as it plainly says, they are 'retained by the people'— and you cannot 'retain' what you do not first have to be retained. Thus the fundamental importance of understanding the theory of rights that has stood behind the Constitution from before the time the Bill of Rights made explicit what was always implicit in the doctrine of enumerated powers—that where there is no power there is a right, belonging either to the states (as powers) or to the people."
The Bill of Rights: Unenumerated Rights
, by Jacob Hornberger
, Future of Freedom
, Apr 2005
"A common misconception among the American people is that their rights come from the Constitution. Even lawyers and judges are guilty of believing this, oftentimes suggesting that whether a right exists or not depends on whether it is listed in the Constitution. ... Nothing could be further from the truth. ..."
What Is the Constitution?
, by Sheldon Richman
, Future of Freedom
, Jun 2002
Discusses constitutional interpretation, in particular the ninth and tenth amendments, in light of comments from Antonin Scalia about a national ID card
"... both sides strain to ignore the Ninth Amendment, which says that people have rights in addition to those enumerated in the Constitution. That amendment was adopted to satisfy those who warned that any necessarily finite list of rights is actually dangerous because it will be construed as exhaustive. The Ninth Amendment is virtually missing from constitutional jurisprudence."
The Rights Retained by the People: The History and Meaning of the Ninth Amendment
by Randy Barnett
Partial contents: "Higher law" Background of American Constitutional Law - Forgotten Ninth Amendment - Are There "Certain rights ... retained by the people"? - Natural Rights and the Ninth Amendment - History and Meaning of the Ninth Amendment
The Rights Retained by the People: The Ninth Amendment and Constitutional Interpretation, Volume II
by Randy Barnett
Partial contents: Ninth Amendment: Inkblot or Another Hard Nut to Crack? - Reasons, Rhetoric, and the Ninth Amendment - The Problems of Constitutional Interpretation - Righting an Unwritten Constitution - The Natural Rights Basis of the Ninth Amendment