Inalienable Rights and the Ninth Amendment (Harvard Law Review)

    It seems that the State Bar of California has paid some attention to the 

60 Cornell L.Rev. 231(1975) article on human rights and the Ninth Amendment. 
The article will also be reviewed in the American Bar Association Journal—

perhaps next month.

LAV/ IW ACTiO^^
INAI.IKN/MU-K Kir.IITS A M )  
T IIK  NINTH AMKNDMKNT
Two hundred years ago the 

men who signed the Declaration 
of Independence wrote the fa­
mous words: "We hold these
truths to be 
s e l f - e v id e n t : 
that all men 
are created e- 
qual: that they 
are endowed 
by their Crea­
tor with cer­
tain inaliena­
ble rights; that among these are 
life, liberty and the pursuit of 
happiness.”

The Constitution spells out cer­
tain rights. But it also contains a 
catch-all in the Ninth Amend­
ment; that the unenumerated 
rights are retained and are to be 
denied by any governmental 
body.

Until recently, this Amend­
ment was given little or no 
meaning. Then came a decision 
that this guaranteed the right of 
privacy, free from governmen­
tal interference.

Increasingly, the Ninth A- 
mendment is being cited as a 
guarantee of "fundamental free­
doms” , "fundamental human 
rights", "basic human values", 
and other "cherished liberties." 
The Ninth Amendment is being 
hailed as a statement of policy, a 
restriction on the powers of 
government and a new found 
important guarantee.

As government becomes big­
ger and more powerful, .the 
guarantees of the Constitution 
become more important. Two 
hundred years ago, the King of 
Kngland was denounced as a 
tyrant and unfit to rule a free 
people. The Constitution would 
secure the inalienable rights of 
man retained by the people. 
Government exists to serve the 
people, and the people did not 
surrender any rights, but these 
l ights were "retained.”

The founders of the Constitu­
tion wrote in simple language 
that these unenumeraled rights 
were not denied or disparaged, 
.lames Madison framed the sim­
ple language knowing that it. 
would be Impossible to describe 
every complex right or idea. A 
long Ust of rights would not cover 
all those "Inalienable rights.” 

The full meaning of the Ninth 
Amendment is yet unknown. 
Writers speak of rights arising 
out of the "natural laws” , things 
"inherent" to the structure of 
any .society, or at least all those 
fundamental values of any civi­
lized society. Some writers go 
further, that we speak now most­
ly of "American values.” They 
say there is an even bigger "uni­
versal sense of justice.”  I’er- 
haps those rights are stated in 
the United Nations Charter or 
mentioned under other govern­
ing principles on religious doc­
trines.

The founders said that the 
definition, application, and pro­
tection of these fundamental 
rights would be up to the courts. 
Their development was up to the 
court. As Chief Justice Marshall 
said in the early 1800’s, "The 
Constitution is intended to en­
dure for ages to come and to be

adapted to the various crises of 
human affairs." This principle 
has been repeated many limes.

California lawyers offer this colinnn so the public may hnow 
U,oul .1 law Through the efforts of The Dos Angeles l)u. > 

journal, the above feature will appear in 6!i community 
newspapers of l.os Angeles County. _______________