Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have

by Daniel A. Farber

The Ninth Amendment lurks like an unexploded mine within the Bill of Rights. Its wording is direct: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” However, there is not a single Supreme Court decision based on it. Even the famously ambitious Warren Court preferred to rely on the weaker support of the Fourteenth Amendment’s Due Process Clause for many of its decisions on individual rights. Since that era, mainstream conservatives have grown actively hostile to the very mention of the Ninth Amendment. Daniel Farber, a law professor at the University of California at Berkeley, makes an informed and lucid argument for employing the Ninth Amendment in support of a large variety of rights whose constitutional basis is now shaky. The case he makes for the application of this unused amendment has profound implications in almost every aspect of our daily lives.

Genres: Law, History

256 pages, Hardcover

First published April 30, 2007

Reviews

[Stephen Dai · Rating 4 out of 5]

Informative, but I wish it had more direct citations

[Smiley McGrouchpants Jr. · Rating 5 out of 5]

As per Gödel, and his (much later) finding of the inherent incompleteness of any list (after deducing the number of mathematical truths are too numerous to ever discover them all as theorems), the Framers of the Constitution provided — in their oft-cited and rarely-disputed but not-often-emulated Wisdom — to make a provision (let's call it an "Amendment," shall we?) for Rights to be Enumerated, Later.

Scalia hates it.

Not surprisingly, it (as the author, here, adroitly points out) has none-too-few applications in the pursuit of Gay American's pursuit of happiness via Marraige; but, one'd have to look, right?

(Even more cogently-made are the cases Farber raises as having suffered, even if established on other terms, from the Court's aversion to and disregard of the allegedly-speciously-worded Ninth Amendment.)

Don't be afraid of the Implied, kids ... jump on in! (Here's a great Introduction!)

AND: Every American'd be better off — at least a little — with a glancing acquaintanceship with how Caselaw works. (Otherwise, one ends up a little too sanguine about the Rights one has ... or hasn't. A word to the soon-to-be-Wiser-still!)

Enjoy!

[Fredrick Danysh · Rating 3 out of 5]

The author, a lawyer, writes about the Ninth Amendment and how it has been shaped by political and social forces in order to strenthen some agendas and weaken others. He gives the impression that this Amendment is flexible and can and should be twisted from what the original Bill of Rights called for. Fairly well written.

[Neil Delaney · Rating 4 out of 5]

Good to be familiar with the history and significance of the 9th.

[Paige · Rating 4 out of 5]

Sometimes I wish I wasn't such a stoner, because all I can vividly remember about this book is learning that George Washington's Supreme-Court-serving nephew's name was Bushrod.

Seriously, though. It wasn't a GREAT book, but it was pretty informative regarding our Ninth Amendment.

I remember feeling frustrated because he kept repeating the simple stuff, I guess in an effort to hammer it home (and it worked), but every so often he'd mention something more complex, and I'd be wanting greater detail, more information on it, but then he'd go back to repeating the simple stuff again.

[Virginia · Rating 2 out of 5]

never try to beat originalists at their own game...it's a losing battle. frankly, i don't care about what madison thought my rights were. he lived more than 200 years ago, and i don't consider 1789 the peak point in human history, from which all subsequent developments have been a falling away. i would hope that we have evolved somewhat since then and, dare i say it, i think that if we wrote a new constitution today, it could be better than the one we have now (as long as i get to decide who writes it).

[Dave · Rating 1 out of 5]

Actually NOT read... (lasted a mere 11 pages) Farber is a statist idiot. Presupposing that the noble purpose of the 9th Amendment is to enable the Federal Judiciary to protect "the people" from the depredations of state legislatures. His love of the Social Contract Theory and the hideous 14th Amendment cast a pall upon whatever value I might have originally had for this book.

File Thirteen anyone?

[Ashley · Rating 5 out of 5]

A very well written book about the Ninth and, in all fairness, 14th Amendments to the US Constitution. It offers apt historical reference, examines Supreme Court cases which relied--if not explicitly so--on the Ninth, and offers solutions for the problems plaguing our current use of the P and I Clause of the 14th.

[Mark Flowers · Rating 5 out of 5]

Anyone with an interest in civil rights should go out and read this book immediately. Including the entirety of the Supreme Court.