Retained by the People

By Daniel A. Farber. <i>Basic Books</i>. $26.95.<br /> What if the Constitution explicitly granted liberals’ wish list of rights—basic education, reproductive freedom, sexual privacy, and a dignified death?

Facts matter: Sign up for the free Mother Jones Daily newsletter. Support our nonprofit reporting. Subscribe to our print magazine.


What if the Constitution explicitly granted liberals’ wish list of rights—basic education, reproductive freedom, sexual privacy, and a dignified death? We already live in that promised land, argues law professor Daniel Farber. We just don’t know it, because we’ve made the mistake of ignoring the “silent” Ninth Amendment.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” the Ninth states. What this really means is not exactly clear: The Supreme Court has never based a major decision solely on it. But Farber thinks the framers drafted the Ninth to protect “fundamental rights” such as life, liberty, and the pursuit of happiness, and intended for judges to further define these rights over time. Unlike Supreme Court Justice Antonin Scalia, who looks to the framers’ intentions and declares the Constitution “dead” and unchanging, Farber looks to them for proof that the Constitution is not only alive but evolving.

Farber’s reading of constitutional history is solid, but when he tries to apply the Ninth to contemporary controversies, it’s a stretch. His ideas about which new rights the Ninth should protect rely too much on his view that social consensus should guide judges. For example, most Americans support the right to refuse medical treatment but not the right to assisted suicide, so he says that’s the position the Ninth would instruct judges to take. In the end, the Ninth seems unlikely to live up to the promise Farber sees in it.

THE END...

of our fiscal year is Thursday, June 30, and we have a much larger fundraising gap than we can easily manage with only days left to go.

Right now is no time to come up short: If you value the hard-hitting, democracy-protecting, justice-advancing journalism you get from Mother Jones, please help us keep charging as hard as we possibly can with a much-needed and much-appreciated donation today.

payment methods

THE END...

of our fiscal year is Thursday, June 30, and we have a much larger fundraising gap than we can easily manage with only days left to go.

Right now is no time to come up short: If you value the hard-hitting, democracy-protecting, justice-advancing journalism you get from Mother Jones, please help us keep charging as hard as we possibly can with a much-needed and much-appreciated donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate