Home / Rights vs. Privileges: An Essay on the Ninth Amendment to the Constitution

Rights vs. Privileges: An Essay on the Ninth Amendment to the Constitution

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What are rights, and where to they come from? This may seem to many Americans an absurd question, as most of us who are American are quite familiar with the Declaration of Independence. However upon closer examination it is this author's opinion that many Americans may not fully understand this fundamental concept to our form of government.

We take it as a given that our rights come from our creator. Was our creator government? What a silly question. The answer obviously is no. The whole purpose of government as set forth in the Declaration of Independence is that governments are formed to "protect and secure" our rights. This is the fundamental premise of our form of government. How many of you out there would agree that given the current state of political discourse in the USA, we no longer adhere in any meaningful way to this amazing document written by Thomas Jefferson? I think most would agree that we as a nation have violated this fundamental premise that was so important in establishing the USA as first among nations.

A right is defined in most legal dictionaries as an entitlement, which is far different than a privilege or a license which are granted from a legal authority such a law or statute made by a state legislature, or the the Congress. So if rights come from our creator, and privileges come from government, why the big fuss? What the fuss is all about is that government has now taken to doing exactly the opposite of what it was sworn to uphold, the Bill of Rights of the US Constitution. Most, if not all, government officials take an oath to defend the Constitution from all enemies foreign and domestic. Unfortunately I believe that this oath is violated on a continual basis daily.

If government is continually violating the rights that people are born with, the question I must ask is: who are they working for?

It certainly does not appear to be you and me. Since the days of Marbury vs Madison the US Supreme Court has taken it upon itself the role of sole arbiter of what is constitutional and what is not, and in my opinion has let most if not all government officials off the hook in determining in their own consciences, if what they are doing is constitutional or not.

An obvious question that arises in the discussion of rights is what rights do we have?
Most people, including most judges, will tell you that you have the rights that are set forth in the Constitution and no others. This is not only wrong, it is also very dangerous in my opinion. This leads to the belief that our rights come from government, that is the Constitution. They do not. This is where a little known amendment to the Constitution was inserted at the behest of James Madison. It is the Ninth Amendment, which states,
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people".

Interestingly enough, to my knowledge the Ninth Amendment has only been used in jurisprudence twice in any meaningful way. The first was Griswold vs. Connecticut, and the second was Roe vs. Wade. I am of the opinion that most Justices are scared stiff of what the Ninth means, and thus ignore it as much as they can.

As any legal scholar will tell you that the Constitution of the United States was more than anything a limitation on the powers of the federal government, and any power not spelled out specifically was left to the states or to the people in the tenth amendment.

Isn't that amazing? It is to me, because what it means fundamentally is that the government is limited, and the people (individuals) are free, and can assert rights that they have that are not specifically described in the first eight amendments to the Constitution.

So what rights do I choose to assert as an individual? Aside from those guarantees set forth in the first eight amendments, I assert I have the right to be left alone, unless I am suspected through the probable cause clause of the Fourth Amendment of being engaged in criminal activity. I have the right to think what I want, to eat what I want. I have the right to put anything I wish into my sovereign body that I want. I could go on and on, however some people will say, no you don't, because if you do something that is harmful to yourself, then society has to pay for it. I will respond that I did not create this idea of socialism, others did, and this is why in my opinion that socialism is so dangerous to individual human rights as set forth in the Declaration of Independence. I am also arguing that if the government has the right, (which it does not) to tell me what I can and cannot put into my body – in this case pharmaceuticals come to mind – then the time will come when it will also tell me how many carbohydrates I can consume — only one donut today. It may sound funny to you now, but you just wait!

The path that we are following as a nation will surely lead to tyranny if we do not wake up and demand that the government adhere firmly to the Declaration of Independence and the Constitution without prejudice. I also firmly assert that the War in Iraq, and all of the wars that we have engaged in since World War Two have been unconstitutional, the War Powers Act of 1973 notwithstanding, as in Article 1, Section 8 only Congress can declare War, not the President. The AUMF (Authorization to Use Military force in Iraq) resolution is not an Act of Congress but a resolution as defined here in a legal dictionary:

The practice of submitting and voting on resolutions is a typical part of business in Congress, state legislatures, and other public assemblies. These bodies use resolutions for two purposes. First, resolutions express their consensus on matters of public policy: lawmakers routinely deliver criticism or support on a broad range of social issues, legal rights, court opinions, and even decisions by the Executive Branch. Second, they pass resolutions for internal, administrative purposes. Resolutions are not laws; they differ fundamentally in their purpose.

I urge all citizens of their respective States to assert ALL of their rights, and to DEMAND that their government not usurp them in any way, and to abide by the rule of law as set forth in the Constitution of the United States of America.

Below is a brief clip of an eight-hour constitutional law class by former Libertarian Presidential candidate Michael Badnarik. I suggest that anyone who is really interested in this subject watch his class, which is available on Google video.

I welcome comments and discussion on this topic, but rancor and disparagement will be ignored by the author or on occasion returned in kind.

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About Pablo

  • Joe Netharell
  • Todd

    Your article has become a very important factor since the Salinis v Texas decision. I am confused it seems to me that the Supreme Court has kept the 5th a right if you involke the right. If you do not involke the right you have demoted it to a privilidge. Is that correct. I am very confused by the decision. It seems to me you can no longer have a consensual conversation with a LEO without giving up your rights.

  • amlia

    ok, i need some combined help here, I am stepping forth, to fight the seatbelt law. whether it is safer or not, i believe it is a violation of our rights (for a source of revenue) I think it will boil down to what is a right and what is a privilage and how it fits together with the amendment. I am not well versed (as you prob can tell) and could use some help.

  • pablo

    2 – Dave Nalle

    I just happened to be rereading this article that I wrote and came across your comment 2 where you talked all about the other powers of Congress to act militarily. That may be so Dave, however this does not abrogate the fact that the executive (President) does not have the power under the constitution to act militarily without an Act of Congress, particularly in the arena of invading a sovereign power. I will not argue his ability to act decisively in a moment of defense in the age of missles.

    You as usual miss my point. Iraq, Vietnam, Grenada, Panama, Cambodia were all unlawful acts by the executive. Not to mention the frequent use of clandestinely overthrowing other sovereign nations such as Guatemala, and Iran.

  • notha

    The problem with people trying to interpret these things is they think they have entitlement just because the wording may not say otherwise.

    Newsflash, just because doesn’t say it, doesn’t mean you can make the assumption that you have a right or entitlement. Some common sense is necessary here.

    Being a citizen is not a right or entitlement, it’s a privilege.

    Things like the Constitution and the Declaration of Independance are merely guidelines nothing literal about it.

    The problem is, too many anal people taking it literally like the bible.

    A citizen must have common sense above anything else.

  • Pablo

    And I wonder if Lumpy has anything meaningful to say about anything of a political nature. So far I have not. Last time I checked it was people such as Lumpy who believe in the boogeyman (al CIAda being a prime example). Any more rights you are willing to give up today Lumpy?

  • Lumpy

    I wonder if Pablo realizes that supporting Ron Paul and believing in the boogeyman doesn’t actually make u a libertarian.

  • Pablo

    Dave, Dave, Dave,

    Your argument as usual has no merit at all. I like how you also ignore my legal definition of Resolution. It is kind of funny to me because in a way we are both arguing similar things, that is that the Congress has vast powers of the military, however a Resolution is not one of them. I suspect however that when it comes to using military force you are much more inclined to agree with the Bush doctrine of using pre-emptive executive power to engage in war making, which is clearly unconstitutional, I of course expect you in your supreme “wisdom” (yes that was sarcasm” to respond and assert that the President of the USA can do anything he damned well wants to, after all WE “elected” (more sarcasm) him.

    As you have already admitted that you yourself come from a CIA background I can hardly be suprised at your political beliefs. I suspect that you are probably also a big fan of John Poindexter who before he was forced to resign was in charge of the Total Information Awareness program with the all seeing eye in the pyramid funded by DARPA.

    You act as though you have libertarian leanings and have even said that you voted for Badnarak, in the last pres election. I have serious doubts about whether or not you have ANY libertarian leanings other than offering occasional lip service to such things as the war on drugs etc.

    So I ask you this Dave. What limitations do you believe the executive has in terms of war making, executive orders, submitting to the subpoena power of Congress, executive priviledge, declaring enemy combatants, and signing statments. I suspect if you were to clarify your positions in a clear and meaningful way, we will all discover the Dave Nalle is certainly not even close to being a Libertarian, and is much more politically aligned with the far Right, along the lines of such notable people as; James Woolsey, Richard Armitage, William Kristol, Pat Robertson, and Dick Cheney. I challenge you to respond and clarify your so-called Libertarian positions regarding the above. I suspect you will not.

    Instead what you will do, is take short sentences of what I have written and dissect them with cute, condescending, and not well thought out remarks.

    Also I would like to point out to you, and I may be wrong (oh something Dave will never admit to), I have yet to see you when writing clarify that YOUR statements are OPINIONS, and not fact. I suspect you will write back with something cute such as “Well obviously it is OPINION look at the category”. You present yourself as the “authority” on each and every subject that I have seen you right on. You’re not Dave, not only are you not an authority, frequently in MY opinion you don’t even know what your talking about, the fact that you use complex language occasionally does not make any of your half-cocked ideas about politics any more cogent.

    Sometimes I would like to tatoo on Your forehead Dave. DUNCE


  • Anthony Pollock

    I hve always maintained that the founding fathers were geniuses but although many, such as Jefferson, had feet of clay this does not detract on iota from the magnificence of the words they wrote and although they may not have meant them to be taken as they are now, they remain as written and may be interpreted to the benefit of all men and seen in their full majesty.

    Essentially the most important reinterpretation is of the word “Men.” so that it now means the generic sense and includes women and disregards colour, ethnicity and religion not just WASPS, White Anglo Saxon Protestants, which is what Jefferson meant but not Paine. Paine and Jefferson were at odds over most things.


  • The warning given in Australia is near identical to the Miranda warning, except for the offer of a lawyer, which is a standard provision for anyone who wants one.

    It generally goes thus: “You do not have to do or say anything, but anything you do say will be taken down and given in evidence. Do you understand?”

    The caution in England and Wales (not Scotland, which has its own separate criminal code) used to be virtually identical, but was changed a few years ago, in a highly controversial piece of legislation which in effect took away the presumption of innocence.

    The arresting officer must now say: “You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.” [my emphasis]

    The law has yet to be overturned or amended despite a change of government more than four years prior to 9/11.

  • STM

    It took 200 years for the reality of freedom for blacks to catch up with the intent of the Bill of Rights.

    I still believe that was the REAL reason for the revolution, following as it did very soon after the King’s Bench ruling by Justice Mansfield in 1772 effectively outlawing the keeping of slaves in England and the colonies (at the risk of repeating myself).

    The fact that Jefferson kept slaves himself probably makes a mockery of the whole thing if you were to look at what it really did AT THE TIME.

    However, given that history isn’t a time capsule, and that it is such a great document, in the end it must offer everyone the same thing, which is what makes America such a great place.

    Regarding the 9th amendment, as I’ve said to Pablo before, there have been rulings about such things as the right to silence during custodial interrogation outside court (not covered by the wording of the constitution) that have subsequently been found by the courts to have a constitutional basis in other amendments (in this case, the 5th, Miranda).

    My contention is that if you apply the 9th amendment as written, many of those rights WERE actually protected by the constitution from the very birth of the US – by the 9th.

    I cite as evidence that fact that in this case, those rights also exist today in other countries that have inherited their law from England – including mine.

    Warnings to a suspect here aren’t protected by any constitution but by common law, and must be given by arresting officers. No man or woman can be forced to give evidence against themselves in court, either, and they can’t be robbed of the right to a quick and fair trial by a jury of their peers.

    The warning given in Australia is near identical to the Miranda warning, except for the offer of a lawyer, which is a standard provision for anyone who wants one.

    It generally goes thus: “You do not have to do or say anything, but anything you do say will be taken down and given in evidence. Do you understand?”

    It was not copied from Miranda, but has long existed. It is, IMO, all those things like natural rights and decisions arrived at through the common law (the right to silence in custody) or through the courts and legislature both in the past and in the future that the 9th protects. So different paths have led to much the same place in the English-speaking nations – all thanks to the laws and ideas we inherited.

    So the 9th amendment is really a brilliant piece of legislation, and one more Americans should be mindful of when they decry things like decisions of the courts as “unconstitional”.

    It was a warning to Americans not to consider that the constitution and the enumerated rights therein of the previous eight amendments forms the whole law of the United States. The best part: if taken exactly as read, the 9th amendment means such a thing as making judgments at law that might seem outside the scope of the constitition are actually protected by it.

    No wonder it frightens the legislators and the judges, and those with grade-school ideas of what the US constitution is really about and more importantly, how it came about and why and from where.

  • Tony,

    I agree with you. The constitution and the USA was set up originally for white male landowners, that is undisputed. That being said, because of this extraordinary document, coupled with some people who understood that human beings are human beings regardless of gender or color, great gains have been made in the area of human rights and dignity.
    Thank you for your comment sir.

  • Marlowe,

    Thank you for your critique sir. I made an obvious mistake, regarding Griswold vs Connecticut, I will submit an edit request to Dave. I am very familiar with the case, in was more of a typo. Stay tuned for my response to Mr. Nalle. 🙂

  • Anthony Pollock

    Of course the constitution has been thrown out many times starting with Slavery, Jefferson had’em and so did George, indeed most of them had slaves. When challenged by a french courtier when he was ambassador to france, Jefferson reputedly simply said, “It doesn’t apply to them.” Apart from Tom Paine most of them simply did not consider blacks as people or even human beings. And there was that dreadful Dred Scott affair, by modern standards Tannay should have been strung up by the testicles but in the context of the time one could argue that he was simply interpreting the constitution in a way acceptable to half the population. Then there was Jim Crow and segregation which did not end until 1965 and Martin Luther King. A great man in the traditions of Ghandi.

    Then too there was the complete destruction of the native american population through transportation, disease, starvation, destruction of culture language and way of life and murder. Over five million were killed in this fashion culminating in the Wounded Knee atrocity and all starting with Andrew Jackson and the trail of tears.

    The constitution should have protected them all but it didn’t as long as the american government and people of the time were not prepared to live up to it. Shameful episodes indeed for the nation that truly defined human personal freedom and really invented the first truly democratic republic and wrote the first constitution. For shame.

    Divine words from a not so divine people.

    Tony Pollock

  • P.Marlowe


    I applaud your efforts here! US Constitutional Law is a daunting subject – I know, I used to teach it!

    You made some good points here… A small correction though…

    The Ninth appeared in a much earlier case but not too important… Where it really came into play was in GRISWOLD v. CONNECTICUT, June of 1965. Douglas wrote the opinion (it was a 7 to 2 vote). The case was a set up – i.e., the Connecticut law (utterly ridiculous) was violated by Planned Parenthood. The law stated that couples, married or not, couldn’t use a condom in their bedrooms (or anywhere else) to prevent a pregnancy.

    Douglas used (in not the best way I think) the Ninth Amendment to purpose that there is a penumbra of “rights” surrounding the individual, including the right of privacy.

    Later on this case was used as precedent for Roe v. Wade.

    Douglas tip-toed around the Ninth because the Ninth scares the HELL (along with the Tenth) out of judges and lawyers… But this is because both groups are technicians. They tinker with the machine of the LAW… Where JUSTICE comes from they are not sure…

    The Ninth is – in my opinion and others – a conduit going all the way back to Plato and the original (unpolluted) concept of Platonic Natural Law.

    But that is a WHOLE other story/post and it’ll likely get Dave ALL RILLED UP!! So enough for now!


  • He’s right up to a point. The main place his argument fails is when he starts talking about the Iraq war and starts throwing the constitution out the window the same way Ron Paul and other anarcho-socialists do.

    I’ve pointed this out before, but here it is one more time, the text I’d like to tattoo on Pablo’s forehead:

    To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

    To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

    To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

    To provide and maintain a navy;

    To make rules for the government and regulation of the land and naval forces;

    To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

    As anyone who can read can tell, declaring war is just ONE of a number of military related powers granted to the Congress, including the ability without a declaration of war to defend the country (repel invasions), raise and support armies (for up to 2 years), prosecute offenses agains the law of nations and felonies which would include paying suicide bombers, commiting genocide, shooting at US planes and myriad other Iraqi activities.


  • Anthony Pollock

    YOu are correct in your conclusion that the bill of rights and the constitution confer no rights on the american people. The bill, and indeed the whole concept of the constitution is that it protects and reinforces those rights, defined or not, that the people automatically have. This is the meaning of the ninth amendment which effectively says “If there is anything we haven’t thought of then you have that too.”

    Two examples are Habeas corpus and the right to bear arms.

    The constitution actually says, Habbeas Corpus shall not be removed. It is therefore not conferring Habeas Corpus, the constitution assumes you already have it as a natural right or even as given by King John and the constitution protects it. Gonzales go **>> yourself.

    The second amendment is exactly the same, “The right to bear arms shall not be infringed.” The amendment is not conferring the right to bear arms, it is protecting your right to do so. Although it could be argued the idea may have come from the English bill of rights of 1689 which gave protestants the right to bear arms suitable to their station, which did confer the right because the British constitution works differently as a monarchy.

    I agree, you are right, and it is nice to see someone who has actually come to the same conclusions as myself. Not all students of the constituion are necessarily American.

    Anthony Pollock