The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.— Ninth Amendment

With these simple words, the Framers hoped to preserve rights that we retain as inheritors of the common law of Great Britain. Ours was among the first written constitutions, so it plunged the young nation into unknown waters where we depend explicitly on laws written by people.

Since the signing of the Magna Carta, English-speaking people had compiled a constitution built on precedent.

Initially, we relied on the Articles of Confederation. The disparate responsibilities made clear the need for a stronger central government, which led to the Constitutional Convention and resulting Constitution.

Almost immediately, the Framers worried whether some of the rights established in the British Constitution would be encroached upon.

Alexander Hamilton argued forcefully in Federalist Paper 84 that none of our rights were endangered. But others, including coauthor James Madison, saw the peril.

The risk of federal encroachment on the rights of states and individuals became central to the conditions of passage of the Constitution. The Bill of Rights was created about two years after ratification of the Constitution.

Most of those rights are familiar to us, including the freedom of religion and the right to gun ownership.

The protection of our rights from state government is delineated in the 14th Amendment. In each case the role of government is carefully monitored by the courts.

The responsibility of the courts to ensure the constitutionality of our rights emerged from Marbury v. Madison in 1803.

The obligation of the court to assume the monitoring of the law was not previously explicit in the text of the Constitution.

Before this decision, the Constitution did not necessarily have the force of law, but was merely a statement of guidelines, principles and ideals.

To summarize, we have a government of explicit and implicit rights. The former is identified in the Constitution and the latter is protected by both precedent and the Ninth Amendment.

But the Ninth Amendment is among the least known of the Bill of Rights. Among the more recent citations was by Justice Arthur Goldberg in the concurring opinion for Griswold v. Connecticut, which protected the right of married couples to buy and use contraceptives.

Similarly, the district court that initially decided Roe v. Wade cited the Ninth as assuring the right to choose abortion.

The Supreme Court affirmed the right to abortion, but relied on the federally enforceable right to privacy, again a right implicit in the constitution.

To summarize, we have a written constitution with amendments. We also have courts that use both its text and precedent to apply the meaning of the Constitution. Just because something is not in the Constitution does not mean it is not a right the Constitution may well protect.

Even the right of the court to evaluate laws is not in the Constitution.

It follows that just as the right of free association is protected, so is a woman’s right to an abortion.

Dan Freeman lives in Galveston.


(20) comments

Norman Pappous

According to your logic thread, SCOTUS should not have over-turned Plessy v Ferguson.

Charles Douglas

I'm glad you told him that Pappous!! I'm glad!!!! All these Liberals think about is tearing down, spending OPM, & killing! They watch it happen everyday in Chicago, Detroit, Los Angeles, San Francisco, DC, New York, San Antonio, Dallas, and Houston and all that does not phase them a bit because it is out of the boundaries of their political narrative! So that does not count! Black on Black crimes.....naw, naw, doesn't matter! It has to be something where they can run up on minorities and say, " See how those Conservatives & Republicans are?

They hate y'all! They won't give y'all nothing! Now we will set y'all up, get y'all some help, See!" NEVER will they tell you that we want y'all ALWAYS TO NEED HELP SO WE CAN HELP YALL!" They want to do the thinking for minorities, even if they have to use OPM pay for the privilege! I got off that train long ago, and never looked back!

My dad was a "Share-Cropper" for years, ( Another Form Of Slavery )... and he was a big...big part of the Jim Crow Era, but he & my mom never let the Jim Crow Era become part of their six kids and we were born and raised right, smack in the middle of it! I used the same technique on my two sons, in "Beast Mode!" I used the carrot & the stick technique to perfection! I rewarded them really well for success, but I warned them, I got testy with them about mediocrity, and second place, just going through the motions! I bought vehicles, paid for recruiting trips, I used everything at my disposal to keep that Liberal taught "PO ME" poverty mentality from destroying or limiting their potential to be a success in life!

This could be a problem in single parent families! ( No father to push).I point blank told my two sons it was against Texas Penal Code CD 71j43 to EVER come through a door of my house with less than a "B" Grade on anything, and if it ever happened, "ALL HELL WAS GOING TO BREAK LOOSE!" They both received scholarships, the oldest was an honor society student, and the younger one was and honor student and a national recruit in football with offers from the likes of Southern Cal, Notre Dame, Oklahoma, Texas, Michigan, Tennessee, Miami, Florida, and Texas A&M!

Now that is pretty good for an Old down home "PO Cuss" from East Texas who grew up with one pair shoes and they were for Sundays only!

We did not step back for nobody, and neither did my boys! I flew my boy to a football camp at the University of Michigan, under their coach Lloyd Carr, as a Sophomore who was not starting in a nearby district! ( ALL politics). He was 6'4 & 320 pounds of solid potential who worked out with his father who was a number one recruit for Grambling State, & Texas Southern University! That camp had High School All- American from all over America and Canada in attendance! Guys 6' 8" , 6' 7", 275 pounds defensive ends, 340 pound offensive tackles, my son feasted on them!

Truth of the matter is I had to buy him a helmet from Pasadena Sporting Goods in order for him to participate in the live drills because a certain school would NOT loan him one! God is.good though because before we were through during those seven days and six nights up there Coach Carr called me into Schembeckler Hall, named after the previous Coach name BO Schembeckler, and made me swear to let him have a chance to recruit that boy! Just whata say he made me an offer unofficially because the kid showed out against a bunch of Parade, and ARMY ALL-AMERICANS! He won a vehicle from his dad because of his outstanding performance, made this Old Segregated Dweller Proud! Had more scholarships offers than I had hair on my head!!!!!!!! That was because I kept that " SOMEBODY OWES ME SOMETHING OUT OF THEIR HEADS!"

I kept that "Po Me" "Poverty Mentality out of their conversations! You want something ....then you go out and work your [censored] off and get it, because nothing is free, and nobody owes you squat! If you have to start out little then be faithful over the little, and that way you will appreciate the big stuff in life when you work your way up! Now ...All these years later I still don't have time for this LIBERAL WOKE brainwashing which takes place even now where minorities are concerned! [wink]

David Hardee

Charles - you said it in your recitation of personal characteristic and I recited the same in the intended scheme of the founderd original Constitution,

Will these libs ever understand that government cannot defined or qualify RIGHTS and PRVILEGES to any particularly specified individual or collective(s) without being the SEGREGATIONIST of society. In our Democratic Republic It is all or none at the Federal level. The pyramid structure of Republics of States, communities, neighborhoods, families and all those seeking safe harbor can utilize their feet can seeking a safe harbor for tranquility for their diversity. That was the scheme of our founding fathers and their original Constitution.

Keep trying Charles.

Charles Douglas

Mr. Hardee> Lolo, You knocked it out of the park, with great information & eloquence! I like eloquence & information,... that is why I like reading Hardee, Ponce, Croix, Miller stuff on this forum! Old Charles like that "hatchet" approach, because I tend to hesitate with that scalpel! Lololo, one thing about it though they know Where we are coming from right? I hate to see a great country go down out of somebody's unappreciated attitude, greed, and political selfishness.

Curtiss Brown

Everybody loves their kids Charles.

David Hardee

Well written and comprehensive article. The evaluation of the Constitutions you present and its relationship to the bill of rights is the connective confusion in the definition of RIGHTS. Rights, entitlements and who's have cluttered society into factions (pawns) for pandering by liberal (will give you) activist.

You noted the Federalist reluctance to include "the bill of rights" as part of the original Constitution but neglected to inform that the Bill of Rights are only Amendments.

As Amendments - thus " Can the Bill of Rights be taken away? - Natural or human rights are inherent to human nature; they are not given by government, but neither does government always protect them. Legal rights are those recognized by government, but they can often be taken away as easily as they are given. " or - the specificity of anything that is subject to construction by a body of government is an exposure to the over reach and accumulation of power and enforcement - therefore an exposure to dictatorial accumulation. So give a collective of diverse people (society) a succinct answer to - what are natural human rights, where did they come from or who bestowed them. Recall for it's etherical meaning "inalienable ( incapable of being alienated, surrendered, or transferred. Examples: The American ethos is built on the belief that life, liberty, and the pursuit of happiness are inalienable rights.). Is "inalienable natural human rights" a source of calamity when the legal (governing body) has the manipulation privilege (right) to dispense or preclude and segment those entitled or not entitled?

When the Constitution was without any specification or description of society - it meant ALL. When the Constitution stated - by amendments on Civil Rights - partiality began and the segmentation for entitlements bastardize - ALL - into us and them. Those discriminations are effectively legalized segregation and the bane of universal Equality based on the pure quality of the individual, only.

As we have experience the calamities in our society are from this over reaching. It has been the explosion of the Bill of Rights ( the freedom of religion, the right to free speech, the right to bear arms, trial by jury) - from where Civil Right legislation has produced additional specificity into the Constitution where society has been segmented for ( i.e. race, gender, sexual preference, etc.) entitlements.

Now can we recognize that these specificities are segmenting society and causing the competition for entitlements, protections and power.

Is it not evident that since the legislation of the Great Society usurped States Rights (States Rights is the fundamental part of the Constitution that establishes our governance as a REPUBLIC and the only protection from Federal autocracy.) society is in calamity.

Resulting from all the intellectual quibbling about RIGHTS we have a society, a legislature, and even a Supreme Court convulsing with factional war. And in the bowels of all the bureaucracies festers a swamp of activist. Effectively the best hope of humanity has become a dynasty in decline. E pluribus Unum mortuus est.

There is no salvation until - the general population stops swallowing the progressive liberal - nanny state, Big Tent, its not your fault - pandering - BS.

Quit trying to put lip stick on this pig by skewing and rationalizing.

Gary Scoggin

David, just circling back to this thread. When you say,

“ When the Constitution was without any specification or description of society - it meant ALL. When the Constitution stated - by amendments on Civil Rights - partiality began and the segmentation for entitlements bastardize - ALL - into us and them. Those discriminations are effectively legalized segregation and the bane of universal Equality based on the pure quality of the individual, only” are you ignoring the fact that the original Constitution, in its acceptance of slavery, was very segregationist? It was only after the 14th Amendment that this changed. And it’s taken society 150 years or so to live up to that change.

David Hardee

Gary, I was judicious in my issue being the Original. I did not refer to slavery nor did the orignal constitution refer to slavery. The Original only particularize those persons that were criminals in Article 1, Section 9, Clause 1, yet no specific mention of slavery. it is one of a handful of provisions in the original Constitution that are hypothesized as related to slavery, though it does not use the word “slave.” This Clause prohibited the federal government from limiting the importation of “persons” (understood at the time to mean primarily enslaved African persons).

Second it is important that the Bill of Right (the genesis of Civil Rights and particularizing for race, religion etc. - the segregations and entitlements) are Amendments, and not ORIGINAL.

Admited - the perceptions and hyperbole are persuasive to those in desire of skewinfg the actual words and events.

Gary Scoggin

David, Article 1, section 2, Clause 3 of the Constitution reads,

“ Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

Gary Scoggin

(Sent too soon) The Reference to “free persons” is clear that in its acknowledgment that not all persons were free. If not slaves, what were they?

Also, it’s important to note that the amendments to the Constitution have the same force as the original text. In fact, the Fourteenth Amendment directly undid the 3/5 clause quoted above. The Founders, in their wisdom, allowed for a process to modify the Constitution over time. Also, in their wisdom they made this process pretty difficult to undertake.

David Hardee

Your correct Gary - the article is not specific to any grouping of society or slaves - it is intended to handling of a individual that is criminal.

The distiction between the original constitution and ann amendment is that only amendments can be and have been repealed. What is it you want from the Constitution? The Constitution is the manifesto of policy and aims for a total society and delve into any specifications below "for all" or it, will then become a discriminator. As a matter of convolution and discrimination we have made LAWS fungible by assigning particulars to those that are in contradiction. Laws must be innoculaous

Laws must be succinct (without exception) to be effective - I.e "Thou (is all inclusive) shall not kill. if there is any particularizing of thou the law is not determative. The "thou shall not kill" demands killings will be result in an offense to humanity and the killer is put in separation from society in general. Then as the killer is subjected to a punishment justice come into play. Justice is the proper degree of punishment for the proper degree of the intention, activity in the killing. Decisions (judgements) even when deemed innocent does not change the fact a killing occurred. The penalty is where the justice is rendered. Using killing as an example is severe but it makes for a good illustration of the convolution that exist when over intellectualizing dissolve the ORIGINAL INTENT into maniplation at the hands of lawyer showmen on the stage of a court.

For another discussion on theis issue I refer you to the comment by Joluisoch speaking on "common law." The realm of Law encompasses all we are discussing, Constitution, common law, and the codified consruction of a society's justice system. We have manifesto, simple succinct mandates and societies evevoling perspective of a justice system, each in conflict as to effectiveness.

This will be a exercise in futility, most likely

Gary Scoggin

David, sorry if I wasn’t clear. It is my contention that the use of “free persons” was meant to indicate a clear acknowledgment of slavery. I doubt there were enough criminals at the time to make the 3/5 clause material or to warrant the controversy that led to its drafting.

Gary Scoggin

Also, David, the terms of the original Constitution can and have been repealed or modified. There are many examples of this: Amendments 12, 13, 14, 16, 17, 20, 25 and 26 amended sections of the Original. Yes, these Amendments can be undone, but it is no easier nor more difficult to amend them than it is the Constitution itself.

I want to be sure I understand your greater point here. Are you saying the the Bill of Rights and the subsequent Constitutional Amendments are bad things? Surely you don’t have a problem with Amendment 13 which explicitly bans slavery.

David Hardee

Gary and anyone else that wants to banter opinions on the Constitution leave me out except if you want to argue that "if any individual, part of society or is named or identified, or particularized in any way" that is segmentation of the whole and consequently - discrimination in the definition.

also, Let me make my self clear as to what is the instigator of the social chaos in our country, progreessive liberal activist. These activist pounding their chest and bellowing " I matter " over - one of these many perceived -

( equity/equality/inclusive/reparations/systemic racism/gender confusion/etc). - issues. These activist and their followers - resemble a clan of monkeys jumping, hollering, and squabbling over some social irritation. That is what is iminating from the "big tent" of the progressive liberal activist where - any Me-ism - is accepted as my right and the total permissiveness makes every act justifiable. There is total idiocy in allowing the "big tent" mayhem to exist. From the "big tent" permissiveness is bred the idiots that burn cities, shop lift, shot each other , teach queer sexuality to children, release criminals and suck invaders illegally into the country. The "big tent" needs fumigating, burned and buried. is that clear.

George Croix

Scott v Sandford ?

Charles Douglas

Da WOKEEEEEEEEEE!!!!! Ahhhhhhhhh Da WOKE!!! What are we to do with them? They have just about destroyed the best country on the face of the planet with Open Borders, Partnering with Fentanyl selling, women trafficking, Crime Cartels from Mexico sponsored by Red China!

Five dollars a gallon gasoline, and forty year high Inflation Tax on everybody including minorities!!! They won't give me my package with that Crack-Pipe inside though!!!! They think I will go show it to Sean Hannity, or Tucker! I want my Crack-Pipe and I still want my SLAVE FIX, "OG!"

Charles Douglas

"OG" I know you are there... I can hear you.[beam]

Curtiss Brown

Thoughtful and direct commentary, Dan. It is strange that such rational thinking causes so much heartburn.

Jose Luis Ochoa

My creds are a three hour course which used an easily readable book called law and society in the early nineteen seventies. As I understood it, common law, which was practiced in England had nothing to do with rights. Common law, as an example, might be a judge called Solomon who when presented with a case involving a baby decides that only a mother would want her baby to live. So he made his well known decision. Well, that became a sort of common law in that if another judge were presented with a similar case he would have precedent to use and rely on. Who does not remember some of the more sophisticated tv shows where a judge tells the lawyer:" surely you are aware of case law." And the lawyer says, "yes, judge but this common law has to be changed. The time has come." So my question is what does common law have to do with rights or with the constitution? Talking about common law and abortion is strange sounding to me. Now, does the nineteenth amendment somehow guarantee a woman's right to abortion? Not a clue. Why not give abortion back to the states and/or put it on the ballot box and let every person with his or her conscience in the sanctity of the ballot box vote yes nor no?

David Hardee

I find your credentials impressive. Seems you have gleaned in three hours a sensibility that a Doctor of Jurisprudence degree destroyed over 6 years of mental mastication.

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