That which is not prohibited is permitted is a libertarian point of view consistent with the Federalists and the writing of the Constitution. Unwittingly the anti-Federalist were laying the groundwork for the converse, that which is not permitted is prohibited, which is the basis of American constitutional government since the thirteenth, fourteenth and fifteenth amendments were ratified at the point of a bayonet. The ninth amendment was the Federalists attempt to cork the hole that the Bill of Rights put in the Constitution but like most corks it may make the hole bigger while people like Farber dig it out.
from Hijacking the Ninth Amendment, October 22, 2007 By Stephen J. Chalke
his [Farber’s] approach to the ninth amendment is an unscholarly attempt to hijack it for the political purposes of the left, and not a good faith attempt to understand the amendment’s meaning and limits. He suggested, for example, that the ninth could be used to justify a “right to an adequate education”. Such a right is not a limit on government power, but rather confers a duty upon the government to act and to provide. Yet, this “positive liberty” approach is antithetical to the natural law underpinnings of the constitution itself.
Farber himself mentioned and decried a famous early 20th century South Carolina ruling that invalidated a law restricting the number of hours that workers may work in a given week. The South Carolina held that the law violated both the workers and employers right to contract. Yet, such a ruling is entirely consistent with the ninth amendment, whereas Farber’s “education” example clearly is not. This contradiction reveals Farber’s desire that the amendment be used to justify his wish list of government programs rather than to protect the un-enumerated rights for which it was intended.
Retained by the people : the “silent” Ninth Amendment and the constitutional rights Americans don’t know they have Daniel Farber United States. Constitution. 9th Amendment New York : Basic Books, c 2007 Hardcover. 1st ed. and printing. xiv, 236 p. ; 24 cm. Includes bibliographical references
(p. 219-227) and index. Clean, tight and strong binding with clean dust jacket. No highlighting, underlining or marginalia in text. VG/VG
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. Farber 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.