Retained by the People: The Case for the Ninth Amendment

Overview

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 ...

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Overview

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.

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Editorial Reviews

Publishers Weekly

Farber, a constitutional law professor at the UC-Berkeley law school (Desperately Seeking Certainty), challenges the Supreme Court's current jurisprudence regarding "fundamental rights," arguing that rather than relying on the Constitution's due process clause, these rights—which touch on many controversial issues like abortion, consensual sex, gay marriage and the right to die—would better be supported by the Ninth Amendment. That amendment says that the enumeration of certain rights in the Constitution "shall not be construed to deny or disparage others retained by the people." Farber deals with the tricky question of what rights are fundamental (he concludes there is a right to terminate unwanted medical intervention but not a right to assisted suicide) and the legal basis for such rights. He also makes lucid and convincing criticisms of particular Supreme Court approaches in abortion rights, for instance. This is potentially an important book that offers a new approach to how courts should interpret the Constitution when balancing fundamental individual rights against government incursions, an approach Farber believes will hold up better to challenges than a due-process approach. Farber writes well for the general public and succeeds in building a case that will resonate with both liberals and populist-conservatives. (May)

Copyright 2007 Reed Business Information
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Product Details

  • ISBN-13: 9780465022984
  • Publisher: Basic Books
  • Publication date: 4/30/2007
  • Pages: 256
  • Sales rank: 994,315
  • Product dimensions: 6.20 (w) x 9.30 (h) x 1.00 (d)

Meet the Author

Daniel Farber earned his J.D. from the University of Illinois. He clerked for Judge Philip W. Tone of the United States Court of Appeals for the Seventh Circuit and for Justice John Paul Stevens of the United States Supreme Court. He is one of the ten most frequently cited American legal scholars. Currently teaching at theUC-Berkeley Law School, he lives in Oakland, California.

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Table of Contents


Preface     ix
A Reference Chart of Constitutional Provisions     xiii
Who's Afraid of the Ninth Amendment?     1
Unwritten Rights and the Constitution
Natural Rights and the Framers     21
The Debate over Whether to Have a Bill of Rights     29
Madison's Solution     39
After the Ninth     45
Natural Law and the Antislavery Republicans     53
A New Birth of Freedom     61
Protecting Fundamental Rights
Fundamental Rights and the Due Process Clause     73
Fundamental Rights Today     85
An Invitation to Activism?     93
A User's Guide to the Ninth Amendment     101
Applying the Ninth Amendment
Reproductive Rights     111
The End of Life     121
Gay Rights     131
Education     145
The Right to Government Protection     155
The Right to Travel and Other Rights     161
Broader Implications
Fundamental Rights and the Judicial Process     175
Joining the Rest of the World     183
The Ninth Amendment and the Future     197
Misunderstanding the Framers     201
Glossary of Legal Terminology     211
Notes     219
Index     229
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