Retained by the People: The Silent Ninth Amendment and the Constitutional Rights Americans Don't Know They Have

by Daniel A. Farber

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...

• Format: Hardcover
• Language: English
• ISBN: 0465022987
• ISBN13: 9780465022984
• Release Date: May 2007
• Publisher: Basic Books
• Length: 256 Pages
• Weight: 0.95 lbs.
• Dimensions: 0.9" x 6.1" x 9.3"

Customer Reviews

A remarkable book; must-read!

This book is all I expected it to be and more. The first review that was posted was entirely off the mark (please see my comment responding to his post and you will see why). The thing that struck me most about this book was how thoroughly the author has researched the topic at hand (the 9th amendment). Indeed, we don't talk much, if at all, about the 9th amendment in our K-12 education, and courts seldom mention its existence. Farber makes a very strong case for using the 9th amendment as a basis for defending fundamental human rights. He spends roughly the first quarter of the book talking about the concept of "natural law" and "the law of the nations," which basically means the idea that human beings have fundamental rights and that those rights cannot be given by any legislation; legislation is merely affirmation of those rights, and any legislation/court decisions that invalidate those rights are invalid. Farber cites various judges, legislators, legal scholars, and more from the beginning of our nation (and even before) up until the current day. This is not a book that is trying to "convert" anyone to the left OR the right. It is merely a book that recounts history as it relates to the 9th amendment (and the 14th amendment, which was a natural extension of the 9th) and argues that the Founding Fathers intended the 9th amendment to be a "disclaimer" that there are more human rights than just the ones listed in the constitution (hence "enumerated" versus "unenumerated" rights). In fact, he spends time discussing how the Bill of Rights was a controversial addition to the Constitution--the Founding Fathers feared that if they listed some rights in the Constitution, that the government might end up invalidating or violating OTHER rights that are NOT listed. And, surprise surprise, the government has, over time, defended many atrocities against its people (segregation in schools, Jim Crow laws, laws against private sexual behavior, laws mandating forced sterilization, laws banning married couples from using contraception, and so on) on the basis that, since these things weren't mentioned in the constitution, they must not really be violations of fundamental rights. He does not speak to ALL of these things in the book--I am merely trying to get his main point across, which is that the Bill of Rights was not meant to be an exhaustive, complete list of rights; it was meant to enumerate certain rights, and the 9th amendment was added to protect against the possibility of government violating rights based on the fact that they weren't mentioned. In addition to making a remarkably well-researched argument, Farber has a writing style which lends itself to any listening ear, regardless of whether you are a lawyer or not. So many writings dealing with issues of law are dry, difficult to read, and cumbersome to non-lawyers (and even lawyers!) Farber has a writing style that engages the reader, and, while some of the topics may be thin