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

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 Roe 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.


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