Rights under the Ninth Amendment: not that hard to identify after all

Ostler, Duane L. (2013) Rights under the Ninth Amendment: not that hard to identify after all. The Federal Courts Law Review, 7 1: 35-95.

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Author Ostler, Duane L.
Title Rights under the Ninth Amendment: not that hard to identify after all
Journal name The Federal Courts Law Review
ISSN 1936-2471
Publication date 2013
Sub-type Article (original research)
Open Access Status File (Publisher version)
Volume 7
Issue 1
Start page 35
End page 95
Total pages 61
Place of publication Buffalo, NY, United States
Publisher Federal Magistrate Judges Association
Collection year 2014
Language eng
Formatted abstract
... For example, Congressman Sedgewick, who was referred to above in respect to congressional debates about rights, noted that his wife had breast-fed one of their children far longer than was necessary, apparently as a birth control method. n196 Abigail Adams at various times expressed concern over the large number of children various relatives were having, thereby suggesting that these relatives should have followed some method of control to prevent it. n197 Yet Abigail would hardly have been endorsing abortion as a method of birth control--she was nearly inconsolable at the stillborn birth of one of her daughters, and further noted that the death of the infant "was not owing to any injury which I had sustained, nor could any care of mine have prevented it." n198 Furthermore, abortion methods were so primitive in those days that there was a serious risk of death if the attempt was made. n199 Natural law writers were not silent about contraception either, although they had less to say about it than abortion. ... Hence, it will be seen that the natural rights understanding of the Ninth Amendment by the founding generation could have resolved all questions about the existence of these claimed rights, without resort to any "penumbra" of rights derived vaguely from other amendments. n59 Regarding the nature of these rights, it should be noted at the outset that the rights discussed here--like the rights in the first eight amendments--include some which are purely natural rights, and others that are akin to natural rights, but which only arise in the context of the social compact, and would not necessarily exist in a pure state of nature. ... Indeed, Madison noted (similar to Jefferson above) that even an act of treason such as fighting against the United States--which is far more egregious than Afroyim's casting a vote in a foreign election 178 years later--would not result in loss of citizenship. ... For example, the 1776 Virginia Declaration of Rights, penned by George Mason, declared that "all men are by nature equally free and independent and have certain inherent rights." n96 Similar statements can be found in the bills of rights of other states. n97 In 1785, James Madison stated that equality "ought to be the basis of every law," after which he expounded on the meaning of the Virginia Declaration of Rights and its declaration of equality: "If 'all men are by nature equally free and independent,' all men are to be considered as entering into society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights." n98 James Wilson noted that "the law of nature, having its foundation in the constitution and state of man, has an essential fitness for all mankind, and binds them without distinction." n99 He also noted that "the original equality of mankind consists in an equality of their duties and rights." n100 John Witherspoon stated that "men are originally and by nature equal, and consequently free." n101 An anonymous pamphlet author writing in 1783 about the laws of nature noted that the "public good" does not justify the government from taking individual rights from any group--"the civil law should, with eyes of a mother, regard every individual as the whole community." n102 Many other sources could be cited, including of course the verbiage of the Declaration of Independence penned by Thomas Jefferson that " w e hold these truths to be self-evident, that all men are created equal." n103 Such statements may seem hypocritical or insincere in light of the constitutional protection of slavery. ... Speaking in terms that demonstrate the right to vote as essential and sacred, Madison stated that if the legislature had the power to meddle with religion, they also could "controul sic the freedom of the press, may abolish the trial by jury, may swallow up the executive and judiciary powers of the state; nay that they may despoil us of our very right of suffrage." n118 Some may question the use of the Ninth Amendment and the natural rights views of the Founders regarding the right to vote, on the presumption that the Founders were opposed to women's right to vote. ... Randolph cited the prohibitions of state actions in Article I, Section Ten of the Constitution--including the ban on bills of attainder--then noted, "and thus is announced to the world the probability, but certainly the apprehension, that States may injure individuals in their property, their liberty, and their lives." n135 He later asked, "What is to be done, if in consequence of a bill of attainder, or an ex post facto law, the estate of a citizen shall be confiscated, and deposited in the treasury of a State?"
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Document type: Journal Article
Sub-type: Article (original research)
Collections: Official 2014 Collection
TC Beirne School of Law Publications
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Created: Wed, 18 Sep 2013, 09:22:30 EST by Duane Ostler on behalf of T.C. Beirne School of Law