Retained by the People

By Daniel A. Farber. <i>Basic Books</i>. $26.95.<br /> What if the Constitution explicitly granted liberals’ wish list of rights—basic education, reproductive freedom, sexual privacy, and a dignified death?

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


What if the Constitution explicitly granted liberals’ wish list of rights—basic education, reproductive freedom, sexual privacy, and a dignified death? We already live in that promised land, argues law professor Daniel Farber. We just don’t know it, because we’ve made the mistake of ignoring the “silent” Ninth Amendment.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” the Ninth states. What this really means is not exactly clear: The Supreme Court has never based a major decision solely on it. But Farber thinks the framers drafted the Ninth to protect “fundamental rights” such as life, liberty, and the pursuit of happiness, and intended for judges to further define these rights over time. Unlike Supreme Court Justice Antonin Scalia, who looks to the framers’ intentions and declares the Constitution “dead” and unchanging, Farber looks to them for proof that the Constitution is not only alive but evolving.

Farber’s reading of constitutional history is solid, but when he tries to apply the Ninth to contemporary controversies, it’s a stretch. His ideas about which new rights the Ninth should protect rely too much on his view that social consensus should guide judges. For example, most Americans support the right to refuse medical treatment but not the right to assisted suicide, so he says that’s the position the Ninth would instruct judges to take. In the end, the Ninth seems unlikely to live up to the promise Farber sees in it.


If you buy a book using the Bookshop link on this page, a small share of the proceeds supports our journalism.

TIME IS RUNNING OUT!

We have an ambitious $350,000 online fundraising goal this month and it's truly crunch time: About 15 percent of our yearly online giving usually comes in during the final week of the year, and in "No Cute Headlines or Manipulative BS," we explain why we simply can't afford to come up short right now.

The bottom line: Corporations and powerful people with deep pockets will never sustain the type of journalism Mother Jones exists to do. And advertising or profit-driven ownership groups will never make time-intensive, in-depth reporting viable.

That's why donations big and small make up 74 percent of our budget this year. There is no backup to keep us going, no alternate revenue source, no secret benefactor. If readers don’t donate, we won’t be here. It's that simple.

And if you can help us out with a donation right now, all online gifts will be matched thanks to an incredibly generous matching gift pledge.

payment methods

TIME IS RUNNING OUT!

We have an ambitious $350,000 online fundraising goal this month and it's truly crunch time: About 15 percent of our yearly online giving usually comes in during the final week of the year, and in "No Cute Headlines or Manipulative BS," we explain why we simply can't afford to come up short right now.

The bottom line: Corporations and powerful people with deep pockets will never sustain the type of journalism Mother Jones exists to do. And advertising or profit-driven ownership groups will never make time-intensive, in-depth reporting viable.

That's why donations big and small make up 74 percent of our budget this year. There is no backup to keep us going, no alternate revenue source, no secret benefactor. If readers don’t donate, we won’t be here. It's that simple.

And if you can help us out with a donation right now, all online gifts will be matched thanks to an incredibly generous matching gift pledge.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate