Ninth Amendment And What It Means To Be A Free People

     Madison addressing the House of Representatives in 1789:

"It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against."

     This led to the Ninth amendment with in the Bill of Rights:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."


     These are the kinds of words Madison sought to have written into democracy.  He wanted to ensure that freedom was written into it in a way that would resist the efforts to undermine it.  This amendment often ignored by many is one of the most significant rights we have.  It says that we have all of those rights that some would have attempted to deny us just because they were not overtly ratified within the Bill of Rights.  What list of rights could ever ensure our freedom with out demanding that we have all the ones it doesn't mention?
     It is also one of my most cherished rights, because of what it reveals about freedom in our democracy.  It is utterly unworkable as an amendment, if you are bent on reducing our rights to some simple meaning.  Madison clearly intended for the Ninth amendment to be a doorway through which all of our freedoms and liberties, that weren't explicitly included, would gain entrance into the Bill of Rights.  He was placing responsibility directly on us within this amendment.  Our rights demand that we work at them to understand them.  Madison was telling us that no paper was going to remove that responsibility from us.  A responsibility that would be a heavy burden upon us all.  Over the course of American history many have given their lives to it.  Under this right we have the right to privacy and many others that are all implicit, but born on the backs of those who continue to fight for them. The whole Constitution is written like this, with loosely constructed language or areas where it simply requires us to determine what these implicit rights will mean.  It places the burden of giving shape to democracy on the citizens that it ultimately rests upon.
     The only way the Supreme Court is going to be able to make a determination is by trying to figure out what the force of the principles behind all of our rights is.  This is difficult because behind all of those rights is a principle among others of equality before the law.  We have seen even the founders fail to fulfill the promise of that principle.  Slavery wasn't abolished until the Civil War.  So when we ask what the Constitution means we have to ask what the force of its principles are, even when we realize that the very same founders who gave us these words and their inspiration were people who fell short of them.  They are not alone.  All of us as citizens in our democracy striving towards the force of those principles have fallen short.  Our responsibility to uphold equality before the law demands thats we actively engage it as citizens rather than simply receive it as subjects.
      Even today gay and lesbian couples are denied equality before the law.  Whatever we may think marriage means, it is irrelevant in the face of our responsibility as a citizen and as a free people.  Equality before the law doesn't care what we may think marriage means.  As long as It is an institution that is sanctioned by our democracy, it demands that everyone have an equal opportunity in principle to be able to have access to it.
     At this point in history to fall short of this means that when it was our turn to expand equality under the law we failed.  The standard that falls upon the founders who secured our freedom is different than the one we should labor under.  The standard that falls upon those who fought for civil rights is different then the one we should labor under.  We shouldn't expect more of ourselves then what these men and women had done, we should expect that we attempt to do as much as they had done!  When they were given the challenge to expand our equality they did not shrug.  They attempted to move us forward and we owe our future generations as much.
     It is the nature of democracy that each generation must remake its laws and interpret the ones it has received, that it write its democracy anew.  This is what it means to be a free people.  It is the responsibility of every American that when democracy is written by our generation that its words are equality before the law.  This is what drove the founders to free a nation, this is what freed the slaves, and this is what brought women the right to vote.  This responsibility is what is most sacred in our ties to that history.  Isn't this is who we are and what it means to be a free people?