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?

For indispensable reporting on the coronavirus crisis, the election, and more, subscribe to the Mother Jones Daily newsletter.


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.

SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

payment methods

SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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