If you have ever wondered if our Constitution was complete and perfect, the 9th Amendment offers clear proof that it is not, nor did the authors view it as such. The 9th covered the Founders if they left out something important. The Amendment reads “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” While scholars argue about the meaning and legal impact of this amendment, the origin is not disputed. During that summer of 1787, the anti-federalists argued for a Bill of Rights to be included in the Constitution. The Federalist argued against this, partly because they were afraid a list of rights might be incomplete. As history tells, the compromise after Ratification was Madison’s subsequent writing and later adoption of our first 10 Amendments, our Bill of Rights. The 9th covers the case that other rights should not be denied just because they were not listed in the Constitution or Amendments.
The discourse concerning human rights goes back to ancient Greece and probably further. There has long been a distinction between “natural” and legal rights. Natural rights are viewed as universal, fundamental, and inalienable and not dependent on law or governments. Famed philosopher John Locke argued for three basic natural rights — life, liberty (as long as it doesn’t conflict with the previous right), and property/estate (everyone is entitled to own all they create or gain or trade as long as it doesn’t conflict with the first two rights). As we know, George Mason and Thomas Jefferson took Locke’s rights and changed the latter to “pursuit of happiness.” The state Constitution of California offers rights as “defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Huh, maybe Texas ought to seriously consider “safety” as a right? The United Nations lists thirty different articles entitled “Universal Declaration of Human Rights” which are worth a look. Article 5 states “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 18 includes “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief…” Sadly, Iran just hung two individuals a few days ago for blasphemy, it is obvious that universal rights are not yet universal.
So, what rights did our Founder’s overlook and neglect to “enumerate”? Thomas Jefferson has an interesting note that is tangential to this issue. The Thomas Jefferson monument in Washington DC has the following on panel 4: “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.” To me, this wonderfully constructed thought also speaks to human rights.
As an example of how science and technology could amend our list of human rights, I offer the right of “health care.” As innovations in gene editing, bio-engineering, and medical artificial intelligence make the incurable suddenly treatable, do we limit these possible miracles only to the insured or rich? Should health care be a basic human right in a modern society? What of a child born with cystic fibrosis to a young couple without insurance? Or a child or adult that has sickle cell disease that might be cured if an experimental gene therapy is proven? As I write, Google is bragging about it’s Med-paLM medical AI program that tested “expert” (85%) on the U.S. Medical Licensing Exam. The once incurable, now treatable, will bring new hope and elevate issues regarding health care and the right to life. I raise health care as only an example of rights and whether they should be static or change. Maybe, once again, I underestimate our Founders. Maybe they knew the list of rights would change with human advancement. Maybe, that’s what the 9th Amendment intended?
