The Gift That Keeps On Giving
I Was A Court TV Wannabe

More on the Ninth Amendment

Mr. Pattis makes an excellent point about the Ninth Amendment, which I believe is the most important of all the amendments. Several months ago there was quite a blog fight going on between Freespace, Southern Appeal, and other blogs as to its meaning. (Parts I, II, III, IV, V, VI, VII, VIII, IX, X)

Simply put, the Ninth Amendment is explained by (among other things) Madison’s concern that the Bill of Rights must “be so framed as not to imply powers not meant to be included in the enumeration.” Madison and others were understandably concerned that if you said people have a right to A, B, and C, but left out D—possibly out of simple inadvertence—that people would then assume that D was intentionally left out, and therefore, that you don’t have a right to D. In Hamilton’s words,

[Federal officers] might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.

The Ninth Amendment therefore represents the continuing validity of our natural rights—just because the Constitution does not mention the right to run barefoot through sprinklers, doesn’t mean you don’t have that right.

Where do we look for guidance, then, as to whether an asserted right—like the right to choose your own death—really is a right? To political philosophy, and the best guide to that political philosophy is the Declaration of Independence. The political philosophy of the Declaration holds that we have certain rights which no just government has the authority to take from us—including the right to liberty. As Randy Barnett has recently explained at length, the existence of this right means that the burden must always be on the government to justify any curtailment of that liberty. And the Declaration explains how such a justification is to be performed: since government exists “to secure [our] rights,” any curtailment of liberty must be justified, not in terms of some alleged social “benefit” from curtailment, but in terms of the protection of individual rights. Thus, laws against murder or robbery are justified, while laws against private, adult, consensual sexual activity, are not.

Now, when it comes to suicide laws, the issue becomes a little bit more complicated. The Declaration holds that we “are endowed by [our] Creator with certain unalienable Rights, that among these are Life.” The complication is that word unalienable. According to the political philosophy of the Declaration, each person owns himself in life estate: he does not own himself in fee. This is why our rights are unalienable—we cannot give away our rights to life, liberty, and the pursuit of happiness, no matter how much we may be misled into wishing to. We therefore have no right to commit suicide. As Locke explained,

[T]he legislative…can [not] possibly be, absolutely arbitrary over the lives and fortunes of the people…. [It has] but the joint power of every member of the society given up to…[the] legislator…and nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another…. [H]aving, in the state of Nature, no arbitrary power over the life, liberty, or possession of another, but only so much as the law of Nature gave him for the preservation of himself and the rest of mankind, this is all he doth, or can give up to the commonwealth, and by it to the legislative power, so that the legislative can have no more than this.

A very plausible case can be made, then, that our natural rights do not include the right to commit suicide. I myself do not agree with this—I believe that we do own ourselves in fee, and that we do have a natural right to commit suicide—but it is not clear that the Ninth Amendment, even if properly applied, would protect such a right.