The Republican War on the Ninth Amendment.

Note from the author: Below is an article, followed by a daily activist call to action, as well as free resources from The Existentialist Republic.

When James Madison stood up in the First Congress in 1789 to introduce the amendments that became the Bill of Rights, he faced a hard problem, and he knew it. The men who opposed the new Constitution objected to writing down a list of rights at all. Write down a few freedoms, they warned, and the government gains an argument: any freedom not on the list is one the government may override. Name the right to speak and the right to worship, and some future official points to what is missing and claims the people have no other rights at all.

Madison agreed; so he wrote one sentence to settle the matter. The Ninth Amendment reads, in full: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Every word in it matters. The rights the founders wrote down are not the only rights you have. The written list sets a minimum, not a maximum. And the rights they left off the page still belong to you, the people, who possessed them before any government existed and continued to possess them after.

That is what the founders agreed to, in plain language, and a powerful movement in American law has spent decades telling us it means the opposite.

The key word here is unenumerated. It means a right that nobody wrote down in the Constitution. Marrying the person you love is one. Deciding with your spouse whether to use birth control is another. So are raising your own children, choosing your own doctor, and living free of government intrusion in your own home. None of those phrases appears anywhere in the document, because to the people of 1789, listing them would have seemed insulting. These were natural rights, the kind a person has simply by being a person, and Madison drew the framing directly from the Declaration of Independence: life, liberty, and the pursuit of happiness.

This is the core of the argument. If you take the founders at their word, the Ninth Amendment protects a wide range of freedoms precisely because they were never written down. The fact that the words are missing does not weaken the claim; that absence is the whole point.

Then the idea changed.

For most of the last century, the Supreme Court protected these unwritten freedoms. The Court called the doctrine “substantive due process,” which is lawyer’s jargon for a simple idea: there are some liberties the government cannot remove from you no matter how many votes a law gets. Under that doctrine the Court protected the right of married couples to use contraception in Griswold v. Connecticut in 1965, ended laws that made private intimacy between same-sex partners a crime in Lawrence v. Texas in 2003, and recognized the freedom of same-sex couples to marry in Obergefell v. Hodges in 2015.

Then, in June 2022, the Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, and in doing so it changed the test. Justice Alito’s majority opinion announced that an unwritten liberty earns constitutional protection only if it is “deeply rooted in this Nation’s history and tradition.” That test demands something specific. A right counts only if Americans of the distant past already recognized it, and the further back you look, the fewer people held power, and the fewer freedoms they were willing to grant women, Black Americans, gay and lesbian people, and anyone outside the narrow group that wrote the laws. A test that limits our liberties to what the nineteenth century already accepted will leave us with fewer of them.

Justice Thomas stated it plainly. In his concurrence he wrote that the Court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” He named contraception, private intimacy, voting rights, and marriage one after another as the precedents he wanted overturned.

This next point should change how we think about the fight. The people who want to end these freedoms call themselves originalists. They claim to be the faithful readers of the founding, the ones who honor what the Constitution actually says against the supposed inventions of activist judges. And on the Ninth Amendment, the founding record contradicts them.

Randy Barnett is no liberal. He holds a chair in constitutional law at Georgetown, helped build the conservative legal movement, and argued the challenge to Obama’s healthcare law before the Supreme Court. He is an originalist through and through. And after examining the historical evidence piece by piece, Barnett concluded that the Ninth Amendment “actually meant at the time of its enactment what it appears now to say”: the unwritten natural rights people had before government formed should receive the same protection as the rights that made it onto the page. Barnett goes further, arguing the amendment creates what he calls a “presumption of liberty,” meaning that when the government restricts what you do, the government has the burden of justifying itself, not the other way around.

Modern experts agree with our founders. The Ninth Amendment makes one thing clear: your racism, your sexism, your homophobia, and your xenophobia give you no power to strip away another person’s freedom to vote, to own a business, or to pursue life, liberty, and happiness in any other form.

A leading originalist scholar, using the originalists’ own method, reads the founding record and finds that it protects exactly the freedoms the “originalist” justices want to remove. The history and tradition test that the Court used in Dobbs does not match the founders’ approach to unwritten rights; it is a recent substitute that abandons the natural-rights basis Madison began with and replaces it with a backward-looking standard the founders never wrote.

This is why understanding one piece of legal vocabulary matters for whether democracy survives. The word “unenumerated” sounds like something for a law school seminar, and it is not. It determines what your private life is allowed to include. Whether the government can regulate your marriage, your family, your medical choices, and your private conduct comes down to whether your freedoms stand as a presumption the government must overcome, or only as a short list it is free to ignore.

The opposition to this Court has a stronger position than we have been claiming. We have too often accepted the framing that protecting these rights means reading new meanings into an old document, that we are the innovators and the other side honors the text. The founding record shows the reverse. Madison wrote the Ninth Amendment to stop a future government from doing exactly what John Roberts and the GOP are currently doing: pointing at what the list leaves out and claiming the government may override it. We are not asking the Constitution to mean something new; we are asking it to honor the commitment it made in 1791, in one sentence, with clear intent.

Now, let’s return to where we began, with Madison facing that problem in 1789. He could have left the list alone and hoped for the best; instead he wrote a sentence whose entire job was to protect the freedoms we could not foresee, the ones future Americans would need names for that he did not yet have, and he wrote it to defeat the exact argument being used today. The people who want to end these rights insist Madison’s sentence means nothing, that the unwritten freedoms were never really protected at all.

We know better now. The enumeration of certain rights shall not be construed to deny or disparage others retained by the people. The founders said what they meant. Our task is to make the country live up to it.

Live free or die. It’s as true today as it ever was.

Today’s Call to Action

Here is today’s action. We stand with the district attorneys and attorneys general willing to say, plainly and on the record, that no man is above the law in the United States of America. The ones who will not say it are telling us something too. Today we find out which is which.

Put one question to the two officials who hold the power to charge a crime in your area: your county prosecutor or district attorney, and your state attorney general.

To find your attorney general, go to naag.org/find-my-ag, click your state, and follow the link to your AG’s office, where the site lists a contact email or a web form. To find your district attorney, search the name of your county plus the words “district attorney” or “county prosecutor,” and the official county page will list the office’s phone number along with a way to write them. Either a direct email or a web form works, and both create a record of what you sent.

Copy the script below, fill in your own details, and send it to each of them.

Dear [District Attorney / County Prosecutor / Attorney General] [Name],

My name is [your name]. I live in [your county or city], I am a [your job or career field], and I vote in every election.

I care about law and order, and I have one simple question for the official my community trusts to enforce it.

Do you affirm that no person is above the law in the United States of America, and that a president who commits a crime in our state would answer for it the same way any other resident would?

There are two honest answers. Yes, no one is above the law. Or no, the president is. I am asking for one of those two.

If you cannot give me a straight answer, if you retreat into complexity, federal deference, or telling me to wait for the courts, I will treat that as a refusal to answer, and I will remember it.

I will remember your name and your title. I will tell my neighbors how you responded, or that you did not. I will share your answer, or your silence, in our community and our local groups, so the people who elected you can judge it for themselves and weigh it against the oath you took.

I look forward to your reply.

[Your name] [Your zip code]

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