Silent Rights

The right to be presumed innocence; the right to privacy; the right to equal protection under the law; the right to travel, marry, or have children and the right of a woman to terminate her pregnancy these are a few of the many constitutional rights never mentioned explicitly in the Constitution. Such rights can be, but often aren't, supported by invoking the Ninth Amendment. Because of its open-endedness, the Ninth Amendment is still mired in an ill-fated perception as a constitutional nonentity and a legislative tradition that ignores its potential. As an antidote to this entrenched tradition, Calvin R. Massey presents a comprehensive and sensible account of how the Ninth Amendment could be, and has been, used to secure and preserve individual rights. For example, in a recent ruling the Supreme Court held that the right to terminate pregnancy was protected by the due process clause; in doing so, it cited the Ninth Amendment. By looking at such decisions and at its various interpretations in the literature, Massey explores the Ninth Amendment's original meaning and function, and the intention of its authors to prevent the creation of implied powers in the federal government and ensure that the bill of rights not become an exhaustive list of human rights. Massey presents a new method for recognizing implied constitutional rights and the possible contemporary role of the Ninth Amendment in constitutional law a formula in which state constitutions would assume a larger role in fashioning unenumerated rights and the Supreme Court's voice would be less final. Calvin R. Massey is Professor of Law at Hastings College of the Law, University of California, San Francisco, and the co-author of "The California State Constitution."