And, Umm . . . Whatever We Forgot (What’s wrong with the 9th Amendment)

So you think the 9^th Amendment is like a great poem: short and sweet, yet loaded with subtle intricacies that continue to emerge to this very day? Maybe you’re right. But it seems like it’s just filler to get to the magic number of 10 that the Founding Fathers wanted for the Bill of Rights.

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Okay, here’s the deal: I’m writing these next few paragraphs without doing any research about this Amendment, having—to the best of my recollection—just now read it for the first time. Right off the bat, I’m having problems with the second word. “The” isn’t a problem for me—I got that one. But I’m not exactly sure what “enumeration” means, either in today’s English or the language as it was in the late 18^th century. Enumeration reminds me immediately of the word number. I initially thought it basically meant that the numbering of the first 10 Amendments were essentially random and no single Amendment would trump another simply due to its number designation.

But that seems more ridiculous than one of those posters in the break room at Target.

• Rule 1: The customer is always right.
• Rule 2: If you feel the customer is wrong, see Rule 1.

So I reread it a few times using the limited context clues available. I now believe the word enumeration is not at all important to this Amendment’s meaning. It’s nothing more than a sesquipedalian word to spice up the prose a bit. Go ahead and click on the link for that word’s definition. You might as well learn some vocabulary, because I fear I’m not going to teach you anything of substance about the 9^th Amendment.

It’s almost as if all the delegates from the 13 states were getting a bit antsy to head home from Philadelphia. The stench of BO, with undertones of whisky and stale cigars, permeated the chambers. Sweat accumulated under each of their powdered wigs, dripping steadily down the back of their necks. Someone—undoubtedly pissed that James Madison wasn’t taking any of his advice—encouraged the group to finish with haste. He used the excuse of having to catch the next horse and buggy out of town if he was to get home to South Carolina in time for next Friday’s fried chicken dinner, as he promised his wife he would.

So, my first argument as to why this Amendment is a big pile of poo, should be obvious. If you don’t know what the words mean—either individually or, even more troubling, as a full sentence—they’re of little value. That goes as much for an Amendment to the Constitution of the United States of America, as is does for any of the abstract poems my 8^th grade English teacher tried to get me to “correctly” understand.

Moment of truth. Turns out enumeration means “a complete, ordered listing of all the items in a collection; a catalog or list.” I think I deserve at least partial credit for sussing out its meaning.

So apparently this Amendment was introduced because some of the founders thought generations of folks in the future might argue that if a certain right was not listed in the Bill of Rights, it shouldn’t be protected by the Constitution. If this is true, it shows a bit of foresight from those old chaps. I guess their noggins were more than just places to store those powdered wigs. It’s great they demonstrated such long-term planning. Perhaps, though, it was a bit presumptive of them to assume the document they were creating would last hundreds of years into the future. I mean, some of them couldn’t even last until all the Amendments were finished before hightailing it out of Philly. (I’m sticking with my story—facts be damned.)

Think about how conceded the authors of this Amendment must have been—as though they fancied themselves shoe-ins for the Greatest Americans Ever Hall of Fame. Maybe they thought we’d look back on them with god-like reverence, believing if it hadn’t been enumerated (I’m starting to like that word), it must have been intentional. Therefore, they felt obliged to include a little COA (more learning!) that let future generations know they, in fact, were not so faultless. Hell, most of those men probably owned slaves. That alone is proof they were not exactly the greatest dudes!

Just as those who penned the Constitution and the Bill of Rights were far from perfect, so too are the documents themselves. The Constitution and its Amendments should not be held as some be-all-end-all that so many people make them out to be. How can they ever be considered as such, when the 9^th Amendment is used as a handwavy COA for any and all rights that weren’t enumerated (damn—I’m already overusing it).

Think of a magician waving his magic wand and spouting off some ridiculous phrase before revealing the seemingly impossible. All this was done shortly after his sultry assistant finished her elaborate escapade of sauntering and gesticulating, drawing glances from gentlemen and ladies alike. In that moment of averted attention, the real “magic” happened.

Admittedly, not the greatest analogy. But the 9^th Amendment is kind of like that. With magic, our minds fill in the blanks hidden from us by the magician, allowing us to create a fictional world in which the impossible is anything but. The 9^th Amendment melds together Constitutional and lesser statutes, creating the potential for impossibly complex legal situations involving conflicting regulations. The only solution I can think of: lots of sexy paralegals.

So, you still think the 9^th Amendment is like a great poem: short and sweet, yet loaded with subtle intricacies that continue to emerge to this very day? I sure didn’t learn how to interpret deep meaning from poetry in 8^th grade English class, so I can’t exactly argue with any hidden meanings others decipher from those 21 mystifying words. So, I guess, yeah, come to think of it . . . You’re Probably Right.