How the 9th Amendment Prohibits the War on Drugs, Understanding your Liberty.
The source of the 9th amendment is not in controversy. James Madison attempted to answer the argument that a bill of rights would leave future populations vulnerable to government laying claim to any powers not expressly protected in the bill of rights.
The familiar argument: “Where is it listed in the constitution that you have the right to …._______?” and variations on the theme are common in discourse. For example, where is it written that you have a right to privacy, a right to marriage, a right to procreation, a right to freedom of movement, a right to property? Those rights are not enumerated.
Hence we arrive at a distortion that the constitution grants rights, and every once in a while, the Supreme Court tosses you a freebie, like the right to marry and procreate, to travel, to privacy.
The difference between the understanding at the time the constitution was designed and today’s faulty application of the constitution by your power-obsessed government, was that fundamental rights then, were a given. It was inconceivable that government would have any interest in interfering with personal rights. The same is not true today.
There is no matter so personal, so small, or so unimportant to national concerns that our government feels appropriately inhibited to regulate it. Without the 9th amendment, we are free game, experimental social objects for government manipulations, and no matter what our accomplishments may be, or our age, there is no age of majority that government is bound to respect. They take it upon themselves to parent you until you die.
There are legal presumptions the court has made up that govern how they look at controversies at law. One of the most distorted and wicked, when combined with a willful abandonment of the 9th amendment is the presumption of constitutionality.
The Supreme Courts operate on the assumption that if Congress passes a law, it is automagically constitutional until you are arrested, and from that disadvantaged position, prove otherwise.
The true nature of the constitution was to preserve liberty. Liberty of the people.
The courts have read into the constitution a nature that demands they protect government.
If the courts were true to the heart of our supreme law, there would be a presumption of liberty, and government would have to justify a challenged law as necessary to the function of enumerated powers.
There is no government power listed that they should or can operate as parental units, approving or disapproving private conduct. Prohibition is an infringement of fundamental liberty.
That is what the 9th amendment protects—the liberty of the individual to operate free from government constraint. That is why they ignore it. They have, for over two centuries, interpreted the law in reverse—to protect government from inhibition rather than people from oppression. They have interpreted the constitution in such a manner as to deny a fundament right of liberty in and of itself.
Then they add to the abuse by denying you the right to challenge your vulnerability to arrest on improper grounds until you are arrested and weakened. They claim they have no time for such things. If congress wrote a law today that said you must wear beanies on Tuesdays, and go bare-headed on Wednesdays, precedent demands that unless you can prove damages, and then only after arrest for failing to wear the legislated head gear, are you given a chance to challenge the abuse of power.
They can only do this because they are under no requirement to respect a fundamental right of liberty so long as they are permitted to ignore the 9th amendment.
The prohibition of drugs is unconstitutional, and infringes on each citizen in their private conduct in their homes, the one territory the founders did everything they could to preserve as your domain.
The single, most vigorous barrier to enjoying the liberty inherent in the 9th amendment does not lie in the courts, it lies in the willingness of the population to be abused. It is time, if not for full revolution, for massive civil disobedience, to overwhelm government’s resources to continue the pattern of abuse.
It is past time. We can’t wait for some politician to see the light of day and be willing to risk votes for what’s right. We must win one all on our own, through our own refusal to recognize their abuse of authority as valid. We win one, we’ll turn the tide. There's no telling how free we can be.
Free on SSRN: The Rights Retained by the People: The History and Meaning of the Ninth Amendment Volume 2
Edited by Randy E. Barnett
George Mason University Press (1993)