The Ninth Amendment and Walker – The Backstory

Walker is Now Offering a Small Line of Clothing [LINK HERE] and other items which Have the Ninth Amendment quoted on them as well as a QRCode which leads smart phone scanners to this site.  We have coined this QRCode:  as a Ninth Amendment Permit to exercise your unenumerated rights.

Amendment IX – The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. [See research links bottom of this page]

VIDEOWatch Senator Biden Speaking About Ninth Amendment here Move video forward to to 56:15 and the actual dialogue on the forgotten Ninth Amendment will begin.

As part of the fictional back story in this transmedia project, Walker met Bennett B. Patterson while attending law school.  They were roommates and friends for a period of 3 years and became closer when one of Walker’s solo journalist colleagues was accused of violating various statutes while covering a highly controversial story.  the charges were fabricated in order to silence the journalist.   Walker was called in to assist with preparing her defense by gathering more footage that would support her story.  Walker recontacted his friend Patterson who prepared a series of legal briefs that would extricate her.   The briefs were stolen after his office was ransacked.  The journalist mysteriously disappeared before the briefs could be presented and ruled upon.  This is the point when Walker disappeared for the next 20 years.

Original Meaning and Intent Selected References from: © 1987 by The University of Chicago, All rights reserved. Published 2000

“Amendment IX

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

1. William Blackstone, Commentaries 1:120–41, 1765
2. Massachusetts House of Representatives, Circular Letter to the Colonial Legislatures, 11 Feb. 1768
3. Samuel Adams, The Rights of the Colonists, 20 Nov. 1772
4. Continental Congress, Declaration and Resolves, 14 Oct. 1774
5. “John DeWitt,” NO. 2, Oct. 1787
6. Federal Farmer, no. 16, 20 Jan. 1788
7. James Madison, House of Representatives, 8 June 1789
8. House of Representatives, Amendments to the Constitution, 17 Aug. 1789
9. Joseph Story, Commentaries on the Constitution 3:§ 1898, 1833″

FACTUAL REFERENCES:  The following factual references are provided in support of the Ninth Amendment and recognition of the vast unenumerated rights that the Founding Fathers understood at the time the Bill of Rights was constructed.  The reader is encouraged to do their own research, however this list will assist an on-going dialogue regarding the importance of the Ninth Amendment today.

1- Retained by the People: The “Silent” Ninth Amendment and the Constitutional Rights Americans Don’t Know They Have.

2 – A transcript of Senator Joseph Biden’s statements and questions of Judge Breyer on July 13, 1994.

3- Actual website location of Hearing on C-SPAN of Judge Breyer’s Confirmation.  Select for Day 2 Part 4, July 14, 1994 and toggle to about 56:00 minutes into that video to listen to the dialogue.  The video is embedded above as well.

4- Read Bennett B. Patterson’s entire book:  The Forgotten Ninth Amendment:  A Call for Legislative and Judicial Recognition of Rights Under Social Conditions of Today.

5- A 119 page Law Review Article (2005) by Loyola Law School Professor Kurt Lash entitled:  The Lost Jurisprudence of the Ninth Amendment.

This is a 119 page law review article which discusses at length the implications of the Ninth Amendment upon the vast array of unenumerated rights reserved by the people to themselves.  In this article Loyola Professor Kurt T. Lash provides significant insights into the 1956 legal treatise by Bennett B. Patterson entitled “The Forgotten Ninth Amendment, A Call for Legislative and Judicial Recognition of Rights Under Social Conditions of Today.”   On July 13, 1994, then Senator Joe Biden referenced Patterson’s book and the Ninth Amendment and its impact on unenumerated rights when questioning Judge Breyer during his confirmation hearing to the Supreme Court..  The point is not lost on the impact of the Ninth Amendment in 2011 as events across the world continue to unfold.

6 – New York Times Co. vs. Sullivan 403 U.S. 713 (1971) stating:

” … Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. 1 They especially feared that the [403 U.S. 713, 716]   new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” 2 (Emphasis added.) The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people’s freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men [403 U.S. 713, 717]   that they were, wrote in language they earnestly believed could never be misunderstood: “Congress shall make no law . . . abridging the freedom . . . of the press . . . .” Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

The Government’s case here is based on premises entirely different from those that guided the Framers of the First Amendment. The Solicitor General has carefully and emphatically stated:

    “Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only

[403 U.S. 713, 718]  

    say, Mr. Justice, that to me it is equally obvious that `no law’ does not mean `no law’, and I would seek to persuade the Court that is true. . . . [T]here are other parts of the Constitution that grant powers and responsibilities to the Executive, and . . . the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States.”


And the Government argues in its brief that in spite of the First Amendment, “[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief.” 4

In other words, we are asked to hold that despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of “national security.” The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to “make” a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. 5 See concurring opinion of MR. JUSTICE DOUGLAS, [403 U.S. 713, 719]   post, at 721-722. To find that the President has “inherent power” to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make “secure.” No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.

The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes – great man and great Chief Justice that he was – when the Court held a man could not be punished for attending a meeting run by Communists.

“The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free [403 U.S. 713, 720]   assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.”


Consider the following poster recently gleaned from a news site.

Applying a Ninth Amendment, unenumerated rights construction to the various Occupy Wall Street assemblies and camps set up (i.e., see legal treatise by Bennett B. Patterson (1956, reprinted 2008) referred to by Senator Joe Biden during July 13, 1994 Confirmation Hearing of Judge Breyer).  Interested researchers might consider whether the Founding Fathers intended camping in public parks in order to petition and address political and governance grievances of the people is one of the unenumerated rights.  Perhaps it is not unless they are aware is it.  Rights not asserted are rights denied.


See also:

Scalia, J., dissenting


No. 99—138



[June 5, 2000]

Justice Scalia, dissenting.

In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all Men … are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.

Only three holdings of this Court rest in whole or in part upon a substantive constitutional right of parents to direct the upbringing of their children1–two of them from an era rich in substantive due process holdings that have since been repudiated. See Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 534—535 (1925); Wisconsin v. Yoder, 406 U.S. 205, 232—233 (1972). Cf. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (overruling Adkins v. Children’s Hospital of D. C., 261 U.S. 525 (1923)). The sheer diversity of today’s opinions persuades me that the theory of unenumerated parental rights underlying these three cases has small claim to stare decisis protection. A legal principle that can be thought to produce such diverse outcomes in the relatively simple case before us here is not a legal principle that has induced substantial reliance. While I would not now overrule those earlier cases (that has not been urged), neither would I extend the theory upon which they rested to this new context.

Judicial vindication of “parental rights” under a Constitution that does not even mention them requires (as Justice Kennedy’s opinion rightly points out) not only a judicially crafted definition of parents, but also–unless, as no one believes, the parental rights are to be absolute–judicially approved assessments of “harm to the child” and judicially defined gradations of other persons (grandparents, extended family, adoptive family in an adoption later found to be invalid, long-term guardians, etc.) who may have some claim against the wishes of the parents. If we embrace this unenumerated right, I think it obvious–whether we affirm or reverse the judgment here, or remand as Justice Stevens or Justice Kennedy would do–that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.2

For these reasons, I would reverse the judgment below.


1.  Whether parental rights constitute a “liberty” interest for purposes of procedural due process is a somewhat different question not implicated here. Stanley v. Illinois, 405 U.S. 645 (1972), purports to rest in part upon that proposition, see id., at 651—652; but see Michael H. v. Gerald D., 491 U.S. 110, 120—121 (1989) (plurality opinion), though the holding is independently supported on equal protection grounds, see Stanley, supra, at 658.

2.  I note that respondent is asserting only, on her own behalf, a substantive due process right to direct the upbringing of her own children, and is not asserting, on behalf of her children, their First Amendment rights of association or free exercise. I therefore do not have occasion to consider whether, and under what circumstances, the parent could assert the latter enumerated rights.


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