cover image Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have

Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have

Daniel Farber, . . Basic, $26.95 (236pp) ISBN 978-0-465-02298-4

Farber, a constitutional law professor at the UC-Berkeley law school (Desperately Seeking Certainty ), challenges the Supreme Court's current jurisprudence regarding "fundamental rights," arguing that rather than relying on the Constitution's due process clause, these rights—which touch on many controversial issues like abortion, consensual sex, gay marriage and the right to die—would better be supported by the Ninth Amendment. That amendment says that the enumeration of certain rights in the Constitution "shall not be construed to deny or disparage others retained by the people." Farber deals with the tricky question of what rights are fundamental (he concludes there is a right to terminate unwanted medical intervention but not a right to assisted suicide) and the legal basis for such rights. He also makes lucid and convincing criticisms of particular Supreme Court approaches in abortion rights, for instance. This is potentially an important book that offers a new approach to how courts should interpret the Constitution when balancing fundamental individual rights against government incursions, an approach Farber believes will hold up better to challenges than a due-process approach. Farber writes well for the general public and succeeds in building a case that will resonate with both liberals and populist-conservatives. (May)