The Ninth Amendment is Your Amendment, Too

The Ninth Amendment to the US Constitution, part of the Bill of Rights, states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This amendment is in danger of being forgotten and abandoned as the US government makes serious efforts to pretend that the text of the Constitution is “living and breathing,” which is to say, that the text is subject to reinterpretation in the light of a contemporary government agenda that is unconstitutional. Citizens need to be assertive about the rights protected by this amendment. The recent denial of refugee status to the Romeike family who fled Germany because the German government prohibits them from teaching their children any values that the government does not approve is an example of the potential for an unenumerated right to be suppressed and lost.

The crux of the matter in the US lies in the intention of the Founders who worded the Constitution specifically to limit the power and growth of the federal government. Students of American history will recall that prior to the American Revolution, the thirteen colonies that ultimately broke away from the British Empire were governed as if each was a nation of its own – a colonial nation, but a nation, nonetheless. If one views a map of Africa today, one will see several nations along the west coast of Africa which once were colonies in the British Empire. When those colonies obtained independence, each stood alone in the effort to become independent, and each stood alone after independence. In North America, the thirteen British colonies along the east coast of the continent worked in concert under the leadership of a gathering of representatives from each colony, a group which called itself the Continental Congress. Each colony functioned as an independent state which chose to cede some of its power and sovereignty to the group which chose George Washington to head their military efforts. The colonists used the term “state” in the sense of being an autonomous, sovereign nation in its own right. After the Revolution, the former colonies continued to think of themselves as independent nations which simply ceded some authority and power to the group in order to achieve better military defense and to protect international and interstate commerce. At no time did those states believe themselves to be departments of the federation. At no time did they believe that they or their citizens had surrendered any rights and powers to the federal government except the ones named in the Constitution and its amendments. During the circulation of the Constitution for purposes of ratification, the Ninth Amendment was proposed precisely for the purpose of preventing the loss of unenumerated rights. The federal government was to be limited to the powers enumerated, but the citizens were not to be limited in that manner.

The Ninth Amendment, part of the Bill of Rights passed during the First Congress after ratification of the Constitution, was intended to assert and reaffirm the fact that the Constitution only named rights and powers which the states had ceded to the federal government. The Ninth Amendment, more than any other words in the Founding documents, asserts that citizens of the United States of America have broad and comprehensive freedom to manage their own affairs without interference from the government.  The men who created the Constitution actually believed that human freedom including a vast treasure of human rights was bestowed on every human being by God himself. Those who wrote and those who voted to enact and those who ratified the Ninth Amendment would be appalled to hear a contemporary Attorney General of the United States of America say that no liberty was lost by anyone if a law that cancelled a basic human right applied equally to everyone.

This notion is the logic behind the recent denial of refugee status to the Romeike family. The family fled Germany because German law forbids parents to educate their children themselves and specifically forbids them to teach any alternate social or moral value system different from that of the state. The law dates back to the Nazi era and is a deliberate expression of the Nazi view that children belonged to the state, not to their parents. The law is enforced by forbidding parents to homeschool their children, and enforcement extends to measures such as huge fines and even the loss of parents’ custodial rights to their children, who are removed from the home and placed with families who agree to comply with the law requiring children to attend state-operated schools.

The Romeikes are being denied refugee status because the Attorney General of the United States of America does not recognize a universal human right which is protected in the United States by the Ninth Amendment of the Constitution. It could be anyone. It could be you. The fact is that in the United States, education is compulsory everywhere, for good reason, but in the United States, there is currently no prohibition against homeschooling. Until now, every parent in the USA had every reason to believe that the Ninth Amendment protected the right of parents to choose and control the education of their children. Even though education is compulsory, the parents have the right to control the content of that education, including the right to educate their own children according to their own values. For American citizens, the universal right of parents to control the education of their own children has meant that families who object to the teaching of homosexual practices have the freedom to homeschool their children and teach their own values in sex education. Families who believe that God created the universe in which we live, and that God created the first and all subsequent human beings, may homeschool their children and include that teaching in the children’s education. Parents who believe that their children need the freedom to pray openly during the school day as part of the education process can homeschool their children in that environment. To date, the Ninth Amendment has upheld the universal human right for parents to control the education of their children.

Interestingly, both the USA and Germany are signatories to the UN Universal Declaration of Human Rights, which states in Article 26, section 3, “Parents have a prior right to choose the kind of education that shall be given to their children.” Obviously the national commitment of Germany to the rights contained in this Declaration has not extended to its law controlling education. While some citizens may have thought that the fact that the US signed that declaration meant that parental control of the education of their children is protected, the evidence of the Romeike case suggests otherwise.

In the United States, for most of its history, education was managed locally and within the states. Only since the inception of the federal Department of Education has the federal government extended its tentacles into local schools. The demands and mandates delivered and enforced upon public schools around the nation would have no effect if the schools dissociated themselves from federal money, but the perceived need for money has led the schools to give away their own rights, and with them the rights of parents to have a voice in their children’s education. As a result, there arises the specter of a Congress which might have the same view of this human right as the current Attorney General. A Congress which believed that if a human right is denied to all people equally, then it is not persecution, might very well pass a law that forbade American parents to homeschool their own children, and American parents might be at risk of arrests, fines and loss of custody of their children, just like the Romeike family. Where will that family go in all the world to find a country that actually enforces the protection of the universal human right for parents to control the education of their children? If they cannot be granted refuge in the land of the Ninth Amendment, then where will they go?

Christians have a profound reason to be concerned about this. Christians need to recognize that when they assert their First Amendment right to the free exercise of their religion, they may not be able to claim that protection for the education of their children. Certainly most Christians believe that God expects parents to educate their children in the faith. The attitude of the current Attorney General suggests that he does not share that understanding of the “free exercise” of religion. Likewise, the narrowly worded conscience exemption for employers who object to the mandate to provide contraception, sterilization and abortion as preventive health services in an employee insurance package points to a very narrow interpretation of the meaning of religion and the meaning of the exercise of religion by the federal government. Christians would be very wise to include prayer on this subject in their daily prayers. However, it seems likely that God would act on those prayers through human beings obedient to his call to speak up and speak out for the rights protected by the Ninth Amendment as well as all the rights protected by the First Amendment.

When the Constitution was being circulated among the states for the purpose of ratification, many people were concerned because it did not enumerate all the possible rights that might need to be protected. The original authors of the Constitution responded to this concern at first by pointing out that the Constitution defined a government of limited powers.  They recognized that people feared the possibility that if something were not forbidden to the federal government, it would assert its authority there and claim that no law prevented its doing so. Many is the child who has engaged in destructive anti-social behavior and claimed the right to do so, because “there is no law against it.” The authors of the Constitution specifically designed the Constitution to list the powers of the federal government, and their understanding of the document was that if a power were not granted to the federal government, then the federal government did not have that power.

Other people claimed that in the absence of a prohibition, aggressive and assertive political leaders would encroach on the powers of the states and the rights of the people, perhaps in the name of some universal good, but nevertheless in violation of the intent of the Constitution. Fortunately for the country, those wiser voices prevailed. The Ninth Amendment was written to assure that people could not be deprived of any of their natural rights due to a failure to list them in the Constitution. A reading of the Universal Declaration of Human Rights will immediately confirm the problem of listing all the rights people possess by virtue of their being human. The Founders were wise not to attempt it as part of the discussion of the design of government for the thirteen new states in the United States of America.

A refugee from persecution in some other country is not considered a citizen of the United States of America, and that means that the Constitution does not give the refugee the rights of a citizen. The protection of universal human rights within the Constitution and other founding documents, however, implies a respect for those rights. It is our respect for those rights that creates a sense of obligation to identify individuals and families fleeing persecution by governments that ignore or defy the existence of those rights. A refugee who has fled for his life from a country where his faith or his political views make him a target for violence will find safe haven here. A refugee who is not only forbidden free exercise of his faith but is also at risk of imprisonment and torture in attempts to compel him to recant will find safe haven in the USA. It is hard to believe that parents who flee a government that has assessed huge fines and threatened the kidnapping of their children because it does not protect the universal right for parents to control the education of their children would be deported back to the very government which has threatened them.

Christians must care about the protection of fundamental, universal human rights. The right of Christian citizens in the USA is at risk as certainly as the rights of refugees seeking asylum. Even if this case were centered on an atheist family fleeing persecution in Bhutan or Buddhist family fleeing persecution in Uzbekistan, Christians should be concerned. When the Attorney General of the USA says that a law that suppresses free exercise of the right of parents to control the education of their children does not create persecution as long as it prohibits everyone equally, then something is terribly wrong. Christians must pray about this problem, but Christians must act to assert protection of the God-given responsibility to educate children in the values of the parents. Ignore this problem at your peril.

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