The Amendment They Pretend Is Not There

By Tony Pentimalli

 

The Ninth Amendment was written to stop the government from claiming every freedom the Constitution did not name. In an authoritarian age, progressives should use it to defend every part of human life the powerful are trying to seize.

The men who wrote the Bill of Rights understood that naming some freedoms could become a trap. They feared that a future government would point to the written list and claim the people had surrendered everything left off it. The Ninth Amendment was their answer. The people kept rights beyond those the Constitution specifically named. More than two centuries later, the abuse they feared has become a governing strategy. Women are crossing state lines because politicians have taken control of their medical decisions. Marriage equality is under attack again. Government can track our phones, scan our faces, collect our genetic information, and buy intimate details about our lives from private companies. These are not separate fights. They are one enormous fight over whether Americans own any part of their lives that the government and the Supreme Court have not chosen to recognize. Authoritarian politics reverses the burden of freedom. The government no longer explains why it may enter your body, bedroom, family, movements, or private life. You are forced to explain why it should stay out.

The Bill of Rights answers that power grab in the amendment politicians, judges, and conservative legal activists almost never mention. The Ninth Amendment says that listing certain rights must not be used to “deny or disparage others retained by the people.” The decisive word is retained. The people did not receive those other freedoms from the government. They already had them, and they kept them. James Madison understood what was at stake. Critics warned that future rulers would use the written list to claim ownership of everything the Constitution did not mention, so the Ninth Amendment was added to stop them. It is not decoration. It is a direct command that constitutional silence cannot be turned into government property.

The powerful suddenly become flexible constitutional scholars whenever flexibility gives them more power. Corporations receive broad speech rights that let them pour enormous sums into politics. Presidents receive implied privileges the Constitution never names. Police officers receive qualified immunity from many civil lawsuits unless a court had already declared the exact misconduct illegal in a nearly identical case. Yet when an ordinary person claims control over her body, marriage, family, movement, or private information, these same people demand an exact sentence written more than two hundred years ago. Corporations find rights between the lines. Presidents find privileges between the lines. Police find immunities between the lines. Ordinary people are told their freedom does not exist unless someone powerful remembered to write it down in 1791. That is why the politicians, judges, corporations, and legal activists feeding on this double standard need the Ninth Amendment buried and forgotten.

The Ninth Amendment does not settle every constitutional case by itself, and pretending otherwise would hand its enemies an easy argument. Its legal purpose is to establish that the written list of rights is incomplete. Other parts of the Constitution give courts the tools to protect liberty, equality, conscience, association, and privacy from state and federal power. Even the basic freedom to travel from one state to another has survived without one neat constitutional address. The Ninth Amendment does not replace those protections or guarantee an automatic victory. It tells courts they cannot pretend Americans surrendered every freedom the Constitution’s authors failed to name.

That broader understanding of freedom mattered in Griswold v. Connecticut, when the Supreme Court struck down a law banning married couples from using contraception. The majority cited the Ninth Amendment while finding marital privacy within several constitutional protections. Justice Arthur Goldberg stated the issue plainly. Refusing to protect a fundamental freedom merely because the Constitution did not list it would gut the Ninth Amendment, although the amendment did not give judges unlimited power to invent anything they wanted. The Constitution did not need to contain the word “contraception” before the government could be thrown out of a married couple’s bedroom. A family does not become government property because the founders failed to list every private decision its members might someday face.

The Supreme Court turned that principle upside down in Dobbs v. Jackson Women’s Health Organization. The majority demanded proof that abortion was deeply rooted in American history and tradition, forcing women to hunt for their freedom in centuries when women had little political power and almost no control over the laws governing their bodies. Justice Clarence Thomas then called for reconsidering the decisions protecting contraception, private consensual same sex relationships, and marriage equality. The danger is far bigger than the destruction of Roe or the possibility that Griswold and Obergefell could fall next. The authoritarian Right is attacking the entire modern idea that liberty protects intimate human decisions even when the founders did not list them one by one. It asks whether the people who excluded you also protected you, then uses their failure as proof that you never had the freedom at all. They are turning the oppression of the past into legal authority over the living. They want a Constitution where no unlisted freedom belongs to the people until the government or the Court decides to hand it over.

That project becomes even more dangerous as technology gives the state powers the founders could never have imagined. They knew nothing about cell phone location histories, facial recognition, genetic databases, artificial intelligence profiling, license plate readers, reproductive data, or government agencies buying personal information from data brokers. Their inability to name those technologies cannot mean modern machinery transfers our private lives to the government. In Carpenter v. United States, the Supreme Court ruled that government acquisition of extensive historical cell phone location records was a Fourth Amendment search because it exposed the whole pattern of a person’s movements. The Ninth Amendment reinforces the principle beneath that ruling. A new machine does not erase an old human freedom merely because eighteenth century language could not name the device threatening it. A Constitution that protects only the freedoms eighteenth century men could imagine will leave twenty first century Americans defenseless against powers those men could not imagine.

The strongest objection is that unelected judges cannot turn every policy they like into an unwritten constitutional right. That objection is legitimate. The answer is not to give judges unlimited power, but it is not to give the government unlimited territory either. Constitutional protection should be strongest when the state invades choices central to a person’s control over their own body, conscience, family, intimate relationships, movement, association, or deeply private information. That is nothing like giving corporations, landlords, or employers a constitutional license to control other people. A corporation has no fundamental human right to poison workers, crush unions, discriminate against families, buy political control, or gut communities for profit. Freedom protects people from domination. It does not protect the powerful while they dominate everyone else.

Progressives should use the Ninth Amendment every time the government claims ownership of a freedom simply because the Constitution did not name it. Every one of those fights should force the same question: Why does constitutional silence give the government ownership of that freedom? Courts should reject that theft. States should write endangered liberties directly into their constitutions. Citizens should understand the size of what is happening. This is not a fight over a few controversial rights. It is an attempt to rebuild the Constitution so the oppression of the past controls the freedom of the present, new forms of power face no limits unless the founders predicted them, and every unnamed part of human life belongs to the government until the government decides to give it back.

The Ninth Amendment is not a magic wand. It is one of the Constitution’s clearest warnings against that total claim of ownership. The government does not own everything the Constitution did not specifically name. The people retained it.

*Tony Pentimalli is a political analyst and commentator fighting for democracy, economic justice, and social equity. Follow him for sharp analysis and hard-hitting critiques on Facebook and BlueSky @tonywriteshere.bsky.social

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BREAKING: HELL YES! Supreme Court Justice Elena Kagan terrifies her MAGA "co-workers" by boldly calling for a binding ethics panel to finally hold the court accountable — while Amy Coney Barrett was sitting right beside her.

Thomas and Alito just started sweating bullets...

“I think that we would be better off with an enforcement mechanism, and I think, you know, that’s not to say I think that my colleagues aren’t taking this code incredibly seriously,” Kagan said while testifying before Congress.

“We’re all, you know, making every effort, and I think successful efforts to live by it. But if nothing else, for public confidence, right?” she added. “An enforcement mechanism can also make clear that not every accusation, every charge, has anything to it.”

This is a firm but overly diplomatic assessment from Kagan. The liberal justices certainly take the code of conduct seriously — as evinced by the fact that none of them have been caught in corruption scandals — but the conservative justices aren't nearly as committed to ethical behavior.

Both Clarence Thomas and Samuel Alito have been caught accepting in-kind bribes from powerful Republican billionaires in the form of luxury travel, gifts, and expensive vacations. They're living like sultans, destroying any semblance of propriety and undermining the legitimacy of the court in the process. Just based on what we know already, both of them should have been impeached and removed long ago.

"You know, on the Code of Conduct, as you noted, we, the nine justices all agreed to a Code of Conduct," Kagan said. "It's specifically geared towards the Supreme Court. As you also noted, there is a question about enforceability..."

"And right now, the mechanism has no enforceability system," she explained. "And this is something on which various people have spoken in the past. And, you know, I've made my views known in the past, which is that I think we should work hard to try to figure out some enforcement system."

"I will say that that's an extremely difficult question for a pretty obvious reason, I think, which is that I don't think that you would want an enforcement system that was controlled by the executive branch or by the legislature," Kagan went on.

"And this is because of what you said in your opening statement about the importance of judicial independence," she said. "You know, you don't want a president picking an inspector general to decide, you know, which of us is breaking the rules or how we're breaking the rules."

This is an astute point from Kagan. While we absolutely need an ethics panel to keep watch over the court, it cannot be controlled by the White House. Imagine if Trump had an ethics attack dog that he could sic on the liberal justices to lay the groundwork for impeaching them on fabricated charges. He has already displayed a horrifying willingness to politicize the Justice Department and FBI for partisan purposes. We simply cannot trust him or future Republican Presidents with direct, enforceable oversight over the Supreme Court.

"So, I think it really has to come from within the judiciary," Kagan continued. "And that's hard because, you know, we sit at the top of the Judiciary Committee. So, it's hard to figure out how to have a system that makes use of judicial resources to police us."

"One idea that has been suggested by some people is to use respected retired judges. That has, you know, some pros, some cons. I think that this remains an open question, a question of discussion," she said.

Meanwhile, conservative Justice Amy Coney Barrett was sitting beside Kagan during the hearing. She was visibly uncomfortable with the line of questioning, presumably because she didn't want to throw her idealogical compatriots under the bus, and so she stated that she's "not quite sure" and "less certain" about Kagan's suggestions.

What do you think the best course of actions is?

Please like and share if you support an independent ethics panel!

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BREAKING: OUCH! Progressive star Jennifer Welch unleashes a BLISTERING takedown of the late Lindsey Graham, says he only cared about "dressing up in red panties" and "kissing the ass of Israel."

This is a nuclear bomb on his sordid legacy...

"Lindsey doesn't give a flying f*ck about you because he could give two shits about the people of South Carolina," Welch said on her podcast after playing a clip of Lindsey's sister Darlene insisting that her brother cared about her and the state he represented.

"He hasn't done anything to help the state of South Carolina," continued Welch. "His number one priority, as we know, is hiring sex workers, dressing up in red panties, and having them do all sorts of crazy ass shit to him."

Allegations that he was a closeted gay man have long dogged Graham and several sex workers have come forward to claim that he employed their services frequently. Meanwhile, he was a leading figure in the deeply anti-LGBTQ MAGA movement, making him a hypocrite of the worst sort.

"Number two, kissing the ass of Israel," continued Welch. "Number three, being a homicidal, genocidal warmonger. And number four, kissing the ass of Donald Trump. Never, ever, ever has this man fought for South Carolinians."

Graham could best be described as an "Israel First" politician. He privileged that foreign nation's interests over America's at every turn, sending countless billions of dollars to prop up their military as they wage wars of genocidal intent and territorial expansion. Graham was so pro-Israel that many commentators have even suggested that he was blackmailed — perhaps with material pertaining to his private sexual proclivities.

"So at this stage in fascism, sure, f*ck it. Senator Darlene, let's do it. Why not? Does it matter at this point?" added Welch, referring to the fact that Graham's sister has been chosen by the Republican governor, at Trump's urging, to fill the vacant Senate seat for the remainder of Graham's term.

And Welch wasn't done there.

"This is a moment for the Democrats to wholly start attacking, you might say, 'Attack after Lindsey Graham's death?'" she said. "This is the fight of our lives! Yes, you say, here's a man who every single day preached family values and anti-gay rhetoric and talked about the killing of civilians, was a homicidal war criminal out the wazoo."

"And now we know, as we've known for a long time, that he likes to put on red panties and kink around with sex workers," she continued. "Which, listen, I don't give a shit. I'm not some Christian prude that wants to be involved in the sex lives of everybody else."

"But the Katie Millers, the Stephen Millers, the Lindsey Grahams, and all of these people are that. And we need to start calling out the hypocrisy," she added.

Do you agree with Welch?

Should we bite our tongues or should we speak the truth about Graham?

Please like and share if you think that Lindsey Graham was a monster!

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BREAKING: Marco Rubio vows to DISMANTLE the International Criminal Court that prosecutes genocide, war crimes, and crimes against humanity.

In a move that reflects the Trump administration's deep fears over accountability for their actions, Marco Rubio just declared war on international justice itself.

The Secretary of State announced Monday that the Trump administration is launching a full diplomatic campaign to destroy the International Criminal Court — the global tribunal established in 2002 to prosecute genocide, war crimes, and crimes against humanity. Not reform it. Not push back on specific rulings. Dismantle it entirely.

"We will dismantle the ICC — brick by brick, if necessary," Rubio wrote in a Wall Street Journal op-ed, framing it as a battle of "sovereign states over globalism."

Let's be clear about what's actually happening here. This isn't abstract ideology. This comes weeks after three ICC judges sued the Trump administration over sanctions the administration illegally imposed on them — sanctions levied because the court dared to investigate American allies, including Israel's conduct against Palestinians.

Rubio's rhetoric reads less like foreign policy and more like a conspiracy theory. He called the court "a global tribunal staffed by unelected globalist bureaucrats," and accused it of being "backed and run by a powerful network of leftist nongovernment organizations, smug globalists, and hostile Third World governments united by their enmity toward the U.S."

That's not diplomacy. That's a culture-war rant aimed at an institution that 125 nations have ratified to hold war criminals accountable — including Vladimir Putin, who the ICC, with the Biden administration's cooperation, indicted for kidnapping Ukrainian children.

And that's the real story here. When the ICC pursued Putin for stealing children, the U.S. shared intelligence. When it started looking at Israel and at U.S. conduct in Afghanistan, suddenly the whole institution became an illegitimate "globalist" scheme that must be destroyed "brick by brick."

The State Department is now weaponizing travel bans, visa revocations, and sanctions — not against war criminals, but against the judges trying to hold them accountable.

This isn't protecting American sovereignty. It's protecting impunity — for Trump's allies, and potentially for war criminals everywhere.

Please like and share to spread the news!

BREAKING: Marco Rubio vows to DISMANTLE the International Criminal Court that prosecutes genocide, war crimes, and crimes against humanity.

 

“Cattle die, kinsmen die, and you yourself will die.

But one thing never dies: the reputation of the one who has died.” ~Hávamál

Ah, yes. The part everyone likes to skip—the ending where you don’t get to edit the story anymore.

Death is not a sanctifier. It’s a seal. A wax stamp pressed onto the record you already wrote. No revisions. No clever spin. No last-minute absolution whispered over a cooling body. Just the sum of your choices, sitting there like a ledger that refuses to burn.

And yet—watch how quickly the living these days scramble to rewrite it.

“Don’t speak ill of the dead,” they say, clutching pearls with one hand and scrubbing history with the other. As if silence is virtue. As if truth becomes cruelty the moment a heart stops beating. No, darling—that’s not morality. That’s narrative control. That’s fear of what the story actually says when you stop decorating it.

The *Hávamál* doesn’t play that game. It doesn’t care about your comfort. It cares about what remains.

Reputation.

Not reputation as in branding—no, not your polished speeches or your curated persona—but the real thing. The trail you carved through the world. The fractures. The fires. The fingerprints you left on other people’s lives and on the bones of the society you helped shape.

So let’s not pretend we don’t know what we’re looking at.

Charlie Kirk didn’t build anything resembling unity. He built a machine that fed on division and called it purpose. He understood the marketplace well: outrage sells, resentment scales, and if you wrap it all in the language of God, you get a shield thick enough to deflect accountability. Call him a martyr if you like—but understand what you’re really doing. You’re not honoring a life. You’re laundering it. You’re turning conflict into sainthood and hoping no one notices the blood under the robes.

And Lindsey Graham?

Oh, this one is almost too perfect—a case study in real-time moral collapse.

January 6th, 2021. You remember it. Don’t pretend you don’t. The Capitol breached. Windows shattered. Lawmakers running. A mob, fed and aimed, crashing into the spine of American democracy while the world watched.

And there he was—Lindsey Graham—standing in the aftermath, just long enough to taste the truth. Just long enough to recognize the line that had been crossed. For a flicker of a moment, there it was: clarity. "All I can say is count me out. Enough is enough." " President Trump has tarnished his presidency, —his actions were the problem."

And then—gone.

Because clarity is inconvenient when power is still on the table.

So he chose. Not once. Not reluctantly. Repeatedly. Publicly. Shamelessly.

He chose to abandon his sworn oath. Chose to defend what he had just witnessed. Chose to align himself with the very force that tried to rip the rule of law out by its roots. A full-circle performance so complete it would be impressive if it weren’t so corrosive. A 360-degree spin straight into complicity.

Call it loyalty if you need the comfort.

I’ll call it what it is: surrender dressed up as strategy. Betrayal with a handshake. A senator who saw the fire—and decided to warm his hands at it.

That is the reputation that survives him. Not the speeches. Not the eulogies. That moment. That choice. That pivot away from truth and into power.

And now—here come the mourners. The speechwriters. The myth-makers. Polishing. Softening. Recasting. Wrapping it all in language so gentle you’d almost believe nothing sharp ever happened.

But I am not gentle.

The dead don’t need your lies. The living do.

Because this isn’t about honoring them—it’s about protecting what they built. A political ecosystem that thrives on distortion. Where faith becomes a weapon, patriotism becomes a costume, and truth becomes… negotiable. Where martyrs are manufactured and patriots are declared by loyalty rather than by law.

Watch closely: the eulogies aren’t for the dead. They’re for the movement. They’re sermons in a church that cannot afford to admit what it has done.

And you are expected to sit quietly in the pews.

No.

I don’t celebrate death. Not violence. Not loss. Not the end of a human life. That’s not the game here.

But I refuse—absolutely refuse—to participate in the lie that death redeems a legacy.

It doesn’t.

It reveals it.

Both of these men made choices that sharpened division, normalized fear, and encouraged a nation to see itself not as a community, but as a battlefield. They helped build a culture where truth bends, where enemies are manufactured, and where loyalty to a man outweighs loyalty to the laws that hold a country together.

That is the structure they leave behind.

That is the inheritance.

And here’s the part no one likes to say out loud: silence helps it stand.

Every softened word. Every omitted truth. Every “now isn’t the time” becomes another brick in the myth.

But the *Hávamál* doesn’t wait for a convenient time.

It tells you plainly: your name is what survives you.

So the question was never how they died.

The question is what their names now carry.

Some names become guides.

Others become warnings.

And death—no matter how dressed up, no matter how reverently spoken of—does not get to choose which one you are.

You already did that.

Long before the final breath.

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