9th Amendment

Consent of the Governed as a Protection of Rights

The American Founders believed that the primary security for individual rights was a popular form of government. In other words, the people should decide how to frame the laws under which they themselves should live. This principle had been first articulated by John Locke. Of all of man’s natural rights, Locke was particularly insistent that property rights could not be restricted without the consent of the people. Taxes could not be levied by any government without a person’s “own consent, i.e. the consent of the majority, giving it either by themselves, or their representatives chosen by them.” This principle that taxes could only be levied with the people’s consent, derived from Locke, was repeated in the familiar rallying cry at the time of the Revolution: “no taxation without representation!”

But Americans had also expanded Locke’s principles beyond the rights of property. They believed that natural rights—to life, liberty, or property—could not be curtailed without the consent of the governed. This principle was eloquently expressed in the Declaration of Independence: “all men…are endowed by their Creator with certain unalienable Rights…That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”