Anyone who has graduated from an American high school knows these words from studying the Declaration of Independence in civics class:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Many people could recite that passage without remembering the document from which it originates. Nearly anyone can tell you that they are entitled to “plead the Fifth.” Nobody will let you forget that they possess freedom of speech, even if we sometimes guiltily wish others did not. The language of rights permeates American culture and shapes our understanding of citizenship and democratic government.
Yet, while few Americans would argue that we have too many rights—or even question whether rights are ends in themselves—the constitutional amendment I find most intriguing is not among those Americans invoke most often. It is the Ninth.
The Ninth Amendment states:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
On its surface, the amendment reflects an admirable humility. Its authors understood that no constitutional text could encompass every right retained by the people or anticipate every form that injustice might eventually take.
Upon closer examination, however, the Ninth Amendment exposes a fundamental problem underlying the enumeration of rights itself. It acknowledges the existence of rights beyond those explicitly protected by the Constitution, but it does not explain how those rights are to be identified, interpreted, or enforced.
If rights exist outside constitutional doctrine, how do we know what they are? And if they have never been codified, how can we recognize when they have been violated?
Natural Law
Within the language of the Ninth Amendment itself, we can see traces of the framework from which the founders’ conception of human rights emerged. The founders drew heavily upon the philosophical ideas of the Enlightenment and, more specifically, the tradition of natural law. Natural law holds that universal and objective moral principles are grounded in human nature or the natural order, accessible through human reason, and independent of laws created by governments or societies. The founders devised a republic in which laws could be created through representative government, but they conceived of rights as arising from a higher moral order that existed beyond the reach of positive law. The Ninth Amendment, therefore, reflects the assumption that the rights we inherently possess extend beyond those written into the Constitution. Yet, while it instructs us not to deny or disparage those unenumerated rights, it offers no formula for reading between the lines and determining what they are.
In the eyes of the founders, natural law was appealing because it located rights and protections outside the state itself. While they recognized the importance and utility of republicanism in combating the tyranny of monarchy, they also recognized that even a republic could become tyrannical in practice. Natural law correctly recognizes that human beings have identifiable needs, tendencies, and capacities that can inform what forms of treatment support or hinder their flourishing. Through reason, one could then identify the rights necessary for beings such as us to flourish.
The Ninth Amendment is consistent with this premise: the rights enumerated in the Constitution are not exhaustive but merely describe some of the core rights grounded in the natural order. Much of the logic is sound and the goal is admirable. The natural-rights tradition the founders constitutionalized sought to place moral limits upon government power. But this conception oversteps at one crucial point.
If we take natural law at face value, then rights exist not as human constructs, but as objective moral truths grounded in nature. But just as the theory of evolution can describe how organisms change over time without telling us how they ought to evolve, an account of human nature cannot, by itself, derive an ought from an is. Nature can reveal the conditions under which human beings survive, suffer, or flourish, but it cannot tell us why their survival, suffering, or flourishing should carry moral weight. If human rights are treated simply as facts of nature, then they either exist or do not exist; their existence alone cannot explain the moral value we assign to them.
Humanism
This is why humanism offers a stronger account of how to structure constitutional commitments than natural law does. As I understand it, humanism begins with a single, explicit normative axiom: all human beings possess inherent, immutable, and equal worth. Human dignity is the moral status arising from that inherent worth, and from that status flow obligations to ourselves and others. This is not a fact of nature waiting to be discovered. It is a normative commitment. And it is this commitment that makes rights intelligible and derivable in a way that nature alone does not permit.
Facts about human nature can inform moral reasoning, but they cannot supply its original normative authority. Before reason can derive an obligation from human needs or flourishing, we must first affirm that the human beings experiencing those conditions possess moral worth. Natural law alone does not make equal human worth an explicit foundational normative commitment. Humanism does. This clarifies an important tension the founders left unresolved: human beings do not possess dignity because they possess rights. They possess rights because we recognize their dignity.
Once we conceive of dignity as the preexisting and foundational commitment, our conception of government and civilization begins to shift. Rather than understanding government merely as a safeguard against tyranny or state overreach, its purpose becomes more explicit and positive. Civilization is justified when it transforms the freedom and effort individuals surrender into collective conditions of human flourishing that no person could reliably secure alone. Because that bargain is made among people of equal worth, dignity provides the standard by which its laws and institutions must be judged. Rights, in this sense, are not simply facts that the state must operate around. They are the mechanisms through which dignity is safeguarded as civilization pursues collective flourishing.
The Role of Enumerated Rights
This raises the question: If dignity ought to be a foundational concern of constitutional design, then what role do enumerated rights serve, and how would a dignity framework differ in its efforts to guide and constrain state infringements upon dignity?
Enumerated rights are not without utility as a constitutional tool, even if they are insufficient in isolation. A humanistic constitution would still have to contend with state overreach, majorities capable of oppressing minorities, and foundational commitments that may inconvenience the normal and good-faith exercise of state authority but must nevertheless be safeguarded.
A humanistic constitution would therefore contain a robust and enumerated bill of rights, much like our current Constitution. Its distinction would lie in how it protects rights not enumerated. A Ninth Amendment merely acknowledging their existence, as we have already observed, is insufficient to safeguard them vigorously. But we are no more omniscient than the founders. We cannot hope to create a laundry list of rights capable of preventing tyranny or indignity in every case. We must therefore account for unenumerated rights both predictably and flexibly.
The insufficiency of enumerated rights does not arise only because future generations will encounter injustices we failed to anticipate. It also arises because indignity does not always assume the form of a discrete rights violation. A state may respect every explicitly protected boundary while distributing the burdens of civilization so unequally, or constraining the choices of some citizens so severely, that their equal worth becomes largely theoretical. Rights ask whether government crossed a prohibited line. Dignity also asks what conditions government created, who was required to bear their costs, and whether those people were treated as equal participants in the social contract.
In modern government, indignity does not arise only through uniforms, weapons, or the commands of strongmen. It can also emerge through callousness, technocratic abstraction, and motivated justifications supported by little evidence. Indignity is propagated not only by individual tyrants, but by systems that impose enormous costs upon citizens while presenting those costs as inevitable. A dignity-centered constitution therefore needs enumerated rights to protect against familiar forms of tyranny, but it also needs a ongoing framework capable of recognizing violations that no previous generation knew to enumerate.
The solution lies in a framework that acts as a forcing function upon policy and state action.
If dignity is constitutionally protected and flourishing is the explicit goal of state action, then a framework can be created to guide the formation of policy toward those ends. Enumerated rights would provide baseline protection against clear and historically established violations of dignity, while the framework would provide a method for scrutinizing potential violations of rights not yet enumerated. One can imagine a future Congress deliberating upon a policy while being legally required to test it against a structured set of questions: Who will bear the costs of this policy? Will its benefits be distributed fairly? Does it treat any person merely as an instrument of some broader objective? Does the policy unnecessarily constrain the ability of those affected to make meaningful choices about their own lives? Have alternatives or mitigation measures been considered to reduce or prevent infringements upon dignity?
The concern, then, is whether this framework is merely a more complicated reiteration of the Ninth Amendment: beautiful in form but lacking in utility.
A Constitutional Framework of Dignity
Dignity, while a strong philosophical maxim, can seem vague enough to be contested, manipulated, or distorted in convenient ways. Who is to say what dignity requires in every circumstance?
This is precisely why enumerated rights must come first. Just as the founders did not want democratic interpretation to undermine certain fundamental rights, enumerated rights would serve a similar function within a dignity-centered constitution. We know that freedom of speech, religion, and assembly are clear expressions of human dignity and must be protected. A humanistic constitution might extend similarly explicit protection to healthcare and housing. The framework would then guide—and guard against arbitrary action within—the uncertain margins.
It may not be definitively clear, for example, which energy policy best preserves dignity when some communities depend upon the fossil-fuel economy while others bear its environmental costs. Several policies might reasonably balance those competing interests. Yet some would plainly impose more severe and less defensible indignities than others.
At these margins, a dignity framework would not demand moral purity or the perfect preservation of every competing interest. Its purpose would be to prevent the inconvenience of considering dignity from becoming an excuse to exclude it from the decision altogether.
Yet any constitutional framework must include an institutional mechanism for ensuring compliance. A dignity framework that remains merely aspirational cannot enforce accountability. At present, laws are generally evaluated according to whether they violate a particular constitutional provision, either in their language or application. A dignity framework would add another requirement: the creation of a formal legal record of justification.
Governmental debate today often functions more as moral posturing than as an official declaration of purpose. We remain bound by laws written decades or even centuries ago whose original justifications have been reduced to inherited assumptions, if they remain intelligible at all. A humanistic framework could require a future Congress to justify its legislation publicly, explicitly, and materially against the constitutional standard of dignity. That justification would serve as a formal record of the policy’s intent, expected benefits, acknowledged costs, and anticipated consequences. It would also become a legal record against which the law could later be challenged if its justification proved poorly reasoned, unsupported by evidence, or offered in bad faith.
The legislature would need to adopt a definite statement of purpose, evidence, expected effects, costs, and alternatives. The broader debate can remain part of the record, but courts need an authoritative justification to scrutinize. If policymakers justify substantial tax cuts that disproportionately benefit the wealthy by claiming that they will advance collective flourishing, but the policy instead imposes severe and foreseeable costs upon citizens, the response cannot simply be that the law itself did not explicitly violate an enumerated right. The state should be required to defend the law according to its original recorded justification, rather than a more convenient rationale devised after its consequences become apparent. Those affected should be able to challenge the law by comparing its actual operation with its stated purpose, supporting evidence, anticipated consequences, and acknowledged costs.
An undesirable outcome alone would not make a law unconstitutional. Policymakers cannot guarantee outcomes, and constitutional review should not become a judicial veto over every failed policy. But if the government’s original justification was materially dishonest, unsupported by evidence, indifferent to foreseeable infringements upon dignity, or contradicted by the law’s actual design, then that justification should be subject to constitutional scrutiny. A law should not remain constitutional as a technicality when the reasoning used to justify it cannot survive examination and its operation violates the dignity it purported to preserve.
The record would serve not only courts, but citizens themselves. It could not prevent lawmakers from reasoning dishonestly or accepting indefensible costs, but it would make it far more difficult to obscure what they knew, what they predicted, and whose burdens they consciously accepted. Constitutional accountability would therefore operate not only through judicial invalidation, but through the public’s ability to compare political promises with their human consequences. The recorded justification would also bind executive agencies charged with implementing the law, constraining administrative discretion that might otherwise quietly transform the law’s purpose or transfer burdens lawmakers never publicly defended.
Not every burden upon dignity would require the same degree of justification. The evidentiary burden placed upon the state should rise alongside the severity, duration, and distribution of the dignity infringement it proposes. Minor and temporary costs may be justified by ordinary public purposes. Laws that threaten a person’s agency, livelihood, equal standing, or access to the basic conditions of flourishing should require correspondingly stronger evidence of necessity, proportionality, and the absence of less injurious alternatives.
No constitution, regardless of its philosophical foundation, can guarantee perfection. A system designed and administered by human beings will always be limited by human imperfection. But this does not place greater coherence and better outcomes beyond our reach. We often imagine good governance as the product of heroic leaders and exceptional leadership. In reality, outcomes are more often shaped by institutional design. A system whose incentives favor accountability, dignity, and democracy will make dignified outcomes more likely. A system that shields power from consequences, abstracts human costs, and possesses no clear objective will unsurprisingly fail to produce them consistently.
A dignity framework cannot promise success or perfection. It can only orient the institutions of government toward dignity and require those exercising power to account for the human consequences of their decisions. But a system designed to consider dignity explicitly can be expected to preserve it more reliably than one that merely hopes dignity will emerge from rights written centuries ago.
The Ninth Amendment was correct to recognize that the rights written into the Constitution could never be exhaustive. What it lacked was not humility, but method. It told future generations that other rights existed without giving them a common principle through which those rights could be understood or a process through which they could be defended.
Enumerated rights remain indispensable because they preserve the clearest lessons history has taught us about the abuse of power. But they cannot anticipate every institution, technology, or policy through which equal human worth might be diminished. A constitution committed to dignity would protect what previous generations learned to enumerate while requiring every generation to account for the indignities it creates anew. Rights tell government which lines it must never cross. Dignity requires government to answer for the human consequences even where no line has yet been drawn.