Ninth Amendment - Uneumerated Rights

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those. 1
Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. ''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.'' 2
It is clear from its text and from Madison's statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement. 3
Recently, however, the Amendment has been construed to be positive affirmation of the existence of rights which are not enumerated but which are nonetheless protected by other provisions.

The Ninth Amendment had been mentioned infrequently in decisions of the Supreme Court 4 until it became the subject of some exegesis by several of the Justices in Griswold v. Connecticut. 5 There a statute prohibiting use of contraceptives was voided as an infringement of the right of marital privacy. Justice Douglas, writing the opinion of the Court, asserted that the ''specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.'' 6
Thus, while privacy is nowhere mentioned, it is one of the values served and protected by the First Amendment, through its protection of associational rights, and by the Third, the Fourth, and the Fifth Amendments as well. The Justice recurred to the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the Amendment.

''The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.
. . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment.
. . . Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.'' 7
While, therefore, neither opinion sought to make of the Ninth Amendment a substantive source of constitutional guarantees, both did read it as indicating a function of the courts to interpose a veto with regard to legislative and executive efforts to abridge other fundamental rights. In this case, both opinions seemed to concur that the fundamental right claimed and upheld was derivative of several express rights and in this case, really, the Ninth Amendment added almost nothing to the argument. But if there is a claim of a fundamental right which cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from abridgment? 8

[Footnote 2] 1 Annals of Congress 439 (1789). Earlier, Madison had written to Jefferson: ''My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. . . . I have not viewed it in an important light--1. because I conceive that in a certain degree . . . the rights in question are reserved by the manner in which the federal powers are granted. 2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.'' 5 Writings of James Madison, 271-72 (G. Hunt ed. 1904). See also 3 J. Story, Commentaries on the Constitution of the United States 1898 (1833).

[Footnote 3] To some extent, the Ninth and Tenth Amendments overlap with respect to the question of unenumerated powers, one of the two concerns expressed by Madison, more clearly in his letter to Jefferson but also present in his introductory speech. Supra, n.2 and accompanying text.

[Footnote 4] In United Public Workers v. Mitchell, 330 U.S. 75, 94 -95 (1947), upholding the Hatch Act, the Court said: ''We accept appellant's contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments [is] involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. Thus we have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth, and Tenth Amendments.'' See Ashwander v. TVA, 297 U.S. 288, 300 - 11 (1936), and Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143 -44 (1939). See also Justice Chase's opinion in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798), and Justice Miller for the Court in Loan Ass'n v. Topeka, 87 U.S. (20 Wall.) 655, 662 -63 (1875).

[Footnote 6] Id. at 484. The opinion was joined by Chief Justice Warren and by Justices Clark, Goldberg, and Brennan.

[Footnote 7] Id. at 488, 491, 492. Chief Justice Warren and Justice Brennan joined this opinion. Justices Harlan and White concurred id. at 499, 502, without alluding to the Ninth Amendment, but instead basing their conclusions on substantive due process, finding that the state statute ''violates basic values implicit in the concept of ordered liberty,'' (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Id. at 500. It would appear that the source of the fundamental rights to which Justices Douglas and Goldberg referred must be found in a concept of substantive due process, despite the former's express rejection of this ground. Id. at 481-82. Justices Black and Stewart dissented. Justice Black viewed the Ninth Amendment ground as essentially a variation of the due process argument under which Justices claimed the right to void legislation as irrational, unreasonable, or offensive, without finding any violation of an express constitutional provision.

[Footnote 8] Notice the recurrence to the Ninth Amendment as a ''constitutional 'saving clause''' in Chief Justice Burger's plurality opinion in Richmond Newspapers v. Virginia, 448 U.S. 555, 579 -80 & n.15 (1980). Scholarly efforts to establish the clause as a substantive protection of rights include J. Ely, Democracy and Distrust--A Theory of Judicial Review (Cambridge: 1980), 34-41; and C. Black, Decision According to Law (New York: 1981), critically reviewed in W. Van Alstyne, Slouching Toward Bethlehem with the Ninth Amendment, 91 Yale L. J. 207 (1981). For a collection of articles on the Ninth Amendment, see The Rights Retained by the People: The History and Meaning of the Ninth Amendment (Randy E. Barnett, ed., 1989)

How say you?

If the framers of the Bill of Rights meant for the Ninth Amendment to be the equivalent of an inkblot, they would have put an inkblot there.

They didn't.

BTW, There's an excellent book available on the 9th Amendement ("Rights Retained by the Poeple"?), whose author I cannot recall at the moment.

I was just discussing the 9th Amendment with my brother yesterday, so I thank you for this, especially the judicial inferences.

The 9th Amendment reminds us, I believe, that we are a free people. People tend to forget that the Constitution exists to limit the power of the government, and to guarantee the power of the people. If it ain't enumerated, but it ain't infringing on someone else's life, liberty and pursuit of happiness, it's a right.

(And don't ever waste a second paying attention to anything "no pardons" posts.)

But if there is a claim of a fundamental right which cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from abridgment?

Thats a really easy test.....does it promote the liberty and general welfare of the people or diminish it, and was it viewed historically as a sphere in which the government traditionally could not intrude at the time of ratification.

If it is contrary to the promotion of liberty then it is not a fundamental right (the right to shoot people randomly without due process), if it diminishes the general welfare of the ratifiers (the people of the ratifying States)then it is not a fundamental right (covers goat fornicating I believe). If it was viewed at the time of ratification or through long historical precedent as an area that the government could not intrude upon then it is a 9th amendment right (the right to choose Coke over Pepsi, the "individual" right to keep and bear arms, the right to home school, but not the right to fornicate with goats on the front porch).

These are easy, common sense tests based on the long-standing traditions of our country as to what are and what are not God-given rights. The detractors complaints are misdirected towards the Constitution when they should be directed directly at those who misinterpret it. Their misinterpretations in response do not help.

Tex is one of those 'cafeteria conservatives' dontchaknow.

He picks and chooses the parts of the Constitution he likes, and ignores the ones he doesn't. It's kind of like being a pro-abortion Catholic.

It's also one of the reasons that talking to Tex is a lot like trying to teach a pig to sing. It wastes your time, and annoys the pig.

Regards,

Thanks Anna. -- The tex/roscoe/noP/cultist crowd here is a constant source of amazement for me. They all claim to be 'conservative', -- yet day after day post the most ludicrous BS about our constitutional free republic.
Weird people.

"It is and always has been an illegitimate amendment." - tex

I would say, that having been ratified by the people through their States, that its legitimate even if some guy on a website says its not. LOL
5 po
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You should hear tex when he gets started on the 2nd amendment.
-- Maybe, if we get lucky, he can tell us again how states have a 'right' to prohibit guns.

Well, I think you know where I'm about to go with this, because we've been through this before. The real issue isn't what the 9th amendment says, but the 14th. The ninth, as it was originally conceived, was to apply only to the federal government, and as such it made perfect sense, for it only meant to dispel the notion that the listing of powers that are off-limits to the feds, does not mean they can do anything that isn't expressly off-limits. IOW, they're still limited only to the powers positively granted to them, and only those powers that are truly necessary and proper to carry them into effect.

I still argue that that hasn't changed, despite the 14th amendment. To say that it applies to the states (which already have plenary, not enumerated powers) creates an untenable situation, one that I believe Texasforever raised a valid (if unsavory) point against.

Justice Story: "§ 1898. The next amendment is: "The enumeration in the constitution of certain rights shall not be construed to deny, or disparage others retained by the people." This clause was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others; and e converso, that a negation in particular cases implies, an affirmation in all others.1 The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies. The amendment was undoubtedly suggested by the reasoning of the Federalist on the subject of a general bill of rights."

The use of the Amendment by Justices Douglas and Ginsburg is an abomination. It was meant to preserve rights already in the common law and not to create new ones.

From the context of the thread a reasonable person would assume that Tex was speaking of the use of the 9th Amendment for "support of the most dangerous political heresies" as 'illegitimate'- or ask him to clarify.

How say you?

These guys hate EVERYTHING about the Constituion except for the part about guns and God - everything after that is just "details" getting in the way of their christian theocracy. These people do not love freedom, they hate it, and they hate those that stand up for principles of freedom and liberty. Definitely NOT conservatives, but something else entirely, something very frightening . . .

It doesn't suprise me at all that they would take a stance on the 9th amendendment the way they do.

Well, I think you know where I'm about to go with this, because we've been through this before. The real issue isn't what the 9th amendment says, but the 14th.

The 14th was ratified to correct this misconception you have & many others had, about the 9th. This fact is well documented from the 1868 congressional debates.

The ninth, as it was originally conceived, was to apply only to the federal government,

Simply untrue. The 'supremacy clause', Art VI, specifically says that states laws are BOUND to obey the supreme law of our constitution.

and as such it made perfect sense, for it only meant to dispel the notion that the listing of powers that are off-limits to the feds, does not mean they can do anything that isn't expressly off-limits. IOW, they're still limited only to the powers positively granted to them, and only those powers that are truly necessary and proper to carry them into effect.

The ninth ALL-ways made perfect sense. The Marshall court in 1833 simply decided to ignore this 'sense' for 'states rights' political reasons. -- You still do the same.

You've never explained this 'untenable sitution'. Can you?

The use of the Amendment by Justices Douglas and Ginsburg is an abomination. It was meant to preserve rights already in the common law and not to create new ones.

The Ninth Amendment was not intended to overturn the common law's prohitions on sodomy, prostitution and the various other vices that Libertarians seek to reinvent as "Constitutional rights."

"Some form of limitation on spirits has been part of this continent's history since the first European settlers arrived. Originally, these limitations were imposed to prevent drunkenness among the colonists."

The Making of Prohibition

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