I have read much about the Bill of Rights on this and other sights, but have found very little information on the 9th Amendment.
It reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
I can figure out what is says on face value, but how is it applied or ignored today?
We have a number of members who are counselors-at-law, and I’m hoping they’ll post at greater length. Here’s a layman’s understanding of how it’s interpreted:
First a quick paraphrase: “We, the founding fathers, realize that the eight amendments we just got through writing and adopting don’t list every right the people have, and this is a catch-all to guarantee that they’ll be protected against an arbitrary Federal government trying to encroach upon them as King George used to do.”
So far as I know, the Ninth Amendment per se has never been used in the court systems. That is, nobody has ever successfully advanced an unenumerated right which the Federal government was encroaching on, and gotten the judges to buy his theory.
On the other hand, the courts, though loath to attribute specific unenumerated rights, have occasionally done so when something was fairly obvious – to them at least. Technically, these are rights of American citizens guaranteed as against state encroachment by the Fourteenth Amendment, but since those rights are nowhere spelled out in the Constitution, the courts have found them in the Ninth Amendment and then used the Fourteenth to guarantee them as against state action. In a welfare-rights case some years ago, the Supremes found that the right to travel was one of these mysterious unenumerated rights. If I am not mistaken, Loving vs. Virginia, guaranteeing the right to marry, was founded in part on the Ninth. Griswold v. Connecticut found a right to privacy in the Ninth. There may be one or two other cases that located other rights there, though I’m unaware of them.
Robert Bork commented some years ago that strict construction would require ignoring the Ninth Amendment, since what it guarantees cannot be discovered from the letter of the Constitution. He used the analogy of a hypothetical Constitutional amendment, the only copy of which reads, “Congress shall make no law abridging the right to…” followed by an inkblot. We have no idea what right was enacted that lies under the inkblot, so we cannot use this amendment to judge the constitutionality of any law. This is the extreme view, and justices have tended to take the point of view that it’s the “Amendment of last resort” – finding the alleged right embodied in an interpretation of anything else being preferable to reading it into the Ninth’s unenumerated rights. But there is reasonable jurisprudence suggesting that there are some fundamental inalienable rights that the Founding Fathers neglected to spell out, and the Ninth exists to protect them. In other words, the Supremes will use the Ninth very sparingly, but will use it when necessary.
The Ninth amendment to the Constitution came about because while some of the framers wanted an explicit bill of rights, others didn’t. They claimed that rights existed by natural law and were therefore self-evident; that a mere piece of paper couldn’t protect people’s rights anyway; and they were afraid that any explicit list would both be incomplete and used to claim that only those rights existed.
Of course that brings up the issue of, if a right isn’t enumerated, how do you claim it? The principle of the Supreme Court declaring laws unconstitutional is not in the Constitution itself; it was one of the Supreme Court’s own early rulings. And in fact, some Supreme Court rulings were flouted by administrations that simply refused to act on them.
So essentially, we’re left with the Ninth meaning simply whatever society and the government agree it to mean in any given era. Probably the most (in)famous Supreme Court ruling along Ninth amendment lines was Roe VS. Wade, where laws criminalizing abortion were declared unconstitutional under a “penumbra” of the “right to privacy”, although to the best of my knowledge the Ninth itself is not cited as part of the case.
ok, so if I’ve got this right, the “unenumerated” rights we are garunteed by the 9th are at best theoretical. But the protection of these theoretical rights is so important that a portion of the 14th forbids states “making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States;…” ie. the unenumerated rights in the 9th.
If the 9th is a “catch all” the the courts hate to sight in “judicial gloss”, why is the 10th any better? I seem to remember a big 10th Amendment movement a few years ago, everyone was talking about “state rights” and less federal government intrusion on the states. I think it was even applied to “unfunded mandates”.
Or for that matter any of the other Amendments in the Bill of Rights, they were all written and ratified together.
I guess the point I was trying to make with the question is, what happened to the Constitution and the form of government it decribes? What happened to limiting govenment from intruding on my rights that “my creator endowed” me with? (I know I am talking Constitution and quoting Declaration but you get the point).
Does this make me a politcal radical?
I’m starting to get the same idea about government that I have about religion, the basic premiss is good- the Bible or The Constitution, but the application of that premiss by corupted individuals has lost the true meaning of either.
A couple of points relative to your last post:
I see now where I wasn’t clear on the 14th Amendment. What it says is that any rights of citizens of the U.S. may not be violated by the states. That means all the ones enumerated in the Constitution, including amendments. The states may not restrict the right to vote on the basis of age, sex, race, etc.; they may not violate the rights to freedom of speech, religion, public assembly, freedom from self-incrimination, and so on. They may presumably not quarter troops in private housing without the owners’ consent. And so on.
This protection includes the unenumerated rights guaranteed by the Ninth Amendment, insofar as court decisions have identified any.
As for the differences between the Ninth and Tenth Amendments, a cursory reading doesn’t disclose a whole lot of difference. But jurisprudence has dealt with them quite differently – the Ninth covers rights and the Tenth powers. Congress may not pass a law which (a) violates a right guaranteed under the Constitution, or (b) which it does not have authority to enact as one of the “delegated powers” specified in Article I of the Constitution…unless a Constitutional Amendment spells out that right, or it’s covered in one of the other Articles in passing. (E.g., the Defense of Marriage Act – of questionable constitutionality – is supposedly enacted under Article IV’s delegation of power to Congress to set standard terms under which one state’s laws and decisions are applicable in the other states, so that if you are legally married or create a corporation in Maryland, the Oregon is obliged to recognize the legality of your marriage or corporation.) Any powers not specifically authorized by the Constitution belong to the states, or to the people.
This is a common view and one that I strongly disagree with.
The reason that the federal government doesn’t work is because it was designed not to. That is, the Framers were worried that a strong central government would not be in their interests because they were already, for the most part, running the states which were at that time essentially independant nations. The problems of today ( not all of them of course ) stem from the distrust of the Founding Fathers for government in general ( unless under their own hand ) and a central government in particular.
I tend to think that there misgivings were misguided ( and self serving to boot ) but that is another argument. The federal government of today, nearly the 21st century, is working within a framework that was established in the 18th century. And the system was designed to be inefficient.
Personally, I am unsurprised that it is doing poorly.
I think I have to disagree with part of 2senses last post.
He wrote: “The problems of today ( not all of them of course ) stem from the distrust of the Founding Fathers for government in general ( unless under their own hand ) and a central government in particular.”
I think the part about “unless under their own hand” is wrong.
If we go back to the D of I it says that government derives it powers from the governed.
The majority of the Bill of Rights defines what the government can not do in respect to the individual.
I think the framers were right to have a distrust of government in general, but to imply that they thought themselves above the common man is wrong. The common man is the back bone of government.
I’d rather not hijack this thread with yet another discussion of my odd ideas, but this hardly seems controversial to me.
The FF were the elite. James McGregor Burns describes them as “the well-bred, the well-fed, the well-read, and the well-wed”. They naturally had beliefs justifying their status, just as the elite maintain them to this day. The FF were not monolithic in their ideas, but the common man was generally not trusted.
Here is my cite:
SELECTED QUOTES FROM THE CONSTITUTIONAL CONVENTION OF 1787
These statements don’t seem to point to a spirit of brotherhood amongst the FF for their less wealthy countrymen.
The Framers definately did not wish to rest the government on the shoulders of the common man.
They did not trust him.
Roe V. Wade was indeed explicitly argued on both a Ninth and Fourteenth Amendment basis, at every level it was argued. FWIW, Sarah Weddington, one of the chief lawyers for the plaintiff, felt the Texas abortion law was more vulnerable from a Ninth (not Fourteenth) Amendment perspective (when questioned by the Fifth Circuit Court in Dallas). Interestingly, the chief defense lawyers likewise used a Ninth Amendment basis as their principal argument–i.e., a fetus has legal rights which deserve protection to a greater degree than any potential “right to privacy” that was offered as justification for abortion rights.
From Justice Blackmun’s majority opinion:
**
I consider Roe v. Wade as the landmark decision re: Ninth Amendment rights. Surely Hamilton, who (if I remember correctly) needed the Ninth Amendment to assuage his distress over the Bill of Rights, would find this an interesting interpretation. (He, like Madison, felt enumerating any rights amounted to a misunderstanding of the Consitution’s logic and construction–i.e., it’s impossible to enumerate them all, therefore, misleading to enumerate any.)