Constitutional Law, and the nature of the Ninth Amendment.

Factual Questions
1

Here is my question, I hope someone here can clear things up for me.

OK, because of Massachusetts and other areas in the country dealing with the whole gay marriage thing there has been some talk from opponents about proposing a constitutional amendment to restrict marriage to a man and a woman.

Now, politics and opinions aside would such an amendment be possible in the first place, in the national constitution?

From what I recall of my junior high social studies class, and a little  rereading the Ninth Amendment, one of the Bill of Rights, prevents such amendment from ever being added to the constitution.   In other words, wouldn't such an amendment be unconstitutional?

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Amendment IX

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

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From what I remember of my social studies class, the founding fathers specifically added to this amendment to state that although the majority was given the right of rule, the majority could never had the right to use that rule to infringe or take away any of the rights available to all from any given minority.

For Example an amendment, saying that current cross-eyed five-year-olds cannot have milk, that is a no-no.

The amendment was significant for the the civil rights moment, becuase it pretty much says, “discrimination is bad.” [Said in my best Mr. Mackey voice.]

Also, I know, as in the case of prohibition, that it is possible to repeal and amend the constitution to over a given issue.  But part of of the reason the Ninth Amendment is written as it is, is to prevent any such such "right-altering" amendments from ever being amended to the constitution, and therefore the "Ninth Amendment" is in fact somewhat "immune" to ever being altered, with respect to protecting the rights of the people.  

Am I correct, from what I remember in school, or is there something I missing?

Just Curious,

Zach
Kentucky
2

IANA constitutional scholar, but I believe the 9th Amendment preserves rights that are not specifically mentioned in the Constitution. i.e., just because the Constitution doesn’t give us a certain right doesn’t mean we don’t have that right. It is there partly to cover things that the framers couldn’t have foreseen and partly to keep people from reading the whole document too literally.

Since an amendment changes the consitution, no amendment can be unconstitutional. All amendments are constitutional by definition.

3

Correct. Note that it doesn’t say “the barring of rights in this here Constitution shall not be construed as to deny those rights to the people”. The Ninth Amendment merely prevents the Congress from saying, “well, it isn’t in the Constitution, so you can’t do it”.

4

No. An amendment could theoretically erase the Ninth Amendment, just as the Twenty-First Amendment repealed the Eighteenth.

Almost any change to the Constitution may be made by amendment. The only exception now is Article V’s prohibition against a state, without its consent, being deprived of its equal representation in the Senate. (There was an earlier prohibition in Article V against changing the make-up or manner of choosing members of the House, but it expired in 1808.)

No. Your social studies teacher was greviously wrong.

While the milk amendment is highly unlikely, there’s nothing in the Constitution that would prevent its adoption as an amendment.

  • Rick