Does the Ninth Amendment to the United States Constitution itself protect individuals from State infringement of unenumerated rights?

Great Debates
1

Does the Ninth Amendment to the United States Constitution itself protect individuals from State infringement of unenumerated rights?

I don’t think it does. The Tenth Amendment ensures that the federal government is limited to enumerated powers. I do not think the Ninth Amendment grants the federal government any power to protect unenumerated rights, therefore I do not think the Ninth Amendment itself protects individuals from State infringement of unenumerated rights.

Current jurisprudence suggests that the due process and enforcement clauses of the Fourteenth Amendment give Congress the power to protect individuals against State infringement of fundamental liberties, including unenumerated rights. I don’t agree with that interpretation but I do agree that, once interpreted that way, the Fourteenth Amendment allows the federal government to protect individuals from State infringement of unenumerated rights.

The courts do not need a separate enforcement clause to invalidate State laws which violate the Fourteenth Amendment’s due process clause. Current jurisprudence suggests that the federal government is bound by substantive due process via the Fifth Amendment. Given that assumption, the courts do not require a separate grant of power to invalidate federal laws from abridging fundamental but unenumerated rights.

~Max

Authorities, mostly lifted from previous topics.

Authorities

Unenumerated Rights

The Ninth Amendment to the United States Constitution reads,

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

The Tenth Amendment to the United States Constitution reads,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

James Madison, when proposing what would become the Ninth Amendment, spoke to Congress on June 8, 1789,

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 urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

Due Process

The Fifth Amendment to the United States Constitution reads, in part,

No person shall be […] deprived of life, liberty, or property, without due process of law;

The Fourteenth Amendment to the United States Constitution reads, in part,

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. […] The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Justice Douglas wrote for the Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1965),

The Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights… I do not mean to imply that the … Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government…While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement.

The Judicial Power of the United States

Article III of the United States Constitution reads, in part,

The judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The Eleventh Amendment to the United States Constitution reads,

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Publius (Alexander Hamilton) writes in Federalist No. 78, to persuade New Yorkers to ratify the Constitution,

But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of.

2

Another way of stating my argument is that without substantive due process, the Constitution does not grant the federal government the power to protect individuals from State infringement of unenumerated rights, nor does it prohibit the States from infringing on unenumerated rights.

I can't prove a negative, but I can address non-substantive-due-process arguments which have been made to support Constitutional protection of unenumerated rights. Here I attempt to address the only argument I have seen.

The Judicial Power

Where it is argued that failure to protect unenumerated rights does not imply disparagement of those rights

One might argue that the judicial power of the United States requires the courts to protect unenumerated rights. I cannot imagine why. If we are ruling out substantive due process, the judicial power was not extended to unenumerated rights to begin with. If a court properly has no power to protect an unenumerated right, it is hardly disparagement for the court to refuse to protect that right.

How could the State's infringement of a right which is not mentioned in the Constitution become subject to the judicial power of the United States? The judicial power of the United States, being limited to an explicit grant in Article III of the Constitution, does not extend to any suit in law or equity commenced or prosecuted against one of the United States by any citizen, unless the citizen is of that same State *and* the case arises under the Constitution, federal law, or treaties.

It is true that any citizen may bring suit against its own State, and it is true that the judicial power of the United States permits a ruling as to whether the State has infringed any individual rights which the Constitution has enumerated and protected explicitly. For example, any citizen may ask the federal court to strike down any State law on the grounds of it being a bill of attainder, for being an ex post facto law, or for impairing the obligation of contracts; these rights are enumerated in Article I section 10 of the United States Constitution and the States are forbidden from abridging them.

But in the relevant case, the State has not infringed upon an enumerated right. The court will doubtless reach the same conclusion, and ask counsel for the plaintiff, upon what grounds are we to strike down this State law?

Here the plaintiffs suggest, for example, that the right implicated is a fundamental right even though unenumerated in the Constitution. Scores of evidence might be presented showing how fundamental the right has been throughout American history, and even before.

This being stipulated to, counsel argues that for the court *not* to protect the citizen's fundamental rights is to *disparage* those rights. And to disparage unenumerated rights, it is argued, is to directly violate the Ninth Amendment.

The Ninth Amendment cannot be so construed. It is the ultimate fear of the federalists realized, and indeed, an appeal to James Madison's speech of June 8, 1789 might be in order,

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 urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.
First, as a careful reading of Mr. Madison's first sentence will prove, the Ninth Amendment was passed to prevent the Bill of Rights from being interpreted as increasing the federal government's power. It was crafted specifically because the federalists were concerned that declaring certain limitations on federal power in a bill of rights "would afford a colorable pretext to claim more [powers] than were granted". (See Federalist No. 84, below). How mistaken they were, if the Ninth Amendment becomes a mandate for the federal government to protect so many unenumerated rights! How horrified must the federalists be, and anti-federalists, both to learn that the Bill of Rights grants the federal government such power over the States, that the federal courts and the federal legislature may decide what is or is not too fundamental for States to regulate.

And let's not ignore how convoluted the text of the amendment is compared to its ostensible goal of protecting unenumerated rights. It would be straightforward to say, "the State governments may not infringe those rights which the federal government deems fundamental to a free and orderly society". I am to understand that some think the plain meaning of the Ninth Amendment is that every fundamental right the federal government does not protect is denied or disparaged by that government, and that the federal government may not deny or disparage unenumerated rights. What a roundabout way to prohibit State behavior. Whoever advocates this interpretation would have us believe that the Ninth Amendment represents an obligation on the federal government to exercise an expanded judicial power, when it would have been much easier and more straightforward to impose upon the States a new restriction.

I think it is much more of a plain reading, supported by the text itself as well as the history and intention behind it, to say that the "enumeration in the Constitution, of certain rights" is the subject-phrase upon which the verbs "deny" and "disparage" act. If a citizen claims the right to educate her own children, or alternatively the right to physically send her children to school, the court who denies that right has not necessarily run afoul of the Ninth Amendment. That is to say, it is neither the federal government nor the federal courts which are prohibited from denying or disparaging unenumerated rights. It is the Constitution itself - the existence of Amdendments I through VIII - which do not deny or disparage unenumerated rights. The Ninth Amendment's purpose is merely to shut down any argument of the form, "[insert right] doesn't exist because it isn't mentioned in the Bill of Rights". To suggest that the Ninth Amendment mandates federal protection of unenumerated rights is, in my humble opinion, unjustified.

Publius (Alexander Hamilton) wrote, from Federalist No. 84, in part...
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

~Max

3

To avoid a long, tedious, and repetitive argument, I think it best to try and clearly and concisely deal with issues as they spring up. So I’ll take your post one bit at a time.

Why do you use a amendment about federalism to try and limit an amendment about individual rights? The 10th simply does not apply. Even if it did apply, the 10th only applies to powers not delegated to the US. The judicial power was clearly delegated in Article III of the Constitution.

This conclusion flies directly in the face of any (textualist, originalist, purposeist, etc.) reading of the 9th Amendment. The 9th doesn’t just say unenumerated rights exist in the abstract, it says that they can’t be denied or disparaged because they were not listed. By twisting the reading of the Constitution to allow judicial review of enumerated rights (which you apparently do), but not allow judicial review of unenumerated rights is absolutely crystal clear violation of that text.

You don’t believe in substantive due process, yet you are more than willing to rely on it to accomplish the goal of protecting unenumerated rights. Not sure that’s a solid base for an argument. If you don’t believe in SDP, your point of view would get rid of decades of decisions that protected unenumerated rights. Rights like the right to vote, to travel, to make medical decisions, to marry, to raises your children, to self defense, to self-defense with a gun, and so many more would go unprotected from government intrusion.

Personally, I think SDP is bullshit also. But it is judicially created bullshit to accomplish the same goal that actually reading and enforcing the 9th Amendment would have done had SCOTUS not rejected it centuries ago. From my point of view, the judiciary, since the founding, clearly needed to (and did) protect rights that are not enumerated in the Constitution. But after they neutered the 9th Amendment, they had to go through the twisted logic of SDP or “concept of ordered liberty” tests, etc to accomplish the same goal. The result is the same (judicial protection of unenumerated rights), but the judiciary took a long, twisted, confusing road rather than simply acknowledge the clear text of the 9th Amendment.

And that’s the gist of the policy debate as well. It is better for the country and its citizens, and more in line with the clear text of the 9th Amendment, that the judiciary protect unenumerated rights. If they didn’t, people would lose those unenumerated rights to whim of the majority. And that would be the position you seem to be advocating.

“The judicial power” up next…

4

Quick question: If you “cannot imagine” that the judicial power includes the power to protect unenumerated rights, what do you think courts did BEFORE they were enumerated?

The fact is for decades before, hell, centuries if you want to go back to common law in England, courts had protected unenumerated rights (mostly because they weren’t enumerated anywhere). That was their job. That was “the judicial power”. Add to that, the clear language of the 9th Amendment, and the power of the judiciary to protect unenumerated rights was “the judicial power” granted to the federal judiciary in Article III of the Constitution.

I will simply point out that the idea that “the judicial power” granted in the Constitution allows for the judicial protection of enumerated rights, but not enumerated ones, is found nowhere in the text of the Constitution. And, it is a distinction that very specifically flies in the face of the language of the 9th Amendment.

I have no interest in getting into a long dissertation about the Founders’ belief in the existence of natural rights, and its role in the creation of the 9th Amendment. Can we agree that some of the Founders (I’m not an originalist, if that matters), in enacting the 9th Amendment, were concerned that listing some rights would lead to the denial and disparagement of other rights?

Finally, I will point out that it seems a great deal of your objections boil down to a federalism issue. That the federal judiciary, although empowered to strike down state legislation that violates enumerated rights, cannot do so for unenumerated rights. I will, once again, point out that is a distinction not made anywhere in the Constitution.

5

I don’t think the Ninth Amendment is really “about individual rights”. I think it, like the rest of the bill of rights, is all about federalism. You don’t need to reply to this because I’ll make the same point when I reply to post #4, that way we can keep the thread tidy.

These will also be addressed later on.

I will address this right here. I do allow for federal judicial review of unenumerated rights. If, for example, a woman comes to court claiming that the State infringed her right to marry another woman, the court is entirely justified in reviewing whether the right to same-sex marriage is an enumerated right protected against State infringement by the text of the Constitution. The mere claim that some right is protected by the Constitution, whether it be enumerated or unenumerated and whatever the theory of protection, is enough to bring the case within the judicial power of the United States.

Just because the judicial power extends to the question of whether the Constitution protects an individual right from State infringement, does not mean that the court may invalidate a State law infringing an unenumerated right. First, the court must come to the conclusion that the right being claimed is in fact one which the Constitution grants the courts the power to protect. The Article III grant of power, on its own, does not grant the courts the power to strike down any State law whatsoever. It must be taken in conjunction with 1) some prohibition of State powers, for example, those listed in Article I section 10; or 2) some different grant of power to the United States, for example the supremacy clause and the inter-state commerce clause.

I’m sorry if that was misleading, it was a statement about “current jurisprudence” and not an interpretation I’m willing to rely on.

Actually, I’m trying very hard to keep my personal policy goals out of the picture. Just because I think the correct interpretation of the Constitution would strip away federal protection of unenumerated rights, does not mean I want states to infringe unenumerated rights. I would prefer explicit amendments which adopt the form used in Article I section 10 - “no State shall deny the right to… [optional: unless…]”

~Max

6

Article IX of Confederation and Perpetual Union did provide for the appointment of a court to handle cases of maritime and admirality law, and for the creation of an ad-hoc court as a last resort to settling disputes between two or more States. I am not aware of either kind of court enforcing any individual's common law rights. That kind of case would seem to be a totally different jurisdiction - that of the State judiciaries; which makes sense, considering as the States received the common law, and the States retain the power to change the common law, not the federal government.

The original federal judiciary was established by the Judiciary Act of 1789, exactly one day before the Congress proposed the Ninth Amendment (and the rest of the bill of rights) to the States. It remained in effect through 1801. Most of the bill of rights, including the Ninth Amendment, were ratified on December 15, 1791. The Judiciary Act granted the judiciary specific jurisdiction, and I quote in part,

"SEC. 9. And be it further enacted, That the district courts [...] shall also have cognizance, concurrent [with the courts of the several States, or the circuit courts, as the case may be], of all suits at common law where the United States sue, and the matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars."
As you can see, unless the United States was suing someone, the judiciary wouldn't have cognizance in cases at common law. (The courts must also save the right of common law remedies for suitors in cases of admirality seizures.)

Traditionally speaking, it would be the State judiciaries which try suits at common law. Indeed, even today, when a federal court hears a case involving common law, it adopts the law of the State it is in.

Just as an example, take the right to marriage under common law. States have, for the most part, removed that right from the common law. Louisiana never had the right (Louisiana never received the common law from England; there are no common law rights in Louisiana).

There are two primary sections of the Constitution I base my interpretation on. First is Amendment X which reserves all powers not otherwise mentioned to the states or the people. Second is Article III which grants the judicial power to resolve cases and controversies involving the Constitution, federal law, and treaties. The only way a federal court has the power to strike down a State law is if the Constitution prohibits the State from making that law, (and if someone with standing disputes the validity of that law in federal court.)

Now, if the Ninth Amendment prohibited a State from making a certain law, it would follow that a federal court can strike down that law under their judicial power. If the Ninth Amendment granted the court the power to strike down some particular State law, it follows that the court can strike down this particular State law under its Ninth Amendment power.

I don't think you are arguing for either of the two above interpretations of the Ninth Amendment. Instead, it would appear that you see the Ninth Amendment as prohibiting the federal courts from denying protection of unenumerated rights. Unless the power to protect unenumerated rights is delegated to the courts by implication - which seems far-fetched to me - this interpretation seems to be a direct contradiction with the Tenth Amendment.

Therefore, I assume your argument is that the Ninth implies the power to protect unenumerated rights. It's not the face of the language, or the plain text of the amendment, you appear to base your argument on implication.

There is some merit to this argument, if I have not misjudged you. That is why I presented my interpretation as being superior on the grounds of sentence structure, simplicity, and historic intent.

I could be wrong on any or all three of these grounds, but if you're going to attack my counterargument, best to attack these three components.

We do agree on that.

I mentioned this in post #5. I view the entire bill of rights through the lens of federalism, especially the First, Ninth, and Tenth Amendments. I would go so far as to say, the idea of State governments tyrannizing their own citizens had no influence whatsoever in the Ninth and Tenth Amendments. I defy you to dig up a letter, speech, or diary entry indicating otherwise. It's all about limiting the powers of the federal government.

I wrote this above, but it is worth restating. If the Ninth Amendment does not grant the federal government the power to strike down State laws which infringe upon unenumerated rights, and if the Ninth Amendment does not prohibit the State governments from passing laws which infringe upon unenumerated rights, then the Ninth Amendment does not protect individuals from State infringement of unenumerated rights.

If you are going to make your own argument rather than (or in addition to) addressing my counterargument, it is probably best to show how your interpretation satisfies one or both of these two conditions.

~Max

7

Oh, I forgot to mention something. Congress would have to create a private cause of action (as they currently try to do with 43 U.S.C. §1983) through their Fourteenth Amendment enforcement power for this kind of case to make it to federal court, otherwise the State can simply claim sovereign immunity and have the case dismissed on Eleventh Amendment grounds. See Hans v. Louisiana and my other topic on that issue.

~Max

8

That is pretty much what I was thinking- if unenumerated rights are to be protected by the Constitution, or even to apply in a Federal manner, there has to be some reason for the Federal courts to have standing to defend those rights. Otherwise the Tenth Amendment would seem to be the supreme law that case.

9

So, federal courts can “review” claims of State violations of unenumerated rights, they just can’t actually rule in favor of them.

That’s… quite a definition of judicial “review” you have there.

It seems to me that you’re stuck on the federalism issue, more so than the “judicial power” issue. I will simply point out that the country fought a civil war, enacted the 13th and 14th Amendment, and now federal courts can invalidate state laws for violating a persons’ rights.

I would really like to avoid the digression into the messy world of the Incorporation doctrine. Is that what is at the heart of your issue? Do you believe that only the enumerated rights have been incorporated and can be protected on the federal level from State infringement?

Just so I’m clear. You advocate that all the unenumerated rights that courts have found to be protected by the Constitution are, in fact, not protected. There is no right to vote. There is no right to privacy. There is no right to make your own medical decisions. Etc. Etc. Etc.

I submit that that view of the Constitution would do a catastrophic amount of damage to the Civil Rights era, to minorities, and to the country as a whole. Thank heavens the judiciary seems to disagree with you. Although who knows what will happen when the new SCOTUS starts issuing orders. Maybe you’ll have your way.

10

Wouldn’t a definition of “the judicial power” have to be based on the founders’ concept of the role of the judiciary? And wouldn’t that necessitate a reference to State judiciaries and the common law of England? And wouldn’t the fact that those bodies protected unenumerated rights be a part of the very definition of “the judicial power” that the Constitution granted? And, again, you seem to have more of an issue with federalism aspect than the actual role of the judiciary or the definition of “judicial power”.

Which, as I pointed out, only applies to “The powers not delegated to the United States”. The “judicial power” is so delegated.

It’s not delegated by “implication” at all. It is directly delegated in Article III’s grant of “the judicial power”. You are the one who insists that the power of the judiciary applies only to enumerated rights, but not unenumerated rights, despite the clear lack of any language to that effect. You are the one who has decided the grant of the “judicial power” only applies to enumerated rights and not unenumerated ones, despite any language to that effect or even an “implication”.

So I think this is the stickiest point of our disagreement. And, again, it seems to be an issue with the Incorporation doctrine and not the role of the judiciary under our Constitution. You seem to believe that the 9th Amendment did not apply to individual States, which is by no means a unsupportable assertion. But that is a separate issue than both the definition of the judicial power and the distinction between enumerated and unenumerated rights.

I also believe that it is a position that should have been resolved with the Civil War and the 14th Amendment.

11

Let’s try to put aside the State actor issue for a second. Suppose it was the federal government that created a law that made it much more difficult for only people of color to vote (or pick another unenumerated right if you like) in federal elections. No State actor, no federalism issue. Do you maintain that, since the right to vote is not enumerated, such legislation would pass Constitutional muster?

12

This is an accurate summary of my interpretation of the judicial power of the United States. I would, and have, stated it differently, but I think you get the idea.

I agree, that is a different topic (which I linked to in the second post).

Correct. I advocate for that interpretation of the Constitution, from a legal perspective.

Incorrect. See the Fifteenth Amendment where the Constitution forbids States from infringing the right to vote on the basis of race, color, or previous condition of servitude. If that Amendment did not exist, I would not say there is no right to vote, only that there is no federal power to invalidate State law for abridging the right to vote.

As above, I would say there is no federal power to invalidate State laws for abridging the right to privacy. Ditto with medical decisions.

It makes for a serious cognitive dissonance in my mind. One way out is to amend the Constitution. But that’s a different topic - this one is just about the legal interpretation.

~Max

13

If your interpretation of the Constitution requires the kind of horrible outcome that was the stated fear of many founders and it flies in the face of the clear language of the 9th Amendment, then maybe the interpretation is wrong.

And the example I gave to overlook the federalism/incorporation was horribly flawed. Feel free to pick your own example of an unenumerated right (medical decisions? travel? marry? childrearing?) that the federal government chooses to restrict. It seems like you believe all those fundamental rights would be unprotectable by the judiciary, even against the federal government, simply because they were not enumerated.

14

I’m tossing in a note from the silent reading-and-learning crowd:
Just because there’s only like three people participating here, please don’t any of you feel that’s due to lack of interest from others.

15

@discobot, what is your interpretation of the 9th Amendment?

16

Hi! To find out what I can do, say @discobot display help.

17

@discobot display help .

18

OK, serious. @Max_S, could you explain your purpose here? There is nothing more futile than trying to alter the entire history of American jurisprudence by postulating a theory online that everything every court has ever said is based on a bad assumption. That’s what sovereign citizens do.

Yet it doesn’t appear that you’re seriously trying to learn what your fault is, since you keep arguing for your interpretation and ignoring Hamlet’s thoughtful objections. Where do you want this thread to go?

Also have the two of you been getting that insanely annoying comment that you only keep talking to one another?

19

Oops, wrong thread.

20

Yes, it is.

No, I don’t think that follows. There are two components of the judicial power of the United States, first, the actual powers such as the power to resolve cases within the court’s jurisdiction, to hold parties in contempt, to issue appropriate writs, to establish court procedure, etcetera. These powers are not defined in the Constitution, and so we look at the history and framers’ intent to provide guidance as to what makes the cut.

The second component of the judicial power of the United States is the set of situations that it can be used in, that is, jurisdiction. The things that the powers can be applied to. The jurisdiction of the federal judiciary is explicitly defined in the Cases and Controversies Clause. This is of critical importance, because my argument is that the federal judiciary is powerless to protect unenumerated rights from State infringement because it is out of their jurisdiction. I hope that if you put aside the Ninth Amendment just for a moment, to understand what I’m saying, we can find common ground on this point.

If you find yourself disagreeing, I have offered a detailed analysis of the Constitution’s relevant sections later in this post and I hope you can point to the specific steps you disagree with.

You say that there is a clear lack of any language supporting my interpretation. Obviously I disagree. It is true that the Constitution lacks clear language to the effect of, “the judicial power shall not extend to the protection of unenumerated rights”. That is a very good point, though I’m not sure whether it is an argument you intended to make. I’ll offer my rebuttal to this second point, and in doing so, show the textual basis for my interpretation so as to rebut the first point.

I’m not sure whether you understand why I bring up Article X to interpret the judicial power from Article III. Maybe you do understand my position, but you disagree - which is fine, but let me know! You see, Article X is a guide to all federal powers, including the judicial power of the United States. I’ll show you exactly what that means, if you follow my exegesis.

The Judicial Power of the United States Revisited

Where it is argued that the federal judiciary's Article III powers can not extend to cases brought by citizens against their States to begin with, unless an enumerated right is involved

Here are the primary sources, for your convenience.

Article III, Section 1. (Judicial Vesting Clause)
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. [...]
Article III, Section 2, Clause 1 (Case or Controversy Clause).
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;— between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Amendment XI
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Amendment XIV, Sections 1 and 5

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[...]

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

My take of Article III Section 1 is that it does not define the judicial power of the United States, but only entrusts that power to the Supreme Court and inferior courts (together, the federal judiciary). I mentioned this above, but there are two components to the judicial power of the United States. There are the powers themselves, for example the power to render a judgement or the power of judicial review, and there is the jurisdiction where these powers may be exercised.

I won’t go over the powers themselves, because I think we agree on those. I do not dispute the power of judicial review.

The jurisdiction of the federal judiciary is conveniently located in the very next section, Article III Section 2 Clause 1. I interpret the word extend in “The judicial power shall extend to” as indicating the jurisdiction of that power. By implication, the judicial power does not extend to jurisdictions not listed (expressio unius est exclusio alterius).

Jurisdiction of the federal judiciary
  1. "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made under their Authority" *
  2. "The judicial Power shall extend [...] to all Cases affecting Ambassadors, other public ministers and Consuls"
  3. "The judicial Power shall extend [...] to all Cases of admirality and maritime Jurisdiction"
  4. "The judicial Power shall extend [...] to Controversies to which the United States shall be a Party"
  5. "The judicial Power shall extend [...] to Controversies between two or more States"
  6. "The judicial Power shall extend [...] to Controversies [...] between a State and Citizens of another State" *
  7. "The judicial Power shall extend [...] to Controversies [...] between Citizens of different States"
  8. "The judicial Power shall extend [...] to Controversies [...] between Citizens of the same State claiming Lands under Grants of different States"
  9. "The judicial Power shall extend [...] to Controversies [...] between a State, or the Citizens thereof, and foreign States" *
  10. "The judicial Power shall extend [...] to Controversies [...] between a State, or the Citizens thereof, and foreign [...] Citizens" *
  11. "The judicial Power shall extend [...] to Controversies [...] between a State, or the Citizens thereof, and foreign [...] Subjects" *

    12. * only where the State is plaintiff. See Amendment XI and related case law concerning State sovereign immunity, particularly Hans v. Louisiana, 134 U.S. 1 (1890).

Now, if you look through the list, there is something you won’t see in there. The federal judiciary does not have jurisdiction to hear all controversies between a Citizen against his or her own State. I mentioned this in a footnote, but the Supreme Court has explicitly ruled that the States are immune from the federal judiciary’s Article III jurisdiction when a citizen sues his or her own State for passing a law in direct violation of his or her rights under Article I Section 10. Hans v. Louisiana, 134 U.S. 1 (1890).

There are exceptions, where Congress grants a private cause of action using its Fourteenth Amendment powers. In practice that involves the substantive due process for enumerated (and unenumerated) rights. But this topic isn’t about substantive due process, and it just so happens that both you and I don’t like that theory anyways. So we’ll pretend substantive due process has no currency in the courts. I am content letting Congress use their power to enforce the Privileges or Immunities clause to abrogate the State’s sovereign immunity. The way I see it, privileges or immunities of citizens of the United States are limited to enumerated rights (parallel to my interpretation of “Privileges and Immunities of free citizens in the several States” as being whatever rights any particular state grants its own citizens). Maybe that’s where we disagree; there is certainly room for disagreement.

You might point to the right to travel as an unenumerated right protected by the Privileges or Immunities clause. Didn’t I say the courts could only protect enumerated rights? I resolve that apparent contradiction by pointing at Article IV and Amendment XIV. Article IV grants every citizen of the United States the right to all of the privileges and immunities of a citizen in each of the several States. Amendment XIV guarantees every person the right to equal protection of the laws. That’s a mouthful, but it means that if you’re an Ohioan in Florida, you have an enumerated right to all the privileges and immunities that the State of Florida would grant you if you were a Floridian in Florida. Furthermore any law that restricts the right to travel must affect you and Floridians both. Both your right to the privileges and immunities of Floridians (while in Florida, at least), and your right to equal protection under Florida law are enumerated rights! If Florida grants its own citizens the right to travel, then Congress has the power to abrogate State immunity and give the federal judiciary jurisdiction to protect your right to travel in Florida.

~Max