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

**URL:** https://boards.straightdope.com/t/does-the-ninth-amendment-to-the-united-states-constitution-itself-protect-individuals-from-state-infringement-of-unenumerated-rights/922125
**Category:** Great Debates
**Created:** [October 3, 2020, 4:37pm UTC](https://boards.straightdope.com/t/does-the-ninth-amendment-to-the-united-states-constitution-itself-protect-individuals-from-state-infringement-of-unenumerated-rights/922125 "2020-10-03T16:37:34Z")
**Posts on this page:** 1
**Showing post:** 5

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### Author: ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [October 4, 2020, 5:00pm UTC](https://boards.straightdope.com/t/does-the-ninth-amendment-to-the-united-states-constitution-itself-protect-individuals-from-state-infringement-of-unenumerated-rights/922125/5 "2020-10-04T17:00:40Z")

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> [@Hamlet](#):
>
> Why do you use a amendment about federalism to try and limit an amendment about individual rights?

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.

> [@Hamlet](#):
>
> The judicial power was clearly delegated in Article III of the Constitution.  
> […]  
> 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.

These will also be addressed later on.

> [@Hamlet](#):
>
> 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.

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.

> [@Hamlet](#):
>
> 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.

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

> [@Hamlet](#):
>
> 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.

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

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