# Is it Time to Repeal the 9th and 10th Amendments? **URL:** \ **Category:** Great Debates\ **Created:** [July 21, 2002, 10:43pm UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135 "2002-07-21T22:43:53Z")\ **Posts on this page:** 14\ **Page:** 2
**Author:** ![Beagle](https://avatars.discourse-cdn.com/v4/letter/b/85f322/32.png) [@Beagle](https://boards.straightdope.com/u/Beagle)\ **Post date:** [July 22, 2002, 4:04pm UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/21 "2002-07-22T16:04:58Z")
[Ninth Amendment](http://caselaw.lp.findlaw.com/data/constitution/amendment09/) was mentioned in the famous “penumbras” section of Roe v. Wade citing Griswold v. Connecticut. ---
**Author:** ![sqweels](https://avatars.discourse-cdn.com/v4/letter/s/f19dbf/32.png) [@sqweels](https://boards.straightdope.com/u/sqweels)\ **Post date:** [July 22, 2002, 5:15pm UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/22 "2002-07-22T17:15:38Z")
> [@](#): > > The government can force people to not harm others, but never should force people to help others. Helping others is always optional. In Alaska, IIRC, it’s illegal to pass by a stranded motorist without stopping to offer assistance because in the winter the situation could be life threatening. Just thought I’d throw that out there. ---
**Author:** ![mandielise](https://avatars.discourse-cdn.com/v4/letter/m/58956e/32.png) [@mandielise](https://boards.straightdope.com/u/mandielise)\ **Post date:** [July 22, 2002, 5:57pm UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/23 "2002-07-22T17:57:58Z")
I agree completely with Procacious. Tax was meant for community projects like roads, schools, firemen, etc… and NOT to distribute money amongst citizens. I think it’s a crime that my friend who works 70 hour weeks at a successful contracting job has to spend 30 hours (almost a full work week) just to pay his taxes! Why can’t everyone pay the same percentage - that way people with more will pay more, but not an intolerable amount! Also, there is the drug issue. Someone alluded to a previous thread about the state’s rights to legalize marijuana. The main issue is state’s rights (though I doubt they really exist). It seems now that the only rights the state has are the ones the gov’t doesn’t have time to address. For example, here in Louisiana, the drinking age for the longest time was 18. It’s the state’s right to choose what the drinking age should be, so the federal gov’t couldn’t change it. However, they DID threaten to stop all federal funding for roads in Louisiana - including interstaes - if the drinking age was not raised AND enforced. Well, now you have to be 21 to drink here. The federal government has crossed the line between protecting citizens and controlling citizens. That has to change! ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [July 22, 2002, 6:03pm UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/24 "2002-07-22T18:03:34Z")
[An interesting annotation](http://supreme.lp.findlaw.com/constitution/amendment09/) of the Ninth Amendment at Findlaw A [conservative stance](http://www.jeremiahproject.com/trashingamerica/9thamendment.html) on Ninth Amendment rights. [Legal philosophy](http://www.mises.org/misesreview_detail.asp?control=8&sortorder=issue) based on the Ninth Amendment discussed, with particular reference to “creative jurisprudence” A PDF listing of books by Ninth Amendment scholar [Calvin Massey](http://www.uchastings.edu/library/facpub/massey.pdf) An [ALA page](http://www.ala.org/alaorg/oif/courtcasesprivacy.html) quoting James Madison and listing Supreme Court cases focusing on the right to privacy (often citing the Ninth) [“Reconceiving the Ninth Amendment”](http://www.bu.edu/rbarnett/Reconceiving.htm) by Randy Barnett, Professor of Law, in _Cornell Law Review_ “[http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=388&invol=1](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=388&invol=1)”]Loving v. Virginia, which deals with a “right to marry” as against a state miscegenation law, and therefore depends on the Fourteenth Amendment’s guarantees of equal protection under the law. Had this been dealing with federal law, the Ninth rather than the Fourteenth would probably have come into play. ---
**Author:** ![mandielise](https://avatars.discourse-cdn.com/v4/letter/m/58956e/32.png) [@mandielise](https://boards.straightdope.com/u/mandielise)\ **Post date:** [July 22, 2002, 6:10pm UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/25 "2002-07-22T18:10:39Z")
Dang polycarp! You do your research! ---
**Author:** ![Procacious](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Procacious](https://boards.straightdope.com/u/Procacious)\ **Post date:** [July 23, 2002, 3:24am UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/26 "2002-07-23T03:24:01Z")
> [@](#): > > You don’t have the right not to be taxed. You never did have the right not to be taxed. You may wish to be not taxed, but it just ain’t a fundamental right. The 9th amendment protects you from violation of your rights not described in the constitution (for instance privacy, or abortion), not from any fake “right” that you can invent and come up with a capitalized label for. In 1894, Congress passed an income tax law, but the Supreme Court declared it unconstitutional {POLLOCK v. FARMERS’ LOAN & TRUST CO., 157 U.S. 429 (1895)}. That is why the 16th amendment was passed. Here is a link to the case. > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/157/429.html)** > > FindLaw's searchable database of United States Supreme Court decisions since I am not saying that all taxes are unconstitutional, but the 16th amendment was passed to remove a right that the constitution was meant to protect. That upsets me greatly. > [@](#): > > Same with drugs and all the other causes that you brought up (which I am more inclined to agree with). Just Because You Capitalise something does not make it a fundamental right protected by the constitution. True, but I operate under the default position that you have the right to do any given thing unless an extremely good reason is found why you shouldn’t. That is my interpretation of the 9th amendment. Things should not be declared illegal on the whim of a law-making body. > [@](#): > > Could someone explain to me how the Ninth Amendment could be used to support a claim of any right? The only time it has been used is to say “just because the words ‘right to privacy’ can’t be found anywhere in the Constitution doesn’t mean the right doesn’t exist.” But you still have to find support for that right somewhere else. The 9th amendment states that just because you cannot find grounds for a right elsewhere in the constitution does not mean that right does not exist. Any right that does not violate someone else’s constitutional rights should be protected under the 9th amendment (according to my interpretation, but obviously the vagueness of the amendment makes almost any interpretation possible). > [@](#): > > In Alaska, IIRC, it’s illegal to pass by a stranded motorist without stopping to offer assistance because in the winter the situation could be life threatening. > > Just thought I’d throw that out there. Yeah, I remember sighing in disappointment when I first heard that one. > [@](#): > > For example, here in Louisiana, the drinking age for the longest time was 18. It’s the state’s right to choose what the drinking age should be, so the federal gov’t couldn’t change it. However, they DID threaten to stop all federal funding for roads in Louisiana - including interstaes - if the drinking age was not raised AND enforced. Well, now you have to be 21 to drink here. The federal government threatened every state with that which is why you need to be 21 to drink in almost every state. And thanks a lot for adding all those sites. I have always been awful at finding sites on the internet. It seems like some of my friends practically wrote their whole dissertations from internet material (well no, not really), but I feel fortunate to find a single site on any subject I look for. Either I only look for rare things on the internet or there is a special search engine that all people know to use except me. 😛 I can find anything I want at a library, but put me on the internet and I can’t find pornography. 😃 ---
**Author:** ![chula](https://avatars.discourse-cdn.com/v4/letter/c/a4c791/32.png) [@chula](https://boards.straightdope.com/u/chula)\ **Post date:** [July 23, 2002, 4:30am UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/27 "2002-07-23T04:30:22Z")
> [@](#): > > \*Originally posted by Procacious \* > **The 9th amendment states that just because you cannot find grounds for a right elsewhere in the constitution does not mean that right does not exist.** And it doesn’t say or even imply that that right _does_ exist. > [@](#): > > **Any right that does not violate someone else’s constitutional rights should be protected under the 9th amendment (according to my interpretation, but obviously the vagueness of the amendment makes almost any interpretation possible).** I don’t see anything vague about the Amendment - that’s why I’m confused by this discussion. It simply states “a truism,” as the Supreme Court pointed out. ---
**Author:** ![Procacious](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Procacious](https://boards.straightdope.com/u/Procacious)\ **Post date:** [July 23, 2002, 9:45am UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/28 "2002-07-23T09:45:15Z")
> [@](#): > > ## quote: > > ## Originally posted by Procacious The 9th amendment states that just because you cannot find grounds for a right elsewhere in the constitution does not mean that right does not exist. > > ## And it doesn’t say or even imply that that right does exist. quote: > > ## Any right that does not violate someone else’s constitutional rights should be protected under the 9th amendment (according to my interpretation, but obviously the vagueness of the amendment makes almost any interpretation possible). > > I don’t see anything vague about the Amendment - that’s why I’m confused by this discussion. It simply states “a truism,” as the Supreme Court pointed out. The authors of the Constitution did an incredible job of making a document that was quite complete, yet still very short (heck, some of my posts are longer than the Constitution). If the authors were partial to adding “truisms” to the Constitution, it would be hundreds of pages long. I do not believe that they put the 9th amendment in just because it sounded nice and 10 amendments looked better than only 9. I believe they put it in there because they knew there were far too many rights to list in the Constitution and so they added a single amendment to protect all of these rights. As I understand it, the Constitution did not originally have rights in it (i.e. it had to be amended) because the authors felt that after escaping from under the thumb of England the people would never want a large federal government again. They didn’t feel it necessary to list rights, because no American government would ever even try to trample them. This is the land of the free after all. Little did they know that the only rights we have today are the ones they listed and the 9th amendment is mostly ignored anyway. ---
**Author:** ![KellyM](https://avatars.discourse-cdn.com/v4/letter/k/57b2e6/32.png) [@KellyM](https://boards.straightdope.com/u/KellyM)\ **Post date:** [July 23, 2002, 11:58am UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/29 "2002-07-23T11:58:20Z")
Repealing the Ninth Amendment makes about as much sense as repealing the Preamble. Neither has much direct impact, but their absence would change the flavor of the document – and thus how the documents are interpreted – and would thus be a Bad Idea. The Supreme Court has held that several rights – most notably, the right of privacy and the right of interstate travel – are in fact protected by the Constitution without being mentioned explicitly. These rights are captured not by the Ninth Amendment (which, because of its negative phrasing, is not capable of affirming any right at all) but by the Fourteenth, under the doctrine of modern substantive due process, and thus also the Fifth (Fourteenth for state law, Fifth for federal law). The path by which the Court got to the modern doctrine is complicated and was definitely influenced by the Ninth and Tenth Amendments even if neither is routinely cited in arguments for such rights today. That said, trying to rest a legal argument on the Ninth Amendment alone is bound to get you labeled a loonie. The Ninth Amendment is raised almost solely by loonies who don’t know enough constitutional law to recognize that (a) the Ninth Amendment guarantees no specific rights, (b) just because you claim something as a right doesn’t mean it is a right, and © rights which are “fundamental freedoms” are protected by the Fourteenth Amendment moreso than the Ninth. (The Fourteenth has teeth; the Ninth does not.) Invoking the Ninth Amendment as a legal argument, without also invoking _Griswold_ or a “fundamental freedom” claim, is right on a par with complaining about the fringe on the flag in the courtroom. BTW, **Polycarp** , it’s the Fifth Amendment that would protect any putative “right to marry” from federal interference, not the Ninth. I base this on the fact that it was the Fifth Amendment that was found to prohibit federally-operated schools from discriminating on the basis of race. (The Fourteenth Amendment, you will note, has no application to federal action.) **Procacious** , your ignorance of Constitutional history is alarming. Hie thee to a library and do some heavy reading, starting perhaps with the Federalist Papers and some of the other contemporary commentary to the drafting and ratification of the Constitution. I might also suggest a casebook on constitutional law. ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [July 23, 2002, 1:54pm UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/30 "2002-07-23T13:54:36Z")
I’m still not getting how repealing these would actually help anyone. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [July 23, 2002, 4:42pm UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/31 "2002-07-23T16:42:52Z")
> [@](#): > > \*Originally posted by Procacious \* > \*\*Amendments to the constitution are meant to grant new rights not to repeal old ones. If we can just repeal anything we don’t like, let’s just repeal the whole constitution and start up a nice dictatorship (this, in case you did not guess, is sarcasm). \*\* Amendments to the constitution are meant … to amend the constitution. Where is it written in the constitution that amendments are meant only to grant new rights and not to repeal old ones? Why shouldn’t we be able to repeal anything we don’t like? We would be in an undemocratic society if we had a constitution that we could _not_ change. _That_ would be a dictatorship. ---
**Author:** ![Beagle](https://avatars.discourse-cdn.com/v4/letter/b/85f322/32.png) [@Beagle](https://boards.straightdope.com/u/Beagle)\ **Post date:** [July 24, 2002, 12:45am UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/32 "2002-07-24T00:45:08Z")
The Enumerated Powers Doctrine is interpreted by strict constructionists as limiting the federal government to those powers **listed** in the Constitution. So, a reasonable person might assume that rights are treated in the same way. In other words since marriage is **not listed** in the Constitution, you have no right to get married. This is what the Ninth Amendment was written to prevent. There are rights derived from the British Common Law and tradition that the framers of the Constitution wanted to protect without having to list them. This is where “rules of construction” come in. The Ninth Amendment is basically a rule of construction. It says, “just because a right is not here does not mean it does not exist.” Rules of construction are used to help people interpret statutes (or constitutions). [sub]Psst!, nobody is really suggesting that we repeal the Ninth and Tenth Amendments.[/sub] ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [July 24, 2002, 1:11am UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/33 "2002-07-24T01:11:55Z")
> [@](#): > > Invoking the Ninth Amendment as a legal argument, without also invoking Griswold or a “fundamental freedom” claim, is right on a par with complaining about the fringe on the flag in the courtroom I think the OP was talking about using the ninth amendment at all, not exclusively. Also, I’m sure my conception is unclear but isn’t the ninth amendment itself a recognition of “fundamental freedoms”. I know lawyers got to fill up there closing statements but it seems redundant. ps **Kellyb** , can we trust your interpretation of the constitution when you can’t even tell when **Procacious** is being so blatantly facetious? Hie thee to an English lit course. 🙂 ---
**Author:** ![Procacious](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Procacious](https://boards.straightdope.com/u/Procacious)\ **Post date:** [July 24, 2002, 5:41am UTC](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135/34 "2002-07-24T05:41:21Z")
> [@](#): > > Repealing the Ninth Amendment makes about as much sense as repealing the Preamble. Neither has much direct impact, but their absence would change the flavor of the document – and thus how the documents are interpreted – and would thus be a Bad Idea. > [@](#): > > I’m still not getting how repealing these would actually help anyone. Note to self: Never again start a debate thread with a sarcastic title. I apologize again for the confusion this has created. > [@](#): > > Procacious, your ignorance of Constitutional history is alarming. Hie thee to a library and do some heavy reading, starting perhaps with the Federalist Papers and some of the other contemporary commentary to the drafting and ratification of the Constitution. I might also suggest a casebook on constitutional law. I am assuming that this comment is also a result of the misinterpretation of my position due to my failure to be clear and my deceptive thread title (though deception was not my intent). If there is something else that led you to write this comment please let me know what it was specifically and I will try to address it. > [@](#): > > That said, trying to rest a legal argument on the Ninth Amendment alone is bound to get you labeled a loonie. The Ninth Amendment is raised almost solely by loonies who don’t know enough constitutional law to recognize that (a) the Ninth Amendment guarantees no specific rights, (b) just because you claim something as a right doesn’t mean it is a right, and © rights which are “fundamental freedoms” are protected by the Fourteenth Amendment moreso than the Ninth. (The Fourteenth has teeth; the Ninth does not.) Invoking the Ninth Amendment as a legal argument, without also invoking Griswold or a “fundamental freedom” claim, is right on a par with complaining about the fringe on the flag in the courtroom. Being labeled a loony does not make the person’s position any less valid. Obviously the 9th amendment has a lot of room for interpretation (which is why so many people have completely opposite views on what it stands for). There are those that believe that it has no power at all and those that believe it has an incredible amount of power if only the courts would enforce it. Since the rights that are most frequently brought up with regards to the 9th amendment were not taken away until after all of the Constitution’s authors died, we really have no one to ask. No one that knows exactly what the 9th amendment was designed to protect is alive to answer our questions. Our own personal interpretations are all that we have. And though I agree that 14th amendment currently has more power than the 9th, I believe that the 9th amendment should be far more powerful than any other amendment including the 14th. Its power is in its vagueness (and obviously others feel that its weakness is in its vagueness). > [@](#): > > Amendments to the constitution are meant … to amend the constitution. Where is it written in the constitution that amendments are meant only to grant new rights and not to repeal old ones? > > Why shouldn’t we be able to repeal anything we don’t like? We would be in an undemocratic society if we had a constitution that we could not change. That would be a dictatorship. The Constitution was designed to state how our government is to operate. The first 10 amendments were added to point out that people in America have rights that the government is not to infringe upon. To remove these rights is to change the very thing that the first 10 amendments were put in place to protect. If the government can just remove these rights when it pleases, there is no reason to have the amendments at all. I agree that the ability to add amendments to point out new rights is important in our society (or to repeal restrictions if you want to look at it from the other side), but the ability to repeal rights that the Constitution protects changes what our country is based on. [Previous page](https://boards.straightdope.com/t/is-it-time-to-repeal-the-9th-and-10th-amendments/120135.md?page=1)