# Ninth Amendment Rights **URL:** \ **Category:** Great Debates\ **Created:** [November 16, 2011, 12:30am UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076 "2011-11-16T00:30:20Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 16, 2011, 7:37pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/21 "2011-11-16T19:37:38Z")
I don’t think that it’s as difficult to put the ninth to use as you guys are making out. Good starting points are the common law and what rights existed under it; it goes without saying that the ninth covers these. I’d also argue that if we are going to go to war over the violations of rights contained in the Declaration of Independence, then we really have to include those rigthts in the ninth as well. After these things, and all things fundamental to existence (right to eat, sleep, etc.) we then get into “yes it is,” no, it isn’t" territory. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 16, 2011, 7:40pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/22 "2011-11-16T19:40:22Z")
> [@Acsenray](#): > > To the extent that it would have necessarily encompassed things like sex and drug use, I think that it’s largely wishful thinking to believe that such a consensus would have existed back then. With sex, I don’t think they’d have recognized anything like our views of privacy and sex. But with drugs, it was pretty much do what you wanted until the early 20th century. I think a nineteenth century person would look at our war on drugs and say WTF, and would look at our lax attitude toward sex and again say WTF. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 16, 2011, 7:40pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/23 "2011-11-16T19:40:48Z")
> [@David42](#): > > Good starting points are the common law and what rights existed under it; it goes without saying that the ninth covers these. The common law is routinely trumped by statutory law. The point of constitutional rights is that they trump statutory law. > [@](#): > > I’d also argue that if we are going to go to war over the violations of rights contained in the Declaration of Independence, then we really have to include those rigthts in the ninth as well. Who’s “we,” Kimosabe? > [@](#): > > After these things, and all things fundamental to existence (right to eat, sleep, etc.) Wait, there’s a fundamental right to eat? So then a law punishing someone for eating food that he didn’t pay for violates constitutional rights? ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 16, 2011, 7:51pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/24 "2011-11-16T19:51:50Z")
> [@Acsenray](#): > > The common law is routinely trumped by statutory law. The point of constitutional rights is that they trump statutory law. Questions like this would get answered in more robust ninth amendment jurisprudence. A statute doesn’t trump the common law if it is protected in the constitution. Arguably, any right possessed at common law is included in the ninth, therefore, any statute disparaging a common law right would run afoul of the ninth, in my opinion. > [@Acsenray](#): > > Who’s “we,” Kimosabe? The nation who goes to war under such a document. If you’re not part of the “we” that’s ok, but why you aren’t also objecting to “we” as in “we have rights” if you’re not included, is beyond me. > [@Acsenray](#): > > Wait, there’s a fundamental right to eat? So then a law punishing someone for eating food that he didn’t pay for violates constitutional rights? C’mon, Ascenray. No-one can stop you from eating. There is a duty to provide food for someone the government puts in jail. You know this is a right, don’t play dumb. This right does not extend to the point of denying others’ right to their property. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 16, 2011, 7:56pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/25 "2011-11-16T19:56:29Z")
> [@David42](#): > > Arguably, any right possessed at common law is included in the ninth, therefore, any statute disparaging a common law right would run afoul of the ninth, in my opinion. My daughter has a right of dower as understood in 1791? > **[Dower](https://en.wikipedia.org/wiki/Dower#England_and_other_Common_Law_Countries)** > > Dower is a provision accorded traditionally by a husband or his family, to a wife for her support should she become widowed. It was settled on the bride (being given into trust) by agreement at the time of the wedding, or as provided by law. > The dower grew out of the practice of bride price, which was given over to a bride's family well in advance for arranging the marriage, but during the early Middle Ages, was given directly to the bride instead. However, in popular parlance, the term may be u... ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 16, 2011, 8:05pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/26 "2011-11-16T20:05:40Z")
> [@David42](#): > > A statute doesn’t trump the common law if it is protected in the constitution. If it’s in the constitution, it’s a trump _because it’s in the constitution_. The fact that it was once common law is irrelevant. Common law and constitutional rights are two separate things with two separate places in the hierarchy of laws. > [@](#): > > The nation who goes to war under such a document. If you’re not part of the “we” that’s ok, but why you aren’t also objecting to “we” as in “we have rights” if you’re not included, is beyond me. I don’t think any declaration of war by the United States (and, arguably, the Declaration of Independence is not a declaration of war by the United States) can form the legal basis to define or change any constitutional right. > [@](#): > > C’mon, Ascenray. No-one can stop you from eating. There is a duty to provide food for someone the government puts in jail. That’s a duty arising from the Due Process and Cruel and Unusual Punishments clauses of the Fifth and Eighth Amendments, not from common law rights and not from the Ninth Amendment. > [@](#): > > You know this is a right, don’t play dumb. This right does not extend to the point of denying others’ right to their property. You described a right not to be starved to death. That’s not the same thing as a right to _eat_. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 16, 2011, 8:14pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/27 "2011-11-16T20:14:46Z")
> [@jtgain](#): > > My daughter has a right of dower as understood in 1791? > > [Dower - Wikipedia](http://en.wikipedia.org/wiki/Dower#England_and_other_Common_Law_Countries) unless an amendment did away with that, then yeah I guess so, under this theory. Just cause times change doesn’t mean the constitution morphs in meaning, although its application might. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 16, 2011, 8:17pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/28 "2011-11-16T20:17:18Z")
You keep missing the fact that _in the common law system_ common law rights are trumped by statute. Constitutional rights are _exceptional_ rights, not common ones. Your proposition turns the entire legal system on its head. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 16, 2011, 8:26pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/29 "2011-11-16T20:26:04Z")
> [@Acsenray](#): > > If it’s in the constitution, it’s a trump _because it’s in the constitution_. The fact that it was once common law is irrelevant. Common law and constitutional rights are two separate things with two separate places in the hierarchy of laws. Well, if the drafters of the ninth amendment did not have human rights as they already existed in mind, please do explain what you think they had in mind instead. Common law and constitutional rights can obviously sometimes be the same thing, though they do not have to be. There’s a constitutional right to habeas corpus and there was a right to habeas corpus at common law. > [@Acsenray](#): > > I don’t think any declaration of war by the United States (and, arguably, the Declaration of Independence is not a declaration of war by the United States) can form the legal basis to define or change any constitutional right. I think it’s unconscionable to kill over human rights and then not recognize the right you killed over. Technically, the Declaration of Indepence is the founding instrument of our nation. How can you found a nation on the principles you outl;ine and not include those principles? > [@Acsenray](#): > > That’s a duty arising from the Due Process and Cruel and Unusual Punishments clauses of the Fifth and Eighth Amendments, not from common law rights and not from the Ninth Amendment. Somehow I missed the part in History class where the English starved people in their prisons and only the fifth and eigth amendments made sure it didn’t continue. Your right to put food you own in your mouth is fundamental; your right for others to provide it to you if they prevent you from getting your own is also fundamental. We call it murder when a parent starves their child. > [@Acsenray](#): > > You described a right not to be starved to death. That’s not the same thing as a right to _eat_. Guess what. If you interfere with my right to eat, you starve me to death. This is idiotic quibbling, but I suppose if you think there is any meaningful difference between the two, then you really have a LOT of ignorance I can fight. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 16, 2011, 8:27pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/30 "2011-11-16T20:27:08Z")
> [@Acsenray](#): > > You keep missing the fact that _in the common law system_ common law rights are trumped by statute. Constitutional rights are _exceptional_ rights, not common ones. Your proposition turns the entire legal system on its head. cite for “exceptional” vs “common” rights. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 16, 2011, 8:30pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/31 "2011-11-16T20:30:35Z")
Basically, all the common law was/is is judge made law. Some made last week, others handed down from olde England. This type of law is no different than a regular statute. It would be like saying I have an unalienable right to make a right hand turn on red. I don’t. It’s simply judge written statutes and not a list of rights. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 16, 2011, 8:33pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/32 "2011-11-16T20:33:56Z")
> [@Acsenray](#): > > You keep missing the fact that _in the common law system_ common law rights are trumped by statute. Constitutional rights are _exceptional_ rights, not common ones. Your proposition turns the entire legal system on its head. You’re flat out WRONG. Parts of the common law may be abrogated by statute. But I can provide many examples where a RIGHT under the common law trumped a statute. In The Seven Bishops case, the right to petition the crown trumped a statute forbidding the petitioning against an edict as sedition. In Bushell’s case, the right of juries to decide the whole matter trumped a statute saying they could only judge the facts. You have taken a general principle, that a statute trumps the common law, and made it more narrow than it really is. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 16, 2011, 8:36pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/33 "2011-11-16T20:36:24Z")
> [@jtgain](#): > > Basically, all the common law was/is is judge made law. Some made last week, others handed down from olde England. > > This type of law is no different than a regular statute. It would be like saying I have an unalienable right to make a right hand turn on red. I don’t. It’s simply judge written statutes and not a list of rights. a poor explanation of common law. Parts of the common law are judge made. Other parts come from Magna Carta, the Bill of Rights of 1698 (maybe I have the year wrong) and other documents are all part of it, and from statutes. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 16, 2011, 8:38pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/34 "2011-11-16T20:38:19Z")
At any rate, whether my idea of how to interpret the ninth amendment is the best or not, no-one is proposing a better idea, just criticizing mine. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 16, 2011, 8:51pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/35 "2011-11-16T20:51:04Z")
> [@David42](#): > > Well, if the drafters of the ninth amendment did not have human rights as they already existed in mind, please do explain what you think they had in mind instead. We’re talking about the Ninth Amedment, right? There’s no generally accepted evidence that they had \*anything \*specific in mind. That’s why the Ninth Amendment has not been found to be very useful in constitutional law. > [@](#): > > Common law and constitutional rights can obviously sometimes be the same thing, though they do not have to be. There’s a constitutional right to habeas corpus and there was a right to habeas corpus at common law. Yes. So what? In the United States, habeas corpus is now a constitutional right and thus it trumps statutory law. If it had not been incorporated into the constitution, it would have been trumped by statutory law. > [@](#): > > I think it’s unconscionable to kill over human rights and then not recognize the right you killed over. Perhaps. _I_ think it was unconscionable to enshrine slavery in the Constitution. So clearly unconscionability is not the operative factor here. By the way, the Declaration of Independence also asserted a right to kill Native Americans. Is that a Ninth Amendment right too? > [@](#): > > Technically, the Declaration of Indepence is the founding instrument of our nation. But it’s not the founding instrument of our _government_. The Declaration of Independence has no legal force under our law. > [@](#): > > How can you found a nation on the principles you outl;ine and not include those principles? Who’s stopping you? > [@](#): > > Somehow I missed the part in History class where the English starved people in their prisons and only the fifth and eigth amendments made sure it didn’t continue. The source of specific rights under English law are often different from the source of specific rights under American law. The U.S. Constitution did not and does not apply in England, so _no_ rights in England are to be found in the U.S. Constitution. The fact is, though, in America, _some_ rights are constitutional. And so being, they trump statutory law. When rights are _not_ found in the U.S. Constitution, they do not trump statutory law. > [@](#): > > This is idiotic quibbling, but I suppose if you think there is any meaningful difference between the two, then you really have a LOT of ignorance I can fight. If you have a “right to eat” then you have a right to be given food if you don’t have any. > [@David42](#): > > cite for “exceptional” vs “common” rights. What exactly are you asking for a cite for? I used those terms to try to explain to you the nature of our legal system. In the law, we call them “constitutional law” and “common law.” They’re two separate things. Another way to describe them is “inalienable rights” as opposed to “(not inalienable) rights.” The point is that by definition, the U.S. Constitution doesn’t incorporate common law rights wholesale and common law rights are alienable. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 16, 2011, 9:04pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/36 "2011-11-16T21:04:41Z")
> [@Acsenray](#): > > If you have a “right to eat” then you have a right to be given food if you don’t have any. If I have a right to property and I dont own any, I must be given some? > [@Acsenray](#): > > What exactly are you asking for a cite for? I used those terms to try to explain to you the nature of our legal system. In the law, we call them “constitutional law” and “common law.” They’re two separate things. Another way to describe them is “inalienable rights” as opposed to “(not inalienable) rights.” The point is that by definition, the U.S. Constitution doesn’t incorporate common law rights wholesale and common law rights are alienable. Yes, cite that. I’d like a S. Ct. ruling that says the ninth amendment does not incorporate common law rights, or multiple examples of it applying that principle. As well as a cite for things known as “exceptional” rights and “common” rights in our jurisprudence. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 16, 2011, 9:06pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/37 "2011-11-16T21:06:59Z")
> [@Acsenray](#): > > We’re talking about the Ninth Amedment, right? There’s no generally accepted evidence that they had \*anything \*specific in mind. That’s why the Ninth Amendment has not been found to be very useful in constitutional law. Well they must have had the idea that other rights existed, or why would they bother? You’re reading the ninth backwards so that they meant only the enumerated rights are to be enforced. Cite for what’s generally accepted as the basis of the ninth amendment. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 16, 2011, 9:25pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/38 "2011-11-16T21:25:14Z")
I’d like you to consider the specific language “retained by the people.” This must mean the people are keeping something. How can you keep what you never had? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 16, 2011, 9:40pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/39 "2011-11-16T21:40:07Z")
> [@Acsenray](#): > > We’re talking about the Ninth Amedment, right? There’s no generally accepted evidence that they had \*anything \*specific in mind. That’s simply not true. When introducing the what became the Ninth Amendment, Madison said: “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 against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.” From that, and other statements by founders about it, it’s pretty clear that the Ninth Amendment was meant to say exactly what it does say, that there are rights that exist that are not enumerated in the bill of rights, and those rights should not be denied or disparaged simply because they weren’t listed in the Bill of Rights. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 16, 2011, 10:01pm UTC](https://boards.straightdope.com/t/ninth-amendment-rights/603076/40 "2011-11-16T22:01:22Z")
> [@David42](#): > > If I have a right to property and I dont own any, I must be given some? The U.S. Constitution does not give you a right to property. It gives you a right not to be deprived of property absent due process. > [@](#): > > I’d like a S. Ct. ruling that says the ninth amendment does not incorporate common law rights, or multiple examples of it applying that principle. There is very little jurisprudence on the Ninth Amendment. _U.S. Public Workers v. Mitchell_, 330 U.S. 75 (1947), says that there is no Ninth or 10th amendment right when the Constitution explicitly grants Congress power (supporting the proposition that the constitution trumps non-constitutional rights). A concurring opinion in _Griswold v. Connecticut_, 381 U.S. 479 (1965), says that the Ninth Amendment is not an independent source of rights. Another concurring opinion in _Doe v. Bolton_, 410 U.S. 179 (1973), states “The Ninth Amendment obviously does not create federally enforceable rights.” The point is here that the Ninth Amendment has never been successfully found to grant any particular right. If you’re asking for a cite for that, you’re asking me to prove a negative. > [@](#): > > As well as a cite for things known as “exceptional” rights and “common” rights in our jurisprudence. There are at least three levels of scrutiny applied when someone asserts rights under U.S. law. “Strict scrutiny” applies to the “most important” rights. You might have heard of _Roe v. Wade_? – “Where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest’ …” There you go, some rights are more important than others. “Fundamental rights” are given a higher level of protection. Another level of scrutiny, “intermediate scrutiny,” applies to Equal Protection rights, particularly in the case of gender discrimination. All other rights are judged under “rational basis” scrutiny. Note that all three of these only apply to rights under the U.S. Constitution. Any other “rights” are not subject to the constitution at all, not to mention the Ninth Amendment. > [@David42](#): > > Well they must have had the idea that other rights existed, or why would they bother? You’re reading the ninth backwards so that they meant only the enumerated rights are to be enforced. > > Cite for what’s generally accepted as the basis of the ninth amendment. At this point, you need to start looking things up yourself. Start with the Wikipedia article. It has a pretty good summary. > [@David42](#): > > I’d like you to consider the specific language “retained by the people.” This must mean the people are keeping something. How can you keep what you never had? Don’t ask me to consider. Ask the entirely of American constitutional jurisprudence, which has not come up with any specific right that was “retained” under the Ninth Amendment. [Previous page](https://boards.straightdope.com/t/ninth-amendment-rights/603076.md?page=1) [Next page](https://boards.straightdope.com/t/ninth-amendment-rights/603076.md?page=3)