Ninth Amendment to the United States Constitution
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|“||The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.||”|
When the U.S. Constitution was sent to the states for ratification after being signed on September 17, 1787, the Anti-Federalists argued that a Bill of Rights should be added. One of the arguments the Federalists gave against the addition of a Bill of Rights, during the debates about ratification of the Constitution, was that a listing of rights could problematically enlarge the powers specified in Article One, Section 8 of the new Constitution by implication. For example, in Federalist 84, Alexander Hamilton asked, "Why declare that things shall not be done which there is no power to do?" Likewise, James Madison explained to Thomas Jefferson, "I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted" by Article One, Section 8 of the Constitution.
The Anti-Federalists persisted in favor of a Bill of Rights during the ratification debates, but also were against ratification, and consequently several of the state ratification conventions gave their assent with accompanying resolutions proposing amendments to be added. In 1788, the Virginia Ratifying Convention attempted to solve the problem that Hamilton and the Federalists had identified by proposing a constitutional amendment specifying:
That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.
This proposal ultimately led to the Ninth Amendment.
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.
Like Alexander Hamilton, Madison was concerned that enumerating various rights could "enlarge the powers delegated by the constitution." To attempt to solve this problem, Madison submitted this draft to Congress:
The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
This was an intermediate form of the Ninth Amendment that borrowed language from the Virginia proposal, while foreshadowing the final version.
The final text of the Ninth Amendment, like Madison's draft, speaks of other rights than those enumerated in the Constitution. The character of those other rights was indicated by Madison in his speech introducing the Bill of Rights (emphasis added):
It has been said, by way of objection to a bill of rights....that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation, but they are not as conclusive to the extent it has been proposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse.
The First through Eighth Amendments address the means by which the federal government exercises its enumerated powers, while the Ninth Amendment addresses a "great residuum" of rights that have not been "thrown into the hands of the government," as Madison put it. The Ninth Amendment became part of the Constitution on December 15, 1791 upon ratification by three-fourths of the states.
The Ninth Amendment has generally been regarded by the courts as negating any expansion of governmental power on account of the enumeration of rights in the Constitution, but the Amendment has not been regarded as further limiting governmental power. The U.S. Supreme Court explained this, in U.S. Public Workers v. Mitchell : "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."
It is important, when discussing the history of the Bill of Rights, to realize the Supreme Court held in Barron v. Baltimore (1833) that it was enforceable by the federal courts only against the federal government, and not against the states. Thus, the Ninth Amendment originally applied only to the federal government, which is a government of enumerated powers.
Some jurists have asserted that the Ninth Amendment is relevant to interpretation of the Fourteenth Amendment. Justice Arthur Goldberg (joined by Chief Justice Earl Warren and Justice William Brennan) expressed this view in a concurring opinion in the case of Griswold v. Connecticut (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. In sum, the Ninth Amendment simply lends strong support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U.S. 75, 94-95.
Subsequent to Griswold, some judges have tried to use the Ninth Amendment to justify judicially enforcing rights that are not enumerated. For example, the District Court that heard the case of Roe v. Wade ruled in favor of a "Ninth Amendment right to choose to have an abortion," although it stressed that the right was "not unqualified or unfettered."  However, Justice William O. Douglas rejected that view; Douglas wrote that, "The Ninth Amendment obviously does not create federally enforceable rights." See Doe v. Bolton (1973). Douglas joined the majority opinion of the U.S. Supreme Court in Roe, which stated that a federally enforceable right to privacy, "whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
The Sixth Circuit Court of Appeals stated in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991) that the Ninth Amendment was intended to vitiate the maxim of expressio unius est exclusio alterius according to which the express mention of one thing excludes all others:
[T]he ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution.
Professor Laurence Tribe shares this view: "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution." Likewise, Justice Antonin Scalia has expressed the same view, in the dissenting opinion of Troxel v. Granville 530 U.S. 57 (2000):
The Declaration of Independence...is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.
In 2000, Harvard historian Bernard Bailyn gave a speech at the White House on the subject of the Ninth Amendment. He said that the Ninth Amendment refers to "a universe of rights, possessed by the people — latent rights, still to be evoked and enacted into law....a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law."
Similarly, journalist Brian Doherty has argued that the Ninth Amendment "specifically roots the Constitution in a natural rights tradition that says we are born with more rights than any constitution could ever list or specify."
Robert Bork, often considered an originalist, has likened the Ninth Amendment to an inkblot. Bork argued in The Tempting of America that, while the amendment clearly had some meaning, its meaning is indeterminate; because the language is opaque, its meaning is as irretrievable as it would be had the words been covered by an inkblot. According to Bork, if another provision of the Constitution were covered by an actual inkblot, judges should not be permitted to make up what might be under the inkblot lest any judges twist the meaning to their own ends (cf. * Underdeterminacy (law)).
Another originalist, Randy Barnett, has argued that the Ninth Amendment requires what he calls a presumption of liberty. Still others, such as Thomas B. McAffee, have argued that the Ninth Amendment protects the unenumerated "residuum" of rights which the federal government was never empowered to violate.
According to Frederic Jesup Stimson, the framers of the Constitution and the Ninth Amendment intended that no rights that they already held would be lost through omission. Charles Lund Black took a similar position, though Stimson and Black respectively acknowledged that their views differed from the modern view, and differed from the prevalent view in academic writing.
Gun rights activists in recent decades have sometimes argued for a fundamental natural right to keep and bear arms that both predates the U.S. Constitution and is covered by the Constitution's Ninth Amendment; according to this viewpoint, the Second Amendment only enumerates a pre-existing right to keep and bear arms.
The Ninth Amendment bars denial of unenumerated rights if the denial is based on the enumeration of certain rights in the Constitution, but does not bar denial of unenumerated rights if the denial is based on the enumeration of certain powers in the Constitution. It is to that enumeration of powers that the courts have said we must look, in order to determine the extent of the unenumerated rights mentioned in the Ninth Amendment.
- Alexander Hamilton, Federalist, no. 84, 575--81 (28 May 1788).
- James Madison, Letter to Thomas Jefferson (October 17, 1788). Madison often expressed this idea, for example in a letter to George Washington dated December 5, 1789 ("If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended").
- Virginia Ratification Resolution (June 26, 1788).
- Amendments Offered in Congress by James Madison June 8, 1789
- James Madison,Speech Introducing Bill of Rights (June 8, 1789).
- Roe v. Wade, 314 F. Supp. 1217 at 1223 (1970).
- Roe v. Wade, 410 U.S. 113 (1973). Findlaw.com. Retrieved 2007-06-04.
- Laurence H. Tribe, American Constitutional Law 776 n. 14 (2nd ed. 1998).
- Bernard Bailyn, Remarks at White House Millennium Evening (2000).
- Doherty, Brian, Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement, pg. 28 (2007)
- Thomas B. McAffee, Federalism and the Protection of Rights: The Modern Ninth Amendment's Spreading Confusion, 1996 B.Y.U. Law Rev. 351 (via archive.org).
- Frederic Jesup Stimson, The Law of the Federal and State Constitutions of the United States; Book One, Origin and Growth of the American Constitutions, 2004, Introductory, Lawbook Exchange Ltd, ISBN 1-58477-369-3. According to Stimson:
It was at first believed by our greatest judges and jurists that the whole English Constitution was implied in the Federal Constitution ; that there is, as it were, an unwritten Constitution which we inherited in America and which consisted, not only of the English Constitution where not expressly altered by our own, but of all matters of natural right and justice. Doubtless this is the intended meaning of the Ninth Amendment…. Such is not, perhaps, the modern view ; but the question has become, in fact, academic, for the reason that in 120 years of interpretation our Supreme Court has ever found some clause in the Federal Constitution into which to read any English constitutional principle not therein expressly altered.
- Charles Lund Black, A New Birth of Freedom, 1999, p. 10, Yale University Press, ISBN 0-300-07734-3. According to Black, "The Academic writing on this amendment seems to me in great part a multidirectional fluttering flight from the Amendment’s rather plain meaning….”
- Nicholas Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through The Ninth Amendment, 24 Rutgers L.J. 1, 64-67 (1992).
- United Public Workers v. Mitchell, 330 U.S. 75 (1947). See also Jenkins v. Commissioner of Internal Revenue, 483 F.3d 90 (2d Cir 2007).
- Barnett, Randy E. (2005). Restoring the Lost Constitution: The Presumption of Liberty. Princeton, NJ: Princeton University Press. ISBN 0691123764. http://www.amazon.com/dp/0691123764/.
- Farber, Daniel A. (2007). Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have. Perseus Books Group. ISBN 0465022987. http://www.amazon.com/dp/0465022987/.
- Lash, Kurt T. (2009). The Lost History of the Ninth Amendment. Oxford University Press. ISBN 0195372611. http://www.amazon.com/dp/0195372611/.
- Kurt Lash's Majoritarian Difficulty by Randy Barnett (2009)
- A Textual-Historical Theory of the Ninth Amendment by Kurt Lash (2007)
- The Ninth Amendment: It Means What It Says by Randy Barnett (2006)
- CRS Annotated Constitution: 9th Amendment by the Congressional Research Service (2000)
- The Lost Original Meaning of the Ninth Amendment by Kurt Lash (2004)
- The Lost Jurisprudence of the Ninth Amendment by Kurt Lash (2005)
- Rights, the Constitution, and the Ninth Amendment by Tibor R. Machan (2005)
- Proposed Amendments to the Constitution by James Madison (1789)
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