Ninth Amendment to the United States Constitution

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The Bill of Rights

First ten amendments to the United States Constitution
First Amendment
Second Amendment
Third Amendment
Fourth Amendment
Fifth Amendment
Sixth Amendment
Seventh Amendment
Eighth Amendment
Ninth Amendment
Tenth Amendment
Amendment IX (the Ninth Amendment) to the United States Constitution, which is part of the Bill of Rights, protects at least some rights not specifically enumerated in the Bill of Rights.

Contents

1 Text
2 Adoption of the Ninth Amendment
3 Interpretation of the Ninth Amendment
4 External links

Text

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

Adoption of the Ninth Amendment

In his introduction before the House of Representatives of the original twelve Amendments proposed to the states, ten of which would soon be ratified and become known as the Bill of Rights, James Madison addressed what would become the 9th Amendment as follows:

"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." See [the full text]

Madison was concerned that a listing of rights could problematically "enlarge the powers delegated by the constitution" in Article One, Section 8 of the new Constitution.[link] Indeed, this was one argument of Federalists against the inclusion of a Bill of Rights during the ratification of the Constitution; (see, e.g., Federalist [84]). However, the anti-federalists persisted in favor of a Bill of Rights during the ratification debates, and consequently several of the state ratification conventions sent their assent with a coda attached, requesting a bill of rights to be added. The [Ratification by the State of Virginia] attempted to solve the [expressio unius] problem 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. The text of the Ninth Amendment speaks of other rights than those enumerated in the Constitution, and the character of those other rights was indicated by Madison in his speech introducing the Bill of Rights:

"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...." See [the full text]

As Thomas B. McAffee has written, "The Ninth Amendment protects ... the residuum...."[link]

Interpretation of the Ninth Amendment

The Sixth Circuit Court of Appeals stated as follows in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991):

"[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."

The U.S. Supreme Court has explained as follows, in [United Public Workers v. Mitchell (1947)]:

"If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."

As Justice Douglas once put it, "The Ninth Amendment obviously does not create federally enforceable rights." See [Doe v. Bolton (1973)]. And Justice Scalia expressed the same view, in [Troxel v. Granville (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."

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." See Laurence H. Tribe, American Constitutional Law 776 n. 14 (2nd ed. 1998). This is similar to the view of Justice Goldberg (joined by Chief Justice Warren and Justice Brennan), in the case of [Griswold v. Connecticut (1965)], although Goldberg viewed the Ninth Amendment as relevant to the scope of Fourteenth Amendment rights:

"[T]he 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."

It is important to keep at the forefront of one's mind, when discussing the history of the bill of rights, that it applied only to the Federal government prior to the Fourteenth Amendment (see Barron v. Baltimore).

In the year 2000, the Harvard historian Bernard Bailyn gave a speech at the White House on the subject of the Ninth Amendment. Here is how Dr. Bailyn interpreted the Ninth Amendment, according to his [Remarks at White House Millennium Evening]:

"When the federal Constitution was written the wisest minds in America decided that there should be no national Bill of Rights, not merely because most of the state constitutions already contained some such protections, but, as Madison (who would later write the federal Bill of Rights) said, 'There is a great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude.' In other words, the enumeration of rights by the federal government, the mere listing of them and defining them, would necessarily limit their scope. 'The rights of conscience in particular [he said], if submitted to public definition, would be narrowed more than they are likely ever to be by an assumed power.' The right solution, he and others then felt, was what is implied in the present 9th Amendment: that, in addition to the rights specified by the states, there is a universe of rights, possessed by the people latent rights, still to be evoked and enacted into law.

"But was this workable? In any given situation, someone would have to decide whether the rights that were claimed were valid, and that would leave the existence of rights to the mercy of personal and political opinion, and no one would be safe. Some rights a core body of rights protected against the powers of the federal government would have to be specified, and the residue somehow protected in general terms. This is the compromise that we have inherited from them and that we live with, and struggle with, and benefit from, every day of our lives: in the first eight amendments of the Constitution, a carefully worded list of specific rights protected from encroachment by the federal government, together with the belief that there are not only rights protected by the states but a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law."

Since 1938, when the Supreme Court wrote its famous footnote four, the proper application of the Ninth Amendment has been a contentious issue. Robert Bork famously likened it to an ink blot. Bork argues 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 ink blot. If another provision of the Constitution were covered by an actual ink blot, judges should not be permitted to make up what might be under the ink blot, lest any judges twist the meaning to their own ends. However, Bork's fellow originalist Randy Barnett has argued that the Ninth Amendment requires what he calls a presumption of liberty.

Gun rights activists in recent decades have sometimes interpreted natural rights to mean that the fundamental right to keep and bear arms predates the U.S. Constitution and may be derived from the Ninth Amendment; according to this viewpoint, the Second Amendment only protects a pre-existing right to keep and bear arms. [Nicholas Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through The Ninth Amendment, 24 Rutgers L.J. 1, 64-67 (1992)], [link] In the related case of [United States v. Lopez], 514 U.S. 549 (1995), the Supreme Court held that while Congress had broad lawmaking authority under the Commerce Clause, it was not unlimited, and did not apply to something as far from commerce as carrying handguns.

The Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." As one author has put it, "This is a far cry from saying that no law shall infringe any right retained by the people." [link]

External links

	United States Constitution

Amendments: 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27

Formation

Amendments

Clauses

Interpretation

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