Ninth Amendment

Provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” On its face, this provision seems to mean that a right is worthy of judicial protection even if it is not listed in the Constitution. To fail to protect these “other” unenumerated rights “retained by the people” in the same manner that we protect the enumerated rights would surely be to “disparage” them if not to “deny” their existence altogether.

Others doubt that this is what the Ninth Amendment means. Some have argued that it expresses a mere “truism” that the government should not do what it is not supposed to do. Some have thought that the “retained” rights refer only to state common‐law rights and state constitutional rights existing at the time of the framing. Unlike enumerated “constitutional” rights, these retained rights could be modified by simple legislation or state constitutional amendment without violating the Constitution.

Background

The Ninth Amendment was conceived after the heated debate surrounding the ratification of the Constitution. Anti‐Federalist opponents of the Constitution emphasized its lack of a bill of rights securing the liberty of the people. Federalist proponents of ratification responded by questioning the wisdom of including a bill of rights in the Constitution. In The Federalist, no. 84, for example, Alexander Hamilton argued that “bills of rights … are not only unnecessary in the proposed Constitution, but would even be dangerous.”

To appreciate the source of the perceived danger, we must remember that the framers believed in natural rights—the idea that people by their nature have certain basic rights that precede the establishment of any government (see Natural Law). As Representative Roger Sherman wrote in his proposed draft of a bill of rights: “The people have certain natural rights which are retained by them when they enter into Society.” Sherman's words reflect the sentiments expressed by several state ratification conventions. According to John Locke, the English natural rights theorist who greatly influenced the founders' generation, the principal justification for founding a government is to make these rights more secure than they would be in a state of nature—that is, in a society without any government.

In this view, natural rights define a bounded domain of liberty for each person within which one may do as one pleases. Exactly how this liberty may be exercised is limited only by one's imagination, so it is impossible to enumerate specifically all of one's natural rights. As framer and bill of rights opponent James Wilson stated: “Enumerate all the rights of men! I am sure, sirs, that no gentleman in the late Convention would have attempted such a thing.”

The anti‐Federalists were defeated only when Federalists promised to propose and support a bill of rights in the First Congress. James Madison and the committee of the House of Representatives charged with drafting a bill of rights had to sort through dozens of rights that state ratification conventions had officially recommended be included in the Constitution. The rights they eventually enumerated in the Bill of Rights appear to be those that their experience suggested were the most in jeopardy. Some (but not all) of the rights they chose to enumerate—such as the right to freedom of speech—were considered by both Madison and Sherman to be natural rights that were “retained” by the people.

As for the Federalist warnings that later interpreters might assert that the people had surrendered any rights omitted from the enumeration, Madison proposed to guard against this possibility by adding the following amendment: “The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be 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.” Eventually, this language was transformed into the words of the Ninth Amendment.

Modern Interpretations

For one and a half centuries following its ratification, the Ninth Amendment was largely ignored by the Supreme Court. Since World War II, the Court has offered two different interpretations of the Ninth Amendment reflecting two views of constitutional rights. The first might be called the “rights‐powers” interpretation. According to this view, retained rights and delegated powers are logically complementary. Retained rights are those left over after powers were delegated to the federal government. To interpret the Ninth Amendment, we simply look to see if the federal government has the power it claims; if so, any right that is logically inconsistent with this power could not be among those retained by the people.

Justice Stanley Reed stated this view in the United Public Workers v. Mitchell (1947) decision: “The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. … If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendment must fail” (p. 95). However, since the Tenth Amendment clearly limits the exercise of federal power to powers delegated by the Constitution, this interpretation seems to render the Ninth Amendment without any practical function. Until recently, most scholars accepted this view.

The other approach may be called the “power‐constraint” interpretation. According to this view, retained rights and delegated powers are functionally complementary. Even a power actually granted to the government can be constrained by a retained right. For example, when a retained right is infringed, the government might have to offer a more weighty justification for exercising its power than it would when no right is infringed. Moreover, although the Ninth Amendment, like the rest of the Bill of Rights, originally applied only to the federal government, this interpretation sees the passage of the Fourteenth Amendment as extending federal protection against state infringement to both enumerated and unenumerated rights.

Justice Arthur Goldberg took a power‐constraint approach in his concurring opinion in Griswold v. Connecticut (1965)—an opinion that did much to revive interest in the Ninth Amendment: “[W]here fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose” (p. 497). Goldberg further argued that the Ninth Amendment justified protecting fundamental liberties that had not been included in the enumeration of rights. On this view, protecting both enumerated and unenumerated retained rights better safeguards the liberties of the people by reinforcing the scheme of limited delegated powers.

These two approaches are not mutually exclusive. Rather than view the set of retained rights as shrinking automatically as governmental powers are interpreted more expansively, we could reverse Justice Reed's rights‐powers method of interpretation. Instead of limiting our inquiry to the expressed delegation of powers, we could examine the rights retained by the people to define the legitimate “ends” or powers of the government and thus provide an additional way of conceptualizing limits on government powers. An analysis of retained rights could also constrain the “means” by which governmental ends can be achieved.

Enumerated rights have long served a power‐constraining function. For example, the First Amendment has been interpreted as protecting the “retained” rights of free speech by constraining government from pursuing the end of regulating the content of one's speech. The Fourth Amendment constrains government from pursuing its proper ends by means of unreasonable searches and seizures.

Similarly, the right to use birth control that was protected in Griswold exemplifies an unenumerated “ends constraint.” If such activities are within the sphere of bounded liberty retained by the people, they are beyond the rightful power of government. The case of *Richmond Newspapers, Inc., v. Virginia (1980) provides an example of an unenumerated “means constraint.” There, a plurality of the Court, relying in part on the Ninth Amendment, protected the rights of the press to attend a public trial. Although the government may have the power to prosecute and try a defendant, it cannot do so by means of excluding the press.

Identifying Unenumerated Rights

Some argue that, lacking an understanding of or belief in the framers' theory of natural rights, modern judges are simply unable to identify these “other” retained rights. As unsuccessful Supreme Court nominee Robert *Bork testified during his Senate confirmation hearings: “I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says ‘Congress shall make no’ and then there is an inkblot, and you cannot read the rest of it, and that is the only copy you have, I do not think the court can make up what might be under the inkblot.” On this view, empowering judges to protect rights where the Constitution is silent enables them illegitimately to “create” rights based only on their personal preferences and improperly obstruct the will of the people as expressed by their democratically elected representatives.

Ironically, this view is commonly advanced by constitutional theorists who profess a deep respect for the framer's intentions. Yet this skeptical view of unenumerated rights would have the practical effect of converting the original scheme of limited defined powers in a sea of individual rights into a scheme of limited enumerated rights in a sea of governmental powers.

There may, however, be a practical way to protect the bounded domain of individual liberty without engaging in an elaborate philosophical analysis of natural rights. We could adopt a constitutional “presumption of liberty,” by which people are presumed to be free to act in any way that did not violate the “common‐law rights” of others. For example, actions that constituted a tort or a breach of contract could justly be prohibited. But actions that did not violate such rights could be regulated by government only upon a strong showing that such regulation was essential or necessary to achieve some proper governmental end.

Placing the burden on government to justify any action restricting a rightful exercise of liberty is precisely how the Court protects retained rights that are enumerated. For example, when legislation restricts the exercise of free speech, a serious burden is placed upon the government to justify such restrictions. A presumption of liberty would avoid “denying” or “disparaging” unenumerated rights by treating them on a par with enumerated rights.

A presumption of liberty would, however, be a departure from the prevailing attitude of the Supreme Court since the New Deal. In cases such as Carolene Products Co. v. United States (1944), the Court created the opposite: a presumption of constitutionality that upholds government action unless it violates an identifiable “fundamental right.” And, since using the unenumerated right of privacy to protect abortion in Roe v. Wade (1973), the Court appeared for a considerable time to be unwilling to deem any other unenumerated liberty to be a fundamental right. In Bowers v. Hardwick (1986), for example, the Court majority belittled the idea that the liberty to engage in consensual homosexual “sodomy” was protected either in its own right or by the unenumerated right of privacy. According to Bowers, an unenumerated liberty was to be deemed fundamental only if shown to be deeply rooted in the tradition or history of the nation or implicit in the concept of ordered liberty. The more narrowly one defines the liberty in question, however, the more difficult it is to show that a particular exercise of liberty, especially a novel one, is deeply rooted in tradition. Without such a showing, a statute restricting a mere “liberty interest” would receive the benefit of the presumption of constitutionality.

In 1992, the Court appeared to shift away from a right of privacy to a willingness to protect “retained” liberty more generally. In the landmark case of *Planned Parenthood v. Casey, the Court found unconstitutional a statute limiting abortion. In the opinion of the Court, the choice restricted was a form of liberty protected by the Due Process Clause of the Fourteenth Amendment. In their joint opinion, Justices Anthony Kennedy, Sandra Day O'Connor, and David Souter explicitly relied on the Ninth Amendment for the following proposition: “Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amend. 9” (p. 848). This was the most prominent use by the Supreme Court of the Ninth Amendment to date, but this renewed protection of “liberty” went unused for over ten years. In Troxel v. Granville (2000), the Court remained within the post–New Deal liberty interest/fundamental right dichotomy by protecting as fundamental the right to raise one's own children.

Then, in Lawrence v. Texas (2003), the Court, in an opinion by Justice Kennedy, reversed its decision in Bowers, holding a state law banning “sodomy” between same‐sex couples unconstitutional under the Due Process Clause of the Fourteenth Amendment. Lawrence is potentially revolutionary for two reasons. First, it rested on a right to liberty, not a right of privacy. “Liberty” is mentioned at least twenty‐five times in the opinion. Privacy is mentioned only in the context of describing the holding of Griswold. The centrality of liberty to Kennedy's reasoning is made clear in the opening paragraph of his opinion for the majority: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”

Second, in Lawrence, the Court struck down the statute without any finding that the liberty in question was fundamental, and without any mention of the presumption of constitutionality. In this case, then, the Court essentially adopted a presumption of liberty for the first time since before the New Deal in the context of an unenumerated right. Having found the activity in question to be liberty, as opposed to one that harms others—what the founders called “license”—the Court then shifted the burden to the government to justify its prohibition. The mere opinion of the legislature that the activity was immoral was deemed to be inadequate. Should its reasoning be extended beyond the realm of intimate activity, Lawrence could represent a marked departure from the post–New Deal jurisprudence of a presumption of constitutionality rebutted only by a fundamental right.

Griswold, Roe, Casey, and Lawrence all involve the constitutionality of state laws which means they were based, not directly on the Ninth Amendment, but on the Fourteenth. In particular, these opinions rely on the Due Process Clause, which has been used to protect the liberties of citizens from infringement by state government—though scholars increasingly think it is more historically warranted to ground this protection in the *Privileges or Immunities Clause. Nonetheless, these cases have an important bearing on the future uses of the Ninth Amendment. For the Ninth Amendment stands as a bulwark against the abuse of federal power and there is no reason why a presumption of liberty of the sort employed implicitly in Lawrence should not equally be applicable to cases where federal laws infringe the liberties or rights “retained by the people.”

Bibliography

• Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004).
• Calvin R. Massey, Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights (1995)

— Randy E. Barnett

The Ninth Amendment to the U.S. Constitution reads:

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

The Ninth Amendment to the U.S. Constitution is somewhat of an enigma. It provides that the naming of certain rights in the Constitution does not take away from the people rights that are not named. Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect.

Although the U.S. Supreme Court has never based a ruling exclusively upon it, the Ninth Amendment has played a significant role in establishing a constitutional right to privacy. Every year federal courts are asked to recognize new unenumerated rights "retained by the people." Typically the federal judiciary has declined to rely on the Ninth Amendment as an independent source of constitutional rights. However, federal courts continue to cite the Ninth Amendment as a secondary source of fundamental liberties.

Ratified in 1791, the Ninth Amendment is an outgrowth of a disagreement between the Federalists and the Anti-Federalists over the importance of attaching a Bill of Rights to the Constitution. When the Constitution was initially drafted by the Framers in 1787, it contained no Bill of Rights. The Anti-Federalists, who generally opposed ratification because they believed that the Constitution conferred too much power on the federal government, supported a Bill of Rights to serve as an additional constraint against despotism. The Federalists, on the other hand, supported ratification of the Constitution without a Bill of Rights because they believed that any enumeration of fundamental liberties was unnecessary and dangerous.

The Federalists believed that a Bill of Rights was unnecessary because in their view the federal government possessed only limited powers that were expressly delegated to it by the Constitution. The Federalists believed that all powers not constitutionally delegated to the federal government were inherently reserved to the people and the states. Nowhere in the Constitution, the Federalists pointed out, is the federal government given the power to trample on individual liberties. The Federalists feared that if the Constitution were to include a Bill of Rights that protected certain liberties from government encroachment, an inference would be drawn that the federal government could exercise an implied power to regulate such liberties.

Alexander Hamilton, one of the leading Federalists, articulated this concern in The Federalist No. 84. Why should a Bill of Rights, Hamilton asked, "declare that things shall not be done which there is no power to do?" For instance, Hamilton said it was unnecessary for a Bill of Rights to protect the freedom of the press when the federal government is not granted the power to regulate the press. A provision "against restraining the liberty of the press," Hamilton said, "afford[s] the clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government."

The Federalists were also concerned that any constitutional enumeration of liberties might imply that other rights, not enumerated by the Constitution, would be surrendered to the government. A Bill of Rights, they feared, would quickly become the exclusive means by which the American people could secure their freedom and stave off tyranny. Federalist James Madison argued that any attempt to enumerate fundamental liberties would be incomplete and might imperil other freedoms not listed. A "positive declaration of some essential rights could not be obtained in the requisite latitude," Madison said. "If an enumeration be made of all our rights," Madison queried, "will it not be implied that everything omitted is given to the general government?"

Anti-Federalists and others who supported a Bill of Rights attempted to mollify the Federalists' concerns with three counterarguments. First, the Anti-Federalists underscored the fact that the Constitution guarantees certain liberties even without a Bill of Rights. For example, Article I of the Constitution prohibits Congress from suspending the writ of habeas corpus and from passing bills of attainder and ex post facto laws. If these liberties could be enumerated without endangering other unenumerated liberties, Anti-Federalists reasoned, additional liberties, such as freedom of press and religion, could be safeguarded in a Bill of Rights.

Second, while acknowledging that it would be impossible to enumerate every human liberty imaginable, supporters of a Bill of Rights maintained that this obstacle should not impede the Framers from establishing constitutional protection for certain essential liberties. Thomas Jefferson, responding to Madison's claim that no Bill of Rights could ever be exhaustive, joked that "[h]alf a loaf is better than no bread. If we cannot secure all of our rights, let us secure what we can."

Third, Anti-Federalists argued that if there was a genuine risk that naming certain liberties would imperil others, then an additional constitutional amendment should be drafted to offer protection for all liberties not mentioned in the Bill of Rights. Such an amendment, the Anti-Federalists argued, would protect those liberties that might fall through the cracks of written constitutional provisions. This idea became the Ninth Amendment.

Unlike every other provision contained in the Bill of Rights, the Ninth Amendment had no predecessor in English law. It stemmed solely from the genius of those who framed and ratified the Constitution. Ironically, Madison, who opposed a Bill of Rights in 1787, was the chief architect of the Ninth Amendment during the First Congress in 1789.

After reconsidering the arguments against a Bill of Rights, Madison said he was now convinced that such concerns could be overcome. It was still plausible, Madison believed, that the enumeration of particular rights might disparage other rights that were not enumerated. Yet Madison told Congress that he had attempted to guard against this danger by drafting the Ninth Amendment, which he submitted in the following form:

The exceptions [to power] 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 on such powers, or as inserted merely for greater caution.

The House Select Committee, consisting of one representative from each state in the Union, reviewed and revised Madison's proposal until it gradually evolved into its present form. The debates in both houses of Congress add little to the original understanding of the Ninth Amendment. The Senate conducted its sessions in secret, and the House debates failed to offer a glimmer as to what unenumerated rights are protected by the Ninth Amendment, how such rights might be identified, or by what branch of government they should be enforced.

The Supreme Court did not attempt to answer these questions for more than 170 years. Until 1965 no Supreme Court decision made more than a passing reference to the Ninth Amendment. In 1958 Supreme Court Justice Robert H. Jackson wrote that the rights protected by the Ninth Amendment "are still a mystery." However, the dormant Ninth Amendment experienced a renaissance in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965).

In Griswold the Supreme Court was asked to review the constitutionality of a Connecticut law that banned adult residents from using birth control and prohibited anyone from assisting others to violate this law. In the majority opinion, Justice William O. Douglas, writing for the Court, rejected the notion that the judiciary is obligated to enforce only those rights that are expressly enumerated in the Constitution. On several occasions in the past, Douglas wrote, the Court has recognized rights that cannot be found in the written language of the Constitution.

Only briefly discussed in Douglas's majority opinion, the Ninth Amendment was the centerpiece of Justice Arthur Goldberg's concurring opinion. The language and history of the Ninth Amendment, Goldberg wrote, demonstrate that the Framers of the Constitution intended the judiciary to protect certain unwritten liberties with the same zeal that courts must protect those liberties expressly referenced in the Bill of Rights. The Ninth Amendment, Goldberg emphasized, reflects the Framers' original understanding that "other fundamental personal rights should not be denied protection simply because they are not specifically listed" in the Constitution.

Justices Hugo L. Black and Potter Stewart criticized the Court for invoking the Ninth Amendment as a basis for its decision in Griswold. The Ninth Amendment, the dissenting justices said, does not explain what unenumerated rights are retained by the people or how these rights should be identified. Nor does the Amendment authorize the Supreme Court, in contrast to the president or Congress, to enforce these rights. By reading the Ninth and other amendments in the Bill of Rights to create a general right to privacy, Black and Stewart suggested, the unelected justices of the Supreme Court had substituted their own subjective notions of justice, liberty, and reasonableness for the wisdom and experience of the elected representatives in the Connecticut state legislature who were responsible for passing the birth control regulation.

The Griswold decision was the starting point of a continuing debate over the proper role of the Ninth Amendment in constitutional jurisprudence. One side of the debate reads the Ninth Amendment to mean that the Constitution protects not only those liberties written into the Bill of Rights but some additional liberties found outside the express language of any one provision. The other side sees no way to identify the unenumerated rights protected by the Ninth Amendment and no objective method by which to interpret and apply such rights. Under this view, courts that interpret and apply the Ninth Amendment do so in a manner that reflects the political and personal preferences of the presiding judge. Federal courts have attempted to reach a middle ground.

A number of federal courts have ruled that the Ninth Amendment is a rule of judicial construction, or a guideline for interpretation, and not an independent source of constitutional rights (Mann v. Meachem, 929 F. Supp. 622 [N.D.N.Y. 1996]). These courts view the Ninth Amendment as an invitation to liberally interpret the express provisions of the Constitution. However, federal courts will not recognize constitutional rights claimed to derive solely from the Ninth Amendment (United States v. Vital Health Products, 786 F. Supp. 761 [E.D. Wis. 1992]). By itself, one court held, the Ninth Amendment does not enunciate any substantive rights. Instead the amendment serves to protect other fundamental liberties that are implicit, though not mentioned, in the Bill of Rights (Rothner v. City of Chicago, 725 F. Supp. 945 [N.D. Ill. 1989]).

After Griswold, federal courts were flooded with novel claims based on unenumerated rights. Almost without exception, these novel Ninth Amendment claims were rejected.

For example, the Sixth Circuit Court of Appeals ruled that there is no Ninth Amendment right to possess an unregistered submachine gun (United States v. Warin, 530 F.2d 103 [1976]). The Fourth Circuit court held that the Ninth Amendment does not guarantee the right to produce, distribute, or experiment with mind-altering drugs such as marijuana (United States v. Fry, 787 F.2d 903 [1986]). The Eighth Circuit court denied a claim asserting that the Ninth Amendment guaranteed Americans the right to a radiation-free environment (Concerned Citizens of Nebraska v. U.S. Nuclear Regulatory Commission, 970 F.2d 421 [1992]). The Ninth Circuit court found no Ninth Amendment right to resist the draft (United States v. Uhl, 436 F.2d 773 [1970]).

This series of cases has led some scholars to conclude that the Ninth Amendment may be returning to a constitutional hibernation. Yet the Ninth Amendment retains some vitality. In Roe v. Wade, the federal District Court for the Northern District of Texas ruled that a state law prohibiting abortion in all instances except to save the life of the mother violated the right to privacy guaranteed by the Ninth Amendment (314 F. Supp. 1217 [1970]).

On appeal the Supreme Court affirmed the district court's ruling, stating that the 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" (Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]). Federal courts continue to rely on the Ninth Amendment in support of a woman's constitutional right to choose abortion under certain circumstances.

See: Constitution of the United States; Federalist Papers; Griswold v. Connecticut; Penumbra; Roe v. Wade.

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

 More:

The Constitution
Bill of Rights (Amendments 1-10)
The Other Amendments (11-27)

United States of America
This article is part of the series: United States Constitution
Original text of the Constitution
Preamble Articles of the Constitution I ∙ II ∙ III ∙ IV ∙ V ∙ VI ∙ VII
Amendments to the Constitution
Bill of Rights I ∙ II ∙ III ∙ IV ∙ V ∙ VI ∙ VII ∙ VIII ∙ IX ∙ X Subsequent Amendments XI ∙ XII ∙ XIII ∙ XIV ∙ XV ∙ XVI XVII ∙ XVIII ∙ XIX ∙ XX ∙ XXI ∙ XXII XXIII ∙ XXIV ∙ XXV ∙ XXVI ∙ XXVII
Other countries ·  Law Portal

Amendment IX (the Ninth Amendment) to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.

Text

“

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

”

Adoption

When the US Constitution was sent to the states for ratification after being signed September 17, 1787, Anti-Federalists argued that a Bill of Rights should be added. One argument of Federalists 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 9 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"^[1] in Article One, Section 9 of the Constitution.

The Anti-Federalists persisted in favor of a Bill of Rights during the ratification debates but also were against the Constitutional Convention, and consequently several of the state ratification conventions gave their assent with accompanying resolutions proposing amendments to be added. In 1788, the ratification by the Commonwealth of Virginia attempted to solve the problem that Hamilton and the Federalists had identified by proposing a constitutional amendment specifying:^[2]

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. In 1789, while introducing to the House of Representatives nineteen^[3] draft Amendments, James Madison addressed what would become the Ninth Amendment as follows:^[4]

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 Hamilton, Madison was concerned that enumerating various rights could "enlarge the powers delegated by the constitution." Id. Here is the draft of the Ninth Amendment that Madison submitted to Congress in order to solve this problem:

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. Id.

The Bill of Rights in the National Archives

This was an intermediate form of the Ninth Amendment that borrowed language from the Virginia proposal, while foreshadowing the final version. Like Madison's draft, the final text of the Ninth Amendment 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. Id.

For the Founders, "rights" (against the actions of government) were always complementary to delegated powers of government, partitioning the space of public action. Each delimits its complement. Every constitutional "right" (or "immunity" to use a term in Article Four of the Constitution) delimits its opposing power, and every delegated power delimits its opposing right.

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." The Ninth Amendment became part of the Constitution on December 15, 1791 upon ratification by three-fourths of the states.

Interpretation

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 330 U.S. 75 (1947): "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."

Some jurists have asserted that the Ninth Amendment is relevant to interpretation of the Fourteenth Amendment. Justice Arthur Goldberg (joined by Chief Justice Warren and Justice Brennan) expressed this view in a concurring opinion in the case of Griswold v. Connecticut (1965):

[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.

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."^[5] 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."^[6]

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.

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."^[7] Likewise, Justice Antonin Scalia has 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.

In the year 2000, the 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."^[8]

It is important, when discussing the history of the Bill of Rights, to note that 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. However, in 1868, the Fourteenth Amendment was adopted, in large part to overturn that precedent, and the Supreme Court has used that Amendment, together with enabling congressional legislation, to apply some, but not all, provisions of the Bill of Rights against the states through what is called selective incorporation, thereby enabling a citizen to sue the citizen's own state in federal court (see sovereign immunity). Since 1938, when the Supreme Court wrote its famous "footnote four" of United States v. Carolene Products Co., the proper application of the Bill of Rights has been an increasingly contentious issue.

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).

Originalist Randy Barnett has argued that the Ninth Amendment requires what he calls a presumption of liberty. Other originalists, 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.^[9] Constitutional historian Jon Roland has argued,^[10] that the Ninth Amendment included by reference all of the rights proposed by the state ratifying conventions, in addition to those enumerated in the first eight amendments.

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 protects only a pre-existing right to keep and bear arms.^[11] In the related case of United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court held that while Congress has broad lawmaking authority under the Commerce Clause, it is not unlimited, and does not apply to something as far from commerce as carrying handguns.

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.^[12]

Footnotes

1. ^ 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").
2. ^ Virginia Ratification Resolution (June 26, 1788).
3. ^ Amendments Offered in Congress by James Madison June 8, 1789
4. ^ James Madison,Speech Introducing Bill of Rights (June 8, 1789).
5. ^ Roe v. Wade, 314 F. Supp. 1217 (1970).
6. ^ Roe v. Wade, 410 U.S. 113 (1973). Findlaw.com. Retrieved 2007-06-4.
7. ^ Laurence H. Tribe, American Constitutional Law 776 n. 14 (2nd ed. 1998).
8. ^ Bernard Bailyn, Remarks at White House Millennium Evening (2000).
9. ^ Thomas B. McAffee, Federalism and the Protection of Rights: The Modern Ninth Amendment's Spreading Confusion, 1996 B.Y.U. Law Rev. 351.
10. ^ Jon Roland, Presumption of Nonauthority and Unenumerated Rights (2006).
11. ^ Nicholas Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through The Ninth Amendment, 24 Rutgers L.J. 1, 64-67 (1992).
12. ^ United Public Workers v. Mitchell, 330 U.S. 75 (1947).

External links

• 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)
• Federalism and the Protection of Rights: The Modern Ninth Amendment’s Spreading Confusion by Thomas B. McAfee (1996)
• Documentary History of the Bill of Rights -- Compilation of documents

United States Constitution
Text	(at Wikisource): Preamble and Articles · Bill of Rights · Subsequent Amendments
Formation	History · Articles of Confederation · Mount Vernon Conference · Annapolis Convention · Philadelphia Convention · New Jersey Plan · Virginia Plan · Connecticut Compromise · Three-fifths compromise · Signatories · Massachusetts Compromise · Federalist Papers (list)
Amendments	Bill of Rights · Ratified · Proposed · Unsuccessful · Conventions to propose · State ratifying conventions
Clauses	Appointments · Appropriations · Case or controversy · Citizenship · Commerce · Compact · Confrontation · Contract · Copyright and Patent · Due Process · Emolument · Equal Protection · Establishment · Exceptions · Ex post facto · Extradition · Free Exercise · Fugitive Slave · Full Faith and Credit · Guarantee · Impeachment · Militia · Natural–born citizen · Necessary and Proper · No Religious Test · Origination · Presentment · Privileges and Immunities (Art. IV) · Privileges or Immunities (14th Amend.) · Speech or Debate · Supremacy · Suspension · Takings Clause · Taxing and Spending · Territorial · Trial by Jury · Three-fifths · Vesting · War Powers
Interpretation	Theory · Congressional enforcement · Double jeopardy · Dormant Commerce Clause · Enumerated powers · Executive privilege · Incorporation of the Bill of Rights · Nondelegation · Preamble · Preemption · Separation of church and state · Separation of powers

This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)