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Dahlia O'Reilly

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βˆ™ 14y ago

The Ninth Amendment:

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

The Ninth Amendment was designed to negate a particular legal argument called "Expressio unius est exclusio alterius" (which is a canon of statutory interpretation that means when there is a list in a law, those things which are not listed are thereby excluded from the list unless language such as "such as", "including", or "etc." is used to indicate the list is illustrative rather than exhaustive).

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βˆ™ 13y ago

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.

Every year federal courts are asked to recognize new Unenumerated Rights "retained by the people," and typically they turn to the Ninth Amendment. However, the federal judiciary does not base rulings exclusively on the Ninth Amendment; the courts usually cite the amendment as a secondary source of fundamental liberties. In particular, the Ninth Amendment has played a significant role in establishing a constitutional right to privacy.

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 contended 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. They 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," he 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 the 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, commented 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." Nevertheless, 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 not 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 Amendment as creating 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 found 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 Ninth Circuit Court of Appeals found no Ninth Amendment right to resist the draft (United States v. Uhl, 436 F.2d 773 [1970]). The Sixth Circuit Court 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]).

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.

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Q: The amendment that guarantees the people have other rights that are not written in the Constitution?
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How did the events of the Vietnam war help to expand political rights for young people?

The right to vote was changed from 21 to 18 in 1971 with the addition of the 26th amendment to the constitution. The thinking at the time that if a person was old enough to fight in a war they were old enough to vote.


Which if any of the founding fathers said that the Second Amendment should apply only to the militia and not the general populace?

None of them said that. All able-bodied males between 18 and 45 were the militia and expected to have suitable arms ready for use. If we still followed the intent of the Founding Fathers in the Second Amendment, there would be tanks, mortars and fighter planes in your neighbors' driveways ready to respond when the militia was called to arms. The Second Amendment allowed for state militias on the cheep, by using citizens arms. It also was a counter balance to the power of the federal government. But the Second Amendment has been an anachronism for over 150 years. State Militias , now known as the National Guard, issue arms to its members. In addition, the most significant arms in the modern military include fighter jets, misiles, artillery, heavy weapons and such, not the kind of things most parents want floating around the neighbor. To allow anyone to own such arms by right is completely uncivilized and not the kind of world most sane people would want to raise a family in. The previous answer about the militia is obviously made from an emotional standpoint and is nothing more than opinion. The Federal Statute regarding militias can be found in US Code Title 10, Section 311, or 10USC311http://straylight.law.cornell.edu/uscode/HTML/uscode10/usc_sec_10_00000311----000-.HTML TITLE 10 > Subtitle A > PART I > CHAPTER 13 > � 311� 311. Militia: composition and classes(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.(b) The classes of the militia are�(1) the organized militia, which consists of the National Guard and the Naval Militia; and(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. There are two classes of militia, organized (the National Guard) and unorganized (able bodied males). The core of the issue goes back to the original question and the answer is none of the Founding Fathers intended the Second Amendment to apply only to a 'militia' or for firearms to be exclusively used for military purposes. They intended the 'people' to me armed for self defense. Those 'people' mentioned in the Second Amendment are the same 'people' mentioned in the: Preamble of the U.S. Constitution: 'We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.'First Amendment, '...right of the people peaceably to assemble...'Fourth Amendment, 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...'Ninth Amendment, 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'Tenth Amendment, 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.' To claim that the Founding Fathers meant individual citizens of the U.S. in every part of the U.S. Constitution where the word 'people' is used EXCEPT in the Second Amendment where it is suppose to mean a group organized by the federal government is beyond comprehension and shows a complete and utter lack of understanding of the Constitution and of the principles that the country was founded on.


Which amendments helped African Americans after the civil war?

The Thirteenth, Fourteenth, and Fifteenth amendments were written to help African Americans. They are called the Civil War Amendments since they were added after the Civil War. The Thirteenth Amendment was added in 1865. It ended slavery and prevents the nation from allowing slavery again at any time. The Fourteenth Amendment of 1868 is an important amendment because it has helped protect civil rights for all Americans. It says that all people who are born or naturalized in the United States are citizens. The Fifteenth Amendment was added in 1870. It gave African Americans the right to vote. The government cannot prevent people from voting because of their race or color.


What guaranteed US citizenship to African-Americans?

the 14th amendment does. The 14th Amendment did not give African's [born on the land mass called North America] citizenship because it did not legally give the Africans the freedom to choose whether or not they wanted to accept the status of "Person" under the 14th amendment, or return to there home-land after compensation for there forced labor. The term black American is a insult to conscious African's who realize that a nation of people can not be codified as a color. To accept the term Black means that a people have cut-off there connection to there African past and ancestors. To be more technical the Constitution for the United States is legally a dysfunctional compact, treaty, contract which never included the people who assume that they are parties to it. Remember the phrase: "We bestow this to ourselves and our Posterity", Posterity legally means direct descendants only. Until African's [ born on the land mass called North America] create a compact, treaty, or constitution with the parties of interest who created that document called the Constitution for the United States, citizenship for African's [born on the land mass called North America] will remain a figment of the imagination for an entire people called Africans [born on the land mass called North America]. Additionally, the first 8 Presidents under the Constitution for The United States were british subjects, and subjects cannot create, enforce, or make party of anyone to treaties, compacts or contracts. I suggest that all concerned parties remove there emotional thoughts about the Constitution and read it true for the highly technical document that it is. More to come.....


Who wrote the 13th 14th and 15th amendment?

No one person. It was the US Congress that proposed it on February 26th 1879. The Fifteenth Amendment was the result of a gradual development of the idea of racial equality in the matter of electoral voting rights.Most states had ratified it by 1880.The last state to adopt and ratify it was Tennessee, in 1997.See 'Related Links' below for more information

Related questions

Which amendment guarantees the people other rights that are not written in the constitution?

Amendment 9


The ninth amendment guarantees?

the 9th amendment granted "says the people have many rights that are not stated in the Constitution.


What amendment guarantees that all powers not mention in the constitution belong to the states?

The 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."


What type of amendment becomes part of the written constitution?

A formal amendment is a type of amendment that is added or changed to become a part of the written constitution. This is an amendment that goes through a lengthy process to determine to be in the best interest of the majority of the people of a union.


Which amendment guarantees people the right to a lawyer during trial?

6th amendment


The right to petition members of the government is contained in the what amendment to the constitution?

1st amendment means you have the right to right a petition to the government stating that you and a group of people are unhappy about something The First Amendment guarantees the right to petition the government for redress of grievances.


What amendment guarantees that all people born or naturalized in the US are citizens of the US and the states where they reside?

That is almost verbatim the first sentence of the 14thAmendment to the U.S. Constitution.


Which Amendment guarantees that people will be free to write and publish materials?

The first amendment.


The 9th and 10th amendments limit powers to what?

The 9th Amendment to the Constitution limits the powers of the government to constrict the rights of the people. This means that the people have other rights besides what is written in the wording of the Constitution. The 10th Amendment says that the government has rights that are also not written into the Constitution.


Which amendment guarantees rights not listed to the people and that the government should not tamper with them?

amendment 4 :)


Second amendment of Bill of Rights?

The 2nd Amendment guarantees the right of the people to keep and bear arms.


What amendment guarantees people the right to have a lwayer or someone trained in the law defend them in court?

the second amendment