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Ninth Amendment

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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.

Further Readings

Abramson, Paul R., Steven D. Pinkerton, and Mark Huppin. 2003. Sexual Rights in America: The Ninth Amendment and the Pursuit of Happiness. New York.: New York Univ. Press.

DeRosa, Marshall L. 1996. The Ninth Amendment and the Politics of Creative Jurisprudence: Disparaging the Fundamental Right of Popular Control. New Brunswick, N.J.: Transaction.

Hardaway, Robert M. 2003. No Price Too High: Victimless Crimes and the Ninth Amendment. Westport, Conn.: Praeger.

Levy, Leonard. 1988. Original Intent and the Framers' Constitution. New York: Macmillan.

Yoo, John Choon. 1993. "Our Declaratory Ninth Amendment." Emory Law Journal 42.



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