Ninth Amendment to the United States Constitution
Encyclopedia
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, which is part of the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
, addresses rights of the people that are not specifically enumerated
Unenumerated rights
Unenumerated rights are sometimes defined as legal rights inferred from other legal rights that are officiated in a retrievable form codified by law institutions, such as in written constitutions, but are not themselves expressly coded or "enumerated" among the explicit writ of the law. ...
in the Constitution.
Text
Adoption
When the U.S. Constitution was sent to the states for ratification after being signed on September 17, 1787, the Anti-Federalists argued that a Bill of Rights should be added. One of the arguments the FederalistsFederalism (United States)
Federalism in the United States is the evolving relationship between U.S. state governments and the federal government of the United States. Since the founding of the country, and particularly with the end of the American Civil War, power shifted away from the states and towards the national...
gave against the addition of a Bill of Rights, during the debates about ratification of the Constitution, was that a listing of rights could problematically enlarge the powers specified in Article One, Section 8 of the new Constitution by implication. For example, in Federalist 84, Alexander Hamilton
Alexander Hamilton
Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...
asked, "Why declare that things shall not be done which there is no power to do?" Likewise, James Madison explained to Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
, "I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted" by Article One, Section 8 of the Constitution.
The Anti-Federalists persisted in favor of a Bill of Rights during the ratification debates, but also were against ratification, and consequently several of the state ratification conventions gave their assent with accompanying resolutions proposing amendments to be added. In 1788, the Virginia Ratifying Convention
Virginia Ratifying Convention
The Virginia Ratifying Convention was a convention of 168 delegates from Virginia who met in 1788 to ratify or reject the United States Constitution, which had been drafted at the Philadelphia Convention the previous year.The Convention met and deliberated from June 2 through June 27 in Richmond...
attempted to solve the problem that Hamilton and the Federalists had identified by proposing a constitutional amendment specifying:
This proposal ultimately led to the Ninth Amendment.
In 1789, while introducing to the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
nineteen draft Amendments, James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
addressed what would become the Ninth Amendment as follows:
Like Alexander Hamilton, Madison was concerned that enumerating various rights could "enlarge the powers delegated by the constitution." To attempt to solve this problem, Madison submitted this draft to Congress:
This was an intermediate form of the Ninth Amendment that borrowed language from the Virginia proposal, while foreshadowing the final version.
The final text of the Ninth Amendment, like Madison's draft, speaks of other rights than those enumerated in the Constitution. The character of those other rights was indicated by Madison in his speech introducing the Bill of Rights (emphasis added):
The First through Eighth Amendments address the means by which the federal government exercises its enumerated powers, while the Ninth Amendment addresses a "great residuum" of rights that have not been "thrown into the hands of the government," as Madison put it. The Ninth Amendment became part of the Constitution on December 15, 1791 upon ratification by three-fourths of the states.
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 : "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."It is important, when discussing the history of the Bill of Rights, to realize the Supreme Court held in Barron v. Baltimore
Barron v. Baltimore
Barron v. Mayor of Baltimore, 32 U.S. 243 established a precedent on whether the United States Bill of Rights could be applied to state governments.John Barron co-owned a profitable wharf in the Baltimore harbor...
(1833) that it was enforceable by the federal courts only against the federal government, and not against the states. Thus, the Ninth Amendment originally applied only to the federal government, which is a government of enumerated powers
Enumerated powers
The enumerated powers are a list of items found in Article I, section 8 of the US Constitution that set forth the authoritative capacity of the United States Congress. In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of...
.
Some jurists have asserted that the Ninth Amendment is relevant to interpretation of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. Justice Arthur Goldberg
Arthur Goldberg
Arthur Joseph Goldberg was an American statesman and jurist who served as the U.S. Secretary of Labor, Supreme Court Justice and Ambassador to the United Nations.-Early life:...
(joined by Chief Justice Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
and Justice William Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
) expressed this view in a concurring opinion in the case of Griswold v. Connecticut
Griswold v. Connecticut
Griswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...
(1965):
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
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
ruled in favor of a "Ninth Amendment right to choose to have an abortion," although it stressed that the right was "not unqualified or unfettered." However, Justice William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
rejected that view; Douglas wrote that, "The Ninth Amendment obviously does not create federally enforceable rights." See Doe v. Bolton
Doe v. Bolton
Doe v. Bolton, 410 U.S. 179 , was a landmark decision of the United States Supreme Court overturning the abortion law of Georgia. The Supreme Court's decision was released on January 22, 1973, the same day as the decision in the better-known case of Roe v. Wade, 410 U.S...
(1973). Douglas joined the majority opinion of the U.S. Supreme Court in Roe, which stated that a federally enforceable right to privacy, "whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
The Sixth Circuit Court of Appeals stated in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991) that the Ninth Amendment was intended to vitiate the maxim of expressio unius est exclusio alterius according to which the express mention of one thing excludes all others:
Professor Laurence Tribe
Laurence Tribe
Laurence Henry Tribe is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University. He also works with the firm Massey & Gail LLP on a variety of matters....
shares this view: "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution." Likewise, Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
has expressed the same view, in the dissenting opinion of Troxel v. Granville
Troxel v. Granville
Troxel v. Granville, 530 U.S. 57 , was a case in which the Supreme Court of the United States, citing a constitutional right of parents to rear their children, struck down a Washington state law that allowed any third party to petition state courts for child visitation rights over parental...
530 U.S. 57 (2000):
In 2000, Harvard
Harvard University
Harvard University is a private Ivy League university located in Cambridge, Massachusetts, United States, established in 1636 by the Massachusetts legislature. Harvard is the oldest institution of higher learning in the United States and the first corporation chartered in the country...
historian Bernard Bailyn
Bernard Bailyn
Bernard Bailyn is an American historian, author, and professor specializing in U.S. Colonial and Revolutionary-era History. He has been a professor at Harvard University since 1953. Bailyn has won the Pulitzer Prize for History twice . In 1998 the National Endowment for the Humanities selected...
gave a speech at the White House on the subject of the Ninth Amendment. He said that the Ninth Amendment refers to "a universe of rights, possessed by the people — latent rights, still to be evoked and enacted into law....a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law."
Similarly, journalist Brian Doherty
Brian Doherty (journalist)
Brian Doherty is an American journalist. He is a Senior Editor at Reason magazine. He is the author of This Is Burning Man: The Rise of a New American Underground , Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement and Gun Control on Trial: Inside the...
has argued that the Ninth Amendment "specifically roots the Constitution in a natural rights
Natural rights
Natural and legal rights are two types of rights theoretically distinct according to philosophers and political scientists. Natural rights are rights not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable...
tradition that says we are born with more rights than any constitution could ever list or specify."
Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
, often considered an originalist
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
, 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.
Another originalist, Randy Barnett, has argued that the Ninth Amendment requires what he calls a presumption of liberty. Still others, such as Thomas B. McAffee, have argued that the Ninth Amendment protects the unenumerated "residuum" of rights which the federal government was never empowered to violate.
According to Frederic Jesup Stimson
Frederic Jesup Stimson
Frederic Jesup Stimson was the United States Ambassador to Argentina 1915–1921. He was the first U.S. envoy to Argentina to hold the title Ambassador, the previous envoys having held the title Envoy Extraordinary and Minister Plenipotentiary...
, the framers of the Constitution and the Ninth Amendment intended that no rights that they already held would be lost through omission. Charles Lund Black took a similar position, though Stimson and Black respectively acknowledged that their views differed from the modern view, and differed from the prevalent view in academic writing.
Gun rights
Gun politics
Gun politics addresses safety issues and ideologies related to firearms through criminal and noncriminal use. Gun politics deals with rules, regulations, and restrictions on the use, ownership, and distribution of firearms.-National sovereignty:...
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
Second Amendment to the United States Constitution
The Second Amendment to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.In 2008 and 2010, the Supreme Court issued two Second...
only enumerates a pre-existing right to keep and bear arms.
The Ninth Amendment bars denial of unenumerated rights if the denial is based on the enumeration of certain rights in the Constitution, but does not bar denial of unenumerated rights if the denial is based on the enumeration of certain powers in the Constitution. It is to that enumeration of powers that the courts have said we must look, in order to determine the extent of the unenumerated rights mentioned in the Ninth Amendment.
See also
- Tenth AmendmentTenth Amendment to the United States ConstitutionThe Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...
- OriginalismOriginalismIn the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
External links
- Kurt Lash's Majoritarian Difficulty by Randy Barnett (2009)
- A Textual-Historical Theory of the Ninth Amendment by Kurt Lash (2007)
- The Ninth Amendment: It Means What It Says by Randy BarnettRandy BarnettRandy E. Barnett is a lawyer, a law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist in the United States...
(2006) - CRS Annotated Constitution: 9th Amendment by the Congressional Research ServiceCongressional Research ServiceThe Congressional Research Service , known as "Congress's think tank", is the public policy research arm of the United States Congress. As a legislative branch agency within the Library of Congress, CRS works exclusively and directly for Members of Congress, their Committees and staff on a...
(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. MachanTibor R. MachanTibor Richard Machan, Ph.D. is a Hungarian-American philosopher. A professor emeritus in the department of philosophy at Auburn University, Machan holds the R. C...
(2005) - Proposed Amendments to the Constitution by James MadisonJames MadisonJames Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
(1789)