The Ninth Amendment

7/23/02 | Doug Loss

[Doug Loss]

The ninth amendment to the US Constitution reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." While I don't agree with SCOTUS decisions like Roe v. Wade, why does the court base rulings where it cobbles up new rights and entitlements on such flimsy concepts as "penumbras" and "emanations" rather than on the clearly-stated one in the ninth amendment? It seems to me that if you want to assert a right to privacy or something else not specifically mentioned in the Bill of Rights, this is the Constitutionally correct branch from which to hang it. Comments?

[Sgt_Schultze]

It does this because it wants to ignore the tenth amendment. In that amendment, the framers said, "We told you what the federal government can do. That's it - nothing else!" " The states and the people will be supreme."

If they admitted the ninth amendment exists, then most things the federales do would have to be ruled unconstitutional.

[Jim Noble]

I have often wondered this myself. I think the Ninth and even more so the Tenth are strong support for the right of the People and their Representatives in the States to legislate on a broad variety of topics now proscribed by a misinterpretation of the 14th.

[BikerNYC]

But that would mean that the "rights" referred to in the 9th Amendment are retained by the States. Rather, they are retained by individuals and States cannot legislate to deny them either.

[dirtboy]

It seems to me that if you want to assert a right to privacy or something else not specifically mentioned in the Bill of Rights, this is the Constitutionally correct branch from which to hang it. Comments?

The Ninth and the Tenth need to be used in conjunction with each other. Under the 10th, the feds were given no power to regulate abortion, so that should be a state matter, and SCOTUS should not have been given power to override state laws regarding abortion. The 9th and 10th were meant as a cast iron fence to corral federal power, but they broke off a few bars in the early 1900s and then knocked the entire fence over from the 1930s onward - and no one has bothered to build a new fence since then. Even the federalist movement judges, such as Scalia, only refer to the 9th and 10th when it suits them.

[CLRGuy]

Actually states can do just about anything they want, even set up a theocracy if they please (because the bill of rights and such apply to the federal government). Citizens in that theocracy, however, would be free to move from one state to another that didn't have such rules.

Current jurisprudence doesn't agree with me, but then again, they don't agree with you either :p.

[fporretto]

Doug, I think the Sarge and Jim Noble are close to the heart of the matter here, but there's another angle to it, too. A "right" isn't just some nice thing we'd like everyone to have. It has to have certain properties. Once the judiciary gets into the business of determining what sort of claims can and cannot be rights, much of the legal history of the United States -- nearly all of it since 1900 - would be thrown for a loop.

Really, the government in general and the judiciary in particular would be much happier if we the sheeple just accepted that a "right" was whatever the government says it is. If the government says we have a "right" to free health care, then we do. If the government says we have NO right to our incomes, then we don't. And the Carriage of State will trundle on.

Freedom, Wealth, and Peace,
Francis W. Porretto
Visit The Palace Of Reason: http://palaceofreason.com

[Jim Noble]

>>Rather, they are retained by individuals<<

It is correct that Nine protects the rights of individuals. But it is also correct that the Founders clearly contemplated "the People" as both singular and plural.

"The People", in their States, could establish churches, outlaw lewdness, forbid pornography, regulate intercourse between the races, all without violating Nine.

[BikerNYC]

But allowing states to regulate abortion, for example, would be denying the People the right to get one should they so choose. I would think a plain reading of the 9th gives People the right to exercise rights (that they retain, as indicated by the text of the 9th), not States the power to regulate those rights.

And, yes, I agree that current jurisprudence disagrees with both of us.

[vannrox]

This 9th Amendment is the MOST important amendment in the Bill of Rights. It reiterates the Premamble to the Bill of Rights. Which, as many don't realize, clearly states that the purpose of the Bill of RIghts is to protect the Rights of an Individual from the Tyrannity of the Government.

The ninth amendment says many things. But it was only ruled on twice by the Supreme Court. Both cases, in my opinion, really had little to do with Individual Rights. The most important interpetation of the 9th Amendment is that...

One cannot use one "Right" to take another "Right" away.

For instance one cannot use the freedom of Speech to take away the right to bear arms (1st vrs 2nd). One cannot use the 14th Amendment to take away the 10th Amendment (Color equality vrs. State Souvergnty). And one cannot use the 16th Amendment to take away the 4th Amendment (Income Tax vrs. Personal Privacy).

[BikerNYC]

If that's what they meant, they should have said that, and specifically stated that the States retain the right to regulate the rights of individuals not specifically mentioned in the Constitution.

[general_re]

It seems to me that if you want to assert a right to privacy or something else not specifically mentioned in the Bill of Rights, this is the Constitutionally correct branch from which to hang it.

The 9'th Amendment is a dead letter because it's a wish-list. How do you determine what is and isn't a right under the 9'th Amendment?

[FreeTally]

Actually states can do just about anything they want, even set up a theocracy if they please (because the bill of rights and such apply to the federal government). Citizens in that theocracy, however, would be free to move from one state to another that didn't have such rules.

What if all States that were part of the union set up a theocracy?

[Jim Noble]

>>But allowing states to regulate abortion, for example, would be denying the People the right to get one should they so choose<<

I think you're wrong.

The Ninth cannot mean that individuals can perform any action not forbidden by the Constitution.

It also can't mean that anything that the Congress cannot legislate on must be legal.

The rights and powers of the People have expression in the legislatures of the several states (scary, ain't it?).

States have broad powers to legislate in areas denied to Congress by the Tenth-and these legislative acts are manifestations of the retained rights referred to by Nine.

[FreeTally]

"The People", in their States, could establish churches, outlaw lewdness, forbid pornography, regulate intercourse between the races, all without violating Nine.

Maybe so, but I feel this basis is flawed. This "power" is in the same vain as considering blacks less than human and not allowing women to vote. How so? It is based upon humans just "making it up as they go along". The founders had some good ideas, but they were not really interested in a "free" country.

[freeeee]

What if all States that were part of the union set up a theocracy?

People who didn't wish to be under that theocracy would migrate to a state with a small population, become the voting majority thereby taking political control of that state's government, and dis-establish the state church.

In short, the People would vote with their feet.

[dirtboy]

The 9'th Amendment is a dead letter because it's a wish-list. How do you determine what is and isn't a right under the 9'th Amendment?

If properly interpreted, you don't have to. The 9th simply tells the fedgov that, just because a right is not enumerated in the first eight amendments, that does not mean that the fedgov can therefore eliminate any or all other rights - because if the 9th is properly read with the 10th, that is the realm of the states or the people.

However, with the passage of the 14th amendment, trying to use the 9th generally creates a circular argument that did not exist prior to the 14th, and your point becomes more relevant.