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?

[FreeTally]

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.

Under the scenario that "States" can regulate all activity not forbidden to it by the Constitution, I would assume the people living in such a state could come up with a law to prevent this from happening.

[Jim Noble]

>>specifically stated that the States retain the right to regulate the rights of individuals not specifically mentioned in the Constitution<<

Can you murder me, claim the retained right to do so (it's not specifically mentioned in the Constitution, and the Constitution does not grant your State the right to legislate in this area)

That can't be right?

[Jim Noble]

>>This "power" is in the same vain as considering blacks less than human and not allowing women to vote<<

1) Please cite any reference that the Constitution or its authors considered blacks to be "less than human". One will do.

2) States unquestionably had the power to deny women the vote until XIX. If XIX were repealed tomorrow, they would have the power again.

[BikerNYC]

I think your "'The rights of the People' really means the 'Right of the State to regulate the People'" argument is one interpretation of what is written, but not the only one.

This is the "wiggle room" clause that the lawyers who wrote the Constitution put in to address things that they could not foresee. It is poorly written. They should have been much more specific and stated that federal courts could not pass on the legality of state laws to regulate rights not given to the feds in the Constitution if that's what they meant.

The way it is now, we are left to argue what a right of the People is and what a right of the State to regulate the People is, and who gets to decide if any of it is governed by the 9th.

[freeeee]

I would assume the people living in such a state could come up with a law to prevent this from happening.

They couldn't prevent people from moving into their state. That would like be ruled as interference with interstate commerce.

More likely the state would attempt to prevent newcomers from voting. Possibly by delaying new state residents from voting until they have many years of residency. Or states could make constitutional changes that would require super-majorities to change laws already on the books.

[general_re]

Sorry, I should have been more clear - obviously this is in light of the 14'th Amendment. Considering the 14'th, the 9'th Amendment really does become a wish list, where there's no logical grounds for determining what is and isn't a "right" of the people.

Some conservatives are enamored of the 9'th Amendment because they see it as a way of restricting government, but truthfully it can be just as easily used the other way, to impose values that conservatives might find objectionable. Ponder this one - suppose SCOTUS were to declare tomorrow that gay marriage was a 9'th Amendment right, that applied to the states via the 14'th. How do you object to that? How do you show that it's somehow not a right?

No, the 9'th Amendment is best left dead - it's just too dangerous to actually use. It's no accident that there's approximately one Supreme Court case in all of American history that cites the 9'th Amendment, and that was in concurrence, and is not binding precedent.

[Jim Noble]

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

States can establish a religion. They cannot set up a theocracy:

Article IV, section 4, "The United States shall guarantee to every State in this Union a Republican Form of Government..."

All the States could establish the same religion, but Congress could not mandate its acceptance nationwide.

[BikerNYC]

Can you murder me...?

No, because you retain the right not to be murdered.

Let's face it. There are many interpretations of what the Constitution says. The interpretation that wins is the one belonging to those with the power to say so. That doesn't make them Right, it only allows them to enforce their interpretation on the rest of us. Some day, hopefully, it will swing the other way and we will enforce our interpretation on them.

[FreeTally]

1) Please cite any reference that the Constitution or its authors considered blacks to be "less than human". One will do.

Your kidding, right? Three fifths a white man.

2) States unquestionably had the power to deny women the vote until XIX. If XIX were repealed tomorrow, they would have the power again.

Sure, by that interpretation of the 9th. However, under such a scenario, we are not a "free" country. We are ruled on the whim of man with a few "guidelines" that are easily ignored.

[dirtboy]

Some conservatives are enamored of the 9'th Amendment because they see it as a way of restricting government, but truthfully it can be just as easily used the other way, to impose values that conservatives might find objectionable. Ponder this one - suppose SCOTUS were to declare tomorrow that gay marriage was a 9'th Amendment right, that applied to the states via the 14'th. How do you object to that? How do you show that it's somehow not a right?

As long as the fedgov is in an activist, usurping mode, that is a highly probable outcome.

No, the 9'th Amendment is best left dead - it's just too dangerous to actually use.

If the 10th were to be fully rescousitated, we could possible consider using the 9th. For now, I tend to agree that the 9th is best left for rhetorical argument against the expansion of federal power.

[FreeTally]

More likely the state would attempt to prevent newcomers from voting. Possibly by delaying new state residents from voting until they have many years of residency. Or states could make constitutional changes that would require super-majorities to change laws already on the books.

That's what I was getting at. If we allow the "State" to reguate all activity not denied to it by the Constitution, then "those in charge" will find some way to stop their laws from changing. We both know that the "people" retained the rights, and gave certain powers to the "State" via the state constitution. But I interject that takes a direct democracy and allows for the "State" to usurp rights based upon a majority or super-majority of votes. Either we, as humans, have certian righths that can not be taken or "given" to a group, or we are governed by the whim of man. We can not have both, really.

[Jim Noble]

>>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<<

Not so. The "privileges and immunities" clause is present in the original Constitution (Article IV, section 2, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.)

I do not share the widespread view that XIV "incorporates" I-X against the States, in fact, I think that view makes no sense.

[FreeTally]

All the States could establish the same religion, but Congress could not mandate its acceptance nationwide.

Ok, "theocracy" may be a general term. What I mean, is if all states made laws solely based upon a certain religion. If all states made some type of "intercourse" laws based upon some warped translation of a religious text, then where do you go to excercise your rights?

There are just certain powers, under the concept of a free people, that no level of government may possess.

[Frumious Bandersnatch]

But to be fair, Article I, section 9 lists limitations of states rights also.

[Jim Noble]

>>Your kidding, right? Three fifths a white man<<

For the purposes of apportioning the House of Representatives. This has nothing to do with the humanity, or lack thereof, of the blacks.

In fact, it was a way to punish slave states by reducing their representation in the House. The slave owners wanted to count the slaves at 100% to increase their House delegations.

But you're kidding, right? You already knew that.

[inquest]

No, the 9'th Amendment is best left dead

Actually, it's the 14th amendment that's best left dead - or at least the self-serving federal interpretation of it. We'll keep the 9th, thank you very much.

[Eagle9]

Ping!

[inquest]

No, Section 10 lists limitations on the actions of states; Section 9 applies only to the federal government. Just compare the two sections to see what I'm talking about.

[FreeTally]

The "privileges and immunities" clause is present in the original Constitution (Article IV, section 2, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.)

Would a strict reading of that not imply uniform laws throughout the States would exist de facto? If I can "legally" possess marijuana in one State(and considering this can not be regulated by the feds, but the power was given to each of the states to determine this), then I would be entitled to that "priveledge or immunity" in all states. I do not see any room to argue about this. If I am "immune" from prosecution in California, then Florida can not prosecute me either, because I would be being denied that immunity.

[Frumious Bandersnatch]

Not exactly true.  The constitution (specifically article 4 section 4) guarantees republican state government.  I quote:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.