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?

[Jim Noble]

>>The careful reader, though, looks at the paragraph as a whole<<

FreeTally is not a careful reader.

[CLRGuy]

Actually there is something called the 14th Amendment especially Section 1 which puts the lie to your argument.

If you look carefully you will find that soon after the 14th amendment was passed the Supreme Court declared the clause you refer to as a "practical nullity".

If interpreted in the way you imply state governments would have no power whatsoever, forget about Republican government here.. you're talking about the federal government taking on all responsibilities as they pertain to security and protection of civil rights.

There's a good discussion on the history of this clause and the opinion that the court has had on it here

[Frumious Bandersnatch]

My bad.  You are quite correct.  Section 10 lists states limitations, while section lists federal limitations.

[FreeTally]

If you want to believe that a majority of persons in this country around the late 1770's thought of blacks as equals to white men, then go one believing it. Its not based in fact, though. They were uneducated savages for the most part. Anyone could see that. That's why they had no problem enslaving them.

[FreeTally]

1770's = 1700's.

[general_re]

There have been no significant rulings that I am aware of which have invoked either amendment as a justification for the ruling.

Yeah, I perhaps overstated the case about the 9'th - it's been mentioned in cases, but almost invariably in terms of dismissing someone's claim to a 9'th Amendment right. The only case I know of where it's mentioned in a positive, let's-run-with-this-thing kind of way, is Griswold, and like I said, that was in concurrence.

My view is that they were a sop to the anti-Federalists which both sides knew were nothing but rhetorical, face-saving devices.

I suspect you're on to something there...

[Jim Noble]

>>If you want to believe that a majority of persons in this country around the late 1770's thought of blacks as equals to white men<<

Your assertion was that the founders believed blacks to be "less than human".

I certainly agree they did not believe blacks were equal to whites in achievement.

[tophat9000]

People after reading what some think what the constitution means....to get a better idea they might want to try reading

“The Debates in the Federal Convention of 1787 by James Madison”

http://www.constitution.org/dfc/dfc_0000.htm

These are detailed day by day journals of the constitution convention as constitution was written.

It gives the reason behind each article… start your read from the first day and find out many surprising things.

[Twodees]

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 Roe v Wade decision was less about a right to privacy than it was about basing a nonexistent, court invented right to kill an unborn child on the right to privacy. The 14th amendment has been used to base this sort of ridiculous reasoning upon so often that it is called "the jurists' amendment".

The Supreme Court demonstrates an absolute disregard for the Constitution several times a year and has done so increasingly since Salmon Chase was seated as chief justice.

[tophat9000]

see my post "68" on

"The Debates in the Federal Convention of 1787 by James Madison"

http://www.constitution.org/dfc/dfc_0000.htm

[Doug Loss]

I'm just back from a staff meeting at work, and I've been cruising the internet looking for websites that might illuminate the discussion on the ninth amendment. Here's what I've found so far:

http://www.constitution.org/dfc/dfc_0000.htm
http://www.cato.org/links/ninth.html
http://www.princeton.edu/~mddavis/ninth.html

[Lurking Libertarian]

do you recall the case where Burger said that?

I don't have the citation handy, but I think it was a footnote to his concurrence (?) in Richmond Newspapers v. Virginia (1980).

[dixie sass]

Got it! Someone was listening to the show last night!

[justshutupandtakeit]

What is amusing is that the "constitutional experts" around here universally think these amendments cover any damn thing they want them too. When I mention the reality of their history hysterical attacks from these "experts" (some of whom may have actually read the document) rain down upon my head as though I am happy about their history and want their irrelevence to continue.

[Twodees]

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).

Not quite true. State governments get their properly delegated powers in the same way the federal government does, through their constitutions. The people of a state might empower their state government to establish a state religion by granting that power to the state government in the state constitution, but no state government automatically has that power by default simply because it isn't specifically prohibited that power in the US Constitution.

The basic principle of our form of government is that all power held by government is delegated to that government by the people subject to its governance.

[FreeTally]

I certainly agree they did not believe blacks were equal to whites in achievement.

Would you agree or disagree that many believed blacks were unable to become equal in achievement?

[BikerNYC]

Very interesting stuff. But written by just one person and necessarily colored by his perspective. And if the minutes as written constituted the entire session, the sessions didn't last very long.

[Twodees]

The 9'th Amendment is a dead letter because it's a wish-list.

That's an absurd statement. The 9th amendment isn't a list at all, let alone a "wish list". In fact, the 9th amendment very clearly states that no list need be made . Where on earth did you get such an odd notion, anyway?

[tpaine]

general_re posted:

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?

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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.
20 po dirtboy

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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. - jim noble -

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The priviliges & immunities clause was being violated by states after the civil war, - [IE -- former slaves were being denied the right to own guns] - under the mistaken Marshal Court doctrine that the first ten amendments only limited the federal government.
The 14th was ratified to correct this flaw, and by further defining that the rights included those to 'life, liberty, or property', in effect expanded/defined the meaning of 'unenumerated rights' as per the 9th.

[general_re]

That's an absurd statement.

Only if you interpret it as though I meant a literal list of rights ;)

Anyway, how do you determine what is and isn't a right under the 9'th Amendment?