The Ninth Amendment

7/23/02 | Doug Loss

[dirtboy]

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

General re, however, makes a good point. Prior to the passage of the 14th Amendment, the 9th functioned primaraly as a bulwhark against the federal government. With the 14th in place, the 9th could just as easily be used to create a federal right (such as gay marriage), and then an activist court could ram that new right down the throats of the states with the 14th.

[general_re]

What I'm more or less trying to get at is that the problem with the 9'th is that it's completely open-ended. If we all sat down, we could probably come up with some rights that we all agree should be covered by the 9'th Amendment. But the problem is, there's no legal, Constitutional, or logical reason we have to stop there - we can keep on going and assert any old thing that we like to be a 9'th Amendment right. That's the real problem with it - it covers anything our little hearts could possibly desire with no trouble at all.

Then you get perverse stuff being pushed on us, like what Ralph Nader thinks the rights of the people ought to be. And then it's free lunches for all, courtesy of the Ninth Amendment and us working stiffs ;)

[dixie sass]

This is a copy of the presentation that I gave last night on the ninth amendment at the Patriots of the Republic Room on Paltalk. Next week - Monday, the tenth will be presented.

Someone suggested that these two should have been presented at the same time because they are so entwined. Yes and No.

One (the ninth) is dealing strictly with the rights retained by the people which are different from those retained by the state or federal governments. They are clearly delineated in the Constitution and also are the rights that are granted to us by GOD.

The Framers of the Constitution wanted to make sure that we, the people would be protected from such abuses as those delinated towards the end of my presentation. The ninth is a reminder to the government that they are to protect our rights.

Because of the laxity on the part of the people, we are experiencing the very abuses and infringements that the Framers tried to protect us from.

Monday
22 July 2002


Amendment IX
presented by Dixie Sass

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In Other Words:

The listing in the Constitution of certain rights (those we have already heard about, i.e., speech, religion, assembly, gun ownership, speedy trial, reasonable bail and etc.), shall not be construed (to understand or explain the sense or intention of, usually in a particular way or with respect to a given set of circumstances) to deny (to disclaim connection with or responsibility for) or disparage (to lower in rank or reputation or to depreciate by indirect means or to speak slightingly about) others retained (to hold secure and intact) by the people



Prior to the Constitution was a document called the Articles of Confederation. This document gave the States more power in governing and the Federal Government less. To centralize the government and give it more power in governing these United States, he suggested that we have a document that delineated the exact responsibilities of the federal government. Out of this came the Constitution, a blueprint for the three branches of government - the Executive, Judicial and Legislative, with a system of checks and balances which would keep each from usurping the authority of the other.

Madison had been in favor of having a Bill of Rights, provided that it was framed NOT to imply powers "NOT MEANT TO BE INCLUDED IN THE LISTING OF THESE RIGHTS".

To quote President Madison in a letter to Thomas Jefferson, speaking of the Bill of Rights " I have not viewed it in an important light... (1) because I conceive that in a certain degree, the rights in question are reserved in the manner in which federal powers are granted. (2) because there is a great reason to fear that positive declaration of some of the most essential rights could not be contained in the requisite latitude. I am sure that the rights of conscience, in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power."

By including the ninth amendment, President Madison and the framers specifically made it clear that the Bill of Rights, by implication could not and does not contain any guarantee of a right or provision of infringement nor increase the powers of the federal government in other areas of the Constitution and the Bill of Rights.

The ninth amendment seems to be the least used and the least abused as well as the most used and most abused. While going through various searches, I came across the case of Griswold V.S. Conn.

This was about a statute prohibiting the use of contraceptives which was voided as an infringement of the privacy laws.

Justice Douglas's opinion said: "Specific guarantees in the Bill of Rights have penumbras (a body of rights held to the guaranteed by implication in civil Constitution). Formed by those guarantees that help give them "life and substance."

Justice Douglas returned to the body of the ninth in an attempt to support " the thought that these penumbra rights are protected by one amendment or a complex of amendments despite the absence of a specific reference."

Justice Goldberg in concurring devoted several pages to the ninth. While reading it, one sentence jumped out - " To hold that a right so basic and fundamental as the right of privacy in marriage may be infringed, because that right is not guarantee in so many words by the first eight amendments to the Constitution is to ignore the ninth amendment and give it no effect. Moreover, a judicial construction that this fundamental right is not protected by the Constitution, because it is not listed in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the ninth amendment."

He goes on to say that the framers believed there are fundamental rights that exist and are "not expressly enumerated in the first eight and an intent that the list of rights included there not be deemed exhaustive."

In the same decision, Justice Black stated "privacy is a broad abstract and ambiguous concept."

To paraphrase Justice Black, the ninth amendment is a broad abstract and ambiguous concept. It can be used in conjunction with the other amendments to help define those gray areas. It can be used as a matter of conscience to form rulings on morals, ethnicity, citizenship, right to live or die as we see fit, hate privacy and etc. It is not so much infringed upon as it used to define infringement by the other eight amendments.

The rights covered by the ninth and also the tenth are rights that are to be protected, not granted by the government - life, liberty and the pursuit of happiness. They cannot be taken away, but it seems that government has forgotten that with various infringements.

We have seen that with the land grabs in Washington State, Nevada, Ohio and West Virginia.

We have seen it with the passing of the Campaign Finance Reform, Wade vs Roe, Sexuality being taught in schools, prayer being denied in public schools and other public venues, submission to drug tests, disclosure of finances, medical information disclosures, denial of cannabis for medical purposes, catering to pedophiles, catering to criminals, verbal sexual harassment, TIP and VIP, hate crimes (good grief all crimes are "hate"), the list goes on and on and on. Perhaps the two greatest test will be with the formation and implementation of the Homeland Security and the Cyberworld and what can and cannot be put out over the 'net.

I will end with two quotes, one from CIA.org:

" This amendment is so weak today that I will not ask what infringements there are on it but rather what exercise of it exists at all? What law can you appeal to a court to find you not guilty of violating because the law denies a right retained by you? "

Calvin Massey, in his book THE SILENT AMENDMENT says "The ninth amendment and the constitutions unenumerated rights, argues that it is now "impossible to achieve the amendments original function of limiting the implied powers of the federal government because of the modern expansion of federal powers." Massey also argues "that these unenumerated rights include both natural and positive rights protected in State Constitutions."

As there are strength and weaknesses in the first eight amendments, so are there strengths and weaknesses in the last two - those strengths and weaknesses are you and I because we are the only ones who can guard these rights and preserve, protect and defend. If we don't take to heart the legacy that our forefathers gave us, why then Ladies and Gentlemen, we have lost the republic, we could not keep it. Perhaps there is to much interpretation of what we THINK these gentlemen wanted and not enough understanding of these very simple words.

To some extent the 10th amendment and the ninth overlap with respect to enumeration - as Bigun will tell you next week that was another concern of Madison's...

In light of all that has happened in the year past, we have a more urgent task now than ever. Ladies and Gentlemen the floor is open to discussion...


NOTES


Id. at 488, 491, 492. Chief Justice Warren and Justice Brennan joined this opinion. Justices Harlan and White concurred id. at 499, 502, without alluding to the Ninth Amendment, but instead basing their conclusions on substantive due process, finding that the state statute ''violates basic values implicit in the concept of ordered liberty,'' (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Id. at 500. It would appear that the source of the fundamental rights to which Justices Douglas and Goldberg referred must be found in a concept of substantive due process, despite the former's express rejection of this ground. Id. at 481-82. Justices Black and Stewart dissented. Justice Black viewed the Ninth Amendment ground as essentially a variation of the due process argument under which Justices claimed the right to void legislation as irrational, unreasonable, or offensive, without finding any violation of an express constitutional provision.
In United Public Workers v. Mitchell, 330 U.S. 75, 94 -95 (1947), upholding the Hatch Act, the Court said: ''We accept appellant's contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments [is] involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. Thus we have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth, and Tenth Amendments.'' See Ashwander v. TVA, 297 U.S. 288, 300 - 11 (1936), and Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143 -44 (1939). See also Justice Chase's opinion in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798), and Justice Miller for the Court in Loan Ass'n v. Topeka, 87 U.S. (20 Wall.) 655, 662 -63 (1875).
Notice the recurrence to the Ninth Amendment as a ''constitutional 'saving clause''' in Chief Justice Burger's plurality opinion in Richmond Newspapers v. Virginia, 448 U.S. 555, 579 -80 & n.15 (1980). Scholarly efforts to establish the clause as a substantive protection of rights include J. Ely, Democracy and Distrust--A Theory of Judicial Review (Cambridge: 1980), 34-41; and C. Black, Decision According to Law (New York: 1981), critically reviewed in W. Van Alstyne, Slouching Toward Bethlehem with the Ninth Amendment, 91 Yale L. J. 207 (1981). For a collection of articles on the Ninth Amendment, see The Rights Retained by the People: The History and Meaning of the Ninth Amendment (Randy E. Barnett, ed., 1989).

[billbears]

Slaveocracy, slaveocrats. LET IT GO MAN!! My father's family alone had at least 3 ancestors that fought in the 34th and 37th North Carolina and not a damn one of them owned slaves!! The 9th and 10th Amendments were there for a reason. To maintain and establish control of internal workings AND to protect the interests of the citizens of each respective state. I don't remember Thomas Pickering or George Cabot speaking of 'slaveocrats' in their push for secession in the early years of the 19th century, yet they felt strongly enough to call for leaving the union. Hell, the more I read about Pickering I think he was just a Tory in disguise. Ilk like him and Hamilton would have been happy if we just would have named the nation Great Britain II. But we didn't.

The powers not enumerated in the Constitution belonged to the states. And I'm not talking about 'assumed' abe powers or 'well it's covered under the general welfare clause' either. If it wasn't in the Constitution, it belonged to the respective states. But Clay and Hamilton are in full force today, of that you can be assured. So you should be quite happy

[dixie sass]

Post 83 for your perusal and comments

[CLRGuy]

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.

My point was that they could set one up, not that they wouldn't still need to have the people of that state to consent to such a government. I agree with you 100%.

I'm speaking in theory here, not in literal terms, in theory there could exist a majority (or a 2/3 majority to amend or change the state constitution) in a state who chose this form of governement for the state.

[dixie sass]

No.

[general_re]

Nice summary, but I'm sort of surprised that you didn't mention Patterson's book, or Roscoe Pound's preface to it...

[dirtboy]

From post #83, re Griswald

The ninth amendment seems to be the least used and the least abused as well as the most used and most abused. While going through various searches, I came across the case of Griswold V.S. Conn.

This was about a statute prohibiting the use of contraceptives which was voided as an infringement of the privacy laws.

Justice Douglas's opinion said: "Specific guarantees in the Bill of Rights have penumbras (a body of rights held to the guaranteed by implication in civil Constitution). Formed by those guarantees that help give them "life and substance."

Justice Douglas returned to the body of the ninth in an attempt to support " the thought that these penumbra rights are protected by one amendment or a complex of amendments despite the absence of a specific reference."

Justice Goldberg in concurring devoted several pages to the ninth. While reading it, one sentence jumped out - " To hold that a right so basic and fundamental as the right of privacy in marriage may be infringed, because that right is not guarantee in so many words by the first eight amendments to the Constitution is to ignore the ninth amendment and give it no effect. Moreover, a judicial construction that this fundamental right is not protected by the Constitution, because it is not listed in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the ninth amendment."

He goes on to say that the framers believed there are fundamental rights that exist and are "not expressly enumerated in the first eight and an intent that the list of rights included there not be deemed exhaustive."

In the same decision, Justice Black stated "privacy is a broad abstract and ambiguous concept."

To paraphrase Justice Black, the ninth amendment is a broad abstract and ambiguous concept. It can be used in conjunction with the other amendments to help define those gray areas. It can be used as a matter of conscience to form rulings on morals, ethnicity, citizenship, right to live or die as we see fit, hate privacy and etc. It is not so much infringed upon as it used to define infringement by the other eight amendments.

The rights covered by the ninth and also the tenth are rights that are to be protected, not granted by the government - life, liberty and the pursuit of happiness. They cannot be taken away, but it seems that government has forgotten that with various infringements.

-----------

So it looks like general re is correct - that activist judges could use the 9th to overrule state laws, something IMO the 9th was never meant to do.

[Charles_Bingley]

In other words, The 14th amendment did what our modern Liberals warn us about in school: amend the Bills of Rights and and we lost that protection from a tyrantical, central government.

Jim Noble wrote:

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.

[Charles_Bingley]

So we only have right to bear arms now, because the members of Congress don't have the votes to pass gun removal.

[dirtboy]

The ninth is a reminder to the government that they are to protect our rights.

I respectfully disagree. IMO the 9th and 10th were intended as a cast-iron fence around the federal government, but had no bearing on the actions of the states. With the passage of the 14th, it became possible to use the 9th to create a federal right from air with the 9th and ram it down the throats of a state, as Douglas did with Griswald. I agree that SCOTUS should rule on laws pertaining to the written Constitution and amendments. But to seek to use the 9th as a mechanism of federal enforcement of rights not enumerated at the federal level is an invitation to judicial activism.

[general_re]

Precisely right. It's been a while since I've read it, so I may be misremembering, but that's basically what Pound was on about WRT the 9'th Amendment - let's use it to advance our social agenda. We think judicial activism is a problem now, but just wait 'till they get their mitts on the Ninth Amendment - there'll be all sorts of "rights" you never knew you had :^)

For some good background reading on this, Marshall De Rosa's book "The Ninth Amendment and the Politics of Creative Jurisprudence" is well worth the read, as is Patterson's book "The Forgotten Ninth Amendment"...

[justshutupandtakeit]

While this is not the place to correct your erroneous views of Hamilton, he never supported secession nor did any of the framers not even Jefferson. And no, Hamilton has been universally excoriated and lied about by the Jeffersonian-loving historians for almost two hundred yrs. Sure he spent almost two decades fighting for the freedom, independence and strength of his NATION not NY state but his NATION so he could turn it into a monarchy. If you believe this what else will you believe?

Britian tried as early as 1775 to bribe him into supporting the Crown and he refused risking all in opposing it so try another Jeffersonian lie. He is one of the greatest men this country has ever produced and is responsible for giving it an early strength capable of surviving the nutball administrations of Jefferson and Madison. No patriot ever did more for this country than Alexander Hamilton. He sacrificed his fortune, his health, his family and ultimately his life for it. Why do you think Washington loved him like a son?

North Carolina Germans never owned slaves and likely sent significant numbers to fight for the Cornfederacy and for the interests of the Slaveocrats. It was also easy to delude the poor in the South since they were uneducated and used to docilely following the Planters. Most could not vote and when they did it was only as directed by their betters.

[dixie sass]

Thank you. I could have listed beaucoup references, but I had to stop somewhere and digest the information that I had.

This morning when I woke up, I realized that when I parapharased Justice Black, I should not have said the ninth was just ambiguous and broad, but also flexible since it is used in conjection with so many of the amendments rather than being used as the primary source simply because it is a REMINDER TO THE GOVERNMENT THAT THEY ARE TO PROTECT OUR RIGHTS AS CITIZENS, BOTH SPOKEN AND UNSPOKEN.

Without the ninth and tenth, the Bill of Rights would have collapsed in upon itself because there simply would have been no protection whatsoever for the citizen by the government or for the citizen from the government.

[dixie sass]

Where were you last night? Missed you.

[dirtboy]

I think that, even though the 9th has seldom been referenced by the courts, it did serve as a damper on federal power for many years until the New Deal, the prime example being the need to pass a Constitutional amendment to implement Prohibition. Nowadays, the feds ban anything they want to in complete disregard of the Constitution. So the 9th can be useful in discussions of, say, the drug war. But without a proper connection to the 10th, coupled with the ability of the courts to misuse the 14th, makes it a tricky weapon, especially given the inability of the federalist justices on SCOTUS to resist temptation when they want federal action to promote their own views.

[justshutupandtakeit]

I forgot to respond to your latter comments.

After you read Hamilton's Defense of the National Bank paper he prepared for Washington you can get back to me about what the constitution covers and does not cover. His argument is devasting to the position that the powers of the federal government are specifically identified. So devastating that W. signed the bill creating the Bank in spite of the arguments of Jefferson and the Attorney General Randolph that it was unconstitutional because it was not specified as being in the power of the federal government to create.

No one had a better understanding of the Constitution or a better legal mind than Alexander Hamilton. Few had as poor an understanding of the same than Jefferson.

[stainlessbanner]

No one had a better understanding of the Constitution or a better legal mind than Alexander Hamilton. Few had as poor an understanding of the same than Jefferson.

gotta take exception to that one. what fuels your love of hamilton? big government, centralization of power, federal spending, presidency for life....

perhaps those very reasons are why I side with Jefferson.

[dixie sass]

That is covered by the 10th Amendment.