Ninth Amendment - Uneumerated Rights

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

Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those. 1
Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. ''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.'' 2
It is clear from its text and from Madison's statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement. 3
Recently, however, the Amendment has been construed to be positive affirmation of the existence of rights which are not enumerated but which are nonetheless protected by other provisions.

The Ninth Amendment had been mentioned infrequently in decisions of the Supreme Court 4 until it became the subject of some exegesis by several of the Justices in Griswold v. Connecticut. 5 There a statute prohibiting use of contraceptives was voided as an infringement of the right of marital privacy. Justice Douglas, writing the opinion of the Court, asserted that the ''specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.'' 6
Thus, while privacy is nowhere mentioned, it is one of the values served and protected by the First Amendment, through its protection of associational rights, and by the Third, the Fourth, and the Fifth Amendments as well. The Justice recurred to the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the Amendment.

''The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.
. . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment.
. . . Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.'' 7
While, therefore, neither opinion sought to make of the Ninth Amendment a substantive source of constitutional guarantees, both did read it as indicating a function of the courts to interpose a veto with regard to legislative and executive efforts to abridge other fundamental rights. In this case, both opinions seemed to concur that the fundamental right claimed and upheld was derivative of several express rights and in this case, really, the Ninth Amendment added almost nothing to the argument. But if there is a claim of a fundamental right which cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from abridgment? 8

[Footnote 2] 1 Annals of Congress 439 (1789). Earlier, Madison had written to Jefferson: ''My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. . . . I have not viewed it in an important light--1. because I conceive that in a certain degree . . . the rights in question are reserved by the manner in which the federal powers are granted. 2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained 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.'' 5 Writings of James Madison, 271-72 (G. Hunt ed. 1904). See also 3 J. Story, Commentaries on the Constitution of the United States 1898 (1833).

[Footnote 3] To some extent, the Ninth and Tenth Amendments overlap with respect to the question of unenumerated powers, one of the two concerns expressed by Madison, more clearly in his letter to Jefferson but also present in his introductory speech. Supra, n.2 and accompanying text.

[Footnote 4] 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).

[Footnote 6] Id. at 484. The opinion was joined by Chief Justice Warren and by Justices Clark, Goldberg, and Brennan.

[Footnote 7] 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.

[Footnote 8] 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)

I don't believe that the privileges-and-immunities clause has any such effect (and neither, by the way, do the courts, as they've opted for the "due-process clause" route for incorporation of the BOR, which I still disagree with). Privileges and immunities are not the same as rights, in the absolute sense. They include such things as land ownership, standing to bring suit to court, immunity from extradition, etc.

The overall meaning of the 14th amendment, as far as I can see from reading it, is only to prohibit the worst types of abuse of state power, not to impose a general political morality on the states. For that, the states have their own constitutions with their own bills of rights.

It's ba-ck... (did I call that right or what?)

"Justice Goldberg, concurring, devoted several pages to the Amendment"
But only one cite of a Founder, and that was the Madison quote that Story's remarks were based on.

I think the frequently cited Anti-federalists' concerns that the Constitution did not protect the common law was the basis for it as it was for most of the BOR.

The most liberal construction of the amendment would be that it reserved the rights "held" when it was ratified.
Using it to claim any other "rights" - like "natural rights, economic rights, privacy rights, labor rights..." - is not AFAIK supported by the Founder's view of it at the time. New "rights" must be expressed in the legislature.

I agree, but that is not a rights-based prohibition. I want every provision I can find to bind the hands of the national government when it is not truly dealing with national matters. So did the ratifiers (as distinguished from the original framers) of the original Constitution.

Well, that's why the BOR is there, to clear up any possible confusion. In other words, the whole thing is more or less a "rule of construction", so to speak.

The 'supremacy clause', Art VI, specifically says that states laws are BOUND to obey the supreme law of our constitution.

"But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government--not against those of the local governments." -- Barron v. Baltimore, 7 Pet. 243 1833

#19
The ninth, as it was originally conceived, was to apply only to the federal government,
and as such, it made perfect sense
_________________________________

"Simply untrue. The 'supremacy clause', Art VI, specifically says that states laws are BOUND to obey the supreme law of our constitution.

The ninth ALL-ways made perfect sense. The Marshall court in 1833 simply decided to ignore this 'sense' for 'states rights' political reasons. -- You still do the same.
#19"

There really should be some minimal educational requirements for posting on constitutional issues. The original Bill of Rights applied only against the federal government. Any uncertainty on this point was settled by Barron v. Baltimore in the 1830s. There was a lunatic abolitionist fringe that thought it shoudn't be that way, but that fringe was vastly outnumbered.

To say that the Marshall Court was a "states rights" court is a hoot. John Marshall epitomizes the judicial quest for broad national powers. His court included Justice Story, another national power man. The fact that a Marshall-Story Court would unanimously apply the bill of rights only to the federal government merely underscores the extremist/meshuganna nature of those who thought otherwise.

"I don't believe that the privileges-and-immunities clause has any such effect (and neither, by the way, do the courts, as they've opted for the "due-process clause" route for incorporation of the BOR, which I still disagree with)."

Well, the courts sometimes get things wrong. The debate over the meaning of the 14th Amendment has gone on too long for me to re-enter it in detail tonight. One thing that most scholars agree on, however, is that whatever substantive rights (be they expansive or narrow) the framers meant to protect in Section 1, the P&I Clause was the vehicle intended to convey such rights. In other words, the Slaughterhouse Court got it wrong.

This is a separate question from the incorporation controversy. I agree with you that the weight of historical evidence is against the incorporation theory, but the evidence both textual and historical is a lot closer than conservatives would like to admit.

One thing that most scholars agree on, however, is that whatever substantive rights (be they expansive or narrow) the framers meant to protect in Section 1, the P&I Clause was the vehicle intended to convey such rights. In other words, the Slaughterhouse Court got it wrong.

This is a separate question from the incorporation controversy.

OK, just for the sake of clarity, I have to ask what you mean. You seem to be acknowledging that the P&I clause did not apply the BOR against the states, but that it still applied some other types of rights. Would these be different from the ones I mentioned in #102? I'm just curious to know (not trying to start an argument here :) ) what you think the most plausible interpretation of that clause is.

Yes, but not only a rule of construction.

You're right, it has profound philosophical implications as well, and as such I agree it's a national treasure. But from a strictly legal standpoint, I would argue that it's little more than a rule of construction, not that that should diminish its stature.

I think you and I are talking about the same category of rights--the Corfield v. Coryell rights. But I don't think it is inherently unbelievable that a ratifier in the 1860s would have thought that the Privileges and Immunities of U.S. citizens meant more. The first 8 amendments had applied against the federal government. Would it have been so crazy to think that the privileges of U.S. citizenship included the rights protected by these amendments? If I remember correctly, the Senator who introduced the Amendment in the Senate specificaly stated that it covered the bill of rights (or at least the first 8 amendments). Many of the 14th Amendment's opponents made similar claims. Again, I come down with those who argue against incorporation on textual and historical grounds. But I see it as a pretty close question. And this has serious implications if you are talking about rolling back 60 years of constitutional rulings.

"you brought up the 14th amendment, which had nothing to do with whether or not the 9th, as it was originally conceived, applied only to the feds."

The 14th was ratified because the 9th, and all the rest of the BORs were being violated by the states after the civil war. -- The 1868 debates are in the congressional record for all to see.

Your denials of known facts are ludicrous. What is it about the 'states rights' mania that brings out the worse in men? Strange to reject your own inalienable rights.

There was some original context for the Amendment: the common law, the Magna Charta, the Anglo-American legal tradition. The rights recognized by the tradition were not to be abridged simply because the authors of the Bill of Rights failed to mention them.

Today's justices aren't bound by tradition. They are to be philosopher-kings, who divine the answers on their own, using their own intellect and theories. And indeed, the old common law or traditional understanding isn't as valued as much as it once was. Once you go beyond the enumerated rights in Amendments 1-8, if justices, judges or law professors or many others want to determine what additional rights we have, they often turn to philosophy, rather than precedent.

The case with the 14th Amendment was similar. There was presumed to be some corpus of basic civil rights to be guaranteed by the Amendment, but there was no definition of just what those rights were. And this was a recipe for mischief by the courts.

So what we're left with is the either/or, either for individual freedom or government power. But I think we're all aware of cases when either one or the other should be curbed. Notice I'm not saying that legitimate individual rights or liberties should be curbed, but that courts could define as individual rights not to be infringed by government action things that we would recognize as no rights at all. We would not, I suppose, think it a victory for liberty if things that we had long regarded as crimes were somehow turned into rights overnight by justices. A better drafted amendment wouldn't leave us in such a limbo.

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