Posted on 09/08/2002 9:43:03 AM PDT by tpaine
U.S. Constitution: Ninth Amendment
Ninth Amendment - Unenumerated Rights
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Rights 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
Footnotes
[Footnote 1] The Federalist No. 84 (Modern Library ed. 1937).
[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 5] 381 U.S. 479 (1965).
[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)
We are.
Only in cases where a state is specifically prohibited (as in "No State shall...") by that document from doing something. Otherwise, passive negaitive constructions (such-and-such "shall not be done") apply only to the federal government, because it is a Constitution of the United States, whose primary purpose was to create and define the powers of a new federal government. Just compare Sections 9 and 10 of Article I, and you'll see what I'm talking about.
You've never explained this 'untenable sitution'. Can you?
The situation is such that there are no clear ways of telling, in a legal sense, what I 9th-amendment right is. Everybody and his mother has a different theory of how to determine it (usually based on their own personal philosophies), but ultimately it comes down to the whim of a judge. And that subverts our system of government by putting legislative powers in judicial hands.
That's what they're hoping for.
We are.
But it's going to take a lot of work to keep it that way. We're already slippin'.
If the Constitution was meant to LIMIT the powers of the Federal government, then those powers outside the limits must go somewhere. The ninth and tenth amendments say where they go, to the several states and the people.
-PJ
But tpaine and his ilk would destroy the very systems of representative government through which such work is done.
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.
From the context of the thread a reasonable person would assume that Tex was speaking of the use of the 9th Amendment for "support of the most dangerous political heresies" as 'illegitimate'- or ask him to clarify.
Tex is never 'reasonable', so I won't bother asking.
Can YOU reasonably specify these "dangerous political heresies"? - Bet not.
In August of 1982 [Michael] Harwick was charged with and arrested for violating the Georgia law criminalizing sodomy by committing that "crime" in the bedroom of his own home with another consenting adult male. The Court of Appeals ruled that the Georgia law violated Hardwick's fundamental rights because his activity was of a private and intimate nature beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.The Supreme Court reversed the judgment of the Court of Appeals, arguing that the earlier right of privacy cases, Griswold, Roe et al, only dealt with intimate matters pertaining to family, marriage, and procreation, none of which are at stake, Justice White argued, in gay sex. Nor is Hardwick's sexual conduct one of those "fundamental rights" deeply "rooted in our Nation's history and traditions," a point Justice White supported by a long list of statutes and state policies criminalizing homosexual conduct. And to someone who might wonder whether the Georgia sodomy law is an example of "the legal enforcement of morals," the Court offered the following in reply: "The law is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed."
FEDERALIST No. 10
From the New York Packet.
Friday, November 23, 1787.
MADISON
"...Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths."
And to someone who might wonder whether the Georgia sodomy law is an example of "the legal enforcement of morals," the Court offered the following in reply: "The law is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed."
We have representative systems of government.
Read a book.
Touching words, but unfortunately they had nothing to do with the case before him. The married couple weren't on trial that case, so it had nothing to do with their right of privacy. The people on trial were the doctors who counseled the couple to use contraceptives and wrote prescriptions for them, and doctors do not have a legitimate expectation of privacy in what they do as part of their jobs. To say that the right to privacy extends to their professional actions is to completely stand the notion of privacy on its head. But that I guess is what you can expect to happen when a completely vague law like the 9th amendment is foisted upon society. It means whatever the enforcers want it to mean.
Post 35: You're a pitiful liar roscoe, and can NOT back up that statement.
Busted! That was easy.
They envision being able to twist it into a Constitutional wildcard that can be used to impose their will by judicial legislation.
Only in cases where a state is specifically prohibited (as in "No State shall...") by that document from doing something.
Exactly how Art. VI is worded. -- Read it. P> Otherwise, passive negaitive constructions (such-and-such "shall not be done") apply only to the federal government, because it is a Constitution of the United States, whose primary purpose was to create and define the powers of a new federal government. Just compare Sections 9 and 10 of Article I, and you'll see what I'm talking about.
You can't make a coherant comparison, so I'm supposed to 'see it'. Weird.
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You've never explained this 'untenable sitution'. Can you?
The situation is such that there are no clear ways of telling, in a legal sense, what I 9th-amendment right is. Everybody and his mother has a different theory of how to determine it (usually based on their own personal philosophies), but ultimately it comes down to the whim of a judge. And that subverts our system of government by putting legislative powers in judicial hands.
You haven't defined whats 'untenable', imo. - The job of the USSC is to protect individual rights. What rights have they 'legislated' away?
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