Ninth Amendment - Uneumerated Rights - or Illegitimate?

Findlaw ^ | 9/8/02 | unknown

[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)

[tpaine]

"That isn't my 'interpretation', its yours."


You have it exactly backwards. My interpretation, which is the interpretation of the founders as well as pretty much every legal authority since, has been that Section 9 applies only to the federal government, not the states, because it only engages in passive negative constructions, just like the bulk of the BOR. You, on the other hand, have been insisting that such constructions restrict both the states and federal government, and that has no basis in either the stated intent of the writers, or the wording of the document.
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Just insisting don't make it so. My position is backed up by the plain intent of the 14th, - which was to end violations of individual rights, by state & local governments.
-- Why you people fight against your own rights to life, liberty, and property is beyond all reason.

[tpaine]

#52 was pap. Nothing respond to.

[Roscoe]

"My position is backed up by the plain intent of the 14th"

Another facetious tpaine assumption.


In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws.6 In fact, until 1961,7 all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. See Survey, U. Miami L. Rev., supra, at 524, n. 9. Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

BOWERS v. HARDWICK, 478 U.S. 186

http://www.bowdoin.edu/~sbodurt2/court/cases/bowers.html

[tpaine]

You want to 'closely regulate' ~everything~, roscoe.

That's what this thread is about.

[Roscoe]

BROOKLYN DOCTOR ARRESTED FOR SELLING DRUG PRESCRIPTIONS FOLLOWING UNDERCOVER PROBE

Attorney General Eliot Spitzer today announced that a Brooklyn physician has been arrested for selling prescriptions for powerful and highly addictive medications.

The arrest follows an undercover sting operation in which agents of the Attorney General's Medicaid Fraud Control Unit (MFCU), posing as Medicaid recipients, visited the doctor's office.

Dr. Richard Goodin, a family practitioner with offices in the East New York section of Brooklyn, was arraigned yesterday afternoon in Brooklyn Supreme Court on a 22-count indictment. He was charged with fifteen counts of Criminal Sale of a Prescription for a Controlled Substance, two counts of Offering a False Instrument for Filing in the First Degree, and five counts of Falsifying Business Records in the First Degree. If convicted, he faces up to 15 years in prison.

According to prosecutors, on multiple occasions between March 1999 and August 2000, Goodin sold prescriptions for stimulants (Adderall and Dexedrine) and painkillers (Hydrocodone and Codeine) without even the pretense of conducting a medical exam of the undercover agents. Goodin would either accept cash for the prescriptions or bill the Medicaid program for patient visits that never occurred.

"The defendant flagrantly disregarded both the law and his oath by using his medical practice as a front to enable individuals to illegally obtain powerful drugs," said Spitzer. "With no consideration for the health of the buyer or the medical necessity of the drugs, the defendant acted more like a street corner drug dealer than a medical practitioner."

http://www.oag.state.ny.us/press/2001/nov/nov21a_01.html

[tpaine]

Roscoe, so obssessed with sodomy, he thinks it has a connection to the 14th. Weird.

[tpaine]

Prohibitions violate due process of law.

[Roscoe]

he thinks it has a connection to the 14th.

Backwards. The assertion that the 14th Amendment legalized sodomy is false and, at best, facetious.

[inquest]

My position is backed up by the plain intent of the 14th...

Nice try at a diversion, but don't forget what started this particular sub-thread. It was when I said, back in #19: "The ninth, as it was originally conceived, was to apply only to the federal government...." That was the statement you took issue with, and it remains unrefuted by you.

[Roscoe]

Prohibitions violate due process of law.

False. Sourceless, citeless, nonsense.

[inquest]

#52 was pap. Nothing respond to.

Absolutely right. That would involve thinking.

[tpaine]

Whatever.

[inquest]

Prohibitions violate due process of law.

That depends entirely on how the prohibition is enforced. If all the correct processes are employed, then there is no violation of due process - by definition.

[Cultural Jihad]

Due process as defined by tpaine: "I need to be specifically asked whether I agree to it or not. Otherwise, due process was not followed."

[SpencerRoane]

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

"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"

I don't see how point 3 logically flows from point 2, and I have never understood the position that the Ninth Amendment is only a "rule of construction." (Similarly, I have never agreed with the position that the Tenth Amendment should be nothing more than "a truism.") Let's say Congress passes a bill mandating a two year stint in a national non-military service corps for all 18-19 year olds--in order to provide for the general welfare by building the character of young Americans while preparing them for careers in interstate commerce and the government. What rights-based provision of the original Constitution specifically prohibits this? None, with the arguable exception of the due process clause. But does anyone really doubt that the generation of the framers and ratifiers would have been appalled by such a statute and considered it an abridgement of their natural rights? Isn't the right not to have your very liberty arbitrarily infringed by the state a natural right "retained by the people?" The Court historically has more than once nullified statutes on Tenth Amendment grounds. Why should the Ninth be any different?

[inquest]

Let's say Congress passes a bill mandating a two year stint in a national non-military service corps for all 18-19 year olds--in order to provide for the general welfare by building the character of young Americans while preparing them for careers in interstate commerce and the government. What rights-based provision of the original Constitution specifically prohibits this?

It would be prohibited by the fact that Congress was never given such a power by the Constitution in the first place.

[SpencerRoane]

"The Ninth Amendment was intended to limit the power of the federal, state, & local governments to those powers enumerated in the Constitution...."

Of course the Ninth Amendment alone has nothing to do with state or local governments. An interesting question, however, is what effect if any did the Fourteenth Amendment's ratification have on the Ninth Amendment. There are some scholars who argue that the Fourteenth Amendment was intended to turn the states into governments of enumerated powers. This is absurd. But a closer question is whether the Fourteenth Amendment, in and of itself through the vehicle of the Privilieges and Immunities Clause or in conjunction with the Ninth Amendment, was intended to incorporate some kind of natural rights provision to be applied against the states.

[Roscoe]

Due process as defined by tpaine: "I need to be specifically asked whether I agree to it or not. Otherwise, due process was not followed."

In a nutshell.

[SpencerRoane]

"It would be prohibited by the fact that Congress was never given such a power by the Constitution in the first place."

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.

[tpaine]

I said, back in #19: "The ninth, as it was originally conceived, was to apply only to the federal government...." That was the statement you took issue with, and it remains unrefuted by you.
_________________________________
#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