Ninth Amendment to the United States Constitution

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Template:USBillofRights Amendment IX (the Ninth Amendment) to the United States Constitution, which is part of the Bill of Rights, protects rights not specifically enumerated in the Bill of Rights.

1 Text
2 Adoption of the Ninth Amendment
3 Interpretation of the Ninth Amendment
4 Case law
5 External links

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Text

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

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Adoption of the Ninth Amendment

In his introduction before the House of Representatives of the original twelve Amendments proposed to the states, ten of which would be ratified and become known as the Bill of Rights, James Madison addressed the 9th and 10th Amendments as follows:

"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." (III Annals of America pp.354-363)

Madison was speaking to the fears that the enumeration of some specific limitations on the powers of the Federal Government would be interpreted to mean that the government's powers would extend beyond the powers granted Congress in Article One, Section 8 of the new Constitution. Indeed, this was the Federalists' argument against the inclusion of a Bill of Rights during the ratification of the Constitution; (see, e.g., Federalist 84). After all, the government was already powerless to establish a national religion before the Bill of Rights was passed, because the power was simply not granted in the first place. However, the anti-federalists persisted during the ratification debates, and several of the state ratification conventions sent their assent with a coda attached, requesting a bill of rights to be added. See, e.g., Ratification by the State of Massachusetts; Ratification by the State of Virginia.

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Interpretation of the Ninth Amendment

It has been considered that the 9th Amendment was put in place as a notice to the Congress that they were still a body constrained by a set of enumerated powers, and to the Federal Courts to ensure that the Congress did not forget.

In recent times, it has been argued that the Ninth Amendment, particularly when read in conjunction with the Tenth Amendment, emphasizes that the Bill of Rights is not a grant of rights from the government to the people. Indeed, if the Declaration of Independence is a guide, the Framers did not intend rights largely as being conferred by governments or legal documents, but arising ex deo, independently of the laws of man. Instead, it is argued that the Ninth Amendment is an enumeration of some of the most important powers not granted by the people to the Federal government (it is important to keep at the forefront of one's mind, when discussing the history of the bill of rights, that it applied only to the Federal government prior to the Fourteenth Amendment; see Barron v. Baltimore), and that the Ninth Amendment should be interpreted as addressing Federalist fears that enumerating rights might lead some to conclude that only those rights listed can be protected, just as the Tenth Amendment addresses anti-Federalist fears that the general government would swallow the states.

Another interpretation holds that the Ninth Amendment recognizes that certain natural rights are retained by the people and cannot be abridged by any government. This interpretation argues that the Ninth Amendment, in conjunction with the Fourteenth Amendment, permits the judiciary to strike down state laws which abridge certain rights. The difficulty with this interpretation is that, because the Ninth Amendment does not specify which rights it protects, and since almost any law that has any practical effect will limit someone's freedom of action, which they might term a "right" - such a power would create an almost unlimited ability of the Federal Judiciary to strike down laws that a given judge or group of judges disliked.

Since footnote four, the proper application of the Ninth Amendment has been a contentious issue. Robert Bork famously likened it to an ink blot. Bork argues in The Tempting of America that, while the amendment clearly had some meaning, its meaning is indeterminate; because the language is opaque, its meaning is as irretrievable as it would be had the words been covered by an ink blot. If another provision of the Constitution were covered by an actual ink blot - judges should not be permitted to make up what might be under the ink blot, lest any judges twist the meaning to their own ends. However, Bork's fellow originalist Randy Barnett has argued that the Ninth Amendment requires what he calls a presumption of liberty, and that the amendment permits the judiciary to enforce the rights they determine to be covered by the Ninth Amendment.

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Case law

Griswold v. Connecticut, 381 U.S. 479 (1965) was before the US Supreme Court in a Fourteenth Amendment case.

In the decision for this case, Justice Goldberg wrote a concurring opinion that, "While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement."

Gun rights activists in recent decades have often taken this opinion to mean that the fundamental right to keep and bear arms predates the U.S. Constitution and is due solely to the Ninth Amendment; the Second Amendment only protects this pre-existing right to keep and bear arms. [1]

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