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'Amendment IX' (the 'Ninth Amendment') to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.

Contents

Text

Adoption

Interpretation

Footnotes

External links

Text

Adoption

When the US Constitution was sent to the states for ratification in 1787, Anti-Federalists argued that a Bill of Rights should be added. One argument of Federalists against the addition of a Bill of Rights, during the debates about ratification of the Constitution, was that a listing of rights could problematically enlarge the powers specified in Article One, Section 8 of the new Constitution, by implication. For example, in Federalist 84, Alexander Hamilton asked, "Why declare that things shall not be done which there is no power to do?" Likewise, James Madison explained to Thomas Jefferson, "I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted"^[1] in Article One, Section 8 of the Constitution.
The Anti-Federalists persisted in favor of a Bill of Rights during the ratification debates, and consequently several of the state ratification conventions gave their assent with an attached coda requesting a Bill of Rights to be added. In 1788, the ratification by the Commonwealth of Virginia attempted to solve the problem that Hamilton and the Federalists had identified by proposing a constitutional amendment specifying:^[2]
This proposal ultimately led to the Ninth Amendment. In 1789, while introducing to the House of Representatives twelve draft Amendments, James Madison addressed what would become the Ninth Amendment as follows:^[3]
Like Hamilton, Madison was concerned that enumerating various rights could "enlarge the powers delegated by the constitution." Id. Here is the draft of the Ninth Amendment that Madison submitted to Congress in order to solve this problem:
This was an intermediate form of the Ninth Amendment that borrowed language from the Virginia proposal, while foreshadowing the final version. Like Madison's draft, the final text of the Ninth Amendment speaks of other rights than those enumerated in the Constitution. The character of those other rights was indicated by Madison in his speech introducing the Bill of Rights (emphasis added):
For the Founders, "rights" (against the actions of government) were always complementary to delegated powers of government, partitioning the space of public action. Each delimits its complement. Every constitutional "right" (or "immunity" to use a term in Article Four of the Constitution) delimits its opposing power, and every delegated power delimits its opposing right.
The First through Eighth Amendments address the means by which the federal government exercises its enumerated powers, while the Ninth Amendment addresses a "great residuum" of rights that have not been "thrown into the hands of the government." The Ninth Amendment became part of the Constitution on December 15, 1791 upon ratification by three-fourths of the states.

Interpretation

The Ninth Amendment has generally been regarded by the courts as negating any expansion of governmental power on account of the enumeration of rights in the Constitution, but the Amendment has not been regarded as further limiting governmental power. The U.S. Supreme Court explained this, in ''U.S. Public Workers v. Mitchell'' : "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."
Some jurists have asserted that the Ninth Amendment is relevant to interpretation of the Fourteenth Amendment. Justice Arthur Goldberg (joined by Chief Justice Warren and Justice Brennan) expressed this view in a concurring opinion in the case of ''Griswold v. Connecticut'' (1965):
Subsequent to ''Griswold'', some judges have tried to use the Ninth Amendment to justify judicially enforcing rights that are not enumerated. For example, the District Court that heard the case of ''Roe v. Wade'' ruled that the Ninth Amendment protected a limited right to abortion.^[4] However, Justice William O. Douglas rejected that view; Douglas wrote that, "The Ninth Amendment obviously does not create federally enforceable rights." See ''Doe v. Bolton'' (1973). Douglas joined the majority opinion of the U.S. Supreme Court in ''Roe'', which stated that a federally enforceable right to privacy, "whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."^[5]
The Sixth Circuit Court of Appeals stated as follows in ''Gibson v. Matthews'', 926 F.2d 532, 537 (6th Cir. 1991):
Professor Laurence Tribe shares this view: "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution."^[6] Likewise, Justice Antonin Scalia has expressed the same view, in ''Troxel v. Granville'' (2000):
In the year 2000, the Harvard historian Bernard Bailyn gave a speech at the White House on the subject of the Ninth Amendment. He said that the Ninth Amendment refers to "a universe of rights, possessed by the people — latent rights, still to be evoked and enacted into law....a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law."^[7]
It is important, when discussing the history of the Bill of Rights, to note that the Supreme Court held in ''Barron v. Baltimore'' (1833) that it was enforceable by the federal courts only against the federal government, and not against the states. However, in 1868, the Fourteenth Amendment was adopted, in large part to overturn that precedent, and the Supreme Court has used that Amendment, together with enabling congressional legislation, to apply some, but not all, provisions of the Bill of Rights against the states through what is called selective incorporation, thereby enabling a citizen to sue the citizen's own state in federal court (see sovereign immunity). Since 1938, when the Supreme Court wrote its famous footnote four, the proper application of the Bill of Rights has been an increasingly contentious issue.
Robert Bork, sometimes styled an "originalist", has likened the Ninth Amendment to an inkblot. Bork argued 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 inkblot. According to Bork, if another provision of the Constitution were covered by an actual inkblot, judges should not be permitted to make up what might be under the inkblot lest any judges twist the meaning to their own ends (cf. underdeterminacy).
Originalist Randy Barnett has argued that the Ninth Amendment requires what he calls a presumption of liberty. Other originalists, such as Thomas B. McAffee, have argued that the Ninth Amendment protects the unenumerated "residuum" of rights which the federal government was never empowered to violate.^[8] Constitutional historian Jon Roland has argued,^[9] that the Ninth Amendment included by reference all of the rights proposed by the state ratifying conventions, in addition to those enumerated in the first eight amendments.
Gun rights activists in recent decades have sometimes argued for a fundamental natural right to keep and bear arms that both predates the U.S. Constitution and is covered by the Constitution's Ninth Amendment; according to this viewpoint, the Second Amendment protects only a pre-existing right to keep and bear arms.^[10] In the related case of ''United States v. Lopez'', 514 U.S. 549 (1995), the Supreme Court held that while Congress has broad lawmaking authority under the Commerce Clause, it is not unlimited, and does not apply to something as far from commerce as carrying handguns.
The Ninth Amendment bars denial of unenumerated rights if the denial is based on the ''enumeration of certain rights'' in the Constitution, but does not bar denial of unenumerated rights if the denial is based on the ''enumeration of certain powers'' in the Constitution. It is to that enumeration of powers that the courts have said we must look, in order to determine the extent of the unenumerated rights mentioned in the Ninth Amendment.^[11]

Footnotes

1. James Madison, Letter to Thomas Jefferson (October 17, 1788). Madison often expressed this idea, for example in a letter to George Washington dated December 5, 1789 ("If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended").
2. Virginia Ratification Resolution (June 26, 1788).
3. James Madison,Speech Introducing Bill of Rights (June 8, 1789).
4. ''Roe v. Wade'', 314 F. Supp. 1217 (1970).
5. ''Roe v. Wade'', 410 U.S. 113 (1973). Findlaw.com. Retrieved 2007-06-4.
6. Laurence H. Tribe, ''American Constitutional Law'' 776 n. 14 (2nd ed. 1998).
7. Bernard Bailyn, Remarks at White House Millennium Evening (2000).
8. Thomas B. McAffee, Federalism and the Protection of Rights: The Modern Ninth Amendment's Spreading Confusion, 1996 B.Y.U. Law Rev. 351.
9. Jon Roland, Presumption of Nonauthority and Unenumerated Rights (2006).
10. Nicholas Johnson, ''Beyond the Second Amendment: An Individual Right to Arms Viewed Through The Ninth Amendment'', 24 Rutgers L.J. 1, 64-67 (1992).
11. ''United Public Workers v. Mitchell'', 330 U.S. 75 (1947).

External links

★ A Textual-Historical Theory of the Ninth Amendment by Kurt Lash (2007)

★ The Ninth Amendment: It Means What It Says by Randy Barnett (2006)

★ CRS Annotated Constitution: 9th Amendment by the Congressional Research Service (2000)

★ The Lost Original Meaning of the Ninth Amendment by Kurt Lash (2004)

★ The Lost Jurisprudence of the Ninth Amendment by Kurt Lash (2005)

★ Rights, the Constitution, and the Ninth Amendment by Tibor R. Machan (2005)

★ Proposed Amendments to the Constitution by James Madison (1789)

★ Federalism and the Protection of Rights: The Modern Ninth Amendment’s Spreading Confusion by Thomas B. McAfee (1996)

★ Documentary History of the Bill of Rights -- Compilation of documents