Ninth Amendment to the United States Constitution

The Bill of Rights in the National Archives

The Ninth Amendment (Amendment IX) to the United States Constitution addresses rights, retained by the people, that are not specifically enumerated in the Constitution. It is part of the Bill of Rights. The amendment was introduced during the drafting of the Bill of Rights when some of the American founders became concerned that future generations might argue that, because a certain right was not listed in the Bill of Rights, it did not exist. However, the Ninth Amendment has rarely played any role in U.S. constitutional law, and until the 1980s was often considered "forgotten" or "irrelevant" by many legal academics.

In United Public Workers v. Mitchell, the U.S. Supreme Court held that rights contained in the 9th or 10th amendments could not be used to challenge the exercise of enumerated powers by the government: "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail." Some scholars have taken a different position and challenged the Court's reasoning, while other scholars have agreed with the Court’s reasoning.

Text

The amendment, as proposed by Congress in 1789 and later ratified as the Ninth Amendment, reads as follows:

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

The hand-written copy of the proposed Bill of Rights, 1789, cropped to just show the text that would later be ratified as the Ninth Amendment

Background before adoption

When the U.S. Constitution was put to the states for ratification after being signed on September 17, 1787, the Anti-Federalists argued that a Bill of Rights should be added. One of the arguments the Federalists gave 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" by Article One, Section 8 of the Constitution.

The Anti-Federalists persisted in favor of a Bill of Rights during the ratification debates, but also were against ratification, and consequently several of the state ratification conventions gave their assent with accompanying resolutions proposing amendments to be added. In 1788, the Virginia Ratifying Convention attempted to solve the problem that Hamilton and the Federalists had identified by proposing a constitutional amendment specifying:

That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.

This proposal ultimately led to the Ninth Amendment. In 1789, while introducing to the House of Representatives nineteen draft Amendments, James Madison addressed what would become the Ninth Amendment 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.

Like Alexander Hamilton, Madison was concerned that enumerating various rights could "enlarge the powers delegated by the constitution". To attempt to solve this problem, Madison submitted this draft to Congress:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

This was an intermediate form of the Ninth Amendment that borrowed from the Virginia proposal, while foreshadowing the final version.

The final text of the Ninth Amendment, like Madison's draft, 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):

It has been said, by way of objection to a bill of rights ... that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation, but they are not as conclusive to the extent it has been proposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse.

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", as Madison put it. The Ninth Amendment became part of the Constitution on December 15, 1791, upon ratification by three-fourths of the states.

The final form of the amendment ratified by the states is as follows:

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

Judicial interpretation

The courts have generally not regarded the Ninth Amendment as either limiting governmental power, or justifying its expansion. As the U.S. Supreme Court put it in U.S. Public Workers v. Mitchell 330 U.S. 75 (1947): "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."

The Supreme Court held in Barron v. Baltimore (1833) that the Bill of Rights was enforceable by the federal courts only against the federal government, not against the states. Thus, the Ninth Amendment originally applied only to the federal government, which is a government of enumerated powers.

Some jurists have asserted that the Ninth Amendment is relevant to the interpretation of the Fourteenth Amendment. Justice Arthur Goldberg (joined by Chief Justice Earl Warren and Justice William Brennan) expressed this view in a concurring opinion in the case of Griswold v. Connecticut (1965):

The Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights ... I do not mean to imply that the ... Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government ... 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. In sum, the Ninth Amendment simply lends strong support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U.S. 75, 94–95.

In support of his interpretation of the Ninth, Goldberg quoted from Madison's speech in the House of Representatives as well as from Alexander Hamilton's Federalist Paper No. 84:

I go further and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted, and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.

But the two Justices who dissented in Griswold replied that Goldberg was mistaken to invoke the Ninth as authority. Hugo Black's dissent said:

My Brother GOLDBERG has adopted the recent discovery that the Ninth Amendment, as well as the Due Process Clause, can be used by this Court as authority to strike down all state legislation which this Court thinks violates "fundamental principles of liberty and justice", or is contrary to the "traditions and [collective] conscience of our people". ... [O]ne would certainly have to look far beyond the language of the Ninth Amendment to find that the Framers vested in this Court any such awesome veto powers over lawmaking, either by the States or by the Congress. Nor does anything in the history of the Amendment offer any support for such a shocking doctrine. The whole history of the adoption of the Constitution and Bill of Rights points the other way, and the very material quoted by my Brother GOLDBERG shows that the Ninth Amendment was intended to protect against the idea that, "by enumerating particular exceptions to the grant of power" to the Federal Government, "those rights which were not singled out were intended to be assigned into the hands of the General Government [the United States], and were consequently insecure." That Amendment was passed not to broaden the powers of this Court or any other department of "the General Government", but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. ... [F]or a period of a century and a half, no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs.

And Potter Stewart's dissent said:

[T]o say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion, the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered", United States v. Darby, 312 U.S. 100, 312 U.S. 124, was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today, no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.

Since 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 in favor of a "Ninth Amendment right to choose to have an abortion," although it stressed that the right was "not unqualified or unfettered." 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."

The Sixth Circuit Court of Appeals stated in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991) that the Ninth Amendment was intended to vitiate the maxim of expressio unius est exclusio alterius according to which the express mention of one thing excludes all others:

[T]he ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution.

Justice Antonin Scalia expressed the view, in the dissenting opinion of Troxel v. Granville, 530 U.S. 57 (2000), that:

The Declaration of Independence ... is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.

Scholarly interpretation

Professor Laurence Tribe shares the view that this amendment does not confer substantive rights: "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."

In 2000, 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". Similarly, journalist Brian Doherty has argued that the Ninth Amendment "specifically roots the Constitution in a natural rights tradition that says we are born with more rights than any constitution could ever list or specify."

Robert Bork, often considered an originalist, stated during his Supreme Court confirmation hearing that a judge should not apply a constitutional provision like this one if he does not know what it means; the example Bork then gave was a clause covered by an inkblot. Upon further study, Bork later ascribed a meaning to the Ninth Amendment in his book The Tempting of America. In that book, Bork subscribed to the interpretation of constitutional historian Russell Caplan, who asserted that this Amendment was meant to ensure that the federal Bill of Rights would not affect provisions in state law that restrain state governments.

A libertarian originalist, Randy Barnett has argued that the Ninth Amendment requires what he calls a presumption of liberty. Barnett also argues that the Ninth Amendment prevents the government from invalidating a ruling by either a jury or lower court through strict interpretation of the Bill of Rights. According to Barnett, "The purpose of the Ninth Amendment was to ensure that all individual natural rights had the same stature and force after some of them were enumerated as they had before."

According to professor and former Circuit Judge Michael W. McConnell,

[T]he rights retained by the people are indeed individual natural rights, but those rights enjoy precisely the same status and are protected in the same way, as before the Bill of Rights was added to the Constitution. They are not relinquished, denied, or disparaged. Nor do natural rights become "constitutional rights." They are simply what all retained rights were before the enactment of the Bill of Rights: a guide to equitable interpretation and a rationale for the narrow construction of statutes that might be thought to infringe them, but not superior to explicit positive law. This understanding of the relation of unenumerated natural rights to a positive law closely resembles the relationship between common law and legislation: the common law governs in the absence of contrary legislation, and sometimes even guides or limits the interpretation of ambiguous or overbroad statutes, but does not prevail in the teeth of specific statutory overrides. This mode of interpretation offers a middle way between the two usual poles of unenumerated rights jurisprudence. One pole maintains that if a claimed right cannot be found in the Constitution, even applying a liberal construction to its terms, it is entitled to no protection at all ... The other pole maintains that there are unwritten natural rights whose content must inevitably be determined, finally and without the possibility of legislative override, by judges. These rights then receive full constitutional protection even when the representatives of the people have reached the contrary conclusion ... If I am correct about the meaning of the Ninth Amendment, neither of these approaches is entirely correct. Rather, an assertion of a natural right (generally founded on common law or other long-standing practice) will be judicially enforceable unless there is specific and explicit positive law to the contrary. This allows the representatives of the people, rather than members of the judiciary, to make the ultimate determination of when natural rights should yield to the peace, safety, and happiness of society.

Still others, 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.

According to lawyer and diplomat Frederic Jesup Stimson, the framers of the Constitution and the Ninth Amendment intended that no rights that they already held would be lost through omission. Law professor Charles Lund Black took a similar position, though Stimson and Black respectively acknowledged that their views differed from the modern view, and differed from the prevalent view in academic writing.

Gun rights activists in recent decades have sometimes argued for a fundamental natural right to keep and bear arms in the United States that both predates the U.S. Constitution and is covered by the Constitution's Ninth Amendment; according to this viewpoint, the Second Amendment only enumerates a pre-existing right to keep and bear arms.

See also

• Constitutionalism
• Exception that proves the rule
• Negative liberty
• Tenth Amendment to the United States Constitution

Further reading

Books

• Barnett, Randy E. (2005). Restoring the Lost Constitution: The Presumption of Liberty. Princeton, NJ: Princeton University Press. ISBN 0-691-12376-4.
• Farber, Daniel A. (2007). Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have. Perseus Books Group. ISBN 978-0-465-02298-4.
• Lash, Kurt T. (2009). The Lost History of the Ninth Amendment. Oxford University Press. ISBN 978-0-19-537261-8.

Articles

• Barnett, Randy. "The Ninth Amendment: It Means What It Says", Texas Law Review, Vol. 85, p. 1 (2006).
• Barnett, Randy. "Kurt Lash's Majoritarian Difficulty", Stanford Law Review, Vol. 60 (2008).
• Lash, Kurt. "The Lost Original Meaning of the Ninth Amendment", Texas Law Review, Vol. 83 (2004).
• Lash, Kurt. "The Lost Jurisprudence of the Ninth Amendment", Texas Law Review, Vol. 83 (2005).
• Lash, Kurt. "A Textual-Historical Theory of the Ninth Amendment", Stanford Law Review, Vol. 60, p. 906 (2008).
• McConnell, Michael. "The Ninth Amendment in Light of Text and History Archived 2012-02-27 at the Wayback Machine", Cato Supreme Court Review 13 (2009–2010).
• Williams, Ryan. "The Ninth Amendment as a Rule of Construction", Columbia Law Review, Vol. 111, p. 498 (2011).

External links

• "CRS Annotated Constitution: 9th Amendment" by the Congressional Research Service (2000)
• "Proposed Amendments to the Constitution" by James Madison (1789)
• "Bill of Rights Institute: Ninth Amendment"