Constitution of the United States/Ninth Amend.

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Constitutional Law Treatise
Table of Contents
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Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Ninth Amendment Unenumerated Rights

Overview[edit | edit source]

The Ninth Amendment provides that the enumeration of certain rights in the Constitution should not be construed to mean that the Constitution does not protect rights that are not enumerated. The Amendment was included in the Bill of Rights to address fears that expressly protecting certain rights might be misinterpreted implicitly to sanction the infringement of others.[1]

Few Supreme Court cases offer significant analysis of the Ninth Amendment. Prior to 1965, litigants occasionally invoked the Amendment, often along with the Tenth Amendment or other provisions of the Bill of Rights, to challenge the constitutionality of government actions, but the Court consistently rejected those claims.[2] In 1965, in Griswold v. Connecticut, a majority of the Court cited the Ninth Amendment, along with the substantive rights protected by the First, Third, Fourth, and Fifth Amendments, and held that the Constitution protects "penumbral rights of 'privacy and repose'" that bar a state from prohibiting the use of contraception by married couples.[3] By contrast, in the 1973 case Roe v. Wade, the Court grounded a constitutional right to abortion in the Fourteenth Amendment rather than the Ninth.[4]

Overall, the Court has generally treated the Ninth Amendment as a rule of construction for the Constitution rather than a freestanding guarantee of any substantive rights. Thus, in Richmond Newspapers v. Virginia, a plurality of the Court referred to the Amendment as a "sort of constitutional 'saving clause,' which, among other things, would serve to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those not expressly defined."[5]

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

Historical Background on Ninth Amendment[edit | edit source]

The Ninth Amendment is a part of the Bill of Rights, and its purpose is best understood in the context of the debate around the express enumeration of protected rights at and soon after the Founding. As originally drafted and ratified, the Constitution did not include a bill of rights. A proposal to include a bill of rights was rejected late in the Constitutional Convention.[6] The Federalists argued that because the national government had limited and enumerated powers, there was no need to protect individual rights expressly. As Alexander Hamilton wrote in the Federalist Papers, "Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given [in the Constitution] by which restrictions may be imposed?"[7] The Federalists contended that including a list of rights in the Constitution could be "dangerous" because it might be misunderstood to imply that the national government had powers beyond those enumerated, or that rights not expressly identified for protection were not in fact protected.[8]

In contrast to the prevailing delegates to the Convention, many state conventions considering whether to ratify the Constitution preferred to include a bill of rights. Several states ratified the Constitution on the understanding that a bill of rights would be added.[9] The first Congress accordingly proposed twelve constitutional amendments, ten of which were ratified by the requisite number of states and became the Bill of Rights.[10]

In contrast to the first eight amendments to the Constitution, which protect substantive rights, the Ninth Amendment sought to address Federalist fears that expressly protecting certain rights might implicitly sanction the infringement of other rights.[11] James Madison responded to that 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.1 Annals of Congress 439 (1789). See also 3 J. Story, Commentaries on the Constitution of the United States 1898 (1833).

Madison suggested, however, that that concern "may be guarded against" by the text that became the Ninth Amendment.[12]

Madison's statement and the text of the Ninth Amendment both indicate that the Amendment itself does not guarantee any substantive rights.[13] Instead, it states a rule of construction, making clear that the Bill of Rights may not be construed to limit rights in areas not enumerated. As Justice Joseph Story explained, the "clause was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others."[14]

Ninth Amendment Doctrine[edit | edit source]

Supreme Court cases from before 1965 contain little analysis of the Ninth Amendment. Litigants in earlier cases occasionally invoked the Amendment, often along with the Tenth Amendment or other provisions of the Bill of Rights, to challenge the constitutionality of various government actions. The Court dismissed those claims, usually with limited discussion.[15] For example, in the 1947 case United Public Workers v. Mitchell, the Court rejected Ninth and Tenth Amendment challenges to the Hatch Political Activity Act.[16] The Court explained,

The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.Id. at 95-96.

Concluding that Congress had the authority to enact the Hatch Act and the Act did not violate any of the prohibitions in the Bill of Rights, the Court upheld the statute.[17]

Several members of the Court examined the Ninth Amendment in greater depth in the 1965 case Griswold v. Connecticut.[18] In Griswold, the Court held that a statute prohibiting use of contraceptives unconstitutionally infringed on the right of marital privacy. Justice William O. Douglas, writing for 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."[19] The majority cited the Ninth Amendment along with the substantive rights protected by the First, Third, Fourth, and Fifth Amendments while discussing the "penumbral rights of 'privacy and repose.'"[20] Although a right to privacy is not expressly mentioned in the Constitution, the Court concluded that banning contraceptive use by married couples impermissibly intruded on "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees."[21]

Justice Arthur Goldberg, concurring, devoted several pages to the Ninth Amendment. He opined,

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. . . . [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.Id. at 487-91 (Goldberg, J., concurring).

Justice Goldberg disclaimed any belief "that the Ninth Amendment constitutes an independent source of right protected from infringement by either the states or the Federal Government." Rather, he explained, the 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."[22]

In the 1973 case Roe v. Wade, the Supreme Court held that the Constitution limited the ability of the states to prohibit abortion before fetal viability.[23] The district court in Roe held that the Ninth Amendment protected the right to abortion. On appeal, the Supreme Court instead held that the right was "founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action," but cited both the majority opinion in Griswold and Justice Goldberg's concurrence among opinions that "recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution."[24] In the 2022 case Dobbs v. Jackson Women's Health Organization, the Court overruled Roe but emphasized that its decision should not cast doubt on precedents not involving abortion, including Griswold.[25]

  1. See Ninth Amend.: Historical Background on Ninth Amendment The Tenth Amendment responded to related concerns that including a list of rights in the Constitution might be misunderstood to imply that the national government had powers beyond those enumerated. Tenth Amendment Rights Reserved to the States and the People; see also Tenth Amendment Rights Reserved to the States and the People.
  2. See generally Ninth Amend.: Ninth Amendment Doctrine.
  3. 381 U.S. 479, 481-85 (1965).
  4. 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women's Health Organization, No. 19-1392, slip op. (U.S. June 2022).
  5. 448 U.S. 555, 579-80 & n.15 (1980); cf. Troxel v. Granville, 530 U.S. 57, 91 (2000) (Scalia, J., dissenting) (The Ninth Amendment's "refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.").
  6. 2 Max Farrand, Records of the Federal Convention of 1787, at 341-42, 587-88, 617-618 (1911) [hereinafter Farrand's Records].
  7. See The Federalist No. 84 (Alexander Hamilton).
  8. Id. For the Antifederalists, the absence of a bill of rights was a reason to oppose ratification of the Constitution. See, e.g., George Mason, Objections to this Constitution of Government (1787), reprinted in 2 Farrand's Records, supra note here, at 637-38 ("There is no Declaration of Rights.").
  9. See generally Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 568-70 (1985) (Powell, J., dissenting) (reviewing this history and noting that "eight States voted for the Constitution only after proposing amendments to be adopted after ratification").
  10. See Introduction: Bill of Rights (First Through Tenth Amendments).
  11. The Tenth Amendment responded to related concerns that including a list of rights in the Constitution might be misunderstood to imply that the national government had powers beyond those enumerated. Tenth Amendment Rights Reserved to the States and the People; see also Tenth Amendment Rights Reserved to the States and the People
  12. Id.
  13. But compare Griswold v. Connecticut, 381 U.S. 479, 491 (1965) (Goldberg, J., concurring) ("[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.") with Troxel v. Granville, 530 U.S. 57, 91 (2000) (Scalia, J., dissenting) (The Ninth Amendment's "refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.").
  14. 3 Joseph Story, Commentaries on the Constitution of the United States § 1893 (1833).
  15. See Ashwander v. TVA, 297 U.S. 288, 330-31 (1936); Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143-44 (1939); Roth v. United States 354 U.S. 476, 492-93 (1957); Singer v. United States, 380 U.S. 24, 26 (1965).
  16. 330 U.S. 75 (1947).
  17. Id. at 96-104.
  18. 381 U.S. 479 (1965).
  19. Id. at 484.
  20. Id. at 481-85.
  21. Id. at 485.
  22. Id. at 492. Justices Hugo Black and Potter Stewart dissented. Justice Black wrote, "I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law." Id. at 522 (Black, J., dissenting). Justice Stewart contended, "The Ninth Amendment, like its companion the Tenth, . . . 'states but a truism that all is retained which has not been surrendered.'" Id. at 529 (quoting United States v. Darby, 312 U.S. 100, 124 (1941)).
  23. 410 U.S. 113 (1973).
  24. Id. at 152-53.
  25. No. 19-1392, slip op. (U.S. June 2022).