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What does the Ninth Amendment mean?
June 30, 2010 6:38 AM   Subscribe

What does the Ninth Amendment to the United States Constitution mean?

I have read the Wikipedia article and a few other sources, but I am not sure that I understand the current legal interpretation on the Ninth Amendment. It appears that the "official" interpretation according to the Supreme Court is that the Ninth Amendment doesn't really mean very much. I would also be interested in learning about the legal theories that lie behind the way that the interpretation has changed over time. Very few cases have cited the Ninth Amendment, so there haven't really been any direct cases about what it means.
posted by jefeweiss to Law & Government (17 answers total) 2 users marked this as a favorite
 
I doubt it will be productive to look for an "official" interpretation of the Ninth Amendment (as many people have different readings of the few cases that exist-- and different views about whether those cases are correct), but there is a lot of scholarship about what it means.

You could start with this relatively accessible article by Professor Randy Barnett, which lays out five major academic theories of the amendment (and argues for the one that Professor Barnett finds most persuasive). Another very good source is Professor Kurt Lash's book, The Lost History of the Ninth Amendment-- it is an expensive academic-press book but you might be able to get it through a library.
posted by willbaude at 6:47 AM on June 30, 2010


The Founders Constitution provides contemporary texts about the 9th Amendment, which can be useful in parsing its meaning. But, yes, there's a lot out there about what it means and how it no longer means that.
posted by crush-onastick at 6:51 AM on June 30, 2010


Very interesting reading, I have skimmed over a few of these sources. I guess the quote that I have seen that I based my "official" interpretation is from Justice Reed in 1947. This is addressed right at the beginning of the first article that willbaude linked.
posted by jefeweiss at 6:58 AM on June 30, 2010


You should be aware that the position that the sorts of arguments that Barnett (and presumably Lash though I didn't skim that) bring up are borderline fringe right-libertarian positions, and that their statements are far from politically neutral. The primary way that the 9th and 10th Amendments get brought up in these circles is to deny the legitimacy of federal economic regulations, which include the Civil Rights Act.

The official interpretation is not some crazy thing. It says that if your argument is that there is no right to X because X is not listed in the bill of rights, that's a non starter. But if your argument is that there is no right to X because the power to Anti-X is enumerated in the Constitution, then that argument might work.
posted by ROU_Xenophobe at 7:59 AM on June 30, 2010 [4 favorites]


Cornell Law School's Legal Information Institute has a pretty good annotated Constitution. Here's their commentary on the Ninth Amendment.
posted by DevilsAdvocate at 8:22 AM on June 30, 2010 [2 favorites]


ROU: I don't find your position very convincing. For one thing, the Ninth Amendment is rarely if ever applied that way. As Will points out, the case law is very sparse and open to a lot of interpretation. Additionally, the ever-expanding ability of the federal government to engage in exercises of power that aren't enumerated at all would render such an interpretation meaningless. If the conservative position on 9A is "fringe," at least it isn't self-contradictory; the liberal reading of federal power combined with the liberal reading of 9A utterly disembowels the amendment.
posted by thesmophoron at 8:29 AM on June 30, 2010


I don't follow what you are saying ROU_Xenophobe. And this might be why I can't understand how it is currently interpreted. It seems like this renders the whole Amendment meaningless. What would a Ninth Amendment right be under this interpretation? I guess privacy was something that came up in some cases related to Roe v. Wade, but then the court said that privacy wasn't a right under the Ninth Amendment.

It sounds like you are saying that the Amendment means that you have rights that exist only as long as the government decides not to take them away. When the government decides to take them away, then they aren't rights any more.
This interpretation of the Ninth Amendment would be very different from say the First Amendment or the Second Amendment, where the whole point is that the government can't take away these rights. If there is a conflict between the powers of the government and the first few rights in the Bill of Rights, the rights seem to get some recognition in court cases.

I find it kind of funny that in most things that are political I tend to agree with people on the left, but it seems like this is a pretty tortured way to interpret what the Amendment says. Nothing that anyone has brought up so far indicates how the courts went from one to the other. It seems like for most of the 1800s the Ninth Amendment was ignored by everyone and then it turned up at the beginning of the 1900s and didn't really mean anything.

As someone who agrees with what the Civil Rights Act was trying to accomplish, I find it kind of problematic that the Constitutional basis of the whole thing seems so flimsy. It seems like the Commerce clause has been construed so broadly that what we are left with is the enumerated rights. I would think that the Commerce clause was intended to keep the states from putting duties and taxes on products that were produced in other states. The odd part to me is that I can't see how the U.S. went from one to the other. I guess it might be in the history of other clauses, then the whole Ninth Amendment was just invalidated by saying that it doesn't give people any real rights, it just means that the government doesn't have any powers that aren't in the Constitution.
posted by jefeweiss at 8:38 AM on June 30, 2010


So looking through the links, I think I understand it a bit better. The Constitution gives powers to the government. The Bill of Rights gives rights to the people. It seems like the government can exercise its powers unless it conflicts with the rights of the people. Then it gets kind of murky.

Even going back as far as James Madison, it seems like he was conflicted over the relationship between the two. From DevilsAdvocate's link "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[p.1504]not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement."

So according to this interpretation, the Ninth Amendment means that just because a power that the government grants itself doesn't violate the enumerated rights, doesn't mean that it is constitutional. In other words, the government has only the powers granted by the Constitution.

It seems like other people who helped write the Constitution had different ideas about what it meant, but the dispute goes back to that time.
posted by jefeweiss at 9:43 AM on June 30, 2010


I don't follow what you are saying ROU_Xenophobe.

I'm saying two things.

One thing:
(1) You have rights under the Constitution that aren't listed in the Bill of Rights. The Court has affirmed several of them numerous times. In Loving, for example, they discuss marriage as a fundamental right even though it is not specified in the Bill of Rights. The Court has also upheld a right to interstate travel that, likewise, is not specifically enumerated in the Bill of Rights.
(2) An argument that you do not have a right because it is not listed in the Constitution is, by the 9th Amendment, dead. Virginia couldn't win arguing that there is no right to marry because there is no such right listed in the Bill of Rights.
(3) An argument that you do not have a right because the Constitution specifically grants the government a power that implies the nonexistence of that right might succeed; this is what the 1947 case is saying. You can't win a case that you have a fundamental right not to pay taxes under the 9th Amendment, because the Constitution specifically grants Congress the power to impose taxes. It's not saying you have a 9th Amendment right until the government decides you don't, it's saying that you don't have (or at least might not have) a 9th Amendment right if the power to violate the purported right is expressly granted to the federal government in the text of the Constitution.

Other thing:
People taking the 9th Amendment positions you see above tend to be strongly right-libertarian, and the "rights" they're talking about are generally economic rights to be free of regulation. Normative arguments about what the Constitution "really" says or the One True Way to interpret it are advertising or propaganda, and a useful element in reading propaganda or advertising is to understand the broader goals associated with it.
posted by ROU_Xenophobe at 9:49 AM on June 30, 2010 [1 favorite]


I'm not certain I share ROU_Xenophobe's reading of the Ninth Amendment (although I'm not certain I share Professor Barnett's either), but it isn't circular. Here's an example of how it can work.

Government: We're claiming this house through the use of eminent domain.
Citizen: You can't do that!
Government: Why not?
Citizen: The Constitution says you can only exercise powers that are granted by the Constitution, and there is no clause of the Constitution that gives you the power to take my house.
Government: Oh yeah? But the Fifth Amendment says that we can't take private property "for public use without just compensation." That would only make sense if we can take private property with compensation. Therefore, we must have that power.
Citizen: Wrong! The Ninth Amendment says that the "enumeration in the Constitution" of my right to just compensation can't be used "to deny or disparage" my argument that I have a right not to have my property taken at all. So you need to go back to the drawing board. What's the source of your authority to take my property?
Government: Hmm . . .
posted by willbaude at 9:50 AM on June 30, 2010 [1 favorite]


The official interpretation is not some crazy thing. It says that if your argument is that there is no right to X because X is not listed in the bill of rights, that's a non starter. But if your argument is that there is no right to X because the power to Anti-X is enumerated in the Constitution, then that argument might work.

Exactly. More concisely: The rights of the people include, but are not limited to, those enumerated in the Constitution.
posted by The World Famous at 10:00 AM on June 30, 2010 [1 favorite]


trivia: in that case, willbaude, courts have pretty consistently ruled that eminent domain is inherent to any independent government; you can think of it as being one of the necessary and proper ways to make enumerated powers work.
posted by ROU_Xenophobe at 10:46 AM on June 30, 2010


Ok, but something that I find confusing is that I see a lot of sources say that the Ninth Amendment does not grant affirmative rights or that the Ninth Amendment does not grant substantive rights. What does this mean? Is this something that is just the opinion of the person who is writing this, or is there some kind of precedent for saying that?
posted by jefeweiss at 11:21 AM on June 30, 2010


The Bill of Rights gives rights to the people.
No, no, Dear God, No.

The Bill of Rights _grants_ no person any rights.
Your rights are inherent in you as a person, they are not given to you by any document.
posted by madajb at 12:01 PM on June 30, 2010


The Bill of Rights gives rights to the people.

No. The Bill of Rights lists some of the rights of the people, the ones that the founders felt needed to be specifically protected. On numerous occasions the founders flat-out say that the people have more rights than are listed in the Constitution.

The American people have always had a broader range of rights than the ones listed in the Bill of Rights. As the Declaration of Independence says (emphasis added), "[the people] are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." (I'm citing the Declaration of Independence as evidence of the founders' conception of rights, not as a legal document, but I do have to point out most of the founders were lawyers.)

The Constitution originally didn't have a Bill of Rights. James Madison, the primary author of the Constitution, and Alexander Hamilton, who co-wrote the Federalist Papers with Madison and John Jay, both felt that a Bill of Rights was unnecessary because the Constitution restrained the powers of the government. In Federalist 84 Hamilton wrote, "Why declare that things shall not be done which there is no power to do?" A bill of rights became politically necessary to assuage the Anti-Federalists, who felt that the Constitution gave too much power to the federal government.

When he introduced the amendments that became the Bill of Rights, James Madison said:
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 [Ninth Amendment].
In other words, if we have a bill of rights, people will mistakenly think that the people only have the rights that are listed, and the ones that are not listed will be assigned to the government. Madison's original draft of the Ninth Amendment said:
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.
Cornell Law School's annotated Constitution: "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." Which is exactly what happened.
posted by kirkaracha at 12:26 PM on June 30, 2010


the Ninth Amendment does not grant substantive rights. What does this mean?

Imagine we're passing the bill of rights right now, one at a time.

You have some rights before we start. As we go through, you still have those rights, but arguably better-protected if they're listed in the BoR. You maybe pick up some new rights.

Anyway, we're about to pass the 9th. You have rights, some of which we've just listed in the BoR and some of which we haven't. The ones we haven't listed, you might need to convince a judge that you really have them.

We pass the 9th.

You still have the same set of rights as you did before we passed it.

Passing the 9th didn't create any new rights. What it did was deny one avenue to argue that the unlisted rights exist.

The government can still argue that a right doesn't exist, just Because. They can still argue that it doesn't exist because it was never parts of the common-law rights of Englishmen before the Revolution. They can argue that it doesn't exist because it's not fundamental to liberty, or it's antithetical to an orderly society, or whatever. But they can't* argue that the right doesn't exist just because it doesn't appear in the Bill of Rights.

*Well, they can argue it. It's physically possible to stand up in front of a judge and make any damn fool argument you want. But they should expect to lose.
posted by ROU_Xenophobe at 12:32 PM on June 30, 2010 [1 favorite]


Ok, but something that I find confusing is that I see a lot of sources say that the Ninth Amendment does not grant affirmative rights or that the Ninth Amendment does not grant substantive rights.

The use of "grant" is kind of tricky--in theory, as madajb says, the Bill of Rights and other U.S. constitutional amendments recognize rights that we the people have always possessed rather than grant us rights the government has decided we deserve at some particular point in time.

But "grant" is often used to mean "recognize." In practice, many amendments do appear to give some or all citizens new rights when they recognize rights people already possessed in theory, because amendments confer actual power to people. Before the 19th Amendment, I wouldn't have been able to sue my state for passing a law that said "Women can't vote, because they're women."

The 9th Amendment, though, doesn't grant anyone anything substantive--it doesn't say "Hey, those police who just subjected you to an unreasonable search and seizure also just violated your constitutional rights!" It's kind of like the small print warnings they stick at the end of commercials. It's like the Framers pictured some tyrant of the future reading the Bill of Rights and rubbing his hands together in glee at how small the list itself was, and so they stuck in "Warning: this is not an exhaustive list. Don't assume that because we chose to list some rights, those rights are the only rights citizens have, or even the strongest rights citizens have."

From Wikipedia:
"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."
posted by sallybrown at 1:15 PM on June 30, 2010


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