Talk:List of states with limited recognition and Ninth Amendment to the United States Constitution: Difference between pages
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{{Infobox US Constitution}}
[[Image: Bill_of_Rights_Pg1of1_AC.jpg|190px|thumb| The Bill of Rights in the [[National Archives and Records Administration|National Archives]]]]
'''Amendment IX''' (the '''Ninth Amendment''') to the [[United States Constitution]], which is part of the [[United States Bill of Rights|Bill of Rights]], addresses rights of the people that are not specifically enumerated in the Constitution.
==Text==
{{cquote|The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.}}
==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 [[Federalism (United States)|Federalists]] against the addition of a Bill of Rights, during the debates about [[History of the United States Constitution|ratification of the Constitution]], was that a listing of rights could problematically enlarge the powers specified in [[Article One of the United States Constitution|Article One, Section 8]] of the new Constitution, by implication. For example, in [[The Federalist Papers|Federalist]] [http://www.constitution.org/fed/federa84.htm 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 as follows: "I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted"<ref>James Madison, [http://www.constitution.org/jm/17881017_tj.htm Letter to Thomas Jefferson] (October 17, 1788). Madison often expressed this idea, for example in a [http://memory.loc.gov/cgi-bin/query/r?ammem/mjmtext:@field(DOCID+@lit(jm050127)) letter to George Washington]on 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").</ref> in [[Article One of the United States Constitution|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 provided their assent with a coda attached, 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:<ref>[http://www.yale.edu/lawweb/avalon/const/ratva.htm Virginia Ratification Resolution] (June 26, 1788)</ref>
{{quote|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 [[United States House of Representatives|House of Representatives]] twelve draft Amendments, [[James Madison]] addressed what would become the 9th Amendment as follows:<ref>James Madison,[http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss11.html Speech Introducing Bill of Rights] (June 8, 1789)</ref>
{{quote|It has been objected also against a [[United States Bill of Rights|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 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:
{{quote|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. Id.}}
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):
{{quote|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, <strong>the great residuum being the rights of the people</strong>; 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. Id.}}
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 [[Privileges and Immunities Clause|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 ''[[United Public Workers v. Mitchell]]'' {{ussc|330|75|1947}}:
{{quote|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):
{{quote|[T]he 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.}}
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.<ref>[http://hometown.aol.com/abtrbng/roedist.htm Roe v. Wade], 314 F. Supp. 1217 (1970).</ref> 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).
The Sixth Circuit Court of Appeals stated as follows in ''[[Gibson v. Matthews]]'', 926 F.2d 532, 537 (6th Cir. 1991):
{{quote|[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 [[Statutory interpretation#Canons of Statutory Interpretation|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.}}
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."<ref>Laurence H. Tribe, ''American Constitutional Law'' 776 n. 14 (2nd ed. 1998).</ref> Likewise, Justice Antonin Scalia has expressed the same view, in ''[[Troxel v. Granville]]'' (2000):
{{quote|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.}}
In the year 2000, the Harvard historian [[Bernard Bailyn]] gave a speech at the White House on the subject of the Ninth Amendment. He stated that the rights referred to in the Ninth Amendment are rights that may be "enacted into law." Here is how Dr. Bailyn interpreted the Ninth Amendment:<ref>Bernard Bailyn, [http://clinton2.nara.gov/Initiatives/Millennium/bbailyn.html Remarks at White House Millennium Evening] (2000).</ref>
{{quote|When the federal Constitution was written the wisest minds in America decided that there should be no national Bill of Rights, not merely because most of the state constitutions already contained some such protections, but, as Madison (who would later write the federal Bill of Rights) said, 'There is a great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude.' In other words, the enumeration of rights by the federal government, the mere listing of them and defining them, would necessarily limit their scope. 'The rights of conscience in particular [he said], if submitted to public definition, would be narrowed more than they are likely ever to be by an assumed power.' The right solution, he and others then felt, was what is implied in the present 9th Amendment: that, in addition to the rights specified by the states, there is a universe of rights, possessed by the people latent rights, still to be evoked and enacted into law.
But was this workable? In any given situation, someone would have to decide whether the rights that were claimed were valid, and that would leave the existence of rights to the mercy of personal and political opinion, and no one would be safe. Some rights a core body of rights protected against the powers of the federal government would have to be specified, and the residue somehow protected in general terms. This is the compromise that we have inherited from them and that we live with, and struggle with, and benefit from, every day of our lives: in the first eight amendments of the Constitution, a carefully worded list of specific rights protected from encroachment by the federal government, together with the belief that there are not only rights protected by the states but a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law.}}
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 to the United States Constitution|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 "[[originalism|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]]).
[[originalism|Originalist]] [[Randy Barnett#Ninth Amendment|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.<ref>Thomas B. McAffee, [http://www.stephankinsella.com/texts/mcaffee_federalism_ninth.pdf Federalism and the Protection of Rights: The Modern Ninth Amendment's Spreading Confusion], 1996 B.Y.U. Law Rev. 351</ref> Constitutional historian [[Jon Roland]] has argued,<ref>Jon Roland, [http://www.constitution.org/9ll/schol/pnur.htm Presumption of Nonauthority and Unenumerated Rights] (2006)</ref> 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 politics|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 to the United States Constitution|Second Amendment]] protects only a pre-existing right to keep and bear arms.<ref>Nicholas Johnson, [http://www.guncite.com/journals/nj9th.html ''Beyond the Second Amendment: An Individual Right to Arms Viewed Through The Ninth Amendment''], 24 Rutgers L.J. 1, 64-67 (1992)</ref> 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.<ref>[http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=330&page=75 ''United Public Workers v. Mitchell'', 330 U.S. 75 (1947)]</ref>
==Footnotes==
<references />
==External links==
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=953008 A Textual-Historical Theory of the Ninth Amendment] by Kurt Lash (2007)
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=789384 The Ninth Amendment: It Means What It Says] by [[Randy Barnett]] (2006)
* [http://www.law.cornell.edu/anncon/html/amdt9toc_user.html CRS Annotated Constitution: 9th Amendment] by the [[Congressional Research Service]] (2000)
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=613621 The Lost Original Meaning of the Ninth Amendment] by Kurt Lash (2004)
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=615701 The Lost Jurisprudence of the Ninth Amendment] by Kurt Lash (2005)
* [http://freemarketnews.com/Analysis/117/3116/2005-12-07a.asp?wid=117&nid=3116 Rights, the Constitution, and the Ninth Amendment] by [[Tibor R. Machan]] (2005)
* [http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss11.html Proposed Amendments to the Constitution] by [[James Madison]] (1789)
* [http://www.stephankinsella.com/texts/mcaffee_federalism_ninth.pdf Federalism and the Protection of Rights: The Modern Ninth Amendment’s Spreading Confusion] by Thomas B. McAfee (1996)
* [http://www.constitution.org/dhbr.htm Documentary History of the Bill of Rights] -- Compilation of documents
{{US Constitution}}
[[Category:1791 in law]]
[[Category:Amendments to the United States Constitution|09]]
[[de:9. Zusatzartikel zur Verfassung der Vereinigten Staaten]]
this info is not reliable
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