Constitution Series: The Ninth Amendment

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This is the sixteenth of twenty-five weekly articles in The Tennessee Star’s Constitution Series. Students in grades 8 through 12 can sign up here to participate in The Tennessee Star’s Constitution Bee, which will be held on September 23.


The Constitution was written for one particular purpose–to limit the powers of the general, or, national, government, therein securing the blessings of liberty by protecting the individual’s natural rights.  It is simply outlined in the Preamble, drafted brilliantly by Gouverneur Morris, a native New Yorker who represented Pennsylvania at the Constitutional Convention, and made clear the primary purpose for the Constitution and that the people are the ones for whom and by whom it was created beginning with the revolutionary words, We the People.

During the consideration of the Bill of Rights, the concern by the founders was that if they specified certain rights of the people to be guarded by the national government, what if they neglected others?  How could they be sure that all the people’s God-given rights would be protected?

Among others, this was a major concern for James Wilson, a Pennsylvania Congressman who would later serve on the first Supreme Court. Supporters of the Constitution, or Federalists, such as James Wilson and Alexander Hamilton, argued that a bill of rights would be dangerous. Enumerating any rights, Wilson argued, might imply that all those not listed were surrendered. And, because it was impossible to enumerate all the rights of the people, a bill of rights might actually be construed to justify the government’s power to limit any liberties of the people that were not enumerated, or, listed.

Actually, what the Federalists really believed about the Bill of Rights in general, not just about the Ninth Amendment, was that this list of rights would diminish the power of the national government.

James Madison basically agreed with Wilson’s idea that rights not included in the Bill of Rights may be abused by the national government, but he may have had a solution.  “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 urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against.”

Madison’s speech to Congress on June 8, 1789, included his proposed solution that would become the Ninth Amendment: “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.”

Congress re-worded Madison’s proposal and it became the Ninth Amendment to the Constitution.

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

The Ninth Amendment is probably the least understood in the Bill of Rights.  The words literally mean: The enumeration (list) in the Constitution of certain rights shall not be construed (understood or interpreted) to deny (keep from) or disparage (put down or belittle) others retained (always held) by the people.

It means that each individual person, not groups of people, is born with certain natural rights and those rights always belonged to that person before the establishment of any government and that those rights, whether listed or not, must be protected by the government.

Roger Sherman, a representative from Connecticut, explained it as, “The people have certain natural rights which are retained by them when they enter into Society.”  Sherman, who served on the House Select Committee to draft the Bill of Rights in 1791, went on to give examples of natural rights, “Such are the rights of conscience in matters of religion; of acquiring property, and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances.”

Of course, most of those rights are enumerated in the First Amendment and others, such as acquiring property, pursuing happiness, and safety, are not; yet these rights were commonly understood by our framers like Roger Sherman and George Mason to be natural.  Many state constitutions named these as rights of their citizens.

The Ninth Amendment makes clear that the people are separate from the national (and the state) governments, that only they have rights.  The people give powers to the governments, but the people also have powers that are not delegated to either the national nor state governments.

Because the Ninth Amendment does not specifically identify certain rights, it has been up to the courts to decide what is and what is not covered.  The amendment is regarded as a preventative measure to keep the government from expanding its power.  There has never been a judicial decision based solely on the Ninth Amendment.  It has simply been cited along with other amendments in court decisions.

In 1833, the Supreme Court ruled in Barron v. Baltimore that the Ninth Amendment pertained to the national courts only and not to state governments.  Basically, that meant that, originally, the amendment protected the rights of the people from expanding power of the national government which is a government of limited, enumerated powers.

By July of 1868, the Fourteenth Amendment was ratified that contains the “privileges or immunities clause” which limits the powers of the state governments.  Passage of the Fourteenth Amendment meant that the rights guaranteed in the Constitution would now apply to the states, that citizens’ Constitutional rights must be protected not only by the national government, but by their state governments as well.  The Ninth and the Fourteenth work together to ensure all rights are protected at every level of government.

The right to privacy, for example, is not specifically mentioned in our Constitution, however, the Supreme Court has regarded it as one of those unenumerated rights guaranteed by the Ninth and Fourteenth Amendments.  In the case of Griswold v. Connecticut (1965), the Director of Planned Parenthood, Estelle Griswold, and Dr. C. Lee Buxton, a doctor and professor at Yale Medical School, had opened a birth control clinic to provide contraceptives to married couples.  They were arrested and found guilty as accessories to provide illegal contraceptives which was in violation of Connecticut’s 1879 law prohibiting the use of “any drug, medicinal article, or instrument for the purpose of preventing conception.”

In a 7-2 decision, the court ruled that the Connecticut law was unconstitutional, that it violated the “right to marital privacy.”  Despite the fact that the Bill of Rights does not mention “privacy,” it is inherent and implied in other protections provided by the Constitution.  The “right to privacy” is seen as a right of individuals to be protected against governmental intrusion into their lives and the justices in this case found that the contraception law could not be enforced against married people.

The Justices also applied, in the Connecticut case, the First, Third, Fourth, and Fifth amendments, explaining that the “spirit” of these amendments create a general “right to privacy” that cannot be unduly infringed.

The Ninth Amendment is sometimes referred to as “the silent amendment” due to its controversial and misunderstood meaning.  In 1987, Robert Bork, a U. S. District judge, legal scholar and an advocate of originalism (interpreting the Constitution according to the founders’ intentions), referred to the Ninth as an “inkblot” which hid its true meaning.  He said just as judges should not guess what was under an inkblot, they should not guess the amendment’s meaning.

The Ninth Amendment is a testament to the framers of this nation in their keen understanding that we are born with certain unalienable rights that must be protected. They ensured with this amendment that the national government could not exploit those rights not listed in the Constitution that are sacred and also retained by We the People.




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