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The Mystery of the Ninth Amendment

Likely the most mysterious provision of the Bill of Rights, the question of the meaning of the Ninth Amendment has generated numerous interpretations and theories. Though not invoked by the Supreme Court for the first time in our nation’s history until1965, it has come to play an important role in advancing the rights and liberties of Americans everywhere. The right to privacy, intimate relations, same- sex marriage and raising children in a manner consistent with parental values are but a few of the many rights asserted in the name of this constitutional curiosity.

The Ninth Amendment was brought center stage in 1965, in Griswold v. Connecticut, when the Court, in an opinion written by Justice William O. Douglas, declared unconstitutional a state statute that made criminal the use of contraceptives, even by married couples. Justice Douglas famously coupled the Ninth Amendment with “penumbral” rights drawn from the First, Third, Fourth and Fifth Amendments, to produce a “right of privacy older than the Bill of Rights” itself, particularly as it pertained to “the sacred precincts of the marital bedroom.”

Critics of the concept of a constitutional right to privacy, including the fact that it purports to rest, in part, on the Ninth Amendment, have accused the Court of creating rights not grounded in the Constitution. In the roughly 2,000 cases filed across the country since Griswold that have invoked the Ninth Amendment to defend this or that liberty, controversy has raged as to its meaning.

The starting point for determining the meaning of any provision of the Constitution is its language. The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other rights retained by the people.”

The Ninth Amendment plainly declares that “we the people” enjoy rights beyond those enumerated in the Constitution. Two questions immediately arise. First, why did James Madison, in his introduction of the Bill of Rights of June 8, 1789, introduce the amendment and its protection of unenumerated rights? Second, what are the unenumerated rights “retained” by the people? History affords some understanding.

In the latter days of the Constitutional Convention, some delegates urged the addition of a Bill of Rights as a means of protecting against the possibility that the government might violate its authority and encroach on the rights of the people. The dreaded Necessary and Proper Clause, some feared, might be exercised to infringe such fundamental rights as free speech and religious liberty, unless they were enshrined in the Constitution. Madison and other heavyweights, including Alexander Hamilton and James Wilson, opposed the idea and argued that a Bill of Rights that enumerated some rights would imply that those not enumerated did not exist. The prospect of an unintentional omission would be dangerous, since it might imply governmental authority that was not conferred by the Constitution. Advocates of a Bill of Rights pointed out that this specific problem already existed in the draft of the Constitution, which protected liberty from religious tests and bills of attainder, among others, but not the great, magisterial rights such as speech, religion, trial by jury and due process of law.

Madison and others recognized the weakness of their position and proposed to remedy it with the addition of a Bill of Rights, after the Constitution was ratified by the sovereign people. In his marvelous speech on June 8, Madison introduced the Ninth Amendment to protect against the very concern that he had expressed in the Convention. Thus, the language, “other rights retained by the people,” made it clear that the people enjoyed rights not enumerated. And, whatever else it might mean it is clear that the Bill of Rights was not exhaustive of the rights enjoyed by the people.

While we cannot be certain what rights Madison had in mind, he prefaced his introduction of the Bill of Rights by stating the need to secure “the great rights of mankind.” Madison’s approach was creative. Indeed, no precedent for it existed. He may have included freedom of speech in that category, for he did not list it as an enumerated right. A friendly amendment to his motion, by his fellow Virginian, George Mason, converted free speech to an enumerated right. Madison, moreover, may have had in mind protection for “natural rights,” which he believed preexisted government and were separate from those that were derived from the Constitution. Also, he probably had in mind the concept of “positive rights,” those practices and activities that were familiar to Americans but not prohibited by law, including, perhaps, the right to hunt and fish, and the right not to be taxed except by consent through one’s representatives, the right to refuse military service on grounds of religious conscience and, important to all, the right to pursue happiness.

Discussion of the rights embodied in the Ninth Amendment can go on, endlessly, and it likely will. How can it be otherwise in a nation committed to limited governmental power?

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