Ninth Amendment (Part I)

The Ninth Amendment is an excellent example of how originalism theory is dead among justices. The Ninth Amendment is an enigma because it is interpreted incorrectly and it is hardly used. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment and the privileges and immunities clause of the Fourteenth Amendment are very similar and allow for justices to elevate natural law fundamental rights that are nowhere to be found in the Constitution. They are also very similar because they are seldom used. Scholars are at odds whether the Ninth Amendment applies to both federal and State governments. The theory in this text believes the Ninth Amendment should be included as part of the Bill of Rights (most scholars only believe the first eight amendments make up the Bill of Rights). Therefore, the Ninth Amendment should be applied to the States via the Fourteenth Amendment’s due process clause as other Bill of Rights amendments have been (although this has not happened yet). Fundamental rights can be elevated through either the Ninth Amendment or the privileges and immunities clause of the Fourteenth Amendment. Of course, the privileges and immunities clause has been incorrectly redacted from the Constitution in the Slaughter House Cases (more on this later) and the Ninth Amendment is long forgotten, also redacted by the “inkblot” theory. Robert Bork, a Supreme Court Justice nominee (Senate did not confirm him in 1987), said during his confirmation hearings that the Ninth Amendment is an “inkblot” and should be ignored since its true meaning is hard to discern. It is hard to fathom, something as important as the Ninth Amendment, should be redacted from the Constitution. After all, our Founders had a specific reason to put it in the Constitution in the first place. The Ninth Amendment was James Madison’s way to handle a very perplexing issue. Most Constitutional Convention members did not want to create a Bill of Rights for various reasons. The most important reason was echoed by James Iredell from North Carolina. He contented it is impossible to list all the natural rights of all citizens. Thus, by enumerating a few natural rights it may end up disparaging the many natural rights that are not found in the Bill of the Rights. But many States would not ratify the Constitution without the promise of a Bill of Rights to be added to the document. In Federalist Paper 84 Alexander Hamilton argues against a Bill of Rights: A Bill of Rights is not needed for the Constitution since many individual and State rights are built into the Constitution such as not allowing a suspension of a writ of habeas corpus. Besides, Hamilton argues that by adding a Bill of Rights “they would contain various exceptions to powers not granted”. Furthermore, Hamilton added “Why declare that things shall not be done which is no power to do?” Hamilton argues further in Federalist Paper 83 that many individual rights are already included in State constitutions such as trial by jury. Hamilton claims there is no trial by jury provision in the Constitution since each State has varying and unique interpretations on the subject such as some States allow trial by jury for criminal cases but not for civil ones and vice versa. In most cases, State constitutions were more stringent than the federal Bill of Rights. Constitutional convention member, James Wilson, also argued against a Bill of Rights fearing those rights not incorporated in the Bill of Rights would be denied or disparaged by both federal and State governments. Wilson was correct in his assessment and this will be explained later in this book. Madison’s plan to solve this conundrum was the Ninth Amendment. The Ninth Amendment was scarcely used in American jurisprudence to enumerate individual rights. But there is some precedent to back this school of thought. Justice Goldberg used the Ninth Amendment in his reasoning for Griswold v. Connecticut (he was the only Justice out of 7 to do so) and Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter used the Ninth Amendment in Casey v. Planned Parenthood (Roe v. Wade follow up in 1992). The Oregon Supreme Court elevated the right to own property as fundamental in Roman Catholic Archbishop v. Baker (1932) using the Ninth Amendment. A district court upheld the fundamental right to work in United States v. Lieto using the Ninth Amendment. In Lieto, Judge William Hawley Atwell held “The only controversy that is here is between the humble citizen who asserts his right to carry on his little business in a purely local fashion, without being arrested and punished for a mythical, indirect effect up interstate commerce.” Most scholars (both liberal and conservative) have tried to minimize the impact and relevance of the Ninth Amendment and most justices have been reluctant cite it because they are afraid of opening “Pandora’s box”. Put another way, both the Right and Left are afraid of how each side will use the amendment. In particular, they fear the amendment will be exploited for political purposes. This is true, but justices have already exploited many provisions of the Constitution for political purposes. Later, in this text, there is an outline of rules that should be followed by justices to elevate natural law fundamental rights so the Ninth Amendment is not exploited for political purposes. The original intent of the Ninth Amendment provides for a dual purpose. First, it is to prevent the federal and State governments from denying any rights that may not be enumerated in the Constitution or Bill of Rights. Secondly, the amendment is to “deny an expansion of federal power” that may arise from a limited list of rights in the Constitution. In other words, the amendment would prevent the federal government from assuming it has power to regulate any rights that are not enumerated in the Constitution. The Ninth Amendment also has a dual purpose in terms of protecting the rights of individuals and also protecting the collective rights of people within a State. For example, the collective right of the “home rule” provides that States can “determine for itself its own political machinery and its own domestic policies” so long as they do not violate the rights of citizens. The Ninth Amendment also dictates that all enumerated and unenumerated rights be treated exactly the same. Put in other terms, one right, regardless of enumeration, should not be given any priority over another right. This is important because the entire history of the Supreme Court violates this Ninth Amendment rule. Instead, the Court is about conjuring up balancing tests to provide some rights more preferred status over other rights. That being said, however, it is important to note that the Ninth and Tenth Amendments cannot be used by States to shield them from violating the rights of its citizens. For this reason, the Ninth Amendment should apply to the federal government as a federalism clause and both the State and federal governments for protecting the individual rights of its citizens.