April 10, 2012 – Essay #37 – Amendment IX: Rights Which Are Enumerated – Guest Essayist: W.B. Allen, Dean Emeritus, James Madison College; Emeritus Professor of Political Science, Michigan State University

Amendment 9 – Construction of Constitution. Ratified 12/15/1791.

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

The 9th Amendment to the Constitution was one of twelve submitted to the states for ratification in fall, 1789.  Ten of the twelve were ratified by December 15, 1791, and came to be known as the “Bill of Rights.”  An eleventh, the 27th Amendment, was ratified May 7, 1992.  The final of the twelfth, applying the relevant terms of the “Bill of Rights” to the states was never ratified.  However, the Supreme Court in the 20th Century adopted a doctrine of “incorporation” which imported many of the guarantees of the “Bill of Rights” as applying against the states through the 14th Amendment, adopted during the process of Reconstruction following the 1861-65 War for the Union.

The context for interpreting the 9th Amendment, therefore, is focused on the controlling ideas informing the “Bill of Rights.”  The Supreme Court has never provided clear guidance concerning the 9th Amendment itself.  A fundamental principle of constitutional interpretation, however, is that every article bears some intentional meaning which remains significant in understanding at minimum the intentions of the framers and the design of the institutions of self-government framed by the Constitution.  In that sense, we may take the 9th Amendment to refer primarily to the question of the breadth of the guarantees mentioned in the other articles of the “Bill of Rights.”  This follows the debate that took place over the ratification of the Constitution, in which the Antifederalists chiefly criticized the draft constitution as over-broad and threatening the rights of the people and their state institutions with the prospect of an unlimited federal/national government.  The defenders of the Constitution (the Federalists) responded that the guarantees of individual rights familiar in most of the state constitutions of the founding era should not be included in a federal constitution precisely because the federal constitution was not designed to convey the kind of police power (health, safety, and morals) that would imperil individual rights, reserving that jurisdiction to the states.  That argument is made most forcefully in essay number 84 of The Federalist Papers.  An additional argument made there is the argument that any determinate listing of guaranteed rights would bear the unfortunate implication that any specific guarantees omitted in the process of listing specific rights would imply the existence of a governmental power that had not been intended.

Once, therefore, the political compromise of adding a bill of rights to the constitution had been accepted, the authors of the amendments (mainly James Madison) thought it important to do everything possible to avert any unintended consequences of such an enumeration of rights.  The 9th of Amendment is the first of two deliberately intended to restrict the breadth of the application of those guarantees in such a manner as neither to imply unlimited power in the federal/national government nor to imply individual rights were exhausted by such an enumeration.  In that sense, the 9th Amendment creates a shadowy, unspecified realm in which certain additional rights may be discovered as reserved to the people and, to that extent, thus brought under the controlling language of the 1st Amendment, namely, that “Congress shall make no law respecting” such additional rights.  It is in that spirit that the Supreme Court in the 1965 Griswold v. Connecticut, 381 U.S. 479 decision discovered a constitutional “penumbra” within which a “right to privacy” sheltered and served to proscribe state prohibition of access to contraception.  It was because of the incorporation doctrine through the 14th Amendment that the Court was able to make use of the “Congress shall make no law respecting” the unspoken right to privacy language to enunciate a limit upon the states.  Though the Court has never said so, it should logically follow, therefore, that such a proscription against state policy can only be considered authoritative to the extent that it operates with equal effectiveness against the federal/national government.  For the language of the 9th Amendment is primarily a language of restriction on the federal/national government, as are all of the “Bill of Rights”, and in the absence of ratification of the drafted 12th amendment, applying the same terms to the states, the primary meaning of all such language must be that it is a limitation upon the government of the United States.  Besides contraception, the areas in which such application has occurred have been the parental right to educate children, the right to study a foreign language, the right to make and enforce contracts, etc.

W. B. Allen is Dean Emeritus, James Madison College; and Emeritus
Professor of Political Science, Michigan State University

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8 Responses to “April 10, 2012 – Essay #37 – Amendment IX: Rights Which Are Enumerated – Guest Essayist: W.B. Allen, Dean Emeritus, James Madison College; Emeritus Professor of Political Science, Michigan State University”

  1. Marc W. Stauffer says:

    Certainly, personal rights and the limitation of Government was foremost in their minds as they created our foundational documents.

  2. yguy says:

    The final of the twelfth, applying the relevant terms of the “Bill of Rights” to the states was never ratified.

    Is this information incorrect, then?

    In 1789, twelve proposed articles of amendment were submitted to the States. Of these, Articles III through XII were ratified and became the first ten amendments to the Constitution, popularly known as the Bill of Rights. In 1992, proposed Article II was ratified and became the 27th amendment to the Constitution. Proposed Article I which was not ratified is as follows:

    “Article the first

    “After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

    • Ralph T. Howarth, Jr. says:

      It was the Article the Fourteenth, and not Article the Twelfth. Article the Fourteenth on the original draft of the Bill of Rights (BoR) was killed in the Senate who were deemed too patriotic to their own state to require the federal BoR to be imposed on the states. What was absent in Article the Fourteenth was any dis-establishment clause requiring states to break up their state run churches…something that was not likely going to be ratified by the states even if passed through congress. Ironically, the 14th Amendment has been used in a fashion above and beyond the scope of the Article the Fourteenth of the BoR even though it was meant only to give federal government jurisdiction over the handling of state laws on the question whether a state extends its own laws and protections equally to its own internal citizens; not the imposition of federal laws on state behavior.

      • yguy says:

        Article the Fourteenth on the original draft of the Bill of Rights (BoR) was killed in the Senate who were deemed too patriotic to their own state to require the federal BoR to be imposed on the states.

        Can you quote the text?

        • Ralph T. Howarth, Jr. says:

          Here is the direct link to the Library of Congress document of the 17 article BoR passed by the House out of the 21 article original submitted in the House.

          http://memory.loc.gov/cgi-bin/ampage?collId=rbpe&fileName=rbpe21/rbpe212/21200200/rbpe21200200.db&recNum=2&itemLink=r?ammem/rbpebib:@field(NUMBER+@band(rbpe+21200200))&linkText=0

          Observe Article Fourteen that was killed in the Senate as:

          “No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, nor of the press.”

          The debate on the article is accounted for via the Annals of Congress:

          The Debates and Proceedings in the Congress of the United States (Annals of Congress), Joseph Gales. Gales and Seaton, Washington, 1834, August 17, 1789, Vol I pp 749-756.

          As the Senate debates were behind closed doors, getting a primary source on the reason’s why the Senate killed the Fourteenth Article tends to fall on secondary sources of conjecture; but the conjecture has been around that the Senator’s were too “patriotic” or “jealous” of state rights to support such an amendment to apply to state constitutions even though a number of states had similar bills of rights.

          • yguy says:

            Ralph, thanks for the info. The idea that an amendment which only included parts of 1A and 6A would have ‘appl[ied] the relevant terms of the “Bill of Rights’ to the states seems quite a stretch, to put it charitably.

          • Ralph T. Howarth, Jr. says:

            True; however, to the commoner, 1A and 6A is the bill of rights. The rest: 2A by its nature already applies to the states; 3A on quartering of soldiers is moot as state militia men were largely “quartered” in their own domiciles; 9A and 10A are moot for they are the assurances of a federal government of non interference in state matters; and the remainder pertain to police and courts of which the states have their own. It is arguable that if the federal government can intermeddle in the affairs of police and courts of a state, then the autonomy of the state is lost; but that is just conjecture on my part why such amendments did not develop. It may be that Federalists did not want to draw the ire of Anti-Federalists with what would be defacto police powers over the states and so they may have perished even the thought.

  3. Tom says:

    IT IS VERY HELPFUL TO FOLLOW THE TEXT AS IT IS READ ALOUD. THANKS.
    IT SEEMS THAT A CASE MIGHT BE MADE THAT THE HEALTH CARE BILL VIOLATES THIS AMENDMENT. IT AT LEAST VIOLATES THE PRIVACY PART. HEALTH CARE LIKE EDUCATION SHOULD REMAIN AS THE RESPONSIBILITY OF THE STATES.
    TOM

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