The Ninth Amendment: Uneumerated Rights

The signing of the Declaration of Independence signified the first thirteen American colonies' declaration of independence from the English Crown. This event necessitated a consensus on the governance of their new nation. Finding the Articles of Confederation inadequate, the Framers drafted the U.S. Constitution to formally establish a unified agreement. The Constitution sets forth the structure of the federal government and protects individual liberties.

The Bill of Rights encompasses the first ten amendments to the Constitution, which protect essential democratic rights, including the freedoms of speech and religion. These amendments are crucial in safeguarding the fundamental liberties central to a democratic society. Rights laid out in the text of the constitution are “enumerated rights.”

The Ninth Amendment encompasses rights that are not explicitly outlined in the Constitution. Referred to as "unenumerated rights," the U.S. Supreme Court has invoked the Ninth Amendment to safeguard these rights that are not itemized in the Constitution. This amendment affirms that the Bill of Rights does not represent an exhaustive or exclusive enumeration of rights.

Deciphering the Ninth Amendment

The text of the Ninth Amendment reads:

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

This provision addresses the need to protect rights not mentioned in the Constitution. It reminds us that the Bill of Rights is not a complete list of the rights belonging to the American people.

The Ninth Amendment allows for the idea that there may be rights that aren't in the Constitution.

The Ninth Amendment emerged as a compromise between the Federalists and Anti-Federalists, who held opposing views on handling rights within the Constitution. The Federalists were proponents of a robust central government, while the Anti-Federalists championed the cause of stronger state governments and the protection of individual liberties.

James Madison, in an effort to placate the Anti-Federalists, championed the Ninth Amendment. Their concern was that enumerating certain rights could potentially limit the extent of personal freedoms. Steeped in Anti-Federalist tradition, Virginia played a pivotal role in these discussions. The amendment's inclusion was instrumental in garnering support for the Constitution's ratification by acknowledging the existence of rights not explicitly stated.

The Scope and Impact of Unenumerated Rights

The Ninth Amendment has significant legal implications. It empowers courts to affirm that citizens have rights beyond those named in the Bill of Rights.

For instance, the Supreme Court's decision in Griswold v. Connecticut (1965) recognized a right to marital privacy regarding contraceptive use. There is no textual reference to such a right in the Constitution, but the Court recognized it.

In their written opinions, Justices Douglas and Goldberg discussed the Ninth Amendment's power. They agreed it protects rights other than those named in the Constitution. The right to privacy, they found, is a right even though it was not listed in the Constitution.

Both viewed the Amendment as a protective provision. It ensures rights are not violated by the government. Their opinions affirmed the courts' role in safeguarding these implied liberties.

Similarly, the ruling in Troxel v. Granville (2000) acknowledged parental rights in family matters. The case involved a law allowing third parties to petition for child visitation rights. The Court found that the law violated the rights of the child's parents and concluded that parents have a right to make decisions about the care, custody, and control of their children.

These cases show how the Ninth Amendment is used as a shield. It protects fundamental rights that emerge from enumerated liberties.

The Ninth Amendment works together with the Tenth Amendment and Fourteenth Amendment to protect individual rights.

• The Tenth Amendment reserves "the people's" rights. In practice, this means that powers not given to the federal government by the Constitution generally belong to the states unless the Constitution prohibits it.

• The Fourteenth Amendment grants citizenship to all persons born or naturalized in the United States. It ensures equal protection under the law. It also extends due process rights to all state actions.

These amendments draw boundaries between powers granted to the federal and state governments. They also protect the inherent rights retained by the people. This prevents the government from encroaching upon the personal freedoms of individuals.

Divergent Views on Unenumerated Rights

Legal professionals and scholars still debate the meaning of the Ninth Amendment. Randy E. Barnett, a constitutional law scholar, has written extensively about his interpretation.

Barnett contends that the Ninth Amendment safeguards fundamental liberties not explicitly stated in the Constitution, which he asserts are preserved by the people. He reads the constitutional clause as endorsing a presumption of liberty, arguing that individuals have the right to engage in any activity not expressly forbidden by the Constitution.

The late Justice Antonin Scalia had a different opinion. In Troxel v. Granville, the Supreme Court Justice frowned upon the Court's recognition of unenumerated rights.

In his dissenting opinion, Scalia warned against inventing constitutional rights. He argued for the recognition of rights listed in the Constitution. Justice Scalia warned the Court should adhere to a strict interpretation of the Constitution. Otherwise, he argued, it would overstep its boundaries. This would infringe upon the states' power to govern.

The Enduring Significance of Unenumerated Rights

The Ninth Amendment is a part of the Bill of Rights that protects unnamed but inherently held rights. It prevents the assumption that the American people's only rights are named in the Bill of Rights. It allows the natural rights of the people to extend beyond the written word of the Constitution.

As America evolves, the interpretation and scope of these unenumerated rights remain a subject of debate. This shows how hard it is to empower a government while protecting the constitutional rights of individuals.