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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April 10, 2012