Talk:Ninth Amendment to the United States Constitution/Archive 1

Archive 1

Text of amendment

It would be nice if we could have the actual body of the ninth amendment on this page, rather then forcing people to go elsewhere to read it. —The preceding unsigned comment was added by 204.107.82.85 (talk • contribs) 18:57, November 18, 2005.

• Ummm, it is on the page, right at the top. --JW1805 ^(Talk) 19:33, 18 November 2005 (UTC)

Weird paragraph

The Ninth Amendment was designed to protect other Amendments from being changed by future laws. Examples of such future laws are Prohibition or censorship laws, such as defamation, obscenity, etc. that limit or undo absolute Freedom of Speech. The Ninth Amendment protects natural (inalienable) rights, including unwritten natural rights, such as the right to eat, sleep, breathe, make and raise children, etc. that nature grants to animals too. In other words, it is a general freedom law to counter any attempts by government to create new laws that counter old laws, or take away any freedoms, written or unwritten. This is why the Ninth Amendment is often used by legislators to prevent new bills that take away human rights from becoming laws. It is also used by defense attorneys to protect a person who has broken a new law that takes away a human right.

This weird paragraph is a non-sequitur compared to the well-written article that precedes it. No sources are cited. Should it be deleted? Tempshill 06:28, 23 January 2006 (UTC)

I would support deletion of the paragraph...I think an intelligent discussion of the intended aims of the Ninth Amendment (and its past and likely future application) would be welcome in the article, but this is confusing enough to be a hindrance. I'd prefer someone clean it up into the kind of thing I'm describing, but if it's between inclusion as is, or deletion wholesale, I think cutting it might be the best choice. Jwrosenzweig 06:30, 23 January 2006 (UTC)

I agree and have deleted it. Son of lucas 08:20, 28 January 2006 (UTC)

Neutrality

The article ends thus:

The Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." As one author has put it, "This is a far cry from saying that no law shall infringe any right retained by the people."

One author? Who? S/he must be important to conclude our article. The interpretation section seems to be devoted to playing down the amendment; it's one long warning against assuming the amendment grants any rights. It doesn't seem very neutral in tone. Does anyone at all disagree with Douglas, or Scalia, or Tribe? I mean, Barnett seems to, but from the article on his book I can't figure out what exactly it is he believes. Are there opposing viewpoints? —vivacissamamente 12:26, 28 July 2006 (UTC)

More Neutrality Issues

This paragraph's opening sentence is hardly neutral:

Criticisms that render the Ninth Amendment a judicial nullity do just what the Ninth Amendment commands judges not to do: "deny or disparage other [rights] retained by the people." Bork's fellow originalist Randy Barnett has argued that the Ninth Amendment requires what he calls a presumption of liberty. Other originalists, such as Thomas B. McAffee, have argued that the Ninth Amendment protects the unenumerated "residuum" of rights which the federal government was never empowered to violate.[5]

It is clear who the opinion belongs to in the second and third sentences, but what of the first? Phaedra777 16:57, 12 October 2006 (UTC)

I agree. I'll go ahead and delete that sentence. Andrew, 13 October 2006.

Deleting Citations

A user deleted case citations, and I reinserted them here. Now the citations have been deleted again, and I will restore them again. It's difficult for me to understand why this is happening.Ferrylodge 19:14, 16 January 2007 (UTC)

Relation of Ninth Amendment to the 14th

I have been making an important clarification to one paragraph in the Interpreation section that keep being reversed by an unknown editor without explanation. Here is the paragraph as I propose it:

Adoption of the Bill of Rights opened the question of whether it extended the federal question jurisdiction of the federal courts to include cases involving those rights between a citizen and his state, which had been omitted from the list of federal court jurisdictions listed in Article III of the U.S. Constitution. The First Amendment, by the phrase "Congress shall make no law", clearly made it applicable only to Acts of Congress, and James Madison had proposed another amendment that would have asserted the same rights against action by state government, which was rejected. However, the remaining amendments did not contain language limiting their applicability to Congress, and there were other rights stated as restrictions on state government, in Article I, Section 10 of the U.S. Constitution. The issue was decided by the U.S. Supreme Court in the controversial 1833 case of Barron v. Baltimore, which held that while the rights applied to the states, the jurisdiction of federal courts was not extended to such cases between a citizen and his state. The Fourteenth Amendment was adopted in part to overturn that precedent, which the framers :of the Fourteenth Amendment considered incorrect. Since then the U.S. Supreme Court has selectively accepted federal court jurisdiction for portions of the Bill of Rights against the states through selective incorporation, thereby enabling, when combined with congressional legislation, a citizen to sue the citizen's own state in federal court (see sovereign immunity). Since 1938, when the Supreme Court wrote its famous footnote four, the proper application of the Bill of Rights has been an increasingly contentious issue.

Now, I realize that this makes the paragraph longer, and may present the reader with more legal jargon than some editors like, but it also makes some important distinctions that even many lawyers fail to grasp, and that need to be understood to understand the Ninth Amendment in context. It is not as simple as the assertion that before the 14th Amendment the Bill of Rights only "applied" to the federal government. That obscures the important point that for the Founders the rights recognized by the Bill of Rights were more fundamental than the Constitution for the United States or the states. They "applied" to all persons everywhere, in every country, from the beginning of time to the end of it. The issue was not "application" but jurisdiction. If you read the decision in Barron carefully, and my commentary linked from here, you will get that subtle distinction. You will also get that the jurisdiction of the federal courts over such cases was an open question. It was, after all, the position oif Barron that the federal courts did have jurisdiction, and most observers of the time thought the decision was a political one, like Dred Scott later, to placate calls for Southern secession. My historial research finds that only the First Amendment was confined to Congress, and that the other amendments were indeed intended to extend federal court jurisdiction to such cases, although at the time almost no attention was given to the matter.

It is also important to add the phrase about enabling congressional legislation, because it was the Civil Rights Act, passed under the 14th, that provides for the jurisdiction to sue (42 USC 1983 and related clauses), or to prosecute criminally (18 USC 241 & 242). Some, like Akhil Amar and I, may argue that the amendments are self-executing in the creation of jurisdictions, but we are a minority in holding that position.

But I appreciate moving my article cite to a footnote. I didn't know how to do that. —The preceding unsigned comment was added by Jon Roland (talk • contribs) 04:47, 17 January 2007 (UTC).

I would be glad to discuss your proposed paragraph. However, this is the third time in a row that you have also deleted case citations, along with adding your proposed paragraph. Why are you doing that? See the citations you deleted for Roe v. Wade (district court case), Nicholas Johnson, U.S. v. Lopez, United Public Workers v. Mitchell.

Also, when you make non-minor edits, you should write a comment that will show up on the history page.

For the time being, I will revert your edits again, and hopefully you will please address why you are deleting citations. I noticed that you did the same thing at the Randy Barnett page. Thank you in advance for explaining why you are doing this.Ferrylodge 13:55, 17 January 2007 (UTC)

I don't see any case citations I deleted. I did not touch Roe v. Wade (district court case), Nicholas Johnson, U.S. v. Lopez, United Public Workers v. Mitchell. Perhaps someone else did, or perhaps someone added them while I had the version open that I found, but the only changes I made during that session was to that paragraph, and to add an external link. The only case citation in the above paragraph was to Barron v. Baltimore, which I did not change other than to italicize it, as befits case citations. All I did was add material and rearrange it. The only thing I deleted was the (incorrect) assertion that the Bill of Rights did not apply to the states prior to the Fourteenth Amendment, as though that was a settled issue during that period. It was not. Certainly Barron argued it was not, and in the congressional debates on the Fourteenth Amendment (see Intent of the Fourteenth Amendment was to Protect All Rights) most proponents of what became the Fourteenth argued Barron had been wrongly decided, not just that they opposed the position taken in that decision.

Also, why did you delete the additional link to the Documentary History of the Bill of Rights (which of course includes the development of the Ninth). That seems to fill a gap that would be of interest to readers.Jon Roland 17:37, 17 January 2007 (UTC)

Whether you meant to or not, you deleted citations here, here, here, and at the Barnett page here. I don't know how it happened, but it clearly did happen. I reverted some of your edits for that reason. However, I see that your external link to constitution.org is okay, so I've just reinserted it.

Regarding Barron v. Baltimore, I think you would agree that the present article is currently accurate:

"It is important to keep in mind, when discussing the history of the Bill of Rights, that it was enforceable by the federal courts only against the Federal government, prior to adoption of the Fourteenth Amendment (see Barron v. Baltimore). Thereafter, the Supreme Court has used the Fourteenth Amendment to apply most portions of the Bill of Rights against the states via selective incorporation, thereby increasing the ability of a citizen to sue the citizen's own state in federal court (see sovereign immunity). Since 1938, when the Supreme Court wrote its famous footnote four, the proper application of the Bill of Rights has been an increasingly contentious issue."

If I understand your position, this paragraph is now entirely accurate. If you want to write further on this subject, then I would suggest doing so at the page for Barron v. Baltimore. You call that a "very controversial" case, but actually the holding of that case is now very widely accepted as having been correct. In any event, there's no point getting into this issue any more deeply here.

Regarding the question of whether the amendments are self-executing, you may be interested in Chapman v. California, 386 U.S. 18,) ("we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights"). Personally, I think that the Due Process Clause is the remedy for violations of other provisions of the Bill of Rights; i.e. if a state withholds any privilege or immunity of a citizen of the United States listed in Amendments 1-8 in the process of depriving a person of his liberty, then the state must restore the person's liberty.

Ferrylodge 22:27, 17 January 2007 (UTC)

Strange. The citations were not completely removed, but only the page numbers and year removed, and I never touched them. Perhaps someone added those details while I had the page open for edit, and my save overwrote his additions, except that seems improbable for both articles edited on the same day. I wouldn't think it could be some strange effect of some underlying javascript interacting with my Firefox browser. If it recurs we need further testing to see if we can recreate the effect, diagnose, and fix it. However, it appears your reversion did not put the page numbers and years back. It would be useful to find out who added those so he can put them back (assuming they are accurate). If I have time I will research the cites for the page numbers and years and add them back in.

But no, I don't agree with the reverted paragraph above. It is not about what many people may think now, but about what they thought during that period in history. In fact many people, especially my originalist historian colleagues, tend to agree with me, and the historical record supports the position it was controversial, with the controversy changing after the Barron decision. Interestingly, the people of that era who we usually think of as strict constructionists, that is, most Jeffersonians, who might be expected to oppose Barron by the same analysis I use, and whould have in 1791, liked the decision because it favored states' rights at a time when the Southern secession movement was gathering strength. There are clear indications that Marshall was making his decision with a view to avoid arousing the secessionists. (As Taney later did in Dred Scott.) The fact is that there is not much controversy about it among lawyers today, because they tend to simply accept court precedents and consider the question mooted by adoption of the 14th, but lawyers are seldom good historians. Read Barron's briefs in the case. (I intend to put them online someday when I can get a complete set from the National Archives.)

So please put my version back, being careful not to disturb the citations. I will also look at the page on Barron v. Baltimore to check for errors and correct them.Jon Roland 00:03, 18 January 2007 (UTC)

You say, "it appears your reversion did not put the page numbers and years back." On the contrary, if you look at the article now, the page numbers and years have been reinserted for those particular items (Roe v. Wade district court case, Lopez, Mitchell and Johnson).

Regarding Barron, you say, "I don't agree with the reverted paragraph above." I will edit that paragraph so that it reads as follows, and you hopefully agree with this:

"It is important to keep in mind, when discussing the history of the Bill of Rights, that the Supreme Court held in 1833 that it was enforceable by the federal courts only against the Federal government, and not against the states (see Barron v. Baltimore). However, in 1868, the Fourteenth Amendment was adopted, and the Supreme Court has used that Amendment to apply most portions of the Bill of Rights against the states via selective incorporation, thereby increasing the ability of a citizen to sue the citizen's own state in federal court (see sovereign immunity). Since 1938, when the Supreme Court wrote its famous footnote four, the proper application of the Bill of Rights has been an increasingly contentious issue."

I strongly believe that this is a side-issue, and that further discussion should occur at one of the linked pages, rather than at this Ninth Amendment page.Ferrylodge 00:14, 18 January 2007 (UTC)

The following version of your version is better:

"It is important, when discussing the history of the Bill of Rights, to note that the Supreme Court held in Barron v. Baltimore (1833) that it was enforceable by the federal courts only against the Federal government, and not against the states. However, in 1868, the Fourteenth Amendment was adopted, in large part to overturn that precedent, and the Supreme Court has used that Amendment, together with enabling congressional legislation, to apply some, but not all, provisions of the Bill of Rights against the states through what is called selective incorporation, thereby enabling a citizen to sue the citizen's own state in federal court (see sovereign immunity). Since 1938, when the Supreme Court wrote its famous footnote four, the proper application of the Bill of Rights has been an increasingly contentious issue."

I agree that it has been a mistake to deprecate the P&I and DP clauses, and we can commend the framers of the 14th that they (somewhat redundantly) included the EP clause as a backup. Fortunately, we have, in principle, the Ninth Amendment, if it were properly interpreted and "incorporated", as a remedy for the problem, and if we can overcome jurists like Scalia whose copy of the Bill of Rights has only an inkblot where the Ninth Amendment should be.

On the question of self-execution, Akhil and I agree that the notion that amendments are not self-executing without enabling congressional legislation to create a jurisdiction to hear cases on them is an innovation, something that no one would have maintained until after the Thirteenth Amendment opened the issue by adding an enabling clause (granting a power to Congress to enact legislation to enforce it). I maintain that all courts of general jurisdiction, federal or state, may hear cases involving amendments to the U.S. Constitution. They may lack jurisdiction on other grounds, but not for lack of enabling legislation, depending of course on how the amendment is worded.Jon Roland 00:58, 18 January 2007 (UTC)

Okay, I have edited that paragraph as you suggested. Incidentally, I believe Barron v. Baltimore was correctly decided. I also think that the Ninth Amendment was not intended to further limit the means by which the federal government carries out its enumerated powers; instead, it was mainly intended to protect the great residuum of rights created by the original unamended Constitution's withholding of various powers from the federal government. I do agree with you that the 14th Amendment was intended to overturn Barron.Ferrylodge 01:06, 18 January 2007 (UTC)

Okay, when I now go back to the original article I see the page number and year displayed, but as a separate link, and when I put the cursor over it, I get a prompt to initiate a call with "Jajah", which appears to use some kind of plugin installed on this browser. When I open the page for edit I find

abortion.

and the page and year do not appear. I have to wonder where they went. Obviously, if I now save it one might expect the page and year to be removed. Let's see what happens when I save this edit of the talk page.Jon Roland 01:25, 18 January 2007 (UTC)

But of course we can't see the effect because there is no footnote section in this talk page. I will investigate further.

We will have to agree to disagree on whether Barron was correctly decided. You can read my analysis here.

As to whether the Ninth or any of the Bill of Rights were intended to "further limit" the enumerated powers, obviously Madison and many others in 1791 didn't think so, but, then, their interpretation of the limits on those powers were a lot narrower than that of later generations, both as to subject and as to purpose. They never anticipated that Marshall would declare in Gibbons v. Ogden that a delegation of powers was "plenary within its sphere", and not constrained by proper purposes, whether explicit or not.

I like to explain this point by pointing out that the delegated power to Congress to pre-emptively regulate the time, manner, and place of elections was not a delegation of power to confine the voting period to one microsecond, the manner to telekinesis, and the place to a polling place on the moon. There was an implicit further limitation that the purpose of any regulation had to be to make elections more fair, effective, accurate,and convenient.

If we accept that implicit in the Ninth (as in the rest of the Constitution) is a presumption of nonauthority (what Randy Barnett calls, somewhat less precisely, "liberty"), then that can certainly be regarded as, if not a "further limitation", at least a clarification of the delegated powers, particularly as to their purposes, which are a kind of further restriction. Thus, the power to allocate jurisdictions between original and appellate is not the power to remove a jurisdiction on a federal question from all federal courts (especially not the Supreme Court). In other words, McCardle was wrongly decided.

I maintain that one of those rights is a right of quo warranto, that is, a right to have an official cease or refrain from an action unless or until he proves his authority to take it. That can certainly be regarded as a kind of "further restriction" on a delegated power, because it opens the way to suspending the usurpation of it by any official. It is not, of course, a restriction on the power of Congress to enact something, but it does bear on the application and enforcement of the act in particular cases.Jon Roland 01:50, 18 January 2007 (UTC)

Okay, I think I found the problem. I uninstalled the Jajah plugin on this browser. (I am using this machine temporarily while my usual machine, which also runs Firefox, but on Linux, with few plugins, is down for maintenance.) The page and date no longer appear as a link (which the Jajah plugin sees as a phone number), and do appear when I open the page for editing. If you have some kind of knowledgebase for Wikipedia, you might spread the word that this problem may occur if one has the Jajah plugin installed on one's browser.Jon Roland 02:04, 18 January 2007 (UTC)

Just made a minor edit and the damage to the citations did not occur. Clearly, the Jajah plugin was the cause of the problem.Jon Roland 02:44, 18 January 2007 (UTC)

I noticed that you added a couple sentences at the end of the article. I really think that the footnote to your article, and the external link to your website, are adequate ways to inform readers about this stuff. Moreover, it is not a common view at all that the Ninth Amendment embraces habeas corpus. Habeas corpus is an enumerated right in Article I, Section 9, after all.Ferrylodge 02:53, 18 January 2007 (UTC)

I thought the last paragraph ended on a note that is misleading. And if we left most content to linked documents what is the point of having an article that summarizes the subject? The only right of habeas corpus in Article I, Section 9, is a "privilege" not to have it (legislatively, from the context of its location) suspended except in "Cases of Rebellion or Invasion". Given the tendency for government officials of our era to twist the language of the Constitution, that is no guarantee against suspension by executive or court order, or from having a "permanent rebellion" declared, or having courts refuse to hold hearings on it, or since it is a "privilege" (in current parlance, therefore granted by government at its discretion), not enacting it at all, or confining the jurisdiction for it to the Supreme Court, or removing standing from any member of the public and allowing only prisoners to file it (and then not letting them have paper or a writing implement), or allowing only public prosecutors file it (as is commonly done today with quo warranto, such as in Texas, or denying it to some category, such as "unlawful combatant", "terrorist", or "tax protester". If, as I contend, the Ninth protects all of the prerogative writs, and the various other common law process such as demurrer, and recognizes any person to have standing to petition for it as a public right, then that is important, and something now being systematically violated. As for whether my views are common, when I founded the Constitution Society 13 years ago few accepted my views, but in the intervening years it is amazing how many people have come to agree with me. They might not agree that my positions are practical or likely to be implemented, citing "reliance interests" that would oppose them, but they begrudgingly admit that, as a matter of history and logic, I am correct. As you become more familiar with my findings, and think about them, I suspect the same may happen to you. Jon Roland 05:14, 18 January 2007 (UTC)

Come now, Mr. Roland. We have inserted a sentence that says, "Constitutional historian Jon Roland has argued,[8] that the Ninth Amendment included by reference all of the rights proposed by the state ratifying conventions, in addition to those enumerated in the first eight amendments." This is a rather short article, and yet your position is explained, and a footnote with link are provided for further details. You admit that the Constitution designates habeas corpus as a "privilege", and yet you argue that it is not a privilege but rather a right that may not be suspended even in cases of rebellion or invasion. This is a highly unorthodox reading of the Constitution. In any event, readers who wish to find out more about your interpretation have not one, but two links for doing so. Even if I agreed with your interpretation, that would not justify my including lots more info about your unusual interpretation on this Wikipedia page. There's already as much about your views in this brief article as there is about Randy Barnett's or Thomas B. McAffee's or Laurence Tribe's. That seems more than fair.Ferrylodge 05:34, 18 January 2007 (UTC)

Nowhere do I argue habeas corpus may not be suspended. But that is really a standard for keeping the courts open, with "habeas corpus" standing as a kind of placeholder. See Ex Parte Milligan. Courts, and therefore all judicial remedies, may be closed under certain emergency conditions that make it infeasible to open them. But for no longer. My point is that the clause does not afford adequate protection of the right, and I cited several ways it might be infringed. You should recognize those approaches to infringement, because almost all of them are being actively pursued today. I advance the Ninth as a way to reinforce that and other rights by establishing them in a wider and deeper context.

But I'm not going to press the point. You're the editor. I just ask you to think about what I am saying, carefully enough not to make the mistake you made above about my position.Jon Roland 07:07, 18 January 2007 (UTC)

References

9th amendment before 14th amendment

When I read the 9th amendment I see it as not allowing the further of federal powers into the denial of unlisted rights that are delegated to the People or State which have been considered the same. I feel that when the 14th amendment came into place it contradicted this by not delegating it to the states therefor leaving it in a limbo or fallen through the cracks of society.--JasonIqbal 07:45, 10 July 2007 (UTC)

Understanding the SCOTUS view

Am I to understand that the SCOTUS opinion of the 9th amendment is roughly as follows?

"The Ninth Amendment expressly prohibits the government from restricting the rights of the people, unless the government has already restricted the rights of the people."

If not, I believe the 'Interpretation' section needs a bit of... *ahem* reinterpretation. RvLeshrac (talk) 03:55, 24 January 2008 (UTC)

Of course, the sentence that you provide within quotes does not appear in the article. Nor does the article seem to say anything equivalent.

SCOTUS has not said a great deal about the Ninth Amendment, and the interpretation section of this article discusses other authorities as well. For example, the Sixth U.S. Circuit Court of Appeals said: "The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution." Some fundamental rights are protected not by the rights enumerated in the Bill of Rights, but rather by the fact that the enumerated powers do not give the federal government any plausible basis for intruding.

Or, in the sort of language you have put in quotes, the Ninth Amendment expressly prohibits the federal government from restricting the rights of the people by exceeding its enumerated powers (i.e. the 9th Amendment defeats the theory that Amendments 1-8 impliedly give the federal government even more power).

Anyway, if you still think that the interpretation section is defective, how would you suggest improving it?Ferrylodge (talk) 04:09, 24 January 2008 (UTC)

Magna Carta

The following sentence was recently inserted: "The Ninth Amendment, the framers of the United States Constitution wished to ensure that rights they already held, such as those provided by the Magna Carta, were not lost unless through omission, but were retained unless explicitly curtailed in the new Constitution."

The imperfect syntax of this sentence makes it somewhat difficult to understand, and no cite is provided. If this quoted sentence is saying that the Ninth Amendment was meant to preserve all pre-existing rights, that's pretty clearly incorrect. For example, before the Constitution, states had the right to ignore the federal Congress under the Articles of Confederation. That right was not preserved by the Ninth Amendment. Also, if the Ninth Amendment was meant to preserve all existing rights, then Amendments 1-8 would appear to be surperfluous.

I'll remove the quoted sentence, because it seems to be personal opinion. It is contradicted by several people quoted in the Wikipedia article (e.g. William O. Douglas, Laurence Tribe, et cetera).Ferrylodge (talk) 22:41, 16 April 2009 (UTC)

Thanks for inserting footnotes to Charles Black and Frederic Stimson. I've added links to the full texts, and also inserted excerpts in the footnotes. I think this material more properly belongs in the "Interpretation" section of this Wikipedia article, instead of the "Adoption" section. Black acknowledges that his view is not the modern view, and Stimson acknowledges that he disagrees with the academic writing; so, this is clearly their interpretation, rather than objective information from the Adoption.Ferrylodge (talk) 18:01, 17 April 2009 (UTC)

Right to privacy

I've removed some new stuff that was uncited. I'm not aware that SCOTUS has grounded a right to privacy in the Ninth Amendment. Mainly, they've used the due process clause.Ferrylodge (talk) 15:19, 13 May 2009 (UTC)

Last paragraph

The last paragraph makes no sense. This amendment doesn't mention enumerated powers at all. It is a perversion of the amendment to say the enumerated powers limit it. That would be like saying you can eviscerate the First Amendment using the taxing and spending clause of Article I, s8. Thinking of the amendment this way is like saying you don't need the Bill of Rights because Article I enumerates all the powers. The *whole* Bill of Rights, including the Ninth Amendment, limit those enumerated powers. To say that the Ninth Amendment only protects rights that can't be protected or don't need to be... how could someone think that? Why would Madison debate such useless language and put it into the BoR?--222.152.93.87 (talk) 11:32, 12 January 2010 (UTC)

Also, reading it that way, as an amendment about powers, causes an overlap with the Tenth Amendment, which does talk about powers. Powers not granted to the federal government belong to the states. Powers prohibited to the states belong to the People. That is pretty clear. Using the last paragraph's reasoning, you just look to the Tenth Amendment and see whatever powers are allocated to the states by that amendment. Those powers define what rights are left in the Ninth Amendment. But at that time, the Ninth Amendment did not apply to the states. So the Ninth Amendment really, in that sense, restricts nothing at all. This cannot be, because according to Marbury v. Madison, all language in the Constitution has effect and meaning. There is no deadwood.--222.152.93.87 (talk) 11:53, 12 January 2010 (UTC)

how come

How come they use stuff like this. not all ninth graders understand dat... —Preceding unsigned comment added by 71.71.29.101 (talk) 21:35, 7 April 2010 (UTC)

Vandalism

Someone may wish to remove vandalism.96.32.4.90 (talk) 21:42, 11 April 2010 (UTC)

Health Care?

So could the suoreme court upheld the recent health care reform based on the 9th amendment?Saimaroimaru (talk) 15:02, 28 April 2010 (UTC)

Biased or Poor Reviewing of 9th Amendment Page

Look elsewhere on the internet for a better understanding of the 9th..

I agree with comments in LAST PARAGRAPH post. The grant of powers is presented on Wikipedia as the main theory for interpreting the 9th. By that reasoning the Commerce Clause takes away your right to travel.

Madison himself refers to rights as "exceptions to the grant of power".

I attempted to remove the last sentence and SQGibbon put it back. Below is a talk I sent him:

the sentence: "It is to that enumeration of powers that the courts have said we must look, in order to determine the extent of the unenumerated rights mentioned in the Ninth Amendment.[15]"

is an opinion with only one source - a case Lexis tags as questionable. It is also only briefly mentioned therein. The quote found at the link below is a more balanced view of how courts determine unenumerated rights.

http://ask.metafilter.com/158203/What-does-the-Ninth-Amendment-mean

"The government can still argue that a right doesn't exist, because it was never part of the common-law rights of Englishmen before the Revolution. They can argue that it doesn't exist because it's not fundamental to liberty, or it's antithetical to an orderly society. —Preceding unsigned comment added by Overthrowlies (talk • contribs) 21:51, 20 September 2010 (UTC)

I think you're missing my point. I don't have any opinion whatsoever about what is the best interpretation of the 9th Amendment, all I'm questioning are your sources, the lack thereof, and the resultant insertion of your opinions and/or original research into the article. Finding reliable sources to back up your opinions is the first step and then you must add that information in a neutral manner. Finally, I don't understand your use of Metafilter here, it is a message board and whatever they say about the subject is not relevant to the article. SQGibbon (talk) 16:06, 21 September 2010 (UTC)

if neutrality is important.. Then why haven't you deleted the ending grant of powers paragraph? It's redundant and "that the courts have said we must look," is original research. Only one court cited. The current court is divided according to Daniel A. Farberee http://www.alternet.org/rights/50404/?page=entire

"...Anthony Kennedy...has become the bête noire of movement conservatives because he has so firmly defended basic rights and linked those rights to international law.

The opposing side is led by Justice Antonin Scalia, ... Scalia has spent years working out an elaborate constitutional theory of originalism. He has consistently dissented from the entire line of human rights cases, arguing that abortion, gay rights, and end-of-life decisions should all be left entirely to the political process. This is a view that has powerful backing outside the Supreme Court. President Bush has renewed calls for strict construction of the Constitution (by which he means strict limits on individual rights, but apparently not strict construction of the powers...)." —Preceding unsigned comment added by Overthrowlies (talk • contribs) 09:07, 28 September 2010 (UTC)

Redirect

Why does "Unenumerated rights" redirect to this page? The Ninth amendment of the US constitution is not the only example of unenumerated rights and nor is it a categorical definition of them. When linked by this article to "unenumerated rights" in the context of an Irish court case, I do not expect to be reading about the US constitution. I suggest the creation of a new page defining and giving information on unenumerated rights, their history and examples in different countries' law.

I pulled the redirect and wrote the page for you; Unenumerated rights. Regards. Nagelfar 00:54, 1 June 2007 (UTC)

04:08, 8 October 2010 (UTC)04:08, 8 October 2010 (UTC)~~

Goldberg

The blockquote from Justice Golberg's 1965 concurring opinion is huge. We ought to cut out the stuff that is not directed to the Ninth Amendment, and focus on his main points instead of repetition of those points.166.137.137.177 (talk) 02:21, 9 October 2010 (UTC)

the part you deleted was his advice on how to determine unlisted rights - the original purpose of the 9th, and not present elsewhere in the interpretation section.98.234.58.68 (talk) 01:38, 10 October 2010 (UTC)

I inserted Goldberg's conclusion regarding the Ninth Amendment ("In sum...."). The material from Goldberg's next paragraph I did remove, because it does not specifically mention the Ninth Amendment. We already now have a huge blockquote from Goldberg that two-thirds of the Court declined to endorse. That seems like plenty, and I don't think we need to also quote from another paragraph that only a third of the Court supported and that does not mention our article topic.166.137.137.227 (talk) 04:54, 10 October 2010 (UTC)

Griswold

No discussion of Griswold WRT the Ninth? That case hinges on the meaning of the Ninth. There's a link to Griswold.... Billbrock 23:18, 20 November 2005 (UTC)

There's lots now.166.137.137.54 (talk) 02:54, 11 October 2010 (UTC)

First Sentence

Hi Yaf. You edited the Ninth Amendment page so that it says this (emphasis added):

"The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, PROTECTS rights of the people that are not specifically enumerated in the Constitution."

Previously, it said this (emphasis added):

"The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, GIVES SOME PROTECTION TO rights of the people that are not specifically enumerated in the Constitution."

I think the latter sentence is more correct, because the Ninth protects unenumerated rights against inferences from the enumeration of rights, but does NOT protect unenumerated rights against inferences from other parts of the Constitution (or against inferences from statutes). Do you see my point? To be concise, I've changed the sentence like so (emphasis added):

"The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, ADDRESSES rights of the people that are not specifically enumerated in the Constitution."

The 9th A protects unenumerated rights, but I can live with the wording of addresses instead of protects, as the ambiguity is acceptable, and will likely avoid future edit wars. Yaf 00:57, 28 September 2006 (UTC)

statutes can and have been successfully challenged by the Ninth. "addresses" disparages the legal effect of the Ninth. "reserves" is clearer, more accurate, and more neutral. it was used both by the original author of the Ninth: James Madison explained to Thomas Jefferson, "I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted"[2] and by: The U.S. Supreme Court in U.S. Public Workers v. Mitchell 330 U.S. 75 (1947): "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."Overthrowlies (talk) 16:57, 10 October 2010 (UTC)

That Madison quote was referring to rights reserved by the original unamended Constitution, before the Ninth Amendment was proposed. Using the language you suggest would give lay readers the impression that there are Ninth Amendment rights beyond those rights that were reserved by the unamended Constititution. Everyone can agree that the present wording ("addresses") is accurate, so why not stick with it?166.137.137.54 (talk) 02:49, 11 October 2010 (UTC)

wikipedia has a policy of neutrality, not a policy of steering lay readers to one side of a debate. the other side of the debate is that there are rights not included in the first 8 amendments and the Ninth Amendment protects them from being taken away by government power. "addresses" replaced "protects" on this page - it subtly implies one side of the debate. "reserves" charts a neutral course. it is the word used by the Supreme Court when referring to the Ninth. And it is closer in meaning than "addresses" to the word "retained" that the amendment actually contains. Overthrowlies (talk) 06:47, 11 October 2010 (UTC)

I do not see anything in the present lead that is non-neutral.

Suppose that we change the lead to say: "The Ninth Amendment to the United States Constitution which is part of the Bill of Rights, RETAINS rights of the people that are not specifically enumerated in the Constitution." That would be incorrect and misleading, because the amendment says that the people retain various rights, not that the amendment retains various rights. So, I'm not sure why you want to use a word "closer in meaning than 'addresses' to the word 'retained' that the amendment actually contains". If we used the word "retained" then we would be twisting what the amendment says.

Some scholars say that the amendment only offers protection for residual rights left over after the enumeration of powers. For example, the Constitution gives Congress complete (i.e. "plenary") power within the city limits of Washington DC; thus, the residual rights theory holds that the Ninth Amendment does not protect any rights whatsover within the city limits of Washington DC. I assume that you disagree with the residual rights theory, and some scholars disagree with it as well. But we have to be careful not to take sides, especially in the lead.166.137.139.88 (talk) 10:02, 11 October 2010 (UTC)

Douglas on the Ninth

The current text says

Subsequent to Griswold, some judges have tried to use the Ninth Amendment to justify judicially enforcing rights that are not enumerated. For example, the District Court that heard the case of Roe v. Wade ruled in favor of a "Ninth Amendment right to choose to have an abortion," although it stressed that the right was "not unqualified or unfettered." [6] However, Justice William O. Douglas rejected that view; Douglas wrote that, "The Ninth Amendment obviously does not create federally enforceable rights." See Doe v. Bolton (1973).

I think it is an error to claim that

William O. Douglas rejected that view;

and it is based on a misunderstanding of the subsequent quote from Doe. v. Bolton.

The Ninth Amendment obviously does not create federally enforceable rights.

Indeed, it does not create those rights, they are already there. And Douglas takes some pains to show where they are to be found. But since they exist without being enumerated, nevertheless the Ninth Amendment in combination with the "blessings of Liberty" as Douglas explains in the text immediately following the quote presented by the current text

The Ninth Amendment obviously does not create federally enforceable rights. It merely says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of "the Blessings of Liberty" mentioned in the preamble to the Constitution. Many of them, in my view, come [p211] within the meaning of the term "liberty" as used in the Fourteenth Amendment.

DOUGLAS, J., Concurring Opinion in Doe v. Bolton (410 U.S. 179)

does "justify judicially enforcing rights that are not enumerated."

I don't have a suggestion at hand how to change the text as Douglas' concurring opinion is rather elaborate. Maybe the paragraph could be deleted altogether since Douglas position isn't materially that different from Goldberg's. Augo Knoke AugoKnoke (talk) 11:57, 21 April 2011 (UTC)

Do you have any reliable sources that say Douglas viewed the Ninth Amendment as authorizing federal enforcement of various rights? He clearly thought the Due Process Clause does so, but I don't know of any reliable sources that say he thought the Ninth Amendment does so.Anythingyouwant (talk) 15:16, 21 April 2011 (UTC)

nice catch AugoKnoke we have pre existing rights, and msdison wrote the ninth to protect against their encroachment by government. note also the line: "some judges have tried to use the Ninth Amendment to justify judicially enforcing rights that are not enumerated. " pure opinion and orginal research, with no sources. will it get deleted? doubtful - instead you are asked for "sources" because somehow William O. Douglas own words aren't sufficiant. wikipedia is a joke. — Preceding unsigned comment added by Overthrowlies (talk • contribs) 20:26, 2 August 2011 (UTC)

Interpretation section

The following text was recently added at the beginning of the interpretation:

In particular, demanded by the U.S. Constitution, there are other branches of government than the Judiciary, namely the Legislative and Executive who also hold interpretations that may in fact be contrary to each other. However, the Ninth Amendment is an English sentence that has only one meaning; it is not self-referencing, and it's meaning can be determined with absolute certainty which follows:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The two commas set the restrictive, essential, expression. -Rule8,11 Blue Book of Grammar, Comma Usage- The transitive verb, "shall not be construed to deny or disparage" requires, "others retained by the people" (the object); "to deny or disparage," is infinitive. Furthermore, the predicate, "shall not be construed to deny or disparage others retained" modifies the subject because technically, "by the people" is adjunctive.

Therefore, the enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained (unlisted certain rights, plural), namely, the U.S. 1st Amendment's certain (listed) rights for the States at the Federal level, not law made by "Congress" (Federally).[6]

I take issue with these three paragraphs for the following reasons:

1. Paragraphs 1 and 3 just plain don't make sense. They add little of value, are quite hard to follow (especially paragraph 1), and I can't figure out what the point of them is. The third paragraph appears to be stating the obvious, which is also repeated later in the interpretation section. It could be merged with existing text instead of sitting at the top of the section. Paragraph 1 just makes no sense at all, and the last sentence is clearly an opinion.
2. Paragraph 2 is a grammar lesson and adds nothing of value except restating the text and identifying grammatical constructs. It's just plain unhelpful and doesn't add to the interpretation.

Thus, I propose: removing the first paragraph since it makes no sense. Removing the second since it's useless, and merging the third with the remainder of the section. Thoughts? CapitalR (talk) 06:26, 11 April 2012 (UTC)

Thanks for your post CapitalR. I will address your statements as soon as possible to the best of my ability.Ghostprotocol888 (talk) 07:10, 11 April 2012 (UTC)

Hi Ghostprotocol. First, please refrain from accusing me of vandalism and assume good faith -- I was simply removing what I felt were comments not necessary in the article and lacking proper references. If you would like to include those passages in the article, please find a reliable source to ensure the statements' verifiability. If you have questions on what constitutes a reliable source or would like help rewording the passage, I'll be happy to help out. The comments as they stand now appear to be a grammar lesson followed by your personal point of view, and are not backed up by references. The article doesn't really need a grammatical parsing of the text (comma placement discussion isn't really helpful), but can always do with referenced interpretations. As your additions to the article are under dispute (not just with me but another user as well), you should take it up on the talk page to help find a consensus before re-adding it. --CapitalR (talk) 06:14, 11 April 2012 (UTC)

Hello CapitalR, I am going to write my response plainly. I did not accuse you of vandalism. "Accusing" and "seems" have different definitions and are not synonyms. I very, very rarely assume anything, and I always have good faith. I understand your position. You have removed my posts on two separate occasions where the first did not have proper references. The second did have proper references, in my opinion; Will Smith's "On the Ninth" is a reliable source. I do not have any questions concerning reliable sources, and I do not want help rewording the passage, however, I encourage you to do so as a learning experience. Thank you for your offer to help out. I may agree that the passage could be reworded for aesthetic purposes. I disagree that the comments are, "not backed up by references." Appearing as they may to you, an interpretation is something that explains. Something that explains shows logical development. Logical development is in accordance with logic. Logic is especially syntactic. Syntactics is a branch of semiotics. Semiotics studies the structure and meaning of language. Additionally, my personal opinion is not anywhere in my 9th Amendment article posting. The information that I presented is fact. I disagree that article does not need a parsing. I may agree that my additions to the article are complicated in that they may be difficult to understand (I use the word may properly as a function of linguistics which is self-referncing and to mean possibility), but the parsing is absolutely necessary to fully understand the real meaning of the sentence (the amendment). Again, I will mention that this interpretation is referenced. I disagree that I should have as you wrote because my additions are under dispute (not just with you but another user as well) that I should take it up on the talk page because one my current understanding of wikipedia's policy does not require that and two the number of users disputing my additions in my opinion does not matter. I will end this part with fact is not measured by mass appeal. Please let me know if this is not enough information.Ghostprotocol888 (talk) 07:51, 11 April 2012 (UTC)

1. Speaking of the Constitution "demanding" things sounds strange; it's unusual diction.
2. The last paragraph speaks of states' rights, but cites the 1st Amendment, which is completely unrelated.
3. Which source confirms that "it's [sic] meaning can be determined with absolute certainty"?

--Cybercobra (talk) 18:21, 11 April 2012 (UTC)

Oh Hey I didn't read the talk page before reposting. Addressing 1-I know that I have a different understanding than you of the way the U.S. Constitution originated. There were many wars fought over this land from about 1*** to the present on American, European, and other regions's soil. But I will cite the second paragraph of Art. 6; U.S. Const. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The word "shall" is used which means obligation, demand, require, etc, in the context. I wouldn't mind if that word was changed to requiring, but change the word yourself instead of deleting entire paragraphs, please. That seems like the best way to resolve that issue. Addressing 2-this is the point that the 9th Amendment actually makes and the point that I made. The people's rights at the State level are in addition to the unlisted certain rights in the Constitution, at least through the Bill of Rights. If the 9th Amendment was not there then the people may not have freedom of speech, assembly, petition in their States or judicially and executively at the Federal level. 3-Many sources of English grammar can confirm absolute certainty in writing. I thought you didn't understand the meaning of absolute certainty, but Will Smith's "On the Ninth" also goes into that detail which is properly cited as far as my current knowledge level of wikipedia policy is concerned.Ghostprotocol888 (talk) 19:53, 11 April 2012 (UTC)

Cleanup

I made a bunch of edits today. I divided the huge "Interpretation" section into three sections: judicial interpretation, scholarly interpretation, and recapitulation. I also inserted subdivisions into the "Further reading" section, for "books" and "articles". I moved some items from the external links into that articles subsection, and added a couple more articles. Plus miscellaneous other edits. I hope it's okay. Cheers.198.228.201.147 (talk) 22:10, 22 July 2012 (UTC)

Second Amendment to the United States Constitution

A discussion is ongoing about the lead to the Second Amendment to the United States Constitution article. Please help form a consensus at Talk:Second Amendment to the United States Constitution#Proposal for lead.--Mark Miller (talk) 13:16, 4 November 2013 (UTC)

Paragraph that’s been in this article for years

This edit removes a paragraph that’s been in this article for years, I merely moved it into the lead recently from another location in the article. The objection is something about “thinly veiled” but I have no idea what that’s referring to. The paragraph is well-sourced, it correctly describes SCOTUS jurisprudence. Anythingyouwant (talk) 14:17, 16 July 2022 (UTC)

Thinly veiled refers to your POV editing to push extremist and partisan anti-abortion content in a variety of forms, direct and indirect. It's bad content, the article is not very heavily watched so bad content can survive for a while. That doesn't make it OK. SPECIFICO talk 15:57, 16 July 2022 (UTC)

That’s not true. You write that Massey’s views are controversial. I could cite a hundred reliable sources that likewise accurately say what the SCOTUS position has always been since it first interpreted the Ninth Amendment. Calvin R. Massey was Professor of Law at Hastings College of the Law, University of California, San Francisco, and co-author of The California State Constitution. His position is that the Supreme Court’s understanding of the Ninth Amendment is too narrow. Yet he is perfectly competent to say what that Supreme Court understanding has always been. If you’re going to remove article content that’s been here for years, while making wild, unfounded accusations and groundless assertions, then please do not hit the right edit button. Anythingyouwant (talk) 20:43, 16 July 2022 (UTC)

You are pushing content on multiple pages that would give naive readers a false view as to the legal merits of the Alito decision regarding abortion. Selective text or citations, even if acciptable in other contexts, is not acceptable when it is not presented with balance and context. And the denial about your ongoing concern with abortion-related content is not credible. SPECIFICO talk 20:57, 16 July 2022 (UTC)

That is nonsense. You acknowledge that the content you’ve removed was in this article years before the decision you say (wrongly) that I’m trying to give a false view about. Please stop blanking valid content based on nonsense. If some valid content has an effect you don’t like, then try to find valid content that works the other way. If the latter type of valid content does not exist, then wait for it to exist. Anythingyouwant (talk) 21:07, 16 July 2022 (UTC)

This Statement is in Error

"It is important, when discussing the history of the Bill of Rights, to note that the Supreme Court held in Barron v. Baltimore (1833) that it was enforceable by the federal courts only against the federal government, and not against the states. However, in 1868, the Fourteenth Amendment was adopted, in large part to overturn that precedent..."

John Bingham in House Report 22, January 30, 1871 said:

It had been judicially determined that the first eight amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.

The Civil Rights Bill of 1866 was based on Article 4, Sec. 2, and Bingham argued Congress had no authority to enforce this article of the constitution, and feared the Supreme Court would had ruled this to be true as it did with the bill of rights in Barron.

On a side note: 21 years later Bingham said in a rare interview that the Supreme Court had "no colorable excuse to meddle with the laws of the people" Maybe he was speaking of the Ninth?

LawPro (talk) 10:26, 26 January 2008 (UTC)

Without getting into a discussion of whether that statement is in error or not, it seems to me that the entire paragraph is not really about the Ninth Amendment, and therefore ought to be changed, from:

It is important, when discussing the history of the Bill of Rights, to note that the Supreme Court held in Barron v. Baltimore (1833) that it was enforceable by the federal courts only against the federal government, and not against the states. However, in 1868, the Fourteenth Amendment was adopted, in large part to overturn that precedent, and the Supreme Court has used that Amendment, together with enabling congressional legislation, to apply some, but not all, provisions of the Bill of Rights against the states through what is called selective incorporation, thereby enabling a citizen to sue the citizen's own state in federal court (see sovereign immunity). Since 1938, when the Supreme Court wrote its famous "footnote four" of United States v. Carolene Products Co., the proper application of the Bill of Rights has been an increasingly contentious issue.

to something like this:

It is important, when discussing the history of the Bill of Rights, to note that the Supreme Court held in Barron v. Baltimore (1833) that it was enforceable by the federal courts only against the federal government, and not against the states. Thus, the Ninth Amendment originally applied only to the federal government.

Any thoughts about that?Ferrylodge (talk) 16:48, 26 January 2008 (UTC)

"It had been judicially determined that the first eight amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article."

Bill of Rights are limitations on all levels of government. States get their powers from the 10th Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

States are, for example, prohibited from conducting unreasonable search or unreasonable seizure, the same limitation as the federal government. The rights (enumerate and "others" not defined) are protections against tyrannical and/or incompetent use of government powers.

Quote from "Lawpro" can be used as proof, he has limited knowledge of U.S. Law. "first eight amendments of the Constitution were not limitations on the power of the States" 174.61.215.220 (talk) 23:43, 2 February 2023 (UTC)

That is even worst because you are lumping the Ninth Amendment with the Bill of Rights. Only the first 8 amendments are considered the bill of rights. LawPro (talk) 12:23, 1 April 2008 (UTC)

I suggest you take that up at United States Bill of Rights which refers to the first ten amendments. The Library of Congress seems to take a different view from your view.[1]Ferrylodge (talk) 15:39, 1 April 2008 (UTC)

Madison down to Bingham always said the bill of rights were the first 8 amendments. Anyone who wants to try and argue other wise will have a wall of facts against them. LawPro (talk) 04:36, 2 April 2008 (UTC)

This LawPro guy is just a troll. Bill of Rights contains Ten Amendments. 174.61.215.220 (talk) 23:45, 2 February 2023 (UTC)Tae Hyun Song

Simple Interpretation of the 9th Amendment

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

Certain - known for sure; established beyond doubt.

Construed - interpreted

Disparage - regard or represent as being of little worth.

Modern version:

 The Amendments in the Constitution, of established rights, shall not be interpreted to deny or lessen other rights retained by the people.

Mainly for judges. It can be invoked when judges try to interpret the law in manner in which rights are denied or ignored.

174.61.215.220 (talk) 23:57, 2 February 2023 (UTC)Tae Hyun Song