A Series on the Constitutional Amendments: The Ninth

‘The Framers of the Bill of Rights did not purport to ‘create’ rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing.’

– William J Brennan Jr.

The Bill of Rights is the foundation of what we know as our natural rights in the United States of America. The entire intention of the Bill of Rights was to placate the states into accepting the Constitution as an acceptable replacement for the Articles of Confederation which were weak and ineffective. The problem arose when the original draft of the Constitution lacked provisions protecting certain rights for the people. Initially the movement to include a Bill of Rights was struck down by the Constitutional Convention. They assumed that the rights were implied. However, in order to win over certain states they needed to make sure that a Bill of Rights were included.

As the founders worked to include as much as they could in the Bill of Rights it became difficult for them to get down to the dirty details of them all. Moreover, they recognized that the Federal system allowed for States to develop individual mandates and to regulate themselves when it came down to their localities. Since the Constitution includes the Supremacy clause, however, they needed to ensure that the Federal Government wouldn’t become tyrannical in the sense of stripping rights away via Constitutional Amendments. This is where the Ninth Amendment comes into play.

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.’

Simply put, there are other rights that the founders didn’t feel the need to include in the Constitution. Along with this, they had the foresight to recognize that the world would change and things would be different many years on down the road. This Amendment states that the government can’t simply strip rights away from people stating that it’s not part of the Constitution so it isn’t a right. The entire purpose of the Bill of Rights is to protect the people from the Government doing them harm by stripping their rights.

In the Article on the Constitutional Right to Privacy I addressed the court case of Griswold v. Connecticut (1965) in regards to whether or not the Constitutional right to Privacy really exists. The Ninth Amendment was also cited as a part of the ruling saying that the right to marital privacy while no enumerated in the Constitution is a fundamental human right. The Ninth Amendment also makes the strongest argument for the Constitutional right to privacy.

There are a slew of court cases regarding Abortion in the 1970s included in those citing the Ninth Amendment but that was all overrun by Roe v. Wade (1973) so they don’t hold much merit. We have discussed the ideas behind Roe v. Wade extensively in the aforementioned Right to Privacy article so it does not bear repeating here.

One case that does have a fascinating bearing is Barron v. Baltimore (1833) in which the Supreme court ruled that the Ninth Amendment only pertains to the expanding Federal government and not the state governments. For years this was the normal school of thought until the Fourteenth Amendment was ratified in 1868. This amendment overturned the Court’s ruling by virtue of being in the Constitution and therefore overriding any other precedent.

In the end the Ninth Amendment is a lead in to the Tenth Amendment in which the Constitution specifically puts limits on Federal Powers and works hand in hand with the Ninth to help create and actual federal system as opposed to a centralized system. These last two amendments to the Constitution are imperative and form the final two of the Bill of Rights. After the Tenth Amendment the Constitution starts to become a little tangled as some cancel out others and we begin to see how difficult it is to actually Amend the Constitution.


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