The Ninth Amendment

- [Kim] Hi, this is Kim from Khan Academy. Today we're learning more about the Ninth Amendment to the US Constitution, which reads, "The enumeration in the Constitution, of certain rights, "shall not be construed to deny or disparage "others retained by the people." This, along with the Tenth Amendment, doesn't protect a specific right, like freedom of religion or due process under the law, but rather, advances an interpretation of the scope of the Constitution and of government power. To learn more about the Ninth Amendment, I talked with two experts. Kurt Lash is the E. Claiborne Robins Distinguished Chair in Law at the University of Richmond School of Law. Jeffrey Rosen is the president and CEO of the National Constitution Center. He has written extensively on the history of the Supreme Court. Professor Lash, can you tell us a little bit more about this amendment? Why did the Framers include this amendment in the first place? - [Kurt] The Ninth Amendment, like rest of the Bill of Rights, was added at the insistence of the states. Although the advocates of the proposed Constitution had claimed that the national government would have only limited enumerated power, the state ratifying conventions wanted that promise put in writing. - [Jeffrey] Originally, the Constitution didn't contain a bill of rights 'cause James Madison said a bill of rights would be unnecessary or dangerous, unnecessary 'cause the Constitution itself was a bill of rights. It only granted Congress limited powers, and therefore, Congress had no power to infringe free speech, for example, or religious liberty, and therefore, wouldn't be able to do so, and dangerous, Madison said, because if you had a bill of rights, people might wrongly assume that if a right wasn't written down, it wasn't protected, but in response to objections by anti-federalists, that is those opposed to the ratification of the Constitution, led by George Mason of Virginia, as well as Edmund Randolph of Virginia and Elbridge Gerry of Massachusetts, so those three guys said, "Hey, "unless we include a bill of rights "for greater security and safety, "then we don't think the Constitution should be ratified." In response to their objections and those in ratifying conventions, many of which demanded a bill of rights, Madison changed his mind, and he included a bill of rights, which he cut-and-pasted from revolutionary-era state constitutions, and viewers and listeners can check those out at the Interactive Constitution. Then that raised an interpretive problem. Madison and others were worried, if you just had a limited list of rights, 10 amendments in particular, protecting particular rights, people might assume that if a right wasn't written down, then it wasn't protected, and the Framers didn't want you to reach that conclusion because they believed that our rights come from God or nature and not from government. Thomas Jefferson, in the Declaration of Independence, said we're all endowed by our Creator with certain unalienable rights. - [Kurt] When you look at these amendments, our first 10 amendments, you'll notice that some address specific issues, like speech and the right to bear arms. The last two amendments on that list, however, address broader issues of Constitutional interpretation. These are rules of construction. The Tenth Amendment declares that all powers not delegated away remain under the control of the people in the states. The Ninth Amendment addresses the problem potentially raised by adding this list in a bill of rights. The Ninth Amendment tells us that just because the Constitution lists certain important limitations on federal power, this doesn't mean that the federal government has otherwise unlimited power, or, as the Ninth Amendment puts it, "The enumeration in the Constitution, of certain rights, "shall not be construed to deny or disparage "others retained by the people." In this way, those two last rules of construction ensure that every subject not placed under the control of the national government would remain under the control of the people in the states and remain there as a matter of right. These amendments protect the people's retained right to local self government. - [Jeffrey] I talked a bit about natural rights because that same notion of the idea that you retain natural rights when you move from the state of nature to the civil society is picked up in the language of the Ninth Amendment, which says that the enumeration "of certain rights "shall not be construed to deny or disparage others "retained by the people," so one big theory of the Ninth Amendment is that it refers to these natural rights that come from God or nature and that you retain during the transition from the state of nature to civil society. - [Kim] Can you give us a few examples of what those unenumerated rights that people have debated have been? - [Jeffrey] The paradigmatic source for identifying what unenumerated rights are protected is a case called Corfield v. Coryell. It was decided in the early 19th Century, and it was cited repeatedly by the people who wrote the Privileges or Immunities Clause to the Fourteenth Amendment to the Constitution, and basically, the Privileges or Immunities Clause says that no state shall abridge the privileges or immunities of citizens of the United States, and the question is what are those privileges or immunities? In trying to define them, John Bingham, who wrote the Fourteenth Amendment, and a lot of other people said, "Well, some of the privileges or immunities "include the rights written down in the Bill of Rights, "but others are not written down in the Bill of Rights, "and you can find them in the Corfield and Coryell case. They're rights that are fundamental. They're uniform from state to state, and they've been considered basic rights of Americans from the beginning. Some of these rights include the right to make and enforce contracts, to sue and be sued, to have basic economic rights, and also to have the benefit of the writ of habeas corpus, which is in the original Constitution, and that's the right to challenge the constitutionality of your conviction. It's in the original Constitution, but not in the Bill of Rights. Those are just some examples of the unenumerated economic rights that the Framers of the Fourteenth Amendment considered to be protected by the Fourteenth Amendment and by implication, by the Ninth Amendment too, 'cause they are natural rights, as we heard Roger Sherman say, the basic rights of acquiring and possessing property and obtaining happiness and safety, those are some of those rights. - [Kurt] The Ninth Amendment raises the difficult issue of how exactly you determine what the rights are that are actually retained by the people. The text of the Ninth Amendment itself tells us very little about the specific content of our retained rights, but in fact, these retained rights are as numerous as the stars in the sky. They include everything from wearing a hat to walking on the sidewalk, to purchasing life insurance, or determining where you can park your car, or what classes should be offered in the local high school, basically everything that was never meant to be handed to the control of the national government, all of these are rights retained to the control of the people in the several states, and all of these rights will be protected if you limit the scope of federal power. A limited interpretation of the Commerce Clause, for example, preserves the people's retained right to establish local educational policy and to pass all manner of local civil rights legislation that's not expressly covered by the federal Constitution. The greater the limits on federal power, the greater the freedom of local communities. By making a limited interpretation of federal power a right, this ensure the matter can be litigated in federal court and not just left to political compromise. Over time, courts will produce a body of law that invalidates attempts by the federal government to regulate our lives in forbidden ways, such as not having the power under the Commerce Clause to force us to purchase private health insurance or not having the power to commandeer state official and force them to enforce federal immigration policy. - [Kim] Does this refer back to some extent to kind of the common law of England and the things that were considered the natural rights of Englishmen? - [Jeffrey] Yes, it does, although we should distinguish it if we're gonna be precise, which we should. Not all of the common law rights of Englishmen were natural rights. Common law rights, basically, are rights that were traditionally protected by English law. They're rights that had been recognized by English judges over centuries. Natural rights come from God or nature, not from government. There's overlap between those groups, but there might've been some common law rights of English people that were recognized by tradition, like the right to jury trial, for example. That's not a natural right 'cause there are no juries in the state of nature. There are just people who are (laughs) imagining forming governments. It makes it a little tricky, but it's actually not that analytically tricky, and it's so interesting that over and over again, the Framers said, "You know, this is just, everyone knows what these "natural rights are." They're the ones that are recognized in Corfield and Coryell, and then other enumerated rights might include the common law rights of Englishmen, but it was a pretty short list, and the best way to just figure out which rights were natural, go to the Interactive Constitution, click down, and look at the Virginia Declaration of Rights. Look at the Massachusetts Constitution of 1780, the New Hampshire Constitution. It has this beautiful preamble about what a natural right is, and you'll just see that all of these state constitutions are recognizing the same natural rights over and over again. - [Kim] Has the Supreme Court ever decided a case based on the Ninth Amendment? - [Kurt] The first judicial opinion was actually written by Justice Joseph Story, one of the most famous justices in American history. In his opinion in Houston Against Moore, decided in 1820, Story explained that the spirit and letter of the Ninth Amendment called for the limited interpreting of the scope of federal power in order to avoid interfering with state laws regarding the local militia. In fact, it wasn't until the 20th Century that you find scholars and justices trying to invert the Ninth Amendment in a manner that allowed or even required federal interference with local policies. In Griswold against Connecticut, for example, Justice Arthur Goldberg argued that the Ninth Amendment supported the court's invalidation of state contraception laws. - [Jeffrey] Douglas says in this case that the Constitution and the particular rights and the Bill of Rights include certain penumbras formed be emanations, from the particular guarantees that may create broader unenumerated rights, and privacy was one of them. Douglas says privacy is protected in different ways in different parts of the Bill of Rights. The Fourth Amendment protects our right against unreasonable searches and seizures. The Third Amendment protects the right not to have soldiers quartered in the home. The First Amendment protects a right of freedom of association, and from these particular expressions of privacy, Douglas extracted, or inferred, a broader and more sweeping right of privacy, which could be extended to cover a married couple's right to use contraception. - [Kim] When the Bill of Rights was ratified in the late 18th Century, it only applied to the federal government. It was not until after the Civil War, in the late 1860s and early 1870s, that the Fourteenth Amendment applied some of the protections of the Bill of Rights to state governments. How does the Fourteenth Amendment impact our understanding of the Ninth Amendment? - [Kurt] Most Constitutional historians believe that the Privileges or Immunities Clause was originally understood as applying the first eight amendments against the states. What of the Ninth Amendment? Is it possible that the Privileges or Immunities Clause turns the Ninth Amendment from a provision protecting local government to one that interferes with local government? Many libertarian scholars believe so. A close look at the historical record, however, shows that this is not likely. To begin with, John Bingham, the man who framed the Privileges or Immunities Clause, publicly declared at the House of Representatives that the Privileges or Immunities Clause made the first eight amendments enforceable against the states. He said nothing about either the Ninth or Tenth Amendments. Meanwhile, in the Senate, the man who introduced the proposed Fourteenth Amendment to his college, Jacob Howard, also said that the Privileges or Immunities Clause would apply the first eight amendments against the states, and he too said nothing about the Ninth or Tenth Amendments. Finally, the public that debated and ratified the Fourteenth Amendment remained broadly committed to the federalist principle of dividing power between the state and local governments. It had been the slave-holding rebel sates that had violated this principle by demanding that slavery be enforced throughout the nation, regardless of local freedom laws. If we look at the period in which they adopted the Fourteenth Amendment, it appears that that ammendment did, in fact, apply the textual rights of the first eight amendments against the states, but it left everything else to local control, subject only to the requirements of due process and equal protection. - [Jeffrey] The Ninth Amendment, at the very least, is a question of interpretation. It says don't assume that if a right isn't written down it's not protected. When the late Robert Bork, who was nominated to the Supreme Court in 1987 but didn't get through, said that the Ninth Amendment should be treated as an ink blot because we can't know what rights are actually protected by the Ninth Amendment, it should be ignored, that can't be right. That's the one thing that Madison said don't do. Don't assume that if the right isn't written down, it's not protected. Saying that that matter of construction is important and that there are certain rights not enumerated in the Constitution that are protected doesn't tell us which rights are protected, and that's where all of the action and all of the drama and all of the excitement and Constitutional interpretation in the 20th and 21st Century has come from. How do we identify the rights that are not written down, are not enumerated, but are protected? There's a whole lot to say about that. In fact, that's why we teach Constitutional law, is to study the methodologies of interpretation that lead people to different conclusions about which unenumerated rights are protected. - [Kim] We've learned that the Ninth Amendment served as an assurance that the Bill of Rights was not an exhaustive list of the rights retained by the people or the states. How can you protect unenumerated rights, which, by their very definition, aren't named in the Constitution? Kurt Lash sees the original meaning of the Ninth Amendment as a restriction on federal power. Jeff Rosen reminds us that although it's difficult to tell which rights the Framers intended to protect with the Ninth Amendment, it's likely that those rights included the same natural, unalienable rights enshrined in the Declaration of Independence. To learn more about the Ninth Amendment, visit the National Constitution Center's Interactive Constitution in Khan Academy resources on US government and politics.