The Ninth Amendment, The Mysterious 9th Amendment

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

Out of the 10 original amendments to the Constitution, the Ninth Amendment is probably the least well known and is certainly the least understood. It seems to be thrown in as an afterthought, just in case. However, when James Madison crafted the Ninth Amendment it was not an afterthought, it was a shrewd way to prevent the rights that were outlined in the Constitution from trampling on the rights that were not listed.

During the drafting of the Constitution there was a worry that since all rights could not possibly be listed then it would be dangerous to outline any. The rights that were omitted could then be open to government oppression. Madison used the Ninth Amendment to prevent this scenario, but by failing to clarify what sort of unlisted rights are held by the people or how these rights should be identified and enforced, he created a legal controversy that continues to this day.

A major problem in interpreting the Ninth Amendment is figuring out who gets to decide what these unidentified rights are, the Courts or the people. Most people interpret the Bill of Rights as protecting the people from the Courts and so logically the people would be the ones to declare their own rights. This can get complicated, however.

If the majority of people (through their elected representatives) decides on a right that a minority claims infringes on their own rights (laws against gay marriage, for example), then the minority expects the Supreme Court to protect them. However, if the Supreme Court then overturns that majority right, then a minority of mostly unelected people (the Supreme Court) gains control over the majority. What a conundrum!

The first test of the Ninth amendment was in 1965 (Griswold v Connecticut), in a ruling about the right of adults to access birth control. In this case the Supreme Court ruled that “other fundamental personal rights should not be denied protection simply because they are not specifically listed" in the Constitution, and the Court established the right of “marital privacy”. With this ruling the Court, not the people, declared a new right. This controversial decision unleashed a wave of court cases based on other unlisted rights.

Ninth Amendment rights that were denied:

  • The right to resist the draft. (1970)
  • The right to possess an unregistered submachine gun. (1976)
  • The right to produce, distribute and experiment with mind altering drugs. (1986)
  • The right to a radiation free environment. (1992)

Ninth Amendment rights that were created:

  • The right to marital privacy. (1965)
  • The right to choose an abortion. (1970) In Roe v Wade, the federal court ruled that a state law prohibiting abortion except to save the life of the mother violated the right to privacy guaranteed by the Ninth Amendment (314 F. Supp. 1217 [1970]).
  • The right to private, consensual intimate relations between people of the same sex. (Lawrence v Texas, 2003)

Rights held by individuals in certain states:

  • The right to assisted suicide (Oregon, Washington and Montana), a right spearheaded by Dr. Kevorkian who called the Ninth Amendment “the twenty-one most important words in the U.S. Constitution.” (Amendment IX: Our Cornucopia of Rights (Penumbra Press, Bloomfield Hills, MI, 2005))
  • In fact, Kevorkian developed his own list of 15 rights, with #1 being “the right to do or not to do and to say or not to say anything, anywhere, to anybody, at any time, in any way, so long as anyone else and/or his or her property are not verifiably threatened or harmed, and no personal obligation is imposed on anybody without the latter’s consent” and #15 being “Etc., etc., etc.”
  • The right to same-sex marriage (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington as of January 2013)
  • The right to medical and non-medical marijuana (Colorado and Washington as of January 2013)

These rights that are held by citizens of some states and not others will likely eventually be debated at the federal level. At that point the Supreme Court will have to determine if granting all citizens these rights results in denying or disparaging other, unstated, Ninth Amendment rights.