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The convention to craft the American Constitution ended without the inclusion of a declaration of rights. Charles Pinckney of South Carolina did advocate for, and managed to secure in the text, certain fundamental rights and declared restrictions on the Federal government, such as the writ of habeas corpus, fair and speedy trials by jury for accused criminals, plus the prohibition of religious tests for office, ex post facto laws, and bills of attainder. Elbridge Gerry of Massachusetts and George Mason of Virginia moved and seconded a motion for a bill of rights to be included in the Constitution, but with little debate the remaining delegation easily voted the idea down. Later, during the debate over ratification between the Federalists and the Anti-Federalists, a bill of rights became necessary in order to quell opposition to the Constitution and facilitate its passage. The strongest argument against inclusion of a bill of rights, made by Alexander Hamilton of New York, suggested that enumerating specific liberties would cause only those liberties to be protected. Hence the Ninth Amendment was added, the most elusive constitutional conundrum.
The Ninth Amendment to the Constitution reads:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The passage alludes to other rights retained by the people but which are not made explicit, inferred liberties not included in the actual Bill of Rights. This presents a problem for constitutional interpretation since implicit rights that lack textual definition confound the traditional method of referring to the text for guidance. At best the amendment negates an outright claim that the Federal government has power and dominion over all circumstance not covered in the enumerations, so we haven’t really had to worry about that particular justification for assumed powers. However, we have no objective way of identifying which liberties the Ninth Amendment truly hints at, and this means that for all intents and purposes we have essentially abdicated these unnamed rights.
Hypothetically speaking, say one of our unnamed rights was the right to peace and privacy in times of mourning and bereavement, such as during a funeral or memorial service. This feels like a real right that we ought to be entitled to, something that makes sense under a reasonable social contract, and which we likely assume and take for granted. If this were an enumerated right, then groups like the Westboro Baptists would be violating this right when they use someone’s tragedy as an opportunistic way to promote their own hateful messages, gaining publicity through the exploitation and disrespect of bystanders who should be entitled to grieve without disturbance. As it stands, the Supreme Court, in an 8-1 decision in Snyder v. Phelps, has found that the Westboro Baptists are allowed to interrupt the funerals of fallen soldiers, or others, all they want, with their vile, misdirected and disruptive picketing, since to bar this behavior would supposedly violate the First Amendment free speech rights of these injudicious protestors. There is no explicit right to be left alone while mourning in the Constitution, so the Court was not presented with any real foundational conflicts that would have led them to a different decision. That’s the thing about undefined liberties, they don’t stand a chance against those defined liberties when there is a clash.
The Ninth Amendment is rarely used to defend an implicit right, which might have the effect of making the right explicit through precedent. In the landmark privacy case of Griswold v. Connecticut, Justice Goldberg, joined by Justice Brennan and Chief Justice Warren, wrote a concurring opinion that helped to strike down a Connecticut law banning contraceptives as unconstitutional. Goldberg’s opinion used the Ninth Amendment, with added support from the Due Process Clause of the Fourteenth Amendment to give the Ninth Amendment dominion over State law. Goldberg contends that some rights are so basic and widely recognized that they need not be explicitly stated in the Constitution in order to be protected by it, and marital privacy for family planning is clearly one of those fundamental rights retained by all the people. This shining moment for the Ninth Amendment, it’s use by three whole Justices, was hotly contested in a blistering dissent by Justice Black, joined by Justice Stewart:
My Brother GOLDBERG has adopted the recent discovery that the Ninth Amendment as well as the Due Process Clause can be used by this Court as authority to strike down all state legislation which this Court thinks violates “fundamental principles of liberty and justice,” or is contrary to the “traditions and [collective] conscience of our people.” He also states, without proof satisfactory to me, that, in making decisions on this basis, judges will not consider “their personal and private notions.” One may ask how they can avoid considering them. Our Court certainly has no machinery with which to take a Gallup Poll. And the scientific miracles of this age have not yet produced a gadget which the Court can use to determine what traditions are rooted in the “[collective] conscience of our people.” Moreover, one would certainly have to look far beyond the language of the Ninth Amendment to find that the Framers vested in this Court any such awesome veto powers over lawmaking, either by the States or by the Congress. Nor does anything in the history of the Amendment offer any support for such a shocking doctrine. The whole history of the adoption of the Constitution and Bill of Rights points the other way, and the very material quoted by my Brother GOLDBERG shows that the Ninth Amendment was intended to protect against the idea that, “by enumerating particular exceptions to the grant of power” to the Federal Government, “those rights which were not singled out were intended to be assigned into the hands of the General Government [the United States], and were consequently insecure.” That Amendment was passed not to broaden the powers of this Court or any other department of “the General Government,” but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the “[collective] conscience of our people” is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar phenomenon that, for a period of a century and a half, no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Use of any such broad, unbounded judicial authority would make of this Court’s members a day-to-day constitutional convention.
Justice Black’s dissent helps to show the inherent problems with invocation of the Ninth Amendment, pointing out that the provision is simply to disallow the use of enumerated rights as an excuse to reserve unstated powers to the Federal government. Alexander Hamilton argued against a bill of rights in Federalist #84, explaining the reason why enumeration could lead to this type of power grab, reasoning that led to the insertion of the Ninth Amendment:
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
Hamilton’s arguments in Federalist #84 did not stave off the Bill of Rights ultimately, but his warning was taken seriously with addition of the Ninth Amendment. The appeal to original intent by Justice Black in his dissent in Griswold is understandable given Hamilton’s warning, and the seeming lack of any objective method of identifying unstated fundamental rights. When it comes to these unremunerated individual rights, why not defer to the States, their constitutions and courts, their democratic processes?
The Ninth Amendment does not mention powers retained by the States the way the Tenth Amendment does, so it is not immediately obvious that jurisdiction for determining the implicit guarantees of the Ninth Amendment may never include the Supreme Court. An even more troubling implication of Justice Black’s interpretation is that if the determination of implicit American rights is a State by State affair, then by this logic, implicit individual rights cannot be collectively American the way the enumerated individual rights are. This means that implicit rights are second class citizens to explicit rights, by being unnamed but also by being relative between American citizens. If the people of all 50 States are to share in the same individual liberties, the same protections against oppressive governments, whether federal, state, or local, enumerations clearly matter for undisputed universality. Yet tyrannies of the majority can come in any size. As Americans we identify with our Constitutional rights at the level of the individual citizen, and this means that enumeration has given us a civic awareness of the entitlements made explicit, while simultaneously obscuring the clear exposition of fundament rights left unmentioned.
When I read the text of the Ninth Amendment, I can’t help but wonder about these rights “retained by the people”, mysterious and forever debatable. As a moderate independent I have to say that the Ninth Amendment leaves me conflicted. I understand Justice Black’s dissent because there is no easy limitation on the inference of implicit rights without the guidance of State majorities. However, I also understand how Justice Goldberg came to use the Ninth Amendment as a justification in Griswold, since there must be unnamed American rights that are nonetheless fundamental and universal. Do we need State by State majority votes to determine if we have a right to marital privacy? What about the freedom to marry who you love? What about the right to mourn your loved ones in peace and private? What about an American right to personal sovereignty over commercially relevant health care choices, such that an individual mandate for insurance is implicitly disallowed by the Constitution? What about abortion and assisted suicide?
Liberals and conservatives might be able to take easy sides on these questions, find easy answers, but as a moderate independent who tries to find truth outside partisan ideologies, I remain torn about how to identity with my unremunerated rights. How else can you feel about things that truly exist in a universal sense, but which are objectively inexpressible? I am therefore very grateful that Alexander Hamilton did not succeed in preventing a bill of rights altogether, that there are some liberties which we know about unequivocally. It helps to have the rules written down in the rulebook.
Jared Roy Endicott
