Ninth Amendment to the United States Constitution

The Forgotten Ninth Amendment: A Constitutional Mystery Unveiled

Imagine the United States Constitution as a vast library, with its first eight amendments serving as the main collection of books. The Ninth Amendment, however, has long been shelved in a forgotten corner, often overlooked and rarely consulted. But what if this seemingly obscure amendment holds the key to understanding fundamental rights that go beyond those explicitly listed? Let’s delve into the enigmatic world of the Ninth Amendment.

The Birth of an Enigma

When was the Ninth Amendment born, and why did it remain a mystery for so long? Proposed in 1789, this amendment aimed to prevent future generations from arguing that unlisted rights do not exist. Yet, despite its noble intentions, the Ninth Amendment has rarely played a role in U.S. constitutional law. Why is this? Could it be that its true meaning and purpose have been misunderstood or even deliberately ignored?

Interpreting the Inkblot

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.’ This sentence is like an inkblot test—its meaning can vary widely depending on who interprets it. Scholars have offered a range of interpretations, each painting a different picture of what this amendment truly means.

Madison’s Misunderstood Message

Was James Madison’s intention to protect state powers against federal invasion or something more profound? In 1935, Justice Hugo Black cited from Madison’s speech in support of his interpretation. However, two Justices dissented, arguing that Black misapplied the Ninth Amendment to grant himself or the court excessive authority over lawmaking. This debate highlights the complexity and ambiguity surrounding this amendment.

Goldberg’s Dissent

In a 1935 case, Justice Benjamin N. Cardozo cited Madison’s speech as evidence that unmentioned rights were secure because they were not explicitly granted to the federal government. He argued that the Ninth Amendment was meant to limit federal power and assure citizens of the Constitution’s limiting effects on the government. This interpretation contrasts sharply with later views that saw the amendment as a tool for judicially enforcing unenumerated rights.

Modern Interpretations

How do modern scholars view the Ninth Amendment, and what does it mean in today’s context? Professor Laurence Tribe sees it as a rule without inherent rights. Bernard Bailyn views it as a reference to ‘universe of rights’ retained by people that may be enacted into law. Brian Doherty argues it roots the Constitution in a natural rights tradition, while Robert Bork initially stated he wouldn’t apply the provision if unsure but later ascribed meaning following historian Russell Caplan’s interpretation.

Justice Scalia’s Dissent

What did Justice Antonin Scalia say about the Ninth Amendment? In his dissenting opinion, Scalia referenced the Declaration of Independence. He argued that the amendment was intended to ensure fundamental rights are protected against denial simply because they were not specifically enumerated in the Constitution.

The Debate Continues

Is the Ninth Amendment a judicially enforceable right or merely a rule for interpreting the Constitution? Some judges have tried to use it to justify enforcing unenumerated rights, but Justice William O. Douglas rejected this view and wrote that the Ninth Amendment does not create federally enforceable rights.

The Residuum of Rights

What role does the Ninth Amendment play in protecting fundamental rights? The amendment protects unenumerated ‘residuum’ of rights that the federal government was never empowered to violate. Some argue it intended no previously held rights would be lost through omission.

The Legacy of the Forgotten Amendment

Does the Ninth Amendment have a place in modern constitutional law, or is it destined to remain a mystery? The answer lies in how we interpret and apply its principles. Whether seen as a rule for interpretation or a source of enforceable rights, the Ninth Amendment continues to shape our understanding of fundamental liberties.

The Ninth Amendment remains a puzzle, its true meaning and purpose still debated. As we continue to navigate the complexities of constitutional law, this amendment serves as a reminder that fundamental rights are not just listed in the Constitution but also exist in the unenumerated ‘residuum’ of our freedoms.