Ninth Amendment - the 'disclaimer' of the Bill of Rights?

[Dorian Gray]

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

This seems somewhat unnecessary, other than to assure everyone that the rights contained in the Bill of Rights are not the only rights. Besides that, I can't really think of how this amendment would be useful or necessary. Any claims invoking it would almost certainly be precluded by law or blatantly obvious.

And in actual fact, no court case has ever come before the Supreme Court that involved the 9th Amendment, i.e., there is no defining precedent.

Thoughts?

[KingMerv00]

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

This seems somewhat unnecessary, other than to assure everyone that the rights contained in the Bill of Rights are not the only rights. Besides that, I can't really think of how this amendment would be useful or necessary. Any claims invoking it would almost certainly be precluded by law or blatantly obvious.

And in actual fact, no court case has ever come before the Supreme Court that involved the 9th Amendment, i.e., there is no defining precedent.

Thoughts?

The Ninth Amendment is actually pretty important. Consider abortion, privacy, contraception, the right to travel, etc. etc. It says that certain rights not mentioned elsewhere in the Constitution cannot be snatched away by the states. A statement like that may SEEM obvious to you but if you are going to enumerate human rights, you'd best say too much rather than too little.

You are wrong about there being no SCOTUS cases involving the 9th Amendment. I did a quick search on Lexis Nexis. A case chosen at random (The link is to the wiki article):

United Public Workers v. Mitchell, 330 U.S. 75 (http://en.wikipedia.org/wiki/U.S._Public_Workers_v._Mitchell)

There were plenty of cases to choose from.

[quixotecoyote]

It's too bad it's not more widely known. Too many people conceive of rights as exceptions to government control rather than the basic state that government is allowed powers within.

[KingMerv00]

When the Bill of Rights was written, there were huge debates over the division of state and federal powers. The 9th Amendment was the final word that gave the ultimate power to regulate human rights to the federal government instead of the states.

In other words, the 9th isn't JUST about freedom. It is also about governmental power. Issues like that can't be settled by common sense so they need to be written down.

[Beerina]

The Founding Fathers were concerned that, if they didn't list the rights, that future governments would claim they didn't exist. Another faction was concerned that, if they listed some rights, that future governments would claim those were the only rights. Hence this ammendment.

And, as it turned out, both camps were right.

[KingMerv00]

Hope Dorian is still around...

Where did you hear that there has never been a 9th Amendment case in the Supreme Court?

[Alt+F4]

I love the 9th Amendment, it's the "cover your a**" amendment. We need the 9th Amendment the same way we need a shopping list...don't want to forget anything.

[dudalb]

The people who wrote the Bill of Rights were Lawyers and followed the classic and eternal legal rule of "ALWAYS GET IT IN WRITING"".

[WildCat]

I'll withold my thoughts until I see what Michael Badnarik and Ron Paul say about it, and then I'll take the opposite view which must by definition be the correct one.

[KingMerv00]

I'll withold my thoughts until I see what Michael Badnarik and Ron Paul say about it, and then I'll take the opposite view which must by definition be the correct one.

Your wish is my command. *Folds arms and nods head*

Gl2OZK5XK88

Badnarik doesn't seem that crazy here. Go figure.

[quixotecoyote]

That was so painful to listen to. His lips are flapping, noises are coming out, but there's so little of substance.

Still, it's one of the few times I've braced to hear him out and didn't come out annoyed and disgusted. I agree this time, but he's still annoying.

[skeptical]

The Ninth Amendment is actually pretty important. Consider abortion, privacy, contraception, the right to travel, etc. etc. It says that certain rights not mentioned elsewhere in the Constitution cannot be snatched away by the states. A statement like that may SEEM obvious to you but if you are going to enumerate human rights, you'd best say too much rather than too little.

The interesting thing about the 9th, is that you would think it would be very straight forward for the court to use it directly for individual liberties cases, but for the most part it has not done so.

Instead, the primary source of "unenumerated rights" is the 14th amendment, so-called "substantive due process". This started with Griswold in the privacy arena. Even though there was some mention of the 9th, it was only in the context of reading other amendments broadly, and finding a right of privacy inherent in the other enumerated rights. The actual language used was that there are "penumbras" around the other rights, and the 9th indicates that the other rights should be read in a broad sense.

All of the rights that rely on fundamental conceptions of privacy like abortion and contraception actually rely on a broad reading of the 14th and not any direct reading of the 9th. In fact, the consensus of the court seems to be that the 9th was never intended to directly confer ANY substantive rights, but only as an indication of how to interpret the other rights.

[skeptical]

Your wish is my command. *Folds arms and nods head*

Gl2OZK5XK88

Badnarik doesn't seem that crazy here. Go figure.

That's not a bad analysis, although the wildcard that he doesn't mention is that originally the BOR only applied to the Federal and not the State governments. So, the argument was really that you didn't need a BOR in the Federal constitution, because the Federal govt doesn't have a general police power. Since it can only exercise the specific powers it is given anyway, those don't include any powers that could infringe on personal liberties and there is no need for a BOR to curb federal power. (so the argument went)

This was not a bad argument at the time, because everyone was afraid of Fed power and not State power, principally because most of the men in Philly that summer WERE the states, they represented the interests of those who controlled state legislatures.

Once it was realized that states were just as apt to infringe personal rights as the Fed (i..e slavery), most, but not all, of the BOR was made applicable to the states through the 14th amendment through subsequent court decisions. i.e. "no STATE shall abridge..".

Sorry if this is pedantic, but I love this crap. :)

[Michael Redman]

And, as it turned out, both camps were right. Funny how that happens.

[Dorian Gray]

Hope Dorian is still around...

Where did you hear that there has never been a 9th Amendment case in the Supreme Court?From my stepdad who occasionally comes over to have discussions of a Washington Week in Review type.

He was wrong. And I was wrong to take his word.

[KingMerv00]

From my stepdad who occasionally comes over to have discussions of a Washington Week in Review type.

He was wrong. And I was wrong to take his word.

No big deal. I was just curious if there was an organization out there that was spreading incorrect info.

[Dorian Gray]

the Ninth isn't really that polarizing. Not like the First or Second.