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Revolution Number 9

by Jay Marshall Wolman

As previously discussed, reader Angie NK asked for a post about the Ninth Amendment.  I digressed to the Fourth Amendment as I had some thoughts already percolating on it.  [Side note:  turns out people still actually make and sell percolators.]

But, ask and thou shalt receive.  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.

So, what does this mean?  It is a savings clause.  James Madison explained the purpose during the introduction of those clauses that might become part of a bill of rights:

It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

There is a principle of legal interpretation known as “Expressio unius est exclusio alterius”.  It means that the listing of items in a law or contract is to the exclusion of all others.  If the law permits you to buy apples and milk from store X, it means only apples and milk.  However, laws and contracts frequently intend that the list is non-exhaustive, using phrases such as “including, but not limited to”.  This is in direct contrast to the Tenth Amendment, which endorses expressio unius…, stating:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

That is, these, and only these, powers are conferred to the federal government, as opposed to preserving all natural and fundamental rights including, but not limited to, those specified in the Bill of Rights.

Thus, in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991), the Sixth Circuit found that the 9th Amendment didn’t confer specific rights.  You don’t base claims independently on the 9th amendment.  The Supreme Court addressed the 9th Amendment in Roe v. Wade, 410 U.S. 113 (1973) speaking to a right to privacy:

whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

Justice Douglas’s concurrence to the companion Doe v. Bolton, 410 U.S. 179, 209 (1973) further emphasized “The Ninth Amendment obviously does not create federally enforceable rights.”  See also Jenkins v. Comm’r of Internal Revenue, 483 F.3d 90, 92 (2d Cir. 2007) (“The Ninth Amendment is not an independent source of individual rights; rather, it provides a ‘rule of construction’ that we apply in certain cases.”); Strandberg v. Helena, 791 F.2d 744, 748 (9th Cir. 1986)(denying Ninth Amendment claim under 42 U.S.C. sec. 1983 because the right claimed was not an enumerated right).

It does not create rights, but it does ensure that any rights not listed in the Bill of Rights are still rights.  Hence, in reviewing substantive due process claims for fundamental rights analysis under the 5th and 14th Amendment, it is important to keep in mind that there are fundamental rights, like the right to marry, the right to travel, that are not enumerated.  Yet, restrictions on those rights may not occur without due process, because they share the same foundation as other fundamental rights:  speech, religion, keeping and bearing arms, freedom from quartering, freedom from unreasonable searches and seizures, freedom from self incrimination, etc.

As a result, I do not plan to create a Ninth Amendment Lawyers Association, as it would lack focus.  However, perhaps a symposium might be in order.

That said, in thinking about it more, it serves as a reminder that all of the enumerated rights should be deemed fundamental rights.  The Bill of Rights memorialized the ones most important to the Framers, but these natural rights are all bundled.  To that end, I would suggest that the Ninth Amendment should be read in such a way that the Fourteenth Amendment incorporates all of the enumerated rights.  If they are so fundamental that they cannot be denied without due process under the 5th Amendment, then they cannot be so denied under the 14th.

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