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Does The Ninth Amendment Constitutionally Protect Unenumerated Rights?

Recently, I wrote a couple of posts on whether the Privileges or Immunities Clause protected unenumerated rights. In my view, the Clause does protect such rights, but in a disciplined way.

This naturally raises the question whether another part of the Constitution—the Ninth Amendment—also protects unenumerated rights. Here I want to explain my view that the Ninth Amendment recognizes unenumerated rights but does not protect them as constitutional rights.

There are two common opposing positions on the Ninth Amendment. One view is that the Amendment refers to natural rights and protects them as other constitutional rights. Thus, if there was a natural right to possess private property, the courts should hold unconstitutional any federal laws that violate that natural right.

The opposite view is that the Ninth Amendment does not provide constitutional protection for those rights. There are a variety of ways that people reach this conclusion—some based on a federalist interpretation of the Ninth Amendment, others based on a nonjusticiability interpretation, and many others—but they all conclude that courts should not hold violations of natural rights to be unconstitutional under the Ninth Amendment.

Over the years, I have adopted various positions on the Amendment. Today, I have something of an intermediate position. I agree that the Ninth Amendment makes reference to unenumerated natural rights. But I do not believe that it protects those natural rights as constitutional rights.

Let’s start by looking at the language of the Amendment, which provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” While some people deny that this language refers to natural rights, I have now come to believe that the best reading is that it does refer to such rights. In particular, the rights “retained by the people” was generally understood as referring to natural rights at the time. Thus, the Constitution does make reference to natural rights.

This is hardly surprising. At the time of the Constitution, the dominant approach to conceptualizing government was a Lockean social compact framework, a framework that also lay at the foundation of the Declaration of Independence.

But just because the Ninth Amendment refers to natural rights does not mean that it protects such rights as constitutional rights. The Amendment does not say “the rights retained by the people should be protected as constitutional rights.” Instead, it merely says that they should not be “denied or disparaged.”

When the original Constitution was enacted, but the before the Bill of Rights and the Ninth Amendment were passed, natural rights were not enforced by the courts to hold statutory provisions that conflicted with those rights void. Instead, such rights were understood as providing a political justification for government and for constraints on that government. The violation of such rights might justify rebellion (as they did in the War for Independence), but those rights were not enforced by courts as constitutional rights that took priority over statutes.

The Ninth Amendment is concerned that the enumeration or listing of rights shall not be construed to deny or disparage natural rights. That means that the listing in the Bill should not lead to any reduction in the role of natural rights. But since natural rights were not enforceable by courts as constitutional rights prior to the Bill of Rights, the refusal of courts to enforce them after the listing does not disparage them. Courts continue to respect their traditional status. They simply do not elevate that status.

Does this leave these natural rights with no function other than as a justification for government and constraints? No. Natural rights were also reflected in the common law and so courts would properly consider natural rights when articulating common law rights. Similarly, natural rights were relevant when interpreting statutes. Statutes that seemed to abridge such rights were not interpreted to do so unless there was a clear statement to that effect. These functions may still be proper today. But the Ninth Amendment does not require or authorize the Courts to hold statutes unconstitutional that violate natural rights.

Reader Discussion

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on April 16, 2019 at 10:17:44 am

Mike:

This strikes me as quite sensible.

A few thoughts:

1) In common language, we may read the ninth to be saying: "OK, we recognize that citizens DO possess all manner of natural rights. We have also provided CONSTITUTIONAL protection for CERTAIN of these rights as evidenced by the first eight amendments. such is our GUARANTEED bequest to our posterity. We also recognize that OTHER, yet less well defined rights, liberties remain resident IN the people. We do not, by virtue of the enumeration of GUARANTEED rights, mean to disparage those rights; yet, they remain, as always, subject to COMMON LAW adjudication WHEN those rights of competing citizens may interfere with each other. Thus no change, no automatic disparagement of those non-guaranteed rights is to be assumed by the government, the citizenry or the courts at common law."
2) "We also have provided recognition of additional rights, either natural or positive to the citizenry by Guaranteeing the constitutional protection of the Privileges and Immunities of citizens of the United States (such as they are, or may be."
3) together , these would appear to cover ALL the rights that were understood to be constitutionally protected.
4) Assuming that Rappaport is correct, i.e. that some rights had historically been adjudicated at Common Law, this presumes that some rights are, in fact, alienable - open to negotiation in view of the need for social comity. It also assumes that rights of such nature would CONTINUE to be adjudicated both by the Common Law jurists of the day AND by the Legislative as deemed proper. How can this not be so as P&I varied from State to State. Here is Madison on the topic:
"Those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to GREATER PRIVILEGES than they may be entitled to in their own State."
5) How can Madisons words AND the FACT of varying P&I be read to assert that P&I is "surplusage", insubstantial, etc.
6) Lastly, it is clear that SOME rights, even to the most vociferous proponents of the DOI, are subject to political negotiation. Consider slavery vs the promises of the DOI, If Liberty itself MAY be denied then almost any and all other rights may be denied OTHER than those specifically guaranteed by COTUS and the BOR. I am not approving of that PECULIAR Compromise, BTW, only recognizing that ALL of the Founders, as well as the citizenry and the Judiciary of the time understood that this new regime was the result of compromise and that sinilar compromises would continue to (be needed to) be made.

I think Rappaport strikes a good balance here as it allows for the practical interplay of both politics and law in a manner NOT inconsistent with COTUS or historical practice.
(Consider this just another push for the recognition of P&I -Ha!).

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gabe
on April 16, 2019 at 10:56:59 am

Nice analysis.

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djf
on April 16, 2019 at 14:01:31 pm

Sensible and persuasive, like gabe says.

The enumerated rights, were they enforced strictly, together with strictly enforced limits on Congressional legislative power which was the whole point of a written constitution in the first place, together with the amendment power (it needed no penumbral emanation or substantive due process or P&I or natural law to discover a right of women or 18 year olds to vote; the rights are enumerated in the document), would be enough to optimize individual liberty within a framework of necessary governance without having to import specific, enforceable additional rights ad hoc and ab hominem.

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QET
on April 16, 2019 at 14:03:54 pm

The Ninth Amendment does not say that the rights referred to in its text ...

"... should not be 'denied or disparaged.'"

It says "... *shall* not be construed to deny or disparage others retained by the people."

That seems much stronger in terms of requisite protection. To the extent that the Ninth Amendment refers to rights, it does so in service to the notion that the rights not enumerated exist co-equally to those enumerated. How would you go about affording those rights fewer protections?

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COB
on April 16, 2019 at 15:17:52 pm

So the ninth amendment says that the rights in the first amendment, for example, shall not be construed to deny or disparage other rights retained by the people. But so long as they don't, it's OK for statutes to deny or disparage those rights? Why would the founders have allowed common congressional statutes to deny or disparage rights that the amendments themselves cannot deny or disparage? If the point is to make sure that the rights themselves are not denied or disparaged, wouldn't the only way for that to happen is to make sure they weren't denied or disparaged by any law of any kind--whether amendment or law?

Let's say you're arrested for having sex. You say that your natural right is being denied or disparaged. The court says that there is a law against sex, and they are not arresting you based on their construing of the first amendment, so they are not violating the ninth amendment.
Does your prison sentence feel less unjust because it is a law that is punishing you rather than the court's interpretation of the first amendment that is punishing you? Or do you believe your natural right to have sex under the ninth amendment means that under no circumstances can you be arrested for having consensual adult sex in your home?

That is, when you say you have a right, do you mean that you can't be punished, or just that the first amendment can't be interpreted to allow for your punishment? I bet by "I have a right" you mean you can't be punished.

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Angrisone
on April 16, 2019 at 15:35:09 pm

The point of the ninth amendment was to assure people that all the rights that weren't listed--the right to breathe air, hunt, farm, eat, have sex, procreate or have an abortion, etc.--were also protected. Just because speech was listed and sex wasn't, doesn't mean the courts could say that they would only protect the right to speak, and would allow the right to hunt or have sex to be denied or disparaged.

The point of the ninth amendment wasn't to say that, so long as it was a law, and not a construing of the amendments, that denied or disparaged the right to have sex, it was perfectly OK. People weren't concerned about how the amendments were going to be construed; they were worried about being arrested and imprisoned for doing victimless things like hunting, having sex, having abortions, etc.

Walk out of the ivory tower and go ask someone at the bus stop if they want to not be arrested for having sex or they simply want to make sure the amendments aren't construed to deny their right to have sex. I bet they don't want to be arrested, because the point of rights is to be able to go about your day without having to worry about run-ins with law-enforcement.

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Noter Damm Lawyers
on April 16, 2019 at 16:11:33 pm

Let's say that the police enter your 10th grade daughter's class and arrest her for wearing make-up. The court says that it's the law that is punishing make-up wearing, and it is not the court's interpretation of the first amendment that is allowing for the punishing of make-up wearing. Therefore the police were perfectly in the right for arresting your daughter and she shouldn't be traumatized.
Does that make it OK? Do you think the government was being perfectly legitimate because they didn't depend on the court's interpretation of an amendment for arresting your daughter, but instead passed a law to arrest your daughter?

OR do you think freedom means at the very least that we don't arrest 16-year-old girls for wearing make-up under any circumstances because it is a victimless crime, even if it isn't mentioned in any of the amendments?
That's what the ninth amendment means--we don't allow the government to arrest people for victimless-crimes, even if they aren't enumerated in the amendments.
There is a sphere of conduct we can act in in which we don't have to worry about law-enforcement arresting us, even if that conduct offends you. The point of the ninth amendment is to make sure people don't live in constant fear that their harmless conduct might've been outlawed last night during a special midnight congressional session.

When you tell your daughter, "if you don't hurt others, you don't have to worry about the police"; you don't really mean, "anything you say or do can be held against you, so long as the amendments aren't construed to deny or disparage your natural rights".

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Bleedin Construels
on April 16, 2019 at 16:40:03 pm

Let's say your 6th-grade daughter is arrested for wearing earrings to school. Would your immediate response be (a) "that's unjust, we have rights in this country", or would tell her, (b) "if you ever want to win the presidential medal of freedom, like Rosa Parks, you have to learn to respect authority and obey the law, no matter how arbitrary and capricious it is"?

Do you want your daughter to live in the constant fear that is the prison of her own fears of government tyranny, or do you want her to have some breathing room to be able to act the way she wants so long as she doesn't hurt others? If you let people be arrested for victimless crimes, they will vote democrat the rest of their lives, and you will lose your right to keep and bear arms.

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Prawl Drivers
on April 16, 2019 at 16:47:01 pm

[The Amendment does not say “the rights retained by the people should be protected as constitutional rights.” Instead, it merely says that they should not be “denied or disparaged.”]

I find this argument weak. The main reason the 9th was included was the fear that the Federal government would read the first 8 Amendments as a listing of ALL the individual rights the Feds were constrained from infringing. Indeed, the original opposition to including a BoR at all was that it was feared to limited the protections offered to the people from federal government infringement by assuming the government would read a BoR to be all inclusive.

If the rights of the people are not to be "denied or disparaged", then elevating SOME rights as "Constitutional" automatically disparages the remaining non-elevated rights contra the clear words of the 9th.

The Constitution was written to be understood by the citizenry of the day. It used clear, common vernacular. To say therefore that the 9th talks about some other class of less important rights of the people strains credulity, and treats the 9th as a throw-in and unimportant Amendment. The history of the Constitutional convention and the ratification debates clearly shows that not to be the case.

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OH Anarcho-Capitalist
on April 16, 2019 at 16:52:17 pm

Depends on the circumstances. Presumably, an arrest does not occur unless the child was breaking the law as opposed to violating a code of school conduct. I'd object to a LAW being passed that would subject 6 graders to arrest and criminal proceedings for violating a school dress code.

However, I would side with the school if my kid knowingly, willingly violated a school policy out of a need to "be an individual". To side with a kid defying legitimate authority when the adult parent is ultimately responsible for her behavior sets a bad precedent in the home...

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OH Anarcho-Capitalist
on April 16, 2019 at 16:55:04 pm

The right to vote is not a natural right because natural rights do not presume the existence of government. Voting rights are strictly creatures of the political systems they apply to, and may be as expansive or as restrictive as those subject to that polity may decide...

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OH Anarcho-Capitalist
on April 16, 2019 at 17:52:04 pm

Let's say you prohibit waiting periods and background checks for enumerated rights (like those in the first eight amendments), but you allow waiting periods and background checks for unenumerated rights--like adoption, abortion, donating blood and organs, etc.
By allowing waiting periods and background checks for unenumerated rights, you are automatically treating them as second-class rights by allowing them to be infringed (disparaged) in ways that you are not allowing enumerated (constitutional) rights to be infringed.
To apply rational-basis scrutiny, rather than strict-scrutiny, to unenumerated rights, you are allowing them to be disparaged in ways that enumerated eights are not allowed to be so disparaged, i.e. you are treating them like second-class rights that don't get strict-scrutiny.

The purpose of the ninth amendment was to make sure that unenumerated rights are not treating as second-class, i.e. rights that could be disparaged in ways that enumerated rights could not be so disparaged (infringed).

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No rapport
on April 16, 2019 at 18:39:12 pm

Good points all. That said, could not the 14th Amendment place upon the Feds the duty to protect the natural rights held by The People, e.g., the right to hold property?

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SgtDad
on April 16, 2019 at 18:57:46 pm

Just a general comment to all who appear to believe that "rights" are unlimited and must always be respected / not disparaged or limited:

Do you honestly think that the founders (or any other governing system in history) had injudiciously proposed / promised that they were creating a Utopia where ALL citizens could exercise ALL conceivable rights, willy- nilly and that there would never be a need or a justification for limiting the (somewhat) fanciful "LIBERTIES" that we may imagine ourselves to possess / exercise.

The difference in the early years of the Republic was that citizens understood that they must constrain themselves and that religious sensibilities played a major role in assuring that the citizens constrained themselves.

Not so much today.

Total freedom / total equality results in slavery as some famous scribe once wrote.

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Guttenburgs Press and Brewery
on April 16, 2019 at 21:42:20 pm

A fair point re natural right (although I'm not certain about the "not presume the existence of government" as at the least most variations of natural right presume a divine government ). However, the policy latitude you assert was rejected by the Court in Yick Wo.

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QET
on April 17, 2019 at 10:28:42 am

Strawman argument...the Constitution was all about created a federal government of limited, enumerated powers to handle situations the state governments themselves could not handle.

As far as the people's natural rights, the Constitution did not create, define or infringe upon them. The Constitution merely laid out the restrictions on the Federal government regarding its duties and the powers granted to it to perform them.,..

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OH Anarcho-Capitalist
on April 17, 2019 at 10:38:34 am

A "divine" government has always existed for religious believers. There's never been a mortal incarnation of one though.

A political system is a means of employing coercive force over a captive populace. Those with the power to impose that system are those with the power to establish its rules for the franchise (if the franchise is even allowed to exist).

To the extent the SCOTUS finds a feature of the federal or state political systems in violation of the rules established in the Constitution, it rules correctly. So in Yick Wo, we find the state imposing a law that violates the Constitution by denying equal protection under the law. However the SCOTUS has a checkered history of less than Constitutionally-faithful rulings, so I tend to view its precedents with a jaundiced eye...

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OH Anarcho-Capitalist
on April 17, 2019 at 12:24:44 pm

I think you discount far too heavily the refraction of power by ideas and beliefs. Power never simply imposes; it is never unmediated. Its impositions are always made through media of theories, ideas and beliefs. And so refracted the force of power usually manages to turn back on itself and so limit itself.

To the extent your point is only that decisions are made by people in a position to make decisions, well, OK, but that is a truism. The interesting issue is, according to what criteria do they decide?

Which is why I brought up Yick Wo, where the Court said: Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights.

Frankly this sentence is paradoxical; it allows your point about voting being a matter of the political will of a society, then retreats into the passive voice to assert that it is a "fundamental political right." Plain power would have stopped after "certain conditions."

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QET
on April 17, 2019 at 16:41:14 pm

Yes, BUT....
It said very little about the STATES and HOW the STATES would manage, i.e. enhance or disparage those *natural* rights (whatever they may be). In fact, it was expected that the STATES would manage, i.e. enhance or disparage, those rights NOT given specific protections under the Constitution.

You seem to miss the point. It is not about natural rights, it is not about federal government powers / limits, it is about a) the fact that any and ALL societies known to have existed in human history have modulated peoples liberties as appropriate to their conditions / morals / cultures and b) that the founders fully expected that the people would themselves *manage* the exercise of those liberties / rights via social pressure and / or religious sensibilities. In point of fact, early State laws PROVIDED for the financial support of Churches with the view of fostering moral behavior, social comity, etc.

It matters not that rights are not the gift of government. AGREED - 1257%!!! What is at issue is that 1) all societies by nature (yes, by NATURE) must limit to varying extents the exercise of peoples liberties and 2) that the founders fully understood and SUPPORTED SUCH A POSITION and 3) that it was to be left to the individual STATES to determine how the peoples liberties were to be modulated.

Or are we to suppose that these eminently practical men thought that no "moderating" influence was either proper or required for the citizenry. Consider that if this were so, why did the founders not establish a democracy. They chose a Republic, specifically BECAUSE they well knew, understood and feared the perils of "unrestrained" liberty and accepted human frailty as a permanent state of the specieis.

Again, these were not AOC type Utopians.

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Guttenburgs Press and Brewery
on April 18, 2019 at 15:22:10 pm

Perhaps a more concise statement is: "Any legal argument that disparages right X by noting that it is not explicitly listed in the eight preceding amendments is an invalid argument."

Thus, you do not protect right X, but you do not permit anyone to argue against right X based on the silence of the Bill of Rights when it comes to right X.

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Clark Coleman
on April 18, 2019 at 15:26:41 pm

See my comment above. The Ninth Amendment precludes certain legal arguments without protecting any particular rights. In your hypothetical, the legal authorities cannot argue against your right to have sex based on an argument from the silence of the Bill of Rights on that topic. There could well be other arguments on both sides, but that one is disallowed. Thus, the Bill of Rights is ensured to do no harm to rights not listed.

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Clark Coleman

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