Mention the Fifth Amendment, and people say, “You can’t make me talk!”
Mention the First Amendment, and people say, “You can’t stop me from talking!”
Mention the Second, and they think, “You can’t take my guns!”
But the Ninth Amendment – what’s that all about? Many of us have no idea.
The Ninth Amendment addresses the central issues of the Constitutional Convention of 1787: powers delegated to and withheld from the federal government, and rights surrendered and retained by the people.
The Constitution drafted by the delegates to that convention contained no bill of rights for several reasons.
James Madison said a bill of rights was unnecessary because the federal government has only limited, delegated powers. We don’t need to tell the federal government what it can’t do. The federal government can’t establish a religion because we, the people, in the Constitution have not delegated any power to establish a religion.
Roger Sherman noted that the various state constitutions included bills of rights, and that the people should look to their state constitutions and courts for the protection of their rights.
Alexander Hamilton said in Federalist No. 84that a bill of rights could be dangerous:
I go further, and affirm that bills of rights, in the sense and in 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?
We can’t list all our rights, Hamilton said, so what happens to the rights we fail to list?
Under the legal maxim inclusio unius est exclusio alterius (the inclusion of one is the exclusion of others), listing certain rights justifies a future court or legislature in assuming that, because we failed to name a certain right (the right to breathe, for example), we did not intend to protect it, and therefore, the government is free to violate it.
But the Antifederalists made the lack of a bill of rights a primary objection to ratifying the Constitution, and many of their countrymen agreed. So Madison and others promised that as soon as the Constitution was ratified, they would work on a bill of rights.
Madison made good on his promise, introducing the Bill of Rights as a congressman in 1789. The Ninth Amendment responded to Hamilton’s objection that naming some rights left others unprotected. “This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system,” Madison told the Congress, “but, I conceive, that it may be guarded against.”
Madison’s solution to guard against encroachment of unenumerated rights was the Ninth Amendment, which reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
In other words, the Ninth Amendment nullifies the inclusio unius est exclusio alterius principle. Naming certain rights in the Constitution does not constitute a forfeiture of rights not named.
Once, while lecturing at a North Dakota university on the original intent of the Framers of the Constitution, a professor asked me whether the Ninth Amendment gave the courts some latitude to create new rights, such as abortion. My response focused on the word “retained.” If the Amendment had spoken of other rights “acquired by the people,” the professor’s argument might have had some validity. But the Framers used the words “retained by the people,” limiting the Amendment to rights already recognized and protected by English and American common law.
And that’s the way the courts have interpreted the amendment. A few justices have looked to the amendment as a source of abortion rights, but most have limited its scope to rights retained.
Nevertheless, the Ninth Amendment stands as a bulwark against tyranny, warning tyrants that we, the American people, have never surrendered our ancient, God-given rights.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (moralaw.org), and as Chairman of the Board of the Plymouth Rock Foundation (plymrock.org). He lives in rural Pike Road, Alabama, and may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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