Beyond the Bill of Rights: Protections Extended by the Ninth Amendment

George Cooke, “Patrick Henry Arguing the Parsons’ Cause at Hanover Courthouse.” Virginia Museum of History and Culture.

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

The Ninth Amendment is one of the two backbone amendments of our Constitution, the Tenth being the other one. It is the amendment that reserves for the people all rights not expressly granted to the government, whether those rights are enumerated or not.

What does it mean for rights to be enumerated? Simply put, to be enumerated means to be stated. For instance, any rights clearly granted in the Constitution such as the right to free speech or trial by jury is an enumerated right.

Interestingly, many leaders like Alexander Hamilton were opposed to any Bill of Rights. In Federalist 84, Hamilton reasoned one was not necessary since “the Constitution is itself in every rational sense, and to every useful purpose, a Bill of Rights.”

He also worried that by creating a Bill of Rights which listed only certain rights, it could be implied that those not stated were not granted. He reasoned “why should it be said that the liberty of the press shall not be restrained, when no power is given [to the government] by which restrictions may be imposed?”

Hamilton lost that argument as the Anti-Federalists would not ratify the new Constitution without a Bill of Rights. However, his point was well taken. In fact, James Madison stated Hamilton’s argument was “one of the most plausible…I ever heard” against a bill of rights.

The Founders realized they could not list in the Constitution all the rights to which Americans are privileged, nor could they predict all the rights that might develop in the future. Consequently, to reserve these countless unenumerated rights for the people, James Madison crafted this “catch-all” amendment.

To complicate things just a bit, the Founders considered two types of enumerated rights, natural and positive. Natural rights are those with which all of us are born, those which ensure “life, liberty, and the pursuit of happiness”.

John Dickinson, said it best, “Kings and parliaments could not give the rights essential to happiness…They are created in us by the decrees of Providence, which establish the laws of our nature. They are born in us; exist with us; and cannot be taken from us by any human power, without taking our lives.”

Positive rights are the legal requirements demanded by a free society of its government to guarantee to the people the sort of community in which they want to live. Some of our most critical ones are the right to a trial by jury, the presumption of innocence until proven guilty, and no taxation without representation.

Interestingly, the Ninth Amendment did not see much judicial review until the 1960’s. However, it is now used more frequently to defend newer freedoms such as the use of contraceptives and same sex marriage.

In Griswold v. Connecticut (1965), the Supreme Court found “the Ninth Amendment…in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental rights.”

WHY IT MATTERS

So why does it matter to us today that the Ninth Amendment grants to the people all unenumerated rights not specifically given to the government?

Our Forefathers, as gifted as they were, could never have guessed what sort of rights posterity might possibly need to secure “happiness” in the future, and to live in the sort of society they envisioned for us. The Ninth Amendment is a wonderfully broad and people-oriented amendment that addresses that visionary concern.

It basically says that just because certain guarantees are stated in the Bill of Rights does not mean that they are the only ones granted to the people. Clearly, in the eyes of the Founders, additional unenumerated rights did exist then and, thanks to their foresight, still do for us today.

Their vision in crafting the Ninth Amendment gave us the legacy that the government would not encroach on the freedom of the people simply because a particular right was not spelled out in 1789. We must be thankful to our great leaders for that.

SUGGESTED READING

Brion McClanahan’s book “The Founding Fathers Guide to the Constitution” is a clear, clause-by-clause explanation of how the Founders saw the Constitution and the Bill of Rights. Written in 2012, it is a very interesting and readable book.

PLACES TO VISIT

First State National Historical Site is a national park spread across parts of Delaware and a small portion of Pennsylvania. The park covers the early colonial period in Delaware and tells the role the state played in creating our nation. One of the sites is the boyhood home of John Dickinson, one of our most significant Founding Fathers.

Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.