The Ninth Amendment

[HikerGuy83]

On another thread, this topic became a focal point with many very arguments being made.

I'd like to consolidate those thoughts and have a chance to consider some of the very good points that were made in the discussion.

For me personally, I've not been exposed to many discussions around the night amendment.

Certainly, the 10th amendment is something I've paid attention to over the years.

Recently, I've seen some of the writings of Kurt T. Lash. Lash is a professor of constitutional law (now I am not sure what exactly that means) at the University of Richmond. He's written several articles and I believe even some books.

I found this from prof. Lash which I thought I would share as a starting point. I am not saying I am in agreement as I have so much to learn on the subject.

Madison’s description of the Ninth Amendment as “guarding against a latitude of interpretation” is consistent with his originally stated purpose for “the last clause of the fourth resolution.” The Ninth declares that just because the Bill of Rights list some constraints on federal power, this may not be construed to imply that federal power is otherwise unconstrained (Hamilton’s concern).

The Tenth Amendment further declares that all powers not properly construed as falling within those enumerated powers are reserved to the people in the states. Significantly, both the Ninth and Tenth Amendments use the language of popular sovereignty – it is the people’s right to create a national government of limited power and reserve all nondelegated powers and rights to the people in the states.

Between the Founding and Reconstruction, scholars, lawyers, and judges repeatedly and consistently interpreted the Ninth Amendment as working in tandem with the Tenth to preserve the retained powers and rights of the people in the states.

The Ninth Amendment and the Right of Local Self-Government | Tenth Amendment Center

The drafter of the Ninth Amendment, James Madison, expressly described the Ninth Amendment as working in tandem with the Tenth to prevent the national government from interfering with matters constitutionally reserved to the people in the states.

tenthamendmentcenter.com

Looking forward to some great discussion.

My apologies for being slow to read and review some of what is posted...

 

[HikerGuy83]

Pulling a post over from another thread:

It's a founding principle of this nation that individual rights exist... and that holds true whether or not they are actually written down within a Constitution. Remember that famous statement in the Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness...."

All the 9th Amendment really does is pay heed to that principle. The rights we hold extend far beyond what is in our power to list. All we need do is lay claim to them... and the Courts need do is supply the means for determining them unalienable.

Complements of @Cordelier

It was interesting to think about the fact that the Constitution does not specifically call out life, liberty and the pursuit of happiness.

The definition of unalienable is: impossible to take away or give up

In looking this over.....

1. Can one state recognize a right while another does not (this was the case in 1972 when Roe was heard by the SCOTUS) ?

2. Are the courts really the ones to determine them inalienable ?

3. If the answer to (2) is no, then how are they claimed ?

Just thinking out loud.

 

[Cordelier]

Pulling a post over from another thread:

It's a founding principle of this nation that individual rights exist... and that holds true whether or not they are actually written down within a Constitution. Remember that famous statement in the Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness...."

All the 9th Amendment really does is pay heed to that principle. The rights we hold extend far beyond what is in our power to list. All we need do is lay claim to them... and the Courts need do is supply the means for determining them unalienable.

Complements of @Cordelier

It was interesting to think about the fact that the Constitution does not specifically call out life, liberty and the pursuit of happiness.

The definition of unalienable is: impossible to take away or give up

In looking this over.....

1. Can one state recognize a right while another does not (this was the case in 1972 when Roe was heard by the SCOTUS) ?

2. Are the courts really the ones to determine them inalienable ?

3. If the answer to (2) is no, then how are they claimed ?

Just thinking out loud.

I think the answer to Point #1, if someone has a case to make that they have been denied an unalienable right by their State, then under the terms of 28 USC §1331, it becomes a Federal question.

§1331. Federal question​

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

Which also answers point #2. The US District Court Judge which hears the case is going to have to make a judgment as to whether your claim of right infringement has merit or not. If that Judge is not prepared to acknowledge the existence of 9th Amendment rights - and has no formula for doing so - then the odds of him/her finding in your favor obviously aren't going to be that great.

 

[mrjurrs]

On another thread, this topic became a focal point with many very arguments being made.

I'd like to consolidate those thoughts and have a chance to consider some of the very good points that were made in the discussion.

For me personally, I've not been exposed to many discussions around the night amendment.

Certainly, the 10th amendment is something I've paid attention to over the years.

Recently, I've seen some of the writings of Kurt T. Lash. Lash is a professor of constitutional law (now I am not sure what exactly that means) at the University of Richmond. He's written several articles and I believe even some books.

I found this from prof. Lash which I thought I would share as a starting point. I am not saying I am in agreement as I have so much to learn on the subject.

Madison’s description of the Ninth Amendment as “guarding against a latitude of interpretation” is consistent with his originally stated purpose for “the last clause of the fourth resolution.” The Ninth declares that just because the Bill of Rights list some constraints on federal power, this may not be construed to imply that federal power is otherwise unconstrained (Hamilton’s concern).

The Tenth Amendment further declares that all powers not properly construed as falling within those enumerated powers are reserved to the people in the states. Significantly, both the Ninth and Tenth Amendments use the language of popular sovereignty – it is the people’s right to create a national government of limited power and reserve all nondelegated powers and rights to the people in the states.

Between the Founding and Reconstruction, scholars, lawyers, and judges repeatedly and consistently interpreted the Ninth Amendment as working in tandem with the Tenth to preserve the retained powers and rights of the people in the states.

The Ninth Amendment and the Right of Local Self-Government | Tenth Amendment Center

The drafter of the Ninth Amendment, James Madison, expressly described the Ninth Amendment as working in tandem with the Tenth to prevent the national government from interfering with matters constitutionally reserved to the people in the states.

tenthamendmentcenter.com

Looking forward to some great discussion.

My apologies for being slow to read and review some of what is posted...

Amendments come after the Constitution. The Constitution includes both the Supremacy and the Necessary and Proper clauses. No matter what the 9th and 10th say, the power of the federal government is enormous, and is limited only by what they and the Judicial Branch decide their limits are.

 

[HikerGuy83]

Amendments come after the Constitution. The Constitution includes both the Supremacy and the Necessary and Proper clauses. No matter what the 9th and 10th say, the power of the federal government is enormous, and is limited only by what they and the Judicial Branch decide their limits are.

Really ?

No matter what the 9th and 10th say ?

Can I do the same for the 14th ?

I find it hard to believe that someone thinks that Amendments are not a fully integral part of the constitution.

Maybe I missed something.

Of course, this is what Madison had to say about the Federal Government......

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." (Federalist 45)

What you describe is nothing more than the power grab so many were concerned about at the time of the constitution (and apparently with good reason).

The supremacy clause only applies to those laws necessary for the federal government to execute it's duties (the few and defined).

The same is true of the Necessary and Proper Clause.

And Madison made it clear that the General Welfare Clause only applied to those same powers.

 

[Cordelier]

Amendments come after the Constitution. The Constitution includes both the Supremacy and the Necessary and Proper clauses. No matter what the 9th and 10th say, the power of the federal government is enormous, and is limited only by what they and the Judicial Branch decide their limits are.

I'd disagree with that - all of the provisions of the Constitution co-exist and have equal merit, be they amendments or not. How a conflict between the Federal or State law and an individual's claim gets resolved depends on the level of judicial review that the courts determine to be appropriate - strict scrutiny; intermediate scrutiny; or rational basis.

 

[HikerGuy83]

I'd disagree with that - all of the provisions of the Constitution co-exist and have equal merit, be they amendments or not. How a conflict between the Federal or State law and an individual's claim gets resolved depends on the level of judicial review that the courts determine to be appropriate - strict scrutiny; intermediate scrutiny; or rational basis.

Thank you.

I am still working to sort out the idea that the Federal Government (and federal court system) has final say in our "rights".

 

[Rich2018]

The 9A and 10A are obsolete relics of a bygone age and need to be repealed.

 

[HikerGuy83]

I think the answer to Point #1, if someone has a case to make that they have been denied an unalienable right by their State, then under the terms of 28 USC §1331, it becomes a Federal question.

§1331. Federal question​

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

Which also answers point #2. The US District Court Judge which hears the case is going to have to make a judgment as to whether your claim of right infringement has merit or not. If that Judge is not prepared to acknowledge the existence of 9th Amendment rights - and has no formula for doing so - then the odds of him/her finding in your favor obviously aren't going to be that great.

How should I think about this in terms of things not allocated to the Federal Government ?

And I am asking seriously.

As an example (and I really hate to use this one....but here goes).

Roe v. Wade

1. As I understand it, prior to the ruling 5 states already allowed abortions.
2. The Constitution does not explicitly give the Fed Gov any say in reproductive rights.
3. But this then becomes a claim that potentially goes to the district court (and I don't know what tract it actually followed).
4. "Civil Actions under the Constitution......." Does this really fall under the constitution ?

This is where I struggle with how the 9th is used by the federal government to justify settling these kinds of disputes.

As you said...there has to be a way.....something I agree with......just not sure this is it.

I do appreciate your posts.

 

[Cordelier]

Thank you.

I am still working to sort out the idea that the Federal Government (and federal court system) has final say in our "rights".

Well, that's kind of what they're there to do. See Article III §2 of the Constitution:

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution..."

Anyone can claim any right they want.... but how are those rights to be recognized if not through the rule of law?

 

[Cordelier]

The 9A and 10A are obsolete relics of a bygone age and need to be repealed.

That's ridiculous, Rich. Individuals aren't supposed to have rights? States aren't supposed to have powers?

The 9th and 10th Amendments are - or certainly should be - as vibrant as they ever were.

 

[Cordelier]

How should I think about this in terms of things not allocated to the Federal Government ?

And I am asking seriously.

As an example (and I really hate to use this one....but here goes).

Roe v. Wade

1. As I understand it, prior to the ruling 5 states already allowed abortions.
2. The Constitution does not explicitly give the Fed Gov any say in reproductive rights.
3. But this then becomes a claim that potentially goes to the district court (and I don't know what tract it actually followed).
4. "Civil Actions under the Constitution......." Does this really fall under the constitution ?

This is where I struggle with how the 9th is used by the federal government to justify settling these kinds of disputes.

As you said...there has to be a way.....something I agree with......just not sure this is it.

I do appreciate your posts.

Well, don't forget, the case wasn't US v. Wade.... The US Government wasn't a party to it. "Jane Roe", as an individual, was asserting that she had a right to have an abortion and that her State (Texas) was denying her that right by making abortions illegal. Henry Wade was the Attorney General of Texas. It only became a Federal case because Roe was asserting her Constitutional rights were being violated and the District Court in which the case was filed (North District of Texas) found that her claim had merit. The US District Court was constitutionally entitled to take this case under it's jurisdiction by the terms of Article III §2 of the Constitution.

https://law.justia.com/cases/federal/district-courts/FSupp/314/1217/1472349/

 

[Glitch]

How should I think about this in terms of things not allocated to the Federal Government ?

And I am asking seriously.

As an example (and I really hate to use this one....but here goes).

Roe v. Wade

1. As I understand it, prior to the ruling 5 states already allowed abortions.
2. The Constitution does not explicitly give the Fed Gov any say in reproductive rights.

That is a Tenth Amendment argument, not one made against the Ninth Amendment.

3. But this then becomes a claim that potentially goes to the district court (and I don't know what tract it actually followed).
4. "Civil Actions under the Constitution......." Does this really fall under the constitution ?

This is where I struggle with how the 9th is used by the federal government to justify settling these kinds of disputes.

As you said...there has to be a way.....something I agree with......just not sure this is it.

I do appreciate your posts.

The Ninth Amendment argument in Roe v. Wade centered around individual sovereignty.

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

The argument was that the people retained the right to make their own choices with regard to their own body.

The problem is that the Ninth Amendment only applies to the federal government. The Ninth Amendment has never been incorporated by the Supreme Court and applied to the States. Considering how often Ninth Amendment cases come before the Supreme Court, it is not likely ever to be incorporated and applied to the States. Which means States have a free-pass to completely ignore individual sovereignty and the ability for someone to make their own choices with regard to their body.

 

[Cordelier]

That is a Tenth Amendment argument, not one made against the Ninth Amendment.


The Ninth Amendment argument in Roe v. Wade centered around individual sovereignty.

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

The argument was that the people retained the right to make their own choices with regard to their own body.

The problem is that the Ninth Amendment only applies to the federal government. The Ninth Amendment has never been incorporated by the Supreme Court and applied to the States. Considering how often Ninth Amendment cases come before the Supreme Court, it is not likely ever to be incorporated and applied to the States. Which means States have a free-pass to completely ignore individual sovereignty and the ability for someone to make their own choices with regard to their body.

14th Amendment... equal protection of the laws, due process, and all of that.

As for the incorporation argument.... with the exception of the 7th Amendment, every other amendment pertaining to individual rights contained in the Bill of Rights has been incorporated at least in part, so if an individual is claiming a 9th Amendment right based on a conjunction of two or more incorporated rights, then that right should itself be considered incorporated and applicable to the States.

 

[HikerGuy83]

14th Amendment... equal protection of the laws, due process, and all of that.

A whole other thread....sometime.

 

[HikerGuy83]

Well, don't forget, the case wasn't US v. Wade.... The US Government wasn't a party to it. "Jane Roe", as an individual, was asserting that she had a right to have an abortion and that her State (Texas) was denying her that right by making abortions illegal. Henry Wade was the Attorney General of Texas. It only became a Federal case because Roe was asserting her Constitutional rights were being violated and the District Court in which the case was filed (North District of Texas) found that her claim had merit. The US District Court was constitutionally entitled to take this case under it's jurisdiction by the terms of Article III §2 of the Constitution.

https://law.justia.com/cases/federal/district-courts/FSupp/314/1217/1472349/

Give me some time to sort this out.

I see myself asking the same questions.

I'll try to come at it a little differently.

Thanks.

 

[Glitch]

14th Amendment... equal protection of the laws, due process, and all of that.

That only applies to the States when the Supreme Court says so. They call it "selective incorporation."

It took until Gitlow v. New York, 268 U.S. 652 (1925) - 58 years - before the Supreme Court incorporated the First Amendment and applied it to the States. It took until Timbs v. Indiana, 586 U.S. ___ (2019) - 152 years - before the Supreme Court incorporated the Eighth Amendment and applied it to the States.

The Third, Ninth, Tenth, and parts of the Fifth and Sixth Amendments have not yet been incorporated by the Supreme Court and applied to the States. Those amendments and parts of amendments (such as the Grand Jury requirement under the Fifth Amendment) ONLY apply to the federal government and not the States.

 

[HikerGuy83]

That only applies to the States when the Supreme Court says so. They call it "selective incorporation."

It took until Gitlow v. New York, 268 U.S. 652 (1925) - 58 years - before the Supreme Court incorporated the First Amendment and applied it to the States. It took until Timbs v. Indiana, 586 U.S. ___ (2019) - 152 years - before the Supreme Court incorporated the Eighth Amendment and applied it to the States.

The Third, Ninth, Tenth, and parts of the Fifth and Sixth Amendments have not yet been incorporated by the Supreme Court and applied to the States. Those amendments and parts of amendments (such as the Grand Jury requirement under the Fifth Amendment) ONLY apply to the federal government and not the States.

The whole process of incorporation is a subset of the 14th.

Not something I agree with, but certainly worth understanding and discusdsing.

 

[Cordelier]

That only applies to the States when the Supreme Court says so. They call it "selective incorporation."

It took until Gitlow v. New York, 268 U.S. 652 (1925) - 58 years - before the Supreme Court incorporated the First Amendment and applied it to the States. It took until Timbs v. Indiana, 586 U.S. ___ (2019) - 152 years - before the Supreme Court incorporated the Eighth Amendment and applied it to the States.

The Third, Ninth, Tenth, and parts of the Fifth and Sixth Amendments have not yet been incorporated by the Supreme Court and applied to the States. Those amendments and parts of amendments (such as the Grand Jury requirement under the Fifth Amendment) ONLY apply to the federal government and not the States.

I added an amendment to my previous post that addressed this.

 

[Cordelier]

The whole process of incorporation is a subset of the 14th.

Not something I agree with, but certainly worth understanding and discusdsing.

Well, as you say, probably a subject best left for another thread.

 

[Glitch]

I added an amendment to my previous post that addressed this.

Your amendment is incorrect.

As I previously posted:

The Third, Ninth, Tenth, and parts of the Fifth and Sixth Amendments have not yet been incorporated by the Supreme Court and applied to the States. Those amendments and parts of amendments (such as the Grand Jury requirement under the Fifth Amendment) ONLY apply to the federal government and not the States.

The Third Amendment is never going to be incorporated by the Supreme Court because Article I, Section 10, Clause 3 prohibits States from keeping troops. Since the Third Amendment applies specifically to troops in civilian quarters, it is not something within the constitutional capability of any State. Since the Tenth Amendment specifically references the sovereignty of States, it does not require incorporation by the Supreme Court. The Ninth Amendment could be incorporated by the Supreme Court, but considering the rarity of such cases being brought before the Supreme Court, it seems highly unlikely that it ever will be incorporated.

 

[HikerGuy83]

Your amendment is incorrect.

As I previously posted:

The Third, Ninth, Tenth, and parts of the Fifth and Sixth Amendments have not yet been incorporated by the Supreme Court and applied to the States. Those amendments and parts of amendments (such as the Grand Jury requirement under the Fifth Amendment) ONLY apply to the federal government and not the States.

The Third Amendment is never going to be incorporated by the Supreme Court because Article I, Section 10, Clause 3 prohibits States from keeping troops. Since the Third Amendment applies specifically to troops in civilian quarters, it is not something within constitutional the capability of any State. Since the Tenth Amendment specifically references the sovereignty of States, it does not require incorporation by the Supreme Court. The Ninth Amendment could be incorporated by the Supreme Court, but considering the rarity of such cases being brought before the Supreme Court, it seems highly unlikely that it ever will be incorporated.

Maybe I am trying to find something in here I just can't articulate.

It almost seems like the 9th is self-incorporating.

Not that I want to debate incorporation in this thread.

The concept being discussed is that:

1. There are unalienable rights that are "hiding" or are being hidden in penumbras that people can sue to have recognized.
2. The federal court is the arbitrating body in that process.
3. Hence, it seems that the amendment is implicitly applicable to the states in the sense that if the fed owns the decision....the states are just along for the ride.

 

[rahl]

That is a Tenth Amendment argument, not one made against the Ninth Amendment.


The Ninth Amendment argument in Roe v. Wade centered around individual sovereignty.

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

The argument was that the people retained the right to make their own choices with regard to their own body.

The problem is that the Ninth Amendment only applies to the federal government. The Ninth Amendment has never been incorporated by the Supreme Court and applied to the States. Considering how often Ninth Amendment cases come before the Supreme Court, it is not likely ever to be incorporated and applied to the States. Which means States have a free-pass to completely ignore individual sovereignty and the ability for someone to make their own choices with regard to their body.

it was incorporated by the 14th amendment, like every other part of the US constitution was.

 

[rahl]

Your amendment is incorrect.

As I previously posted:

The Third, Ninth, Tenth, and parts of the Fifth and Sixth Amendments have not yet been incorporated by the Supreme Court and applied to the States. Those amendments and parts of amendments (such as the Grand Jury requirement under the Fifth Amendment) ONLY apply to the federal government and not the States.

The Third Amendment is never going to be incorporated by the Supreme Court because Article I, Section 10, Clause 3 prohibits States from keeping troops. Since the Third Amendment applies specifically to troops in civilian quarters, it is not something within the constitutional capability of any State. Since the Tenth Amendment specifically references the sovereignty of States, it does not require incorporation by the Supreme Court. The Ninth Amendment could be incorporated by the Supreme Court, but considering the rarity of such cases being brought before the Supreme Court, it seems highly unlikely that it ever will be incorporated.

all of them were incorporated by the ratification of the 14th

 

[Glitch]

Maybe I am trying to find something in here I just can't articulate.

It almost seems like the 9th is self-incorporating.

Not that I want to debate incorporation in this thread.

The concept being discussed is that:

1. There are unalienable rights that are "hiding" or are being hidden in penumbras that people can sue to have recognized.
2. The federal court is the arbitrating body in that process.
3. Hence, it seems that the amendment is implicitly applicable to the states in the sense that if the fed owns the decision....the states are just along for the ride.

That should have been the case with the entire Bill of Rights the instant the Fourteenth Amendment was ratified in 1867. However, the Supreme Court decided to take upon itself the responsibility of determining when an individual right applied to the States. And it would only do so when a case concerning that individual right was taken up by the Supreme Court. It is without a doubt one of the greatest on-going atrocities ever committed by government. To intentionally deprive its citizens of their individual rights, until the Supreme Court decides otherwise. Which as we have already seen, will span centuries. As everyone knows now, it took 143 years before the Supreme Court finally got around to incorporating the Second Amendment and applying it to the States in McDonald v. City of Chicago, 561 U.S. 742 (2010).

If you have ever wondered why there were so many States laws that blatantly violated the Second Amendment, now you know. They were all enacted by the States prior to 2010.