I have recently focused on the 9th Amendment to the Constitution:
I would like to give a shout out here to Eugene M. Van Loan III's entry in Randy Barnett's collection of essays on the topic, Loan writing in the 1960s (see also, his 2006 article on "Judicial Review and Its Limits," which is usefully dubious about overly self-righteous claims of its legitimacy). It provides a good summary and is notable for various reasons. For instance, it lists several citations of the Ninth Amendment that other sources seem to miss. It also notes the limitations of use of history in interpreting constitutional provisions -- it is but one tool. And, it notes how focusing on federal power -- however originalist it might be -- is anachronistic in this day and age. The federalist revolution, or partial one, that came after he wrote does not change the fact, as he notes, "rights" is often the more appropriate focus, particularly when courts are involved.
The traditional view of the 9th Amendment can be found in a passing reference in one of these cases, Hoke v. U.S. (1913), which concerns a federal law against "white slavery." Argument:
In Bute v. Illinois (1948), "the reserved powers of the states and of the people were emphasized in the Ninth and Tenth Amendments" included whether or not to supply a lawyer to a state defendant in most non-capital cases, except if "special circumstances" applied. Due process of law in time was determined to require more. This does not mean the rights at issue were trivial. As Justice Stewart said before he accepted substantive due process in Roe v. Wade:
The Bill of Rights limits the federal government. So, yes, originally the Ninth Amendment would take power away from the federal government, not address the limits of the power of the states or the people themselves in respect to violating "retained rights." The Civil War, however, showed the limits to this approach, the states also a major threat without some additional federal limits. Thus, citizenship or even mere personhood brought with it obligations from both the states and federal governments, obligations that could be upheld nationally. The Fourteenth Amendment spells this out, including its fifth clause.
The reach of this federal power, however, was greatly debated. This includes respecting rights -- see the Bute case above where something we now generally deem basic (a right to be given an attorney in any major criminal case if you cannot afford one) was deemed to be the discretion of the states to a large degree. Slowly, however, it was recognized that all have certain rights and local invasion was a concern for federal action. That is, this basic idea was always there to some degree, but the reach of these "fundamental rights" was expanded. As Justice Goldberg noted in Griswold:
Goldberg used the Ninth Amendment as a "rule of construction" to further the principles of substantive due process. He cited three basic principles: rights traditionally deemed fundamental, those that work off enumerated rights (the majority's approach) and "from experience with the requirements of a free society."* Douglas himself said as much in his Poe v. Ullman dissent and later (see, e.g., Doe v. Bolton), expressly referencing the "liberty" of due process of law as well. The "penumbra" stuff is ridiculed but was really a one-off though rights "indispensable to the enjoyment of rights explicitly defined" (Richmond Newspapers v. Virginia) continue to be an aspect of their recognition. The connection between SDP and the Ninth was seen in Planned Parenthood v. Casey:
A full use of history, recognizing its limitations, helps show this.
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* Natural rights or those "intrinsic" or "inherent" or "basic" to liberty (different adjectives can be found cited, again, usually involving substantive due process) fit in each of these categories, helping to give them life and meaning. Certain enumerated rights were "pre-existing" -- free exercise of religion or use of arms for self-defense, for instance. See, e.g., D.C. v. Heller. Others, such as trial rights, are societal safeguards of such rights.
And, the other two categories also can fit into both categories. Rights arising from family life are traditional and basic to a free society while also basic to our natures. On the other hand, something like marriage is as well, but to the degree the state supplies a marriage license, a positive law component is involved. A trial makes it harder for the government to deprive someone of liberty, but that is not the only way it protects us.
Thus, focus on purely "negative" liberty, freedom from government restraint, is misguided. Ninth Amendment rights as much as anything else in society requires some governmental action to be fully protected. Thus, some argue education -- including that applied by the state -- is a Ninth Amendment right. Society implies certain rights, including those unlisted.
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.It might be somewhat "forgotten," though the number of law review articles and references suggest not totally in the least, but it sets forth basic principles (debated) even if it is not expressly cited in the process.
I would like to give a shout out here to Eugene M. Van Loan III's entry in Randy Barnett's collection of essays on the topic, Loan writing in the 1960s (see also, his 2006 article on "Judicial Review and Its Limits," which is usefully dubious about overly self-righteous claims of its legitimacy). It provides a good summary and is notable for various reasons. For instance, it lists several citations of the Ninth Amendment that other sources seem to miss. It also notes the limitations of use of history in interpreting constitutional provisions -- it is but one tool. And, it notes how focusing on federal power -- however originalist it might be -- is anachronistic in this day and age. The federalist revolution, or partial one, that came after he wrote does not change the fact, as he notes, "rights" is often the more appropriate focus, particularly when courts are involved.
The traditional view of the 9th Amendment can be found in a passing reference in one of these cases, Hoke v. U.S. (1913), which concerns a federal law against "white slavery." Argument:
Because the right and power to regulate and control prostitution, or any other immoralities of citizens, comes within the reserved police power of the several States, and under the Constitution Congress cannot interfere therewith, either directly or indirectly, under the grant of power `to regulate commerce between the States.'Response:
If the statute be a valid exercise of that power, how it may affect persons or States is not material to be considered. It is the supreme law of the land and persons and States are subject to it.Thus, the amendment limited federal power and in the process protected individual rights, but if a federal power existed, the amendment does not apply. As Loan notes, as the federal government expanded, the breadth of federal power made this a less useful check, especially with the use of implied powers. The concern didn't just arise during the New Deal, as criticism of John Marshall's rulings (now deemed canonical) showed, but it was taken to new levels in modern times. It is true that "a valid exercise" implies a limit, but a strong presumption of constitutionality generally makes that a limited check. "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail." (principle cited by Justice Brennan in Roth v. U.S., involving federal obscenity regulation). The brief citations underline the limited concern.
In Bute v. Illinois (1948), "the reserved powers of the states and of the people were emphasized in the Ninth and Tenth Amendments" included whether or not to supply a lawyer to a state defendant in most non-capital cases, except if "special circumstances" applied. Due process of law in time was determined to require more. This does not mean the rights at issue were trivial. As Justice Stewart said before he accepted substantive due process in Roe v. Wade:
The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.Rosenblatt v. Baer (1966). Thus, rights are there and protected, but largely by state action. If some federal action invades this safeguard, federal judicial review would be justified. A few references can be found on that front back to the 19th Century as seen in the headnotes to ROOSEVELT v. MEYER (1863) (legal tender law). The Supreme Court held it had no jurisdiction because the lower court upheld the federal law in question (it is questionable if this was correct or they just was trying to avoid a hot button issue; either way, it is clear federal law gives the Supreme Court broader jurisdiction today), but the principle was out there. Again, given the focus on "power," the Tenth Amendment (originally thought of as working hand in hand with the Ninth, in fact, James Madison put the two ideas together) often focused upon. As the lower court did there.
The Bill of Rights limits the federal government. So, yes, originally the Ninth Amendment would take power away from the federal government, not address the limits of the power of the states or the people themselves in respect to violating "retained rights." The Civil War, however, showed the limits to this approach, the states also a major threat without some additional federal limits. Thus, citizenship or even mere personhood brought with it obligations from both the states and federal governments, obligations that could be upheld nationally. The Fourteenth Amendment spells this out, including its fifth clause.
The reach of this federal power, however, was greatly debated. This includes respecting rights -- see the Bute case above where something we now generally deem basic (a right to be given an attorney in any major criminal case if you cannot afford one) was deemed to be the discretion of the states to a large degree. Slowly, however, it was recognized that all have certain rights and local invasion was a concern for federal action. That is, this basic idea was always there to some degree, but the reach of these "fundamental rights" was expanded. As Justice Goldberg noted in Griswold:
The Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights.As with saying a state violates the "First Amendment," the use of "the Ninth Amendment" here is somewhat misleading. What is largely at stake is the Fourteenth Amendment, which in effect "incorporates" the requirements of the Bill of Rights, including the Ninth Amendment. [There are likely other rights that states cannot invade that arise elsewhere such as suggested by this curious discussion of the right to travel.] The fact that states repeatedly added "mini-9ths" in their own constitutions underlined that it put forth a principle that could be applied nationally. Once it was determined that national rights of broad reach applied to all, protected not merely by state actors, the current common understanding of the Ninth Amendment is appropriate.
Goldberg used the Ninth Amendment as a "rule of construction" to further the principles of substantive due process. He cited three basic principles: rights traditionally deemed fundamental, those that work off enumerated rights (the majority's approach) and "from experience with the requirements of a free society."* Douglas himself said as much in his Poe v. Ullman dissent and later (see, e.g., Doe v. Bolton), expressly referencing the "liberty" of due process of law as well. The "penumbra" stuff is ridiculed but was really a one-off though rights "indispensable to the enjoyment of rights explicitly defined" (Richmond Newspapers v. Virginia) continue to be an aspect of their recognition. The connection between SDP and the Ninth was seen in Planned Parenthood v. Casey:
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9.The opinion hooks this up with Justice Harlan's Poe v. Ullman opinion (dissent but now basically normative), which rests on substantive due process. So, though the Ninth Amendment originally limited the federal government, in effect by helping to explain what a "proper" (or valid) use of power entailed in respect to rights, the basic principle applies to state action too. Its sentiment was "incorporated" as were other provisions, and a limited view akin to those who argue the Establishment Clause only offers a federalist limit misses the boat.
A full use of history, recognizing its limitations, helps show this.
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* Natural rights or those "intrinsic" or "inherent" or "basic" to liberty (different adjectives can be found cited, again, usually involving substantive due process) fit in each of these categories, helping to give them life and meaning. Certain enumerated rights were "pre-existing" -- free exercise of religion or use of arms for self-defense, for instance. See, e.g., D.C. v. Heller. Others, such as trial rights, are societal safeguards of such rights.
And, the other two categories also can fit into both categories. Rights arising from family life are traditional and basic to a free society while also basic to our natures. On the other hand, something like marriage is as well, but to the degree the state supplies a marriage license, a positive law component is involved. A trial makes it harder for the government to deprive someone of liberty, but that is not the only way it protects us.
Thus, focus on purely "negative" liberty, freedom from government restraint, is misguided. Ninth Amendment rights as much as anything else in society requires some governmental action to be fully protected. Thus, some argue education -- including that applied by the state -- is a Ninth Amendment right. Society implies certain rights, including those unlisted.