Tenth Ammendment Cases

The Ninth  Amendment

The Ninth Amendment to the United States Constitution states:

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”[1]

The Ninth Amendment reaffirms in the broadest terms, rights “retained’ or held by the people. There were several interpretations on how the Founding Fathers viewed the Ninth Amendment. Federalists, such as Alexander Hamilton felt that the Ninth Amendment as well as the rest of the Bill of Rights was not needed. Hamilton Stated:

“Why declare that things shall not be done which there is no power to do?”[2]

James Madison, also a Federalist, argued that any attempt to “enumerate” fundamental liberties would be incomplete and might endanger other freedoms or rights not listed. Madison said:

“If an enumeration be made of all our rights, will it not be implied that everything omitted is given to the general government?”[3]

Anti-Federalists posed a counter and compelling argument. They insisted that there be a Bill of Rights included for the Constitution to be ratified.  They believed that the Constitution conferred too much power on the federal government and that the Bill of Rights would serve as additional constraints against despotism.[4]

They further addressed the concerns of the Federalists with three counter arguments:

The Constitution guarantees certain liberties, even without a Bill of Rights.

While enumerating “every human right” owed citizens would be impossible, this should not stop the Framers from establishing constitutional protection for certain essential liberties. Thomas Jefferson, in response to James Madison’s claims that no Bill of Rights could ever cover all rights stated,

“…. half a loaf is better than no bread. If we cannot secure all of our rights, let us secure what we can.”[5]

 Lastly, Anti- Federalists argued that if there was an actual risk that naming specific liberties would endanger others, then an additional amendment should be drafted to offer protection for all liberties not mentioned in the Bill of Rights.[6]

The Anti- Federalists argued that this action would protect those rights and liberties that might “fall through the cracks” of any written constitutional provisions. Thus, the idea of the Ninth Amendment was born.

James Madison re-considered the arguments of the Anti- Federalists. He began to believe that the only way to guard against disparaging certain rights by the enumeration of other rights, was to draft the Ninth Amendment. Madison completed the original draft of the Ninth Amendment during the First Congress in 1789. The amendment originally read:

“The exceptions here or elsewhere in the Constitution made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people or as to enlarge the powers delegated by the Constitution, but either as actual limitations on such powers, or as inserted merely for greater caution.”[7]

The House Select Committee as well as the Senate reviewed and revised the Ninth Amendment to its current form. It was placed in the Constitution on September 5, 1789 and was voted for by nine of the twelve states on December 15, 1791.[8]

Both Houses of Congress left three key questions about the Ninth Amendment unanswered:

What is the definition of “unenumerated” which are protected by the Ninth Amendment?

How are these rights identified?

By which branch of government should they be enforced?

It took more than 170 years before any real attempt was made to answer these questions.  An answer occurred in 1965 when the United States Supreme Court decided “Griswold v. Connecticut”, 381 U. S. 479, 85 S. CT. 1678, 14 L Ed. 2d 510 (1965).[9] The Griswold case answered the question: Does the United States Constitution provide for a right to privacy for married couples?[10]  Griswold was the executive director for the Planned Parenthood League of Connecticut. Dr. Buxton was a licensed physician who was the medical director at the League’s center in New Haven, Connecticut. Griswold and Dr. Buxton were arrested and charged with instructing, giving information and medical advice to married persons concerning prevention of conception. Griswold and Buxton were found guilty as accessories and fined $100.00 each under a Connecticut law that banned adult residents from using birth control and prohibited anyone from assisting others in violating the law.

Griswold and Buxton appealed stating that the accessory statute as applied in their case by the state of Connecticut, violated the Fourteenth Amendment to the United States Constitution. Griswold and Buxton claimed standing based on their professional relationship with the married persons they advised. The issue to be decided: “Does the Constitution provide for a privacy right for married couples?”

Justice William O. Douglas, writing the majority decision for the Court rejected the belief that the Supreme Court is obligated to enforce only those rights that are expressly enumerated in the Constitution. Douglas wrote:

“On several occasions in the past, the Court has recognized rights that cannot be found in the written language of the Constitution.”

Justice Goldberg concurred in his opinion and stated:

“The language and history of the Ninth Amendment demonstrate that the Framers of the Constitution intended the judiciary to protect certain unwritten liberties with the same zeal that courts must protect those liberties expressly referenced in the Bill of Rights. The Ninth Amendment reflects the Framers original understanding that “other fundamental personal rights shown not be denied protection simply because they are not “specifically listed” in the Constitution.”[11]

The Griswold decision became the beginning of many debates over the rightful role of the Ninth Amendment in Constitutional law. Two distinct factions of the debate have formed. One faction believes that the Ninth Amendment implores the Constitution to protect not only the freedoms written into it by the Bill of Rights, but additional liberties found outside of the specific language of any one of those enumerated. The other faction believes that there is no way to identify “unenumerated rights” protected by the Ninth Amendment, and thereby no way to interpret or apply these rights.

Many federal courts have found that the Ninth Amendment is more a guideline for interpretation and a rule of judicial construction but not an independent source of Constitutional rights.[12] The view has become that the Ninth Amendment is an invitation for the court to broadly interpret the express provisions contained in the Constitution. One court held that the Ninth Amendment does not spell out any substantive rights. The amendment serves to protect other fundamental rights that are implicit though not mentioned in the Bill of Rights. This was shown in the “Rothner v. City of Chicago” case decided by the U.S. District Court for the Northern District of Illinois in November 1989.  In this case, a video game vendor sued the City of Chicago due to a city ordinance which prohibited children under the age of seventeen from playing video games on days between the hours of 8:00am and 3:00pm in which the city’s public schools are in session. Rothner sought to assert several Constitutional rights, including those sought in the Ninth Amendment. The District Court said of Rothner’s Ninth Amendment claim:

“Despite Rothner’s claim, The Ninth Amendment is not a source of substantive constitutional rights. Rather it was created to preserve those fundamental rights which are implicit, though not enumerated in the Bill of Rights. In the instant case, Rothner has cited no authority recognizing any kind of unarticulated, fundamental right is impaired by the city ordinance. Moreover, there are no allegations which identify a special right that is secured by the Ninth amendment.”[13]


The most well know use of the Ninth Amendment occurred in “Roe v. Wade”.  The U. S. Court for the Northern District of Texas ruled that a states law prohibiting abortion in all instances except to save the life of the mother violated the right to privacy guaranteed by the Ninth Amendment. In affirming the District Court’s ruling, Justice White wrote in his concurrence:

“This right of privacy, whether it be founded in the Fourteenth Amendment concept of personal liberty and restrictions upon state action as we feel it is or as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the state would impose upon the pregnant woman by denying this choice altogether is apparent.”[14]

The Ninth Amendment fulfils the purpose of the Founders. It ensures the underpinning of those rights not enumerated in the Constitution and their reservation to the people.

(Note: The examples cited above illustrate how this amendment has been applied in specific cases. Ninth Amendment claims are not limited to those case examples shown above.)

NOTE: Local government powers cannot violate or supersede the state constitutions and the state codes or state laws of the state where the entity is located.  Local government powers cannot supersede or violate the United States Constitution and Federal Codes or Federal Laws. The United States Constitution and Federal Codes or Federal Laws are always the supreme laws of the land.

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[1] The United States Constitution, effective March 4, 1789-9th amendment added September 5,1789.
[2] Hamilton, Alexander “The Federalist Papers, number 84, May 28, 1788
[3] The Free Dictionary- “Ninth Amendment-Legal Definition” p. 1, March 5, 2017
[4]  Ibid., pgs.1-4
[5] Ibid, The Free Dictionary, p 1-4
[6] Ob.cit, p. 2
[7] Ibid, The Free Dictionary, p.3
[8] “Ninth Amendment” www.kidslaw.com, March 5, 2017
[9] “Griswold v. Connecticut, www.casebriefs.com, August 31, 2009, March 5, 2017
[10] Ibid. p.1
[11] Ob.cit. - The Free Dictionary- “Ninth Amendment-Legal Definition” p. 3, March 5, 2017
[12] Ibid. p.3
[13] “Rothner v. City of Chicago” 725F. Supp.945 (ND Illinois 1989) p.7
[14] “Roe V. Wade” U.S Supreme Court, 410 U.S. 113(1973) pgs.10-11