9th & 10th Amendment 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 of 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 is 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 of 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 the 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 to stand 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 Framer's 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 that prohibited children under the age of seventeen from playing video games on days between the hours of 8:00 am and 3:00 pm 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-known use of the Ninth Amendment occurred in “Roe v. Wade”. The U. S. Court for the Northern District of Texas ruled that a state 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 fulfills 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

The Tenth Amendment

The Tenth Amendment to the United States Constitution states:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states are reserved to the states, respectively, or to the people.”[1]

This amendment grew out of the attempt by South Carolina Representative Thomas Tudor Tucker and Massachusetts Representative Elbridge Gerry to propose amendments that would have limited federal government powers to those “expressly” delegated in the Constitution. This action would have denied the federal government those powers implied by the Constitution.[2]

Among those against the amendments proposed by Tucker and Gerry was James Madison. Madison stated:

“… it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication unless the Constitution descended to recount every minutia.”[3]

The “expressly delegated’ version of the Tenth Amendment was defeated. Roger Sherman, Connecticut Representative, drafted the Tenth Amendment as it is stated in the United States Constitution, minus “expressly” in its wording. Sherman’s version allowed for a wider reading of the powers of the federal government, implied in the “Necessary and Proper” clause.

The Framers had two purposes when the Tenth Amendment was framed:

The Tenth Amendment was to be a necessary rule of constriction
The Tenth Amendment was to be a reaffirmation of the nature of the federal systems of freedom.

The Tenth Amendment is regarded as a truism. The Tenth Amendment does not add anything new to the Constitution. It simply states and emphasizes that the federal government has jurisdiction over some matters of government, and the states have jurisdiction over other matters. This distinction defines the federal system. The Tenth Amendment does not prevent the federal government from telling state governments how they must run. The Supreme Court rarely overturns a federal law because it violates the Tenth Amendment. The Constitution gives Congress the right to regulate interstate commerce through the Commerce Clause. A prime example of this is the “Gonzales v. Raich” case decided in 2005.[4] Raich sued the United States federal government because it seized her personal medical marijuana crops. She sued based on the California state law that made it legal for her to have such crops. In this case, the Supreme Court ruled that federal laws overruled California’s laws in this area. The government had contended that consuming one's locally grown marijuana for medical purposes affects the interstate market of marijuana, and the federal government may thus regulate and prohibit such consumption. The federal government maintains the right to regulate interstate commerce. Federal government law remains supreme over state law, even in the face of the Tenth Amendment.

Other cases occurred, which clearly illustrate this point. The passage of the Fair Labor Standards Act of 1938 (FLSA), through the diligence of President Franklin Roosevelt, challenged employment practices in many of the states. The act provided for:

“the right to a minimum wage, and "time-and-a-half" overtime pay when people work over forty hours a week. It also prohibits most employment of minors in "oppressive child labor." It applies to employees engaged in interstate commerce or employed by an enterprise engaged in commerce or in the production of goods for commerce unless the employer can claim an exemption from coverage.”[5] In the “United States v. Darby Lumber Company” case, Darby, the lumber company owner, was found to be in violation of the Act. Darby questioned whether the United States federal government had overstepped its powers by creating the FSLA. Additionally, he claimed that the record-keeping requirement under the FSLA would violate Darby’s Fifth Amendment right of “self-incrimination.”[6] The U.S Appellate Court in the Southern District of Georgia had ruled in favor of Darby, removing the indictment for his violations under FSLA. The United States Supreme Court ruled unanimously in favor of the federal government, reversing the decision of the appellate court. It affirmed the Constitutional power of Congress to regulate interstate commerce which

“can neither be enlarged nor diminished by the exercise or non-exercise of state power. The Fair Labor Standards Act was a constitutional exercise of Congressional power under the Commerce Clause.” [7]

The Court further held that the purpose of the FLSA was to prevent states from profiting economically through interstate commerce by employing substandard labor practices. The Court further ruled that the record-keeping standards under the FLSA did not violate Darby’s Fifth Amendment rights.

The “United States V. Darby Lumber Company” case struck down the ruling in the “Hammer v. Dagenhart” case, which previously protected state power to regulate child labor laws. In “Hammer v. Dagenhart, 247 U.S. 251 (1918)”, it was decided that the United States government had no right to regulate labor conditions in the states by prohibiting the sale of goods manufactured by children under the age of 14 or between the ages of 14 and 16, who worked longer than 8 hours per day, “the products of which may never enter interstate commerce.”[8] This decree continued the cruelty which was child labor for another 20 years until “United States V. Darby Lumber Company.”

“Hammer v. Dagenhart” is a case often cited by those who state that the sole purpose of the Tenth Amendment is to protect “states' rights.” Author and Constitutional scholar Garrett Epps stated:

“By and large, there is no “clean division” between states and federal government in the Constitution we have. Of course, the Constitution guarantees a role for the states. Some powers are given exclusively to the federal government and cannot be shared, such as the power to conduct war, negotiate peace, regulate currency, and emit bills of credit or set the discipline of the armed forces and state militias. Some powers are given to the states and can’t be taken by the federal government, including the power to designate state capitals, adopt state constitutions, draw the political boundaries of cities and towns, choose the officers of their state militias.”[9]

Epps goes further to mention certain powers denied to the federal government and those denied to the states. He points out the most significant and often forgotten part of the Tenth Amendment:

“The rest -powers that aren’t given explicitly and exclusively to one government or the other- belong to the people. The people are the holders of “rights”; they are the holders of “sovereignty.” And being sovereign, the people can insist that powers be shared by the states and federal government, relying on the political process, and on their own supremacy as expressed in presidential and congressional election to police the boundaries.”[10]

As is often forgotten by those who view the Tenth Amendment as the ultimate protection of the states, it truly protects the people.

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

For more information or assistance, please see the following sections on this website:

[1] Constitution of the United States, effective March 4, 1789, ratified 1791- Amendment Ten

[2] “Tenth Amendment to the United States Constitution” Wikipedia, The Free Encyclopedia, p.2 April 15, 2017

[3] Ibid p.2

[4] “Gonzales v. Raich,” 545 U.S. 1 (2005), United States Supreme Court, Wikipedia, The free encyclopedia, February 23, 2019, p. 1

[5] The Fair Labor Standards Act of 1938, 29 U.S.C. § 203, Wikipedia, The free encyclopedia, February 23, 2019, p. 1

[6] “United States v. Darby Lumber Company,” 312 U.S. 100 (1941), United States Supreme Court, Wikipedia, the free encyclopedia, February 23, 2019, p. 1

[7] Ibid p2.

[8] “Hammer v. Dagenhart, 247 U.S. 251 (1918)”, United States Supreme Court, Wikipedia, the free encyclopedia, February 23, 2019, p. 1

[9] Epps, Garrett, “Myth #7: The 10th Amendment Protects ‘States’ Rights’, The Atlantic Magazine, July 2011 as found online, February 23, 2019, p.1

[10] Ibid, p.1