Ninth Amendment to the United States Constitution

However, the Ninth Amendment has rarely played any role in U.S. constitutional law, and until the 1980s was often considered "forgotten" or "irrelevant" by many legal academics.

"[8] Likewise, James Madison explained to Thomas Jefferson, "I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted"[9] by Article One, Section 8 of the Constitution.

I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.Like Alexander Hamilton, Madison was concerned that enumerating various rights could "enlarge the powers delegated by the constitution".

The final form of the amendment ratified by the states is as follows: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

As the U.S. Supreme Court put it in U.S. Public Workers v. Mitchell 330 U.S. 75 (1947): "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."

I do not mean to imply that the ... Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government ...

United Public Workers v. Mitchell, 330 U.S. 75, 94–95.In support of his interpretation of the Ninth, Goldberg quoted from Madison's speech in the House of Representatives as well as from Alexander Hamilton's Federalist Paper No.

I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.But the two Justices who dissented in Griswold replied that Goldberg was mistaken to invoke the Ninth as authority.

[O]ne would certainly have to look far beyond the language of the Ninth Amendment to find that the Framers vested in this Court any such awesome veto powers over lawmaking, either by the States or by the Congress.

The whole history of the adoption of the Constitution and Bill of Rights points the other way, and the very material quoted by my Brother GOLDBERG shows that the Ninth Amendment was intended to protect against the idea that, "by enumerating particular exceptions to the grant of power" to the Federal Government, "those rights which were not singled out were intended to be assigned into the hands of the General Government [the United States], and were consequently insecure."

[F]or a period of a century and a half, no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs.And Potter Stewart's dissent said: [T]o say that the Ninth Amendment has anything to do with this case is to turn somersaults with history.

Douglas joined the majority opinion of the U.S. Supreme Court in Roe, which stated that a federally enforceable right to privacy, "whether it be founded in the Fourteenth Amendment's 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.

Barnett also argues that the Ninth Amendment prevents the government from invalidating a ruling by either a jury or lower court through strict interpretation of the Bill of Rights.

The other pole maintains that there are unwritten natural rights whose content must inevitably be determined, finally and without the possibility of legislative override, by judges.

This allows the representatives of the people, rather than members of the judiciary, to make the ultimate determination of when natural rights should yield to the peace, safety, and happiness of society.

[21]Still others, such as Thomas B. McAffee, have argued that the Ninth Amendment protects the unenumerated "residuum" of rights which the federal government was never empowered to violate.

[22] According to lawyer and diplomat Frederic Jesup Stimson, the framers of the Constitution and the Ninth Amendment intended that no rights that they already held would be lost through omission.