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The Ninth Amendment & Unenumerated Rights


♪♪Music♪♪ This lecture is entitled,
entitled bottom of the 9th. What I want to do in this
lecture is talk about the 9th amendment of the Constitution. The last substantive rights
based amendment in what we call collectively the Bill of Rights. The 9th amendment in the words
of the eminent Jack Rakove is a joker that’s never been played. It’s a card that’s never been
played in a hand in Constitutional law in any
meaningful way in American Constitutional history though
some Justices have used the amendment to justify their
opinion; it has never been the basis of a majority therefore
binding precedent of American Constitutional law. But it’s never the less a
fascinating amendment, so there’s an interesting question
of why it’s never been used and I think we might get an answer
to this at the end but there’s also an interesting question
about how the amendment works. The amendment says the
enumeration in the Constitution of certain rights shall not be
construed to deny or disparage others retained by the people. Let’s take a second and break
that down. The enumeration in the
Constitution of certain rights which is what the word
enumeration means, it means to make a list. So we can imagine that the
Constitution and we can look at it and see that the Constitution
lists certain rights that we have. And then it goes on to say that
the enumeration of those rights shall not be construed or
understood or used to deny or disparage others retained by the
people and there really should be another word in there, other
rights retained by the people because that’s what that
implies. So the 9th amendment says
potentially and scholars disagree with this, jurors
disagree, it’s not over whelming but there is some debate about
this of whether or not all in other words, whether the 9th
amenfdment says that whatever rights are listed in the
Constitution in other places are not exhaustive of the rights
that the Constitution gives us. In other words their not
exhaustive of the rights that we can hold up against governments
both national and state. In other words the more rights
that we have that are just as important as the rights that are
written down and enumerated, there are other rights that we
have. Well this is potentially
problematic for the way that we understand American
Constitutionalism. We understand it as a higher law
as I’ve said many times, that rules, they are the rules of the
game under which normal kinds of political operations happen. They’re the rules of the game. We wrote the Constitution down
to both empower the national government and limit it at the
exact same time and by writing things down we limit. Writing is an inherently
limiting endeavor at the same time that it can also create
things, right? We like to think that God
created the world through writing, right? In Genesis, right, he wrote the
world? Well we wrote a Constitution. But the question is that
Constitution exhaustive of all of the rights and the 9th
amendment seems to suggest that it’s not. And that’s potentially
problematic for a notion of a higher law Constitution because
the idea with a higher law Constitution as we’ve heard
especially with the amendment lecture was that it’d be very
difficult to change, not impossible, but very difficult
to change. Certainly ordinary pieces of
legislation do not equal that higher law. But if the 9th amendment says
that there are other rights retained by people besides those
that are enumerated or listed in the Constitution, then by
ordinary simple legislation or simply an assertion by a single
Justice that there is a right out there that we might have
that’s just as important that’s just as much a part of the rules
of the game as those rights that are written down, that
particularly violates article 5 of the Constitution. It potentially puts into the
Constitution without going through, skipping the amendment
process, an amendment to the Constitution that is, that has
done gone through the proper channels. So, but one other way to
understand the 9th amendment without criticizing it in a
sense, without looking at it negatively, would be to do, to
use the idea that the eminent political and legal philosopher
Ronald Dworkin argument. And he makes an argument that we
should understand Constitutional rules, rules of the game right,
these higher laws or rules through a simple exercise of
making a distinction between concepts and conceptions. What he means by that for
example would be, we can have a conception of whst due process
of the law is, or we can have the concept of due process of
law, this big airy concept but then at particular periods of
time we can have particular conception of what that means,
to whom it applies, how it works, ok? So there’d be a difference
between the concept of due process or individualized or
even periods of conceptions of what that category of rights
means. Now if we do, if we understand
Constitutional law or higher law in that way the 9th amendment
seems to make a lot of sense. That there, yes, there are other
rights out there that we don’t list down for a lot of reasons,
if we do buy into this argument that these, these concepts, that
these are the concepts then it would be impossible to list in a
Constitution all the rights that we have. We would have to discover new
ones or resurrect new ones or get rid of some to if the case
may be. So in that sense the 9th
amendment makes a lot of sense but there of course other rights
that we have. The rights that we have that
we’ve enumerated are very, are very important ones but their
not exhaustive of the rights that we have. Now, less we think this is
unimportant as it’s in the words of Jack Rakove, a joker that’s
never been played, the 9th amendment is very important in
overall development of Constitutional law. The first time that it becomes
important in our generation, in the last forty years, is in a
very seminal case called Griswald vs. Connecticut where the court
recognizes a right to privacy, a general right to privacy, but
within that right or under that concept of privacy is the right
of marital privacy specifically whether or not husbands and
wives can choose whether or not to use contraception. Now there is no specific
enumerated right to privacy in the Constitution. You can look through your pocket
copies all day and all night; you will not find the word or
the term right to privacy. The first Justice on the court
said their was one though, the first Justice who ruled on this,
Justice Douglas said I can find a right to privacy. I can look at the enumerated
rights, specifically the Bill of Rights and they form he said
penumbras and emanations. In other words, the 3rd
amendment says we’re going to prohibit the quartering of
soldiers in your home. Well even though that doesn’t
specifically say privacy that sends up almost a smoke signal
like idea of privacy. Why would you be concerned about
prohibiting soldiers from their home, from your home if you
weren’t first concerned about privacy? Similarly with the 4th amendment
prohibition against unreasonable searches and seizures and the
requirements that warrants be very specific when they’re
issued. Why would the Founders have be,
been concerned to write down that right, enumerate it, make
it a fundamental right if they weren’t so very concerned about
privacy? But Douglas wasn’t the only one
concurring opinion agreeing that this was this right to privacy. Another Justice, Justice Arthur
Goldberg, said that this right to privacy could be found in the
9th amendment. He said this marital right to
privacy can be found in the 9th amendment. Now of course the 9th amendment
doesn’t say that, nevertheless we have from Griswald vs. Connecticut recognized the
marital right of privacy. Just a few years later after
that we recognized a single persons right to privacy with
contraception and just 8 years after the 1965 case of Griswald
vs. Connecticut in Roe vs. Wade we recognized that that
right to privacy was also much larger, it was large enough to
encompass a woman’s right to choose whether or not to have an
abortion and that right was a private right between her and
her doctor. So at the very least, although
the 9th amendment has not been used in any major controlling
case or in other words, we haven’t had a majority of the
court just those, just that majority use the 9th to construe
extra rights, we have had some, nevertheless the 9th amendment
has become extremely important in the notion, in the area of
rights in the United States. One last thing about the 9th
amendment, it ids the court that’s interpreting what these
rights are. If they were to use the 9th
amendment they would have to decide what those other rights
are besides those that are written down and in that case
Griswald vs. Connecticut, there were 2
descents, Justice Harlan and Justice Hugo Black and I would
encourage you to read Justice Hugo Blacks descent not so much
because I agree with it but because I think it’s a brilliant
refutation of the use of the 9th amendment and this other
argument that was used in the case, to find a right to privacy
but more generally a wonderful refutation of the argument
against adding things to the Constitution outside of the
amendment process. Now if Blacks right and we have
to understand the 9th amendment in a very limited way, in a very
limiting way but if the 9th amendment is understood in the
way that say Ronald Dworkin understands it, that these are
general concepts and at various points of time we can have
different conceptions of what that concept means then the 9th
amendment is very, potentially very, very powerful rights
creating amendment. Thank you. (Applause) (Music) Freedom 101
is made possible by generous support from Woody Young and the
University of Oklahoma Alumni Association Freedom 101 is a
program of the Institute for the American Constitutional Heritage
at the University of Oklahoma. For more videos and podcasts
visit freedom.ou.edu. (Music)

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