The Ninth Amendment…

| August 19, 2019

…or, Great Power From Few Words.

Veritas Omnia Vincit is back from his sailing vacation, and found the time to pen his latest essay on the Bill of Rights. In this case the Ninth Amendment, which I’m sure you’ve already gathered. An interesting Amendment, in that it’s impossible to specifically list all Rights afforded to Citizens. Enter the Ninth, a catch-all Amendment for rights not listed. From V:

Veritas Omnia Vincit

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This is another example of the founders intent to make sure everyone understood the Bill of Rights is not a series of rights granted to the people but is in fact a series of restrictions designed to confine and restrain government from its overwhelming desire to constantly encroach itself into the lives of the people it governs instead of simply letting them live freely without encumbrance. This amendment was added largely due to Anti-Federalist concerns that future governments of these United States might take the enumerated rights of the Bill of Rights as the only rights the people had that were protected from the government.

This simply sentence clearly states that just because the founders didn’t enter a restriction into the Bill of Rights doesn’t mean the people don’t retain those rights. In fact, if there is any question as to whether or not we have a right to something the ninth indicates the government should consider that we do possess that right rather than assume we do not.

Interestingly enough that amendment was largely left alone for most of the history of this great nation. It rose to prominence in 1965 when Justice Arthur Goldberg wrote an opinion citing the ninth specifically when he reasoned that the right to privacy while not enumerated specifically in the constitution was nevertheless an obvious right retained by the people. That opinion came during the Griswold v Connecticut case.

Griswold v Connecticut is interesting for several reasons…some of them remaining topical to this very day. In Hartford CT in 1935 the very first Planned Parenthood office opened up largely providing services to women who had no health care access to gynecologists. They also provided contraceptive information. They were compelled in the late 30s to comply with the 1879 anti-contraception laws. During the 40s several court cases arose from this situation and that began a series of legal challenges many of them failing on technical reasons. Fast forwarding to 1961, Yale School of Medicine had one of their doctors challenge the law on behalf of his patients as a failure to obtain certain birth control methods was a threat to the lives of some women. SCOTUS dismissed that challenge on the lack of standing as the doctor nor his patients had yet been charged. The dissent written by John Marshall II indicated it was his firm belief that the court should have heard this case, largely because the “full scope of liberty guaranteed in the due process clause cannot be found in or limited by the precise terms of the specific guarantees provided elsewhere in the Constitution…” One of the question that came up was whether or not the State of Connecticut intended to allow police to search the bedrooms of its citizens looking for evidence of contraception…violating the sanctity of the private marital relationships all citizens believed they held. Marshall went on to add, “This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms in the United States; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”

That second part once again reinforcing the notion that we the people are born with a multitude of natural rights far beyond those enumerated in the first eight amendments and that simply because it had not been enumerated did not mean the right didn’t exist. Knowing the Libertarian natures of several of the founders that idea of natural born rights is one I wholeheartedly agree with. It also sits well with the idea behind several of the amendments statements such as “shall make no law” and “shall not be infringed”. Our rights are not granted us by the Constitution, instead our Constitution and Bill of Rights are both mechanisms designed to restrict and rein in the avarice of government and the people who become part of any governing body.

In any event after Marshall wrote that dissent the Connecticut Planned Parenthood decided a challenge in which someone did in fact have standing due to being charged was in order. Consequently they opened a birth control center and directly challenged the law. Ms. Griswold, the director of the Planned Parenthood in Connecticut was arrested as was Dr. Buxton and both were arrested, tried, found guilty and fined. The Connecticut Appellate Court and State Supreme Court both upheld the convictions setting the stage for the SCOTUS to take a look once again.

The Griswold appeal focused on the fourteenth amendment protections, and the case was decided by a 7-2 majority. Justice William Douglas wrote the opinion for the majority that a basic right to privacy while not specifically enumerated in the Constitution was still one retained by the people. Justice Arthur Goldberg concurred going as far as to use the ninth amendment to clearly state that the right to privacy was one of a host of other rights that the ninth amendment protects from government intrusion.

There has been some serious back and forth amongst legal scholars regarding the concurring opinion and its use of the ninth to justify a right to privacy. In my not so legal opinion those that find there is no inherent right to privacy, which includes some powerful legal minds, are the ramblings of statists attempting to justify yet more incursions into our personal freedoms. If one understands the founders, who they were, what they had just done one should come away with a very simple understanding. The founders were not at all statists, they never trusted nor believed that a government would ever act honorably unless fully contained and restrained by the people who consented to be governed. Consequently when considering any law that bumps into a potential Bill of Rights protections it is my non-legal view the correct assumption is the one that limits government and permits the most freedom of action by the citizens of the United States. Even if that is to the detriment of the Government as the founders didn’t at all care how much Government was inconvenienced as long as the people remained as a free as possible.

We’ve long since drifted away from the rugged individualist nature of our founders, men willing to kill their former countrymen to avoid paying a minimal tax that all of them could easily afford to instead start a new nation of equality under the law and representative government of the people with the consent of the governed. They were not “statists” by any realistic definition of the word, they said we will fight you to the death on principle rather than concede and save ourselves the risk. It’s my opinion that today most of our fellow Americans are only too happy to pay more in taxes to get more “free” government programs. We are hardly the stuff of individual accountability and responsibility today. That should sadden all of us to some degree.

You will find the statists among your friends, and your colleagues. They pretend to be otherwise, but they are not and are easily discovered should one choose to find them out. They will often use the opinions of government to back their support of government. They will say things like, “I believe in free speech, but….” and it never matters what comes after that but because it is simply a justification for another government intrusion into your protected rights.

That’s all I have on this one, a not very often used amendment but perhaps one more example of the power the founders wanted to leave in our hands and not the dirty, corrupt hands of government. Your opinions are always welcome.

VoV

Thanks again, V. Elegant in its brevity, yet covering an immense span of “other” Rights not specifically listed elsewhere.

Category: Guest Post, Historical, Legal

Comments (26)

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  1. timactual says:

    It makes me wonder why William O. Douglas raved about “penumbras” and “emanations” when the 9th Amendment was staring him in the face.

    • 11B-Mailclerk says:

      Perhaps he sought to keep everyone else, including the opposing viewpoints, from also “emanating in the penumbra” of the 9th.

      He was well aware of it.

  2. 5th/77th FA says:

    “…hardly the stuff…should sadden us…”

    Sadden hell!!!!! Pisses me off!!! Almost as much as the career politicians that are doing whatever they can to take ALL of our rights away because “they know what is best for us”. AND whatever they can do to destroy the Republic that the Founders laid out for us. Too many have laid aside their responsibilities and a desire to WORK for what they want. Gimmee, Gimmee, Gimmee, more free stuff, pay my bills, who goin get my baby a book bag, how else I’ma goin gets money, hell the list goes on. We have met the enemy and it is us.

    Spot on VoV and an excellent job on the civics/history lesson. Oh be it that these post become a lesson plan for elected officials…before the can be elected…and after they pass the test. Thanks!

    • rgr769 says:

      Progs like to ignore the plain language of the constitution, especially provisions like this one which they consider a dead letter.

  3. Stacy0311 says:

    Sadly, most Americans do not realize that the Constitution was written to limit the power and scope of the federal government. They speak of “Constitutional rights” as if the constitution is what grants them their rights.

    • Poetrooper says:

      More sadly, Stacy, is the reality that young Americans are daily being taught, either through ignorance or malignant intent, that the Bill of Rights is an instrument “granting” them limited, and possibly revocable, rights, rather than the truth, that it is undeniably a clear limitation on the powers of governance.

      Liberals have as clear a view of the Constitution as they do of climate data.

      • Fox Mire says:

        The strangest thing of all is that those who seek to limit freedoms are referred to as liberals. Of course the constitution is flawed, that is why there are amendments, thank the founders they are difficult.

    • Just Lurkin says:

      The ninth and tenth amendments ought to make it clear that the Constitution is a giant anti-trust act against the federal government, but sadly you are correct as far too many people seem to understand the founder’s intent.

  4. MI Ranger says:

    Well said VoV!
    However, when you stated…”We’ve long since drifted away from the rugged individualist nature of our founders, men willing to kill their former countrymen to avoid paying a minimal tax that all of them could easily afford to instead start a new nation of equality under the law and representative government of the people with the consent of the governed. They were not “statists” by any realistic definition of the word, they said we will fight you to the death on principle rather than concede and save ourselves the risk. It’s my opinion that today most of our fellow Americans are only too happy to pay more in taxes to get more “free” government programs…” I think you meant to say have other people pay more in taxes (not them pay more).

    The problem with the Libertarian Party is they aren’t very libertarian, they just don’t want to pay any taxes. There are some things that individuals can’t provide, but are needed. For example common defense (military as well as Police), roads, and protection of interstate commerce to name a few. Plus, the ones that I talked to all seemed to be bigots, I may not have a tan but I believe everyone should have an equal chance not just certain European ethnicities!

    • Veritas Omnia Vincit says:

      The Libertarians I know all tend to fight over who is the “purest” Libertarian of all and consequently can’t agree on anything.

      I tend to piss them off when I mention that’s probably why they can’t win a single election at any level of US Government. They are a collection of anti-government dipshits all arguing over things they’ll never achieve.

      • 11B-Mailclerk says:

        That pesky human nature keeps screwing up Utopia.

        Any Utopia.

        Its like we had a sin nature or something.

        You can call it something else, but folks “do wrong” unless they or others motivate them to do right. Our default state, and behavior, is pretty grim.

        Some folks self-control. Others need some external persuasion. The Utopians believe that the right mix of laws, or lack of them, will “perfect” Man.

        Ain’t happened in 10,000 years of “Law-ing”. That should be a clue.

        The libertarians do have a point that “less” tends to be less harmful, but the “capital L” sort tend to carry it to unreality extremes.

        The transition path to new governance is essential. Contrast the US and French revolutions.

  5. Roh-Dog says:

    Clearly, the intent of the contemptible Founding Patriarchy was to create a living, breathing document that franchisees the few to benefit the many, by a regulated market of intersectionalism and feelings.
    Get a clue you knuckle-dragging Neanderthal hawuite male demons!
    You will be brought to kneel before the alter of pedophilictechnocraticmulticulturalism!
    (I wish the prior statement was complete sarcasm but there are a bevie of our fellow countrymen that have the above operating philosophy)

    • Veritas Omnia Vincit says:

      Give me liberty or Give me death used to be an actual statement made by our forebears….now it’s give me free college and a free base pay for simply existing.

      It was said the Republic won’t survive once the great mass of people realize they can vote themselves money….hopefully we will avoid voting in our own demise.

      • JL says:

        What’s wrong with free education?!? You must have skipped yours. The preamble of the Constitution mentions protecting the General Welfare, and that democratic socialism has always been a part of our great nation. There is nothing wrong with helping my fellow citizens, it’s actually patriotic! I’m a social libertarian, and I hope you realize what the heart and soul of our great nation is, our compassion, is what makes us strong!

        JL,
        I took the liberty of changing your name to initials. Think of it as personal security; there are people out there who wish us ill, and have used member’s names in frivolous lawsuits.
        AW1Ed

        • Roh-Dog says:

          “What’s wrong with free education?”
          Nothing, but burdensome regulation and unions, top to bottom, have ruined a once great thing.
          Public education was at its best when municipalities had final control (I’m not sure if that’s causality but I’m damn sure willing to revert to local control, across the board. DC is a tick that should be starved).
          And does the ‘General Welfare’ clause include fruit rollups? They tend to lift my Welfare in spades!

        • Fyrfighter says:

          JL,
          Yes compassion does make us strong, but when it’s an the point of a govt. gun, it’s not compassion, it’s compulsion.

  6. Greg says:

    I just luv the idiots who duct tape their AK’s to their cold dead hands but refuse to allow women to choose when to give birth or have access to contraception or even mention the word abortion. No one is forcing anyone to have an abortion. If you don’t want it don’t get it. LIKEWISE, stop telling anyone else they can’t.

    Libertarianism is ok as long as you don’t have too many people crowding around. The more people the more we need laws – to protect us from idiots. Sure, when your nearest neighbor is 10 miles away shoot your gun anywhere you want to. When you can spit from your side window into your McMansion-neighbor’s bathroom window, NO, you can’t shoot anything. Period.

    t-Rump-the-Terrible memorized the NRA’s script shoved in his dumb face saying it’s people not guns who pull the trigger. Brilliant. OK, yes, AND if the peeps ain’t got weapons of war that ought to be restricted to our beautiful patriotic soldiers who have been taught how to use them, then the mentally ill peeps won’t be able to pull any triggers.

    & BTW, who closed those mental institutions he wants to rebuild? Ronnie Ray-gun (the now-deposed GOP god)!

    djt says we have background laws. He’s right (as in R-WingNutz), butt yes, yes we do. However, what we need to do NOW is close all the freakin’ loopholes.

    If you want the bare arms avail to our founders, fine, go right ahead … load up all your blunderbusses – with the same ammo they had. NO ONE who lives here was born with the right to any assault, automatic, semi-auto- shootin’ sticks or 100 round mags, etc, et al. Not even djtj or e-nit-wit would use an AK to shoot an endangered lion. If they want that many holes hanging on their walls let them recycle a buncha ocean-stranded fishnets!

    I do agree – we need a lot more people who know how to read the Constitution & how to draw logical conclusions. That’s zackly why we need free college tuition & increased funding to bring ALL public schools up to the levels we think they used to be.

    If ya got 3 spare hours i’d be glad to spend them with you. Even though i’m retired, i’m told i’m still a pretty good teacher. 🙂

    • David says:

      Weapons of war. Any weapon or object can be used as a war weapon. Way back it was rocks, then spears, then came bow and arrows, then comes guns.
      Why should the people have the right to the same weapons as the Government? When you read and understand the second amendment, it is so the people in the event the Government becomes to big and limits or tries to remove the rights of the people we can form a militia of good people to come against said government and remove and replace that government. With out the access to the same weapons that the government has it would be like bringing a knife to a gun or tank fight. The people would no longer exist and the government could or would become a dictatorship.
      Our rights to bear, buy and stock up shall not be infringed.

    • kishan kt says:

      Hey, Trump is also part of a Government, it is not his or the job of Congress to legislate on either gun use or abortion.Bill of rights is clear, it is our job, to be more responsible citizen

    • Fyrfighter says:

      Greg,
      Are you just a troll, or are you really that stupid? You obviously have absolutely zero understanding of the Second Amendment, and actually the Bill of Rights as a whole which as VoV points out, restrains govt, not the people. Try reading some of the other things the founders wrote in reference to the right to keep and bear arms, and the ridiculousness of your statements will become apparent.
      As to contraception and abortion, two different things my friend… I agree with you 100% that govt has no business in regulation contraception, that is the choice of the individual involved only. As to abortion, for your argument to have any merit you’d also have to argue that laws against all murder should be done away with, after all, no-one is being forced to murder another, it’s their choice.. See how stupid it is when phrased like that? Well, advances in medicine and DNA make it very clear that an unborn baby is a distinct human being in every sense of the word, and under any other circumstances, killing another human being is murder. Abortion is exactly the same thing, the only difference being the age / stage of development of the victim..
      While trolls can be fun to kick, they get tiresome. Please educate yourself before you return, or feel free to stay in your basement, or wearing your antifa mask..
      Also, in regard to those who tell you that you’re a pretty good teacher??? THEY LIE!

      • KT says:

        Just asking u, do people who want to abort babies, think one day, hey let’s go kill this baby today,

        Do u have any idea what goes through their minds before killing another human . .? Have u ever had a chance to talk to these people before going for an abortion?

        Thank you

        • Fyrfighter says:

          Honestly, I think it’s a mix, some most likely have a tough time making such a decision, others, who “celebrate their abortion” yes, I do think they view it with no more concern than they would having a mole removed.
          Thing is, their feeling are irrelevant. they are killing a baby… The left has spent nearly a century devaluing human life, teaching people that anything that interferes with their happiness can be done away with without concern, so many today believe the myth that it’s just a “clump of cells”, and as such, of no concern. The left has also taught that morals are out of date, and subject to an individuals interpretation, which just reinforces the idea that anything that interferes with your plans can be done away with.
          To look at it another way, suppose a person was taking care of an elderly parent with significant medical problems / needs.. would the fact that the person did or didn’t struggle with the decision, before having that parent killed because they were an inconvenience matter to you? Or wold the fact that they had them killed be the only point of concern.
          As i said above, the only difference between what we call murder and what we call abortion is the age of the victim.

        • Fyrfighter says:

          I’m sorry, I didn’t answer the last part of your question,
          “Do u have any idea what goes through their minds before killing another human . .? Have u ever had a chance to talk to these people before going for an abortion?”..
          Yes, some on a personal level, and some as a paramedic. I have talked to those who have spent their lives regretting the decision, coming to realize that they killed someone who depended on them for everything, and I have talked to others who were totally callous about the whole thing, and did, and would continue to use abortion as a form of birth control. In general, from those conversations, and their actions in other aspects of life, they were totally soulless creatures, with no concern beyond their own happiness, even though they often took steps to virtue signal otherwise.

  7. David says:

    Weapons of war. Any weapon or object can be used as a war weapon. Way back it was rocks, then spears, then came bow and arrows, then comes guns.
    Why should the people have the right to the same weapons as the Government? When you read and understand the second amendment, it is so the people in the event the Government becomes to big and limits or tries to remove the rights of the people we can form a militia of good people to come against said government and remove and replace that government. With out the access to the same weapons that the government has it would be like bringing a knife to a gun or tank fight. The people would no longer exist and the government could or would become a dictatorship.
    Our rights to bear, buy and stock up shall not be infringed.

  8. Dan says:

    Never give up your guns .

  9. JR says:

    Madison stopped trying to enumerate rights too soon. We have posted an expanded Bill of Immunities at https://www.constitution.org/reform/us/immunitates.html that lists most of the more important. Long list, but not really “infinite”.