The Constitution's Forgotten Amendment

This was my first diary over at Daily Kos. Originally published April 13, 2009.

In 1965, in Griswold v. Connecticut (381 U.S. 479) , the Supreme Court ruled that the right of married couples to use contraception was protected by the right of privacy. Justice Arthur Goldberg, in a concurring opinion used the long-forgotten 9th Amendment to defend his decision:

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

During these past 44 years, there has been little use of the 9th Amendment to establish new rights under the Constitution. Instead, the Courts have looked to the 14th Amendment and its Due Process Clause, such as in Roe v. Wade (410 U.S. 113) and Lawrence v. Texas (539 U.S. 558). The 9th Amendment, meanwhile, has seemingly been consigned to the ash heaps of history largely being unused by citizens attempting to establish their rights, and courts establishing those rights.


Certainly the drafters of the Constitution did not intend for portions of the Bill of Rights to go unused, as the 9th Amendment has throughout history, yet this is precisely what has happened. During these past 44 years, there has not been a single case decided specifically on 9th Amendment. In fact, following the decision in Griswold, the 9th Amendment became one of the favorite punching bags of constructionists, who have constantly disparaged it while claiming only those rights explicitly listed in the Constitution exist.

Conservatives always claim that liberals are "legislating from the bench" and "inventing" rights. However, the wording of the 9th Amendment make it clear that there are rights in the Constitution not enumerated in the Constitution. Instead, these "liberal judges" that are "legislating from the bench" and "inventing" rights are merely upholding the spirit of the 9th Amendment by ensuring the Constitution remains a living and breathing document, even if not specifically invoking it in their reasoning.

During this time that the 9th Amendment and liberal jurisprudence have been disparaged, another long-forgotten amendment, the 10th Amendment has seen a resurgence. The 10th Amendment is quite similar in wording and vagueness to the 9th Amendment:

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.

In United States v. Lopez (514 U.S. 549), the Supreme Court limited the power of the federal government under the Commerce Clause for the first time since the Great Depression, declaring the Gun-Free School Zones Act of 1990 unconstitutional. A similar fate befell a portion of the Violence Against Women Act in United States v. Morrison (529 U.S. 598).

These rulings were significant because many of the federal acts and programs that we consider most important, such as the Civil Rights Act, the minimum wage, Social Security, and Medicare, are all dependent to a large extent on the sweeping powers granted the federal government under the Commerce Clause.

Despite this renaissance in 10th Amendment jurisprudence there has been no corresponding renaissance in 9th Amendment jurisprudence. On its face, the 9th Amendment seemingly makes it clear that there exist rights under the Constitution that are not explicitly listed within the Constitution. This reflects the thinking on the part of the drafters that they could not conceive of everything, nor could they waste their time attempting to list everything in the Constitution, as evidenced by the Necessary and Proper Clause (often called the Elastic Clause):

The Congress shall have the power... To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

In fact, the 9th Amendment reveals the contradiction at the heart of constructionism. Constructionists such as Antonin Scalia and Clarence Thomas (while they might use other terms to describe themselves, with Scalia styling himself a textualist and Thomas styling himself an originalist, they largely adhere to the beliefs of constructionism) believe that the Constitution is dead, rejecting the idea of a living Constitution, and accordingly believing that only the rights specifically enumerated in the Constitution exist.

This ignores the very explicit wording of the 9th Amendment and validates the fears of opponents of the Bill of Rights, who argued that creating a Bill of Rights would limit the rights of the people because some would argue that the only rights existing under the Constitution would be those specifically enumerated in the Constitution. The 9th Amendment was an attempt to ameliorate those fears and establish that the rights enumerated in the Constitution were the minimal rights afforded the people, and not the maximal rights. In fact, it would logically flow that the rights enumerated in the Constitution were not the minimal rights because the 9th Amendment makes it clear that there are constitutional rights not specifically enumerated in the Constitution.

Clarence Thomas has only further put this problem in focus with his disparaging our rights by saying he believes "there is too much focus on our rights" and "a proliferation of rights". Instead, Thomas proposes a Bill of Obligations and a Bill of Responsibilities.

Today, with the 4-4 split on the Supreme Court, with Anthony Kennedy a conservative-leaning swing vote, and three young conservative justices on the Court, Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, 60 or younger, and the youngest of the four-member liberal block, Justice David Souter, turning 70 this year, we are reminded of the importance of last year's presidential election. [Update: Since the original writing of this diary Justices David Souter and John Paul Stevens have retired, with President Obama replacing them with the younger Sonia Sotomayor and Elena Kagen, respectively.] If more justices like Alito, Roberts, and Thomas join the Court it will no longer be the 9th Amendment consigned to the ash heaps of history, but many other rights that we already take for granted and many rights that we are still fighting for.

Perhaps this will serve as a wake-up call, and perhaps when President Obama appoints his first Supreme Court Justice, we will see a revival of 9th Amendment jurisprudence, whether in name or in spirit.