- [Kim] Hi, this is Kim from Khan Academy.
Today we're learning more about the Ninth Amendment
to the US Constitution, which reads,
"The enumeration in the Constitution, of certain rights,
"shall not be construed to deny or disparage
"others retained by the people."
This, along with the Tenth Amendment,
doesn't protect a specific right,
like freedom of religion or due process under the law,
but rather, advances an interpretation
of the scope of the Constitution and of government power.
To learn more about the Ninth Amendment,
I talked with two experts.
Kurt Lash is the E. Claiborne Robins
Distinguished Chair in Law
at the University of Richmond School of Law.
Jeffrey Rosen is the president and CEO
of the National Constitution Center.
He has written extensively
on the history of the Supreme Court.
Professor Lash, can you tell us a little bit more
about this amendment?
Why did the Framers include this amendment
in the first place?
- [Kurt] The Ninth Amendment,
like rest of the Bill of Rights,
was added at the insistence of the states.
Although the advocates of the proposed Constitution
had claimed that the national government
would have only limited enumerated power,
the state ratifying conventions wanted that promise
put in writing.
- [Jeffrey] Originally, the Constitution
didn't contain a bill of rights
'cause James Madison said a bill of rights
would be unnecessary or dangerous,
unnecessary 'cause the Constitution itself
was a bill of rights.
It only granted Congress limited powers,
and therefore, Congress had no power
to infringe free speech, for example, or religious liberty,
and therefore, wouldn't be able to do so,
and dangerous, Madison said,
because if you had a bill of rights,
people might wrongly assume
that if a right wasn't written down,
it wasn't protected, but in response
to objections by anti-federalists,
that is those opposed to the ratification
of the Constitution, led by George Mason of Virginia,
as well as Edmund Randolph of Virginia
and Elbridge Gerry of Massachusetts,
so those three guys said, "Hey,
"unless we include a bill of rights
"for greater security and safety,
"then we don't think the Constitution should be ratified."
In response to their objections
and those in ratifying conventions,
many of which demanded a bill of rights,
Madison changed his mind, and he
included a bill of rights, which he cut-and-pasted
from revolutionary-era state constitutions,
and viewers and listeners can check those out
at the Interactive Constitution.
Then that raised an interpretive problem.
Madison and others were worried,
if you just had a limited list of rights, 10
amendments in particular, protecting particular rights,
people might assume that if a right wasn't written down,
then it wasn't protected, and the Framers
didn't want you to reach that conclusion
because they believed that our rights come from God
or nature and not from government.
Thomas Jefferson, in the Declaration of Independence,
said we're all endowed by our Creator
with certain unalienable rights.
- [Kurt] When you look at these amendments,
our first 10 amendments,
you'll notice that some address specific issues,
like speech and the right to bear arms.
The last two amendments on that list, however,
address broader issues of Constitutional interpretation.
These are rules of construction.
The Tenth Amendment
declares that all powers not delegated away
remain under the control of the people in the states.
The Ninth Amendment addresses the problem
potentially raised by adding this list in a bill of rights.
The Ninth Amendment tells us that just because
the Constitution lists certain important
limitations on federal power,
this doesn't mean that the federal government
has otherwise unlimited power,
or, as the Ninth Amendment puts it,
"The enumeration in the Constitution, of certain rights,
"shall not be construed to deny or disparage
"others retained by the people."
In this way, those two last rules of construction
ensure that every subject not placed
under the control of the national government
would remain under the control of the people in the states
and remain there as a matter of right.
These amendments protect the people's retained right
to local self government.
- [Jeffrey] I talked a bit about natural rights
because that same notion of the idea
that you retain natural rights
when you move from the state of nature
to the civil society is picked up
in the language of the Ninth Amendment,
which says that the enumeration "of certain rights
"shall not be construed to deny or disparage others
"retained by the people," so one big theory
of the Ninth Amendment is that it refers
to these natural rights that come from God or nature
and that you retain during the transition
from the state of nature to civil society.
- [Kim] Can you give us a few examples
of what those unenumerated rights
that people have debated have been?
- [Jeffrey] The paradigmatic source
for identifying what unenumerated rights are protected
is a case called Corfield v. Coryell.
It was decided in the early 19th Century,
and it was cited repeatedly by the people who wrote
the Privileges or Immunities Clause
to the Fourteenth Amendment to the Constitution,
and basically, the Privileges or Immunities Clause says that
no state shall abridge the privileges or immunities
of citizens of the United States,
and the question is what are those privileges or immunities?
In trying to define them, John Bingham,
who wrote the Fourteenth Amendment,
and a lot of other people
said, "Well, some of the privileges or immunities
"include the rights written down in the Bill of Rights,
"but others are not written down in the Bill of Rights,
"and you can find them in the Corfield and Coryell case.
They're rights that are fundamental.
They're uniform from state to state,
and they've been considered basic rights
of Americans from the beginning.
Some of these rights include the right to make
and enforce contracts, to sue and be sued,
to have basic economic rights,
and also to have the benefit of the writ of habeas corpus,
which is in the original Constitution,
and that's the right to challenge the constitutionality
of your conviction.
It's in the original Constitution,
but not in the Bill of Rights.
Those are just some examples
of the unenumerated economic rights
that the Framers of the Fourteenth Amendment considered
to be protected by the Fourteenth Amendment
and by implication, by the Ninth Amendment too,
'cause they are natural rights,
as we heard Roger Sherman say, the basic rights
of acquiring and possessing property
and obtaining happiness and safety,
those are some of those rights.
- [Kurt] The Ninth Amendment raises the difficult issue
of how exactly you determine what the rights are
that are actually retained by the people.
The text of the Ninth Amendment itself
tells us very little about the specific content
of our retained rights, but in fact, these retained rights
are as numerous as the stars in the sky.
They include everything from wearing a hat
to walking on the sidewalk, to purchasing life insurance,
or determining where you can park your car,
or what classes should be offered in the local high school,
basically everything that was never meant to be handed
to the control of the national government, all of these
are rights retained to the control
of the people in the several states,
and all of these rights will be protected
if you limit the scope of federal power.
A limited interpretation of the Commerce Clause,
for example, preserves the people's retained right
to establish local educational policy
and to pass all manner of local civil rights legislation
that's not expressly covered by the federal Constitution.
The greater the limits on federal power,
the greater the freedom of local communities.
By making a limited interpretation of federal power a right,
this ensure the matter can be litigated in federal court
and not just left to political compromise.
Over time, courts will produce a body of law
that invalidates attempts by the federal government
to regulate our lives in forbidden ways,
such as not having the power under the Commerce Clause
to force us to purchase private health insurance
or not having the power to commandeer state official
and force them to enforce federal immigration policy.
- [Kim] Does this refer back to some extent
to kind of the common law of England
and the things that were considered
the natural rights of Englishmen?
- [Jeffrey] Yes, it does, although we should distinguish it
if we're gonna be precise, which we should.
Not all of the common law rights of Englishmen
were natural rights.
Common law rights, basically, are rights
that were traditionally protected by English law.
They're rights that had been recognized
by English judges over centuries.
Natural rights come from God or nature, not from government.
There's overlap between those groups,
but there might've been some common law rights of English
people that were recognized by tradition,
like the right to jury trial, for example.
That's not a natural right 'cause there are no
juries in the state of nature.
There are just people
who are (laughs) imagining forming governments.
It makes it a little tricky, but it's actually not
that analytically tricky, and it's so interesting
that over and over again, the Framers said,
"You know, this is just, everyone knows what these
"natural rights are."
They're the ones that are recognized
in Corfield and Coryell,
and then other enumerated rights
might include the common law rights of Englishmen,
but it was a pretty short list,
and the best way to just figure out which rights
were natural, go to the Interactive Constitution,
click down, and look at the Virginia Declaration of Rights.
Look at the Massachusetts Constitution of 1780,
the New Hampshire Constitution.
It has this beautiful preamble
about what a natural right is,
and you'll just see that all of these state constitutions
are recognizing the same natural rights over and over again.
- [Kim] Has the Supreme Court ever decided a case
based on the Ninth Amendment?
- [Kurt] The first judicial opinion
was actually written by Justice Joseph Story,
one of the most famous justices in American history.
In his opinion in Houston Against Moore,
decided in 1820, Story explained that the spirit
and letter of the Ninth Amendment
called for the limited interpreting
of the scope of federal power
in order to avoid interfering with state laws
regarding the local militia.
In fact, it wasn't until the 20th Century
that you find scholars and justices
trying to invert the Ninth Amendment
in a manner that allowed or even required
federal interference with local policies.
In Griswold against Connecticut, for example,
Justice Arthur Goldberg argued
that the Ninth Amendment supported the court's
invalidation of state contraception laws.
- [Jeffrey] Douglas says in this case that the Constitution
and the particular rights and the Bill of Rights
include certain penumbras formed be emanations,
from the particular guarantees that may create
broader unenumerated rights, and privacy was one of them.
Douglas says privacy is protected in different ways
in different parts of the Bill of Rights.
The Fourth Amendment protects our right against
unreasonable searches and seizures.
The Third Amendment protects the right
not to have soldiers quartered in the home.
The First Amendment protects
a right of freedom of association,
and from these particular expressions of privacy,
Douglas extracted, or inferred,
a broader and more sweeping right of privacy,
which could be extended to cover
a married couple's right to use contraception.
- [Kim] When the Bill of Rights was ratified
in the late 18th Century, it only applied
to the federal government.
It was not until after the Civil War,
in the late 1860s and early 1870s,
that the Fourteenth Amendment applied some
of the protections of the Bill of Rights
to state governments.
How does the Fourteenth Amendment
impact our understanding of the Ninth Amendment?
- [Kurt] Most Constitutional historians believe
that the Privileges or Immunities Clause
was originally understood as applying
the first eight amendments against the states.
What of the Ninth Amendment?
Is it possible
that the Privileges or Immunities Clause
turns the Ninth Amendment from a provision
protecting local government to one
that interferes with local government?
Many libertarian scholars believe so.
A close look at the historical record, however,
shows that this is not likely.
To begin with, John Bingham, the man who framed
the Privileges or Immunities Clause,
publicly declared at the House of Representatives
that the Privileges or Immunities Clause
made the first eight amendments
enforceable against the states.
He said nothing about either the Ninth or Tenth Amendments.
Meanwhile, in the Senate,
the man who introduced the proposed
Fourteenth Amendment to his college, Jacob Howard,
also said that the Privileges or Immunities Clause
would apply the first eight amendments against the states,
and he too said nothing about the Ninth or Tenth Amendments.
Finally, the public that debated and ratified
the Fourteenth Amendment remained broadly committed
to the federalist principle of dividing power
between the state and local governments.
It had been the slave-holding rebel sates
that had violated this principle
by demanding that slavery be enforced throughout the nation,
regardless of local freedom laws.
If we look at the period in which they adopted
the Fourteenth Amendment, it appears that that ammendment
did, in fact, apply the textual rights
of the first eight amendments against the states,
but it left everything else to local control,
subject only to the requirements of due process
and equal protection.
- [Jeffrey] The Ninth Amendment, at the very least,
is a question of interpretation.
It says don't assume that if a right isn't written down
it's not protected.
When the late Robert Bork, who was nominated
to the Supreme Court in 1987 but didn't get through,
said that the Ninth Amendment should be treated
as an ink blot because we can't know
what rights are actually protected by the Ninth Amendment,
it should be ignored, that can't be right.
That's the one thing that Madison said don't do.
Don't assume that if the right isn't written down,
it's not protected.
Saying that that matter of construction
is important and that there are certain
rights not enumerated in the Constitution
that are protected doesn't tell us which rights
are protected, and that's where all of the action
and all of the drama and all of the excitement
and Constitutional interpretation
in the 20th and 21st Century has come from.
How do we identify
the rights that are not written down, are not enumerated,
but are protected?
There's a whole lot to say about that.
In fact, that's why we teach Constitutional law,
is to study the methodologies of interpretation
that lead people to different conclusions
about which unenumerated rights are protected.
- [Kim] We've learned that the Ninth Amendment
served as an assurance that the Bill of Rights
was not an exhaustive list
of the rights retained by the people or the states.
How can you protect unenumerated rights,
which, by their very definition,
aren't named in the Constitution?
Kurt Lash sees the original meaning
of the Ninth Amendment as a restriction on federal power.
Jeff Rosen reminds us that although it's difficult to tell
which rights the Framers intended
to protect with the Ninth Amendment,
it's likely that those rights
included the same natural, unalienable rights
enshrined in the Declaration of Independence.
To learn more about the Ninth Amendment,
visit the National Constitution Center's
Interactive Constitution in Khan Academy resources
on US government and politics.