Here’s something I
wrote/compiled a while back.It’s not a
dissertation, thesis, and not even a note.The document may not even have a hypothesis.The writing is more of a research log,
probably, than it is anything else.As
such, I don’t profess it to be of any great verbiage or the like.In fact, much of it is not even my writing,
as it contains many quotes (from LexisNexis, Westlaw, some Bloomberg, and/or
internet searches).Again, a research
log of sorts.
I wanted to post it.Mostly for future
reference.Also, per chance, for anyone
else who might be interested.
What’s this I hear about the Ninth Amendment?
Ambiguously Powerful, or Merely Elusive?
AMENDMENT IX. Rights Retained by the People.
“The enumeration in
the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”
reviewer set out on a course of study to determine the meaning of Amendment IX
to the Federal Constitution. While
becoming versed in the many different and often competing hypotheses as to what
this Amendment was intended to achieve and the assorted meanings to which it
has been given by the courts, unfortunately this reviewer has not much more of
an answer to the Amendment’s meaning or its usefulness than when he started.
Several years back
and prior to any legal studies, this reviewer first became interested in Amendment
IX to the Federal Constitution (“Ninth Amendment,” “9th Amendment”). The interest came about during an envisioned
pursuit of legal rights in a court of law.
However, as an initial hurdle in the matter, the reviewer had not come
across any legal precedent that denoted the issue then at hand to be a
fundamental right. Upon further cursory
investigation, it seemed that the Ninth Amendment suggested that there could be
many other rights in the Constitution that may not be explicitly denoted
(“enumerated”). As such, the Ninth
Amendment appeared relevant to the reviewer’s legal issue at that time.
While offering a
glimmer of hope, upon further review the Ninth Amendment appeared to have
historically provided little or no relief to many others who pursued legal
claims under the Amendment. Mostly because the mandate seemed to be too vague
or not understood as to what “other” “unenumerated” rights were protected by the
words of that Constitutional Amendment – which is part of the Bill of Rights. Needless to say, this reviewer decided to
forgo the pursuit of any relief under the Ninth Amendment for any of several
obvious reasons which will become apparent in this note. Nevertheless, the seed was sown as to this
reviewer someday having the opportunity to explore the Ninth Amendment in
greater detail and especially concerning how to utilize this Amendment in legal
Research Effort Begins
Upon speaking of
plans to research the Ninth Amendment, others would ask: “What is the Ninth
Amendment”? While prefacing the matter
as pertinent to rights to be “left to the people” which are not enumerated in
the Constitution, the reviewer often then began to quote the Tenth Amendment. Upon refreshing his memory to the wording of
the Ninth Amendment, the reviewer resolved that he would not relay such confusion
again. Strangely enough, however, even
after this review, when contemplating the Ninth Amendment, this reviewer often is
inclined to think of the Tenth Amendment to one extent or another.
“It is emphatically the province and duty of the judiciary …
to say what the law is. We must never
forget that it is a constitution that we are expounding … intended to last for
ages to come and consequently, to be adapted to the various crises of human
affairs.” Chief Justice John Marshall.
While not an
official member of the judiciary, the reviewer doubts that Chief Justice Marshall
would see the humor in this reviewer mistaking the Ninth and Tenth Amendments
for one another. Then again, maybe
Marshall would not see any humor in the continued misunderstanding of the Ninth
Confusion Endures from its Date of Inception
this research effort, this reviewer is no longer embarrassed by any confusion
concerning the Ninth Amendment to the U.S. Constitution. This is because no one else really seems to
know exactly what it means either. Even
the Nation’s Founding Fathers seem to have been unsure as to this Amendment’s
“Aside from contending that a bill of
rights was unnecessary, the Federalists responded to those opposing
ratification of the Constitution because of the lack of a declaration of
fundamental rights by arguing that inasmuch as it would be impossible to list
all rights it would be dangerous to list some because there would be those who
would seize on the absence of the omitted rights to assert that government was
unrestrained as to those.”
As to the
Constitution’s “author,” Madison, himself stated:
The State argues that the Constitution nowhere spells out a
guarantee for the right of the public to attend trials, and that accordingly no
such right is protected. The possibility that such a contention could be made
did not escape the notice of the Constitution's draftsmen; they were concerned
that some important rights might be thought disparaged because not specifically
guaranteed. It was even argued that because of this danger no Bill of Rights
should be adopted. See, e. g., The Federalist No. 84 (A. Hamilton). In a letter
to Thomas Jefferson in October 1788, James Madison explained why he, although
"in favor of a bill of rights," had "not viewed it in an
important light" up to that time: "I conceive that in a certain
degree . . . the rights in question are reserved by the manner in which the
federal powers are granted." He went on to state that "there is great
reason to fear that a positive declaration of some of the most essential rights
could not be obtained in the requisite latitude." 
the confusion continues, of course. For
instance, some claim the Ninth Amendment is merely a rule of construction – as
if to keep Federal rights from consuming rights provided under state and common
laws, or vice versa. Others seem to believe this Amendment offers
much more. And yet there exists others who seem to argue
the Ninth Amendment could be whatever we want it to be. And to that end, maybe it is. As it could be argued that when the judiciary
has nothing else to bolster its position such as precedent for a decision, it
could and has used the Ninth Amendment to do so, as it did in Griswold and Roe.
III. Ninth Amendment and the Courts
the Ninth Amendment and/or unenumerated rights was surely referenced in one
form or another in long-ago case law,
in modern times the topic had become essentially dead-letter law until. Dead letter until its possible revival in
boisterous manner, most notably with such cases as Griswold v. Connecticut, 381 U.S. 479 (1965),
and Roe v. Wade, 410 U.S. 113 (1973),
and possibly to a lesser extent in Lawrence
v. Texas, 539 U.S. 558 (2003) (unenumerated rights). As to whether the inclusion of the Ninth
Amendment and unenumerated rights in these cases was good, bad, or neutral to
the legacy of the Ninth Amendment due to the possibly chequered nature of the
matters at issue in those cases is up to the opinion of the reader (of course)
and likely irrelevant for this note. (Worth
noting, however, that the stage may have already be set for Griswold.)
“The Ninth Amendment had been mentioned infrequently in
decisions of the Supreme Court until it became the subject of some exegesis by
several of the Justices in Griswold v.
Connecticut, [381 U.S. 479 at 484, 488, 491, 492 (1965)]. There a statute prohibiting use of
contraceptives was voided as an infringement of the right of marital privacy.
Justice Douglas, writing the opinion of the Court, asserted that the ''specific
guarantees in the Bill of Rights have penumbras, formed by emanations from
those guarantees that help give them life and substance.''… [opining on marital
privacy] To hold that a right so basic and fundamental and so deep-rooted in
our society as the right of privacy in marriage may be infringed because that
right is not guaranteed in so many words by the first eight amendments to the
Constitution is to ignore the Ninth Amendment and to give it no effect
whatsoever. … Nor do I mean to state that the Ninth Amendment constitutes an
independent source of right protected from infringement by either the States or
the Federal Government. Rather, the Ninth Amendment shows a belief of the
Constitution's authors that fundamental rights exist that are not expressly
enumerated in the first eight amendments and an intent that the list of rights
included there not be deemed exhaustive.''”
“Notice the recurrence to the Ninth Amendment as a
''constitutional 'saving clause''' in Chief Justice Burger's plurality opinion
in Richmond Newspapers v. Virginia,
448 U.S. 555, 579 -80 & n.15 (1980).[]
Scholarly efforts to establish the clause as a substantive protection of rights
include J. Ely, Democracy and Distrust--A
Theory of Judicial Review (Cambridge: 1980), 34-41; and C. Black, Decision According to Law (New York:
1981), critically reviewed in W. Van Alstyne, Slouching Toward Bethlehem with the Ninth Amendment, 91 Yale L. J.
207 (1981). For a collection of articles on the Ninth Amendment, see The Rights Retained by the People: The
History and Meaning of the Ninth Amendment (Randy E. Barnett, ed., 1989).”
Apparently as a
result of Griswold (et.al.), a
floodgate seemed to open to which many sought the proverbial pot of gold at the
end of the Ninth Amendment’s potential rainbow.
Note a court opining in 1970, five years after Griswold: “[p]urpose of
Ninth Amendment is to guarantee to individuals those rights inherent to
citizenship in democracy which are not specifically enumerated in Bill of
Rights.” United States v Cook, 311 F Supp 618 (1970, WD Pa).
litigants began to seek refuge in the Ninth Amendment’s “pot of gold” for a myriad
of matters and a plethora of causes. Many
cases referring to the Ninth Amendment deal with abortion rights and merely seem
to quote one another. And many of the other
cases refer to the apparent fact that, on its own, the Ninth Amendment does not
allow for judicial standing. Aside from those, however, the Ninth
Amendment seemingly is invoked in all types of actions. From immigration
to medical privacy,
from marriage to medical treatment,
from abortion to public nudity, 
the Ninth Amendment has been claimed to provide all types of rights. From its successes (in the realms of
contraceptives and personal appearance), 
to its failures (drug possession, sentencing, and marijuana rights),
modern-day prospectors seemed to be on the hunt for the remedial equivalent of
the judicial mother lode. While some may have found veins of remedial
gold, there seems to exist no claim to the mother lode and neither is it
apparent on the horizon as yet either – other than the aforementioned cases of Griswold, Roe, and Lawrence.
But that’s not all
the matters that have tried to invoke the Ninth Amendment for relief, by the
way. The list continues – added here for
comic relief, if nothing else. Political
and other assorted privacy rights
have all been sought with the enlistment of the Ninth Amendment. Moreover, the list extends beyond these
topics as well (even smoking cigarettes
and attacks upon the judiciary itself). But the point has long-since been made and
has - at this point in this note - become belabored as well.
the Ninth Amendment might hold for future litigants, again, they best have
independent standing to reap any such benefits. And, somewhat redundantly, those future
litigants best have an independent cause of action to seek any remedy via the
conduit of the Ninth Amendment as well.
Regardless of all
else, however, the matter of remedies through the Ninth Amendment still sounds
promising, for many a reason. However, there are likely many others who
would not agree with such a statement. Either way, as alluded to above, upon
culminating this research effort, the only thing this reviewer is sure of is
that the debate over the meaning of the Ninth Amendment to the U.S.
Constitution will likely go on for many years to come.
reviewer has become somewhat disheartened if not disenfranchised with the Ninth
Amendment and its seeming lack of remedial precedent – especially so when
compared to his initial hopes in this regard.
More to the point, this reviewer is irked that while promising unbounded
remedial hope, the Ninth Amendment appears equally as impotent – even if it has,
at times, maintained the power to change the nation and maybe even change the
Fret not for this
researcher, however, because more than the often unfulfilled and naked promise
of the Ninth Amendment, the benefit has been reaped of knowing that he always has
the Ninth Amendment up his sleeve; should he need to discombobulate any legal
adversaries. Regardless if playing the
Ninth Amendment card amounts to no more than a smoke screen in the end, it
could be a good one, given the right situation.
Again, this is so because so few seem to really know what the Ninth
Amendment actually means. A fact that
seems unlikely to change anytime soon.
The U.S. Constitution And Fascinating Facts About I, P.47;. ISBN
978-1-891743-00-7, www.ConstitutionFacts.com; Oak Hill Publishing Co.
course, this is not a PhD. dissertation.
In the modern information-loaded, easy access, internet-based world,
there seems always more information to review on any given topic.
Writings of James Madison 271 (G. Hunt ed. 1904).
history and language of the ninth amendment demonstrate its appropriate role in
fundamental rights cases. The amendment's function is well-defined and limited.
Its insertion into the Bill of Rights was intended simply to assure those who
opposed excessive central government authority that unmentioned rights were not
to be "construed" as ceded to the federal government merely because
they were not enumerated. The ninth amendment does no more. It does not, for
example, prevent these "other" rights from ever being "den[ied]
or disparage[d]." It provides only that unspecified rights shall not be
construed as having been denied or disparaged simply because certain rights
(those that constitute the first eight amendments) were expressly mentioned in
the Bill of Rights.” NOTE: The Ninth Amendment's Role in the Evolution
of Fundamental Rights Jurisprudence, 64 Ind. L.J. 97, 103-104, Slaughter,
G. Winter 1988.
The Ninth Amendment: It Means what it Says.
Barnett. 85 Tex L Rev 1, Nov. 2006.
SYMPOSIUM: THE FUTURE OF UNENUMERATED
RIGHTS: PART TWO OF THREE: ARTICLE: THE SUPREME COURT IN BONDAGE:
CONSTITUTIONAL STARE DECISIS, LEGAL FORMALISM, AND THE FUTURE OF UNENUMERATED
RIGHTS, Solum, L., 9 U. Pa. J. Const. L. 155, 202 (Oct. 2006).
See also: “The
Ninth Amendment does not withdraw rights expressly granted to the federal
government (Ashwander v. Tennessee Valley
Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688 (1936)) and if a grant of power to the federal
government is found, an objection, based upon the Ninth Amendment, of invasion
of the rights must fail. (United Public
Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L.
Ed. 754 (1947).)” 16A Am Jur 2d
Constitutional Law § 219 (2nd 2015).
Conversely, also see:
“The Ninth Amendment to the United States Constitution provides that the
enumeration in the Constitution of certain rights shall not be construed to
deny or disparage others retained by the people. While the Ninth Amendment has
sometimes been dismissed by writers as a redundancy adding nothing to the rest
of the Constitution, the Supreme Court has said that a careful reading of the
words and history of the amendment indicates that it was intended to play a
role in our constitutional scheme and ought not to be so lightly dismissed. (Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980).) Based on historical evidence, the Ninth
Amendment appears to have been added to the Constitution to preserve, against
encroachment by the federal government, individual rights embedded in state law
until such rights are modified or abolished by state authorities by a judicial
determination of unconstitutionality or by a demonstrated interference with the
proper scope of federal authority.” (U.S.
v. Stowe, 100 F.3d 494 (7th Cir. 1996).)” 16A Am Jur 2d Constitutional Law
§ 219 (2nd 2015).
“See Swift v. Tyson, 41 U.S. (16
Pet.) 1, 14-22 (1842), overruled by Erie
R.R. Co. v. Tompkins, 304 U.S. 64, 69-80 (1938). A federal court sitting
prior to 1938 could have held that from 1789 the rights "retained by the
people" had been protected by federal common law.” From: ARTICLE: PROTECTING RIGHTS FROM RIGHTS:
ENUMERATION, DISPARAGEMENT, AND THE NINTH AMENDMENT, Claus, L., 79 Notre
Dame L. Rev. 585, 614 (Feb. 2004).
“The foregoing cases suggest that specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help give them
life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting
opinion). Various guarantees create zones of privacy. The right of association
contained in the penumbra of the First Amendment is one, as we have seen. The
Third Amendment in its prohibition against the quartering of soldiers "in
any house" in time of peace without the consent of the owner is another
facet of that privacy. The Fourth Amendment explicitly affirms the "right
of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." The Fifth Amendment in its
Self-Incrimination Clause enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment. The Ninth Amendment
provides: "The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people."” Griswold v. Connecticut, 381 U.S. 479, 484, 85 S. Ct. 1678, 1681
 “Roe v. Wade, Griswold v. Connecticut,
and Lawrence v. Texas, as exemplars
of the Supreme Court's unenumerated rights jurisprudence.” SYMPOSIUM:
THE FUTURE OF UNENUMERATED RIGHTS: PART TWO OF THREE: ARTICLE: THE SUPREME
COURT IN BONDAGE: CONSTITUTIONAL STARE DECISIS, LEGAL FORMALISM, AND THE FUTURE
OF UNENUMERATED RIGHTS, Solum, L., 9 U. Pa. J. Const. L. 155, 202 (Oct.
2006). Also: “the right to choose whether to have children
was protected by the Ninth Amendment, through the Fourteenth Amendment,”Roe v. Wade, 410 U.S. 113, 116, 93 S.
Ct. 705, 708 (1973).
"Liberty" is a conception that sometimes gains content from the
emanations of other specific guarantees (N.
A. A. C. P. v. Alabama, 357 U.S. 449, 460) or from experience with the
requirements of a free society. Poe v.
Ullman, 367 U.S. 497, 517, 81 S. Ct. 1752, 1763 (1961) (Justice Douglas in
 http://constitution.findlaw.com/amendment9.html. Quoting: Griswold v. Connecticut, 381 U.S. 479 at 484, 488, 491, 492 (1965). “Justice Douglas writing for the
majority, the opinion was joined by Chief Justice Warren and by Justices Clark,
Goldberg, and Brennan.”
 “But arguments such as the State makes have
not precluded recognition of important rights not enumerated. Notwithstanding
the appropriate caution against reading into the Constitution rights not
explicitly defined, the Court has acknowledged that certain unarticulated
rights are implicit in enumerated guarantees. For example, the rights of
association and of privacy, the right to be presumed innocent, and the right to
be judged by a standard of proof beyond a reasonable doubt in a criminal trial,
as well as the right to travel, appear nowhere in the Constitution or Bill of
Rights. Yet these important but unarticulated rights have nonetheless been
found to share constitutional protection in common with explicit guarantees.
The concerns expressed by Madison and others have thus been resolved; fundamental
rights, even though not expressly guaranteed, have been recognized by the Court
as indispensable to the enjoyment of rights explicitly defined.” Richmond
Newspapers v. Va., 448 U.S. 555, 579-580, 100 S. Ct. 2814, 2828-2829
I http://constitution.findlaw.com/amendment9.html. More to look at from findlaw.com
(relevant to our conversation of the Due Process Clause of the 14th
A.: “Chief Justice Warren and Justice
Brennan joined this opinion. Justices Harlan and White concurred id. at 499,
502, without alluding to the Ninth Amendment, but instead basing their
conclusions on substantive due process, finding that the state statute ''violates
basic values implicit in the concept of ordered liberty,'' (citing Palko v. Connecticut, 302 U.S. 319, 325
(1937)). Id. at 500. It would appear that the source of the fundamental rights
to which Justices Douglas and Goldberg referred must be found in a concept of
substantive due process, despite the former's express rejection of this ground.
Id. at 481-82. Justices Black and Stewart dissented. Justice Black viewed the
Ninth Amendment ground as essentially a variation of the due process argument
under which Justices claimed the right to void legislation as irrational,
unreasonable, or offensive, without finding any violation of an express
Also relevant to our conversation on the Due Process
Clause: “If the Fourteenth Amendment's Privileges or Immunities Clause applies
against the states the privileges and immunities guaranteed in the original
Constitution and Bill of Rights, O'Neil
v. Vermont, 144 U.S. 323, 360-64 (1892) (Field, J., dissenting); Amar,
supra note 11, at 218-23, then the Ninth Amendment's rule for construing those
guarantees feeds through, and produces a uniform construction of those
guarantees vis-a-vis both federal and state governments. If, however, the
"incorporation" of "federal" rights against the states is
achieved through the enumeration of the Due Process Clause in the Fourteenth
Amendment, Duncan, 391 U.S. at 146-62; Adamson, 332 U.S. at 47-59; Palko, 302 U.S. at 320-29, then the
Ninth Amendment applies to construction of the Fourteenth Amendment's Due Process
Clause as a prospective interpretive rule that the Fourteenth Amendment could
have changed but did not. See Nicholas Quinn Rosenkranz, Federal Rules of
Statutory Interpretation, 115 Harv. L. Rev. 2085, 2114-20 (2002). On this view,
the hard version of the Ninth Amendment's tension-resolving role might call for
determining the rights retained by the people of the states as of 1868 rather
than 1789 for the purpose of construing the Due Process Clause of the
Fourteenth Amendment. Attribution of incorporation to the Privileges or
Immunities Clause does, however, seem much more plausible.” From ARTICLE:PROTECTING
RIGHTS FROM RIGHTS: ENUMERATION, DISPARAGEMENT, AND THE NINTH AMENDMENT,
Claus, L, 79 Notre Dame L. Rev. 585, 615 (2004).
For instance see: “State abortion
statute which mandates woman seeking abortion give her informed written consent
to termination at least 24 hours prior to scheduled operation constitutes
direct state limitation on woman's right to have abortion and is in violation
of Ninth Amendment.” Women's Medical Ctr.
v Roberts, 530 F Supp 1136 (DC RI, 1982).
Also see: “Ninth Amendment does
not confer substantive rights in addition to those conferred by other portions
of our governing law.” Gibson v Matthews, 926 F2d 532 (CA6 Ky, 1991). USCS Const.
Amendment does not prevent deportation of alien parents of citizen child, where
impact on child, while strong, is nevertheless incidental to enforcement of
immigration laws.” Papakonstantinou v
Civiletti, 496 F Supp 105 (ED NY, 1980).
plaintiff association and its members challenged individual mandate (IM) of
Patient Protection and Affordable Care Act, 26 USCS § 5000A, under U.S. Const.
amend. I, III, IV, V, IX, as violative of their right to privacy, claims failed
because IM did not compel plaintiffs to disclose personal medical information
to insurance companies and such concern could be avoided by foregoing insurance
and making shared responsibility payment.” ,
705 F3d 588, 2013 FED App 27P (CA6 Ohio, 2013).
“Public hospital's policy of permitting only full time
director of its cardiology laboratory to perform cardiac catheterizations and
related procedures, to exclusion of right of other qualified private
cardiologists on active staff of hospital to perform such procedures with
respect to their own patients, did not infringe upon any Ninth Amendment right
of patient to be treated by physician of his own choice.” Adler v Montefiore Hospital Asso., (1973) 453 Pa 60, 311 A2d 634,
cert den (1974) 414 US 1131, 38 L Ed 2d 755, 94 S Ct 870.
Immigration statute imposing 2-year conditional adjustment of status pending
investigation into facts surrounding alien's marriage does not in any way
affect legal status of parties' marriage under state law and therefore does not
violate Amendment.” Anetekhai v INS,
(1989, CA5 La) 876 F2d 1218.
“State statute which prohibits marriage of persons of
same sex does not offend Ninth Amendment.” Baker
v Nelson, (1971) 291 Minn 310, 191 NW2d 185, app dismd (1972) 409 US 810,
93 S Ct 37, 34 L Ed 2d 65 (Abrogated as stated in Kitchen v Herbert, (2013, DC Utah) 961 F Supp 2d 1181) and
(criticized in Latta v Otter, (2014,
DC Idaho) 2014 US Dist LEXIS 66417) and (Abrogated as stated in Geiger v Kitzhaber, (2014, DC Or) 2014
US Dist LEXIS 68171) and (questioned in criticized in Baskin v Bogan, (2014, SD Ind) 2014 US Dist LEXIS 86114) and (ovrld
in part as stated in Smelt v County of
Orange, (2005, CD Cal) 374 F Supp 2d 861) and (Abrogated in part as stated
in Bishop v United States ex rel. Holder,
(2014, ND Okla) 962 F Supp 2d 1252).
“Right to marry underlies purposes of Constitution,
although not mentioned therein, and is fundamental right afforded protection by
Ninth Amendment; personnel rule which establishes system of classification of
employees that is based upon and affects fundamental right can only be
sustained if it promotes compelling governmental interest.” Voichahoske v Grand Island, 194 Neb 175,
231 NW2d 124 (1975).USCS Const. Amend. 9
trespasses unjustifiably on personal privacy of its female citizenry in
violation of Ninth Amendment where it enacts legislation making it criminal to
perform abortion unless necessary to preserve woman's life or that of her
unborn child.” Abele v Markle, (1972,
DC Conn) 342 F Supp 800, vacated on other grounds, (1973) 410 US 951, 35 L Ed
2d 683, 93 S Ct 1412, reh den (1973) 411 US 940, 36 L Ed 2d 402, 93 S Ct 1888.
“Woman has constitutional right of privacy under Ninth
Amendment to determine for herself whether to bear child or to terminate
pregnancy in its early stages, free from unreasonable interference by state.” YWCA v Kugler, (1972, DC NJ) 342 F Supp
1048, vacated without op (1973, CA3 NJ) 475 F2d 1398 and affd without op (1974,
CA3 NJ) 493 F2d 1402, cert den (1974) 415 US 989, 39 L Ed 2d 885, 94 S Ct 1587.
“From conception until end of first trimester of
pregnancy, decision of whether or not to procure abortion, and effectuation of
that decision, rests with pregnant woman and her physician and during this
period state has no compelling interest which overrides woman's Ninth Amendment
rights of privacy and liberty and justifies regulation of abortion decision”. Doe v Rampton, (1973, DC Utah) 366 F
USCS Const. Amend. 9 (Lexis)
“Connecticut law forbidding use of contraceptives unconstitutionally intrudes
upon right of marital privacy; guarantees contained in First, Third, Fourth,
and Fifth Amendments create zone of privacy, which, in view of Ninth
Amendment's provision, must be protected, even though it is not specifically
enumerated.” Griswold v Connecticut,
(1965) 381 US 479, 14 L Ed 2d 510, 85 S Ct 1678.
“Planned Parenthood Association's refusal to give
birth information and services to minor children unless they have parental
consent, did not violate any rights under Ninth Amendment.” Doe v Planned Parenthood Ass'n, (1973)
29 Utah 2d 356, 510 P2d 75, cert den and app dismd (1973) 414 US 805, 38 L Ed
2d 42, 94 S Ct 138.
USCS Const. Amend. 9
Amendment of United States Constitution, right to wear one's hair in manner of
his choice is protected right of personal taste, not to be interfered with by
state unless state can meet "substantial burden" criteria, and where
record fails to reflect that there was any substantial health, safety, academic
or disciplinary problem created by wearing of long hair, school's dismissal of
student for wearing long hair must be enjoined.”Murphy v Pocatello Sch. Dist., (1971) 94 Idaho 32, 480 P2d 878.
USCS Const. Amend. 9
“Regulation of city board of education pertaining to
length of hair of male students in public schools was not unconstitutional as
violative of Ninth Amendment.” Kraus v
Board of Education, (1973, Mo) 492 SW2d 783.
Amendment does not empower states, by creating new state constitutional rights,
to truncate Congress's power under Article I by preempting federal legislation,
hence it could not be used to curtail sentencing disparity of those convicted
of crimes involving crack cocaine relative to crimes involving powdered
cocaine.” United States v Spencer,
(1998, CA7 Ill) 160 F3d 413, cert den (1999) 526 US 1078, 143 L Ed 2d 565, 119
S Ct 1482.
“Because there is no fundamental right to private use,
possession or trade in marijuana or cocaine, governments have power to enact
and enforce sumptuary laws in this area.” Wolkind
v Selph, 495 F Supp 507 (ED Va, 1980), affd without op 649 F2d 865 (CA4 Va,
“There is no constitutional right, fundamental or
otherwise, to smoke marijuana in public school, nor is there anything
unconstitutional about having discipline for violation of rules if one is
affiliated with organization where discipline is necessary.” Petrey v Flaugher, 505 F Supp 1087 (ED
“Refusal to permit inmate use of marijuana for
religious purposes as sacrament does not violate Ninth Amendment.” L'Aquarius v Maynard, 634 P2d 1310
“Right to smoke marijuana is not within zone of
privacy formed by penumbras of Ninth Amendment.” Commonwealth v Leis, 355 Mass 189, 243 NE2d 898 (1969).
USCS Const. Amend. 9
Lest we forget about firearms: “Ninth Amendment does not encompass
unenumerated, fundamental, individual right to bear firearms.” San Diego County Gun Rights Comm. v Reno,
98 F3d 1121 (CA9 Cal, 1996) (criticized in Jackson
v City & County of San Francisco, (2011, ND Cal) 829 F Supp 2d
867). See also: “Statutes prohibiting
felons from possessing firearms (18 USCS § 922(g)(1)) and prohibiting
possessing firearms with obliterated serial numbers (18 USCS § 922(k)) did not
exceed Congress's power under commerce clause since both required some nexus
with interstate commerce, nor did they violate Tenth or Ninth Amendments.” United States v Baer, 235 F3d 561 (CA10
USCS Const. Amend. 9
:Right to circulate initiative and referendum petitions is not unenumerated
right protected by Ninth Amendment.” American
Constitutional Law Found. v Meyer (1997, CA10 Colo) 120 F3d 1092, 1997 Colo
J C A R 1520, cert den (1998) 522 US 1113, 140 L Ed 2d 110, 118 S Ct 1045 and
affd (1999) 525 US 182.
“Fairness Doctrine (47 USCS § 315) does not operate as
restriction upon rights of people to engage in political activities in
contravention to Ninth Amendment.” Red
Lion Broadcasting Co. v FCC (1967, App DC) 127 US App DC 129, 381 F2d 908,
affd (1969) 395 US 367, 89 S Ct 1794, 23 L Ed 2d 371, 1 Media L R 2053
(questioned in criticized in Joint Statement of Comm'rs Powell &
Furchtgott-Roth (1998, FCC) 1998 FCC LEXIS 6725) and (criticized in Bartlett v Mut. Pharm. Co., Inc. (2009,
DC NH) 2009 DNH 144, 659 F Supp 2d 279).
USCS Const. Amend. 9
“Fact that illegal gambling activity in furtherance of which facilities in
interstate commerce were used could not be prosecuted under state law because
of state's statute of limitations is irrelevant to prosecution under 18 USCS §
1952, and since state law serves merely definitional purpose under § 1952, such
section does not enlarge state criminal statute in violation of Ninth Amendment
because it punishes use of facilities in interstate commerce in furtherance of
enterprises violative of state statutes; § 1952 does not punish substantive
violations of state statutes per se.” United
States v Cerone, (1971, CA7 Ill) 452 F2d 274, cert den (1972) 405 US 964,
31 L Ed 2d 240, 92 S Ct 1168 and cert den (1972) 405 US 964, 31 L Ed 2d 240, 92
S Ct 1169.
“Racketeer Influenced and Corrupt Organizations Act
(18 USCS §§ 1961 et seq.) does not violate Ninth Amendment and intrude upon
state sovereignty because it fails to require that acts of racketeering per se
affect interstate commerce inasmuch as RICO proscribes furthering of
enterprise, not predicate acts.” United
States v Martino, (1981, CA5 Fla) 648 F2d 367, vacated, in part on other
grounds, remanded (1981, CA5 Fla) 650 F2d 651 and cert den (1982) 456 US 943,
72 L Ed 2d 465, 102 S Ct 2006, 102 S Ct 2007 and cert den (1982) 456 US 949, 72
L Ed 2d 474, 102 S Ct 2020.
USCS Const. Amend. 9
“State statute making sodomy crime is not unconstitutional under Ninth
Amendment even where it is applied to regular homosexual relations with another
adult consensually and in private.” Doe v
Commonwealth's Attorney for Richmond, (1975, ED Va) 403 F Supp 1199, affd
(1976) 425 US 901, 47 L Ed 2d 751, 96 S Ct 1489, reh den (1976) 425 US 985, 48
L Ed 2d 810, 96 S Ct 2192.
“Defendant's decision to engage in sex for hire in her
home and without public solicitation is not fundamental right protected by
constitutional right to privacy.” State v Mueller (1983) 66 Hawaii 616, 671 P2d
USCS Const. Amend. 9
whose driver's license has been revoked under Minnesota implied consent law
does not have common law right guaranteed by Ninth Amendment to be taken before
nearest magistrate immediately after his arrest.” Daly v State, Dep't of Highways, (1973) 296 Minn 238, 207 NW2d 541,
cert den (1973) 414 US 909, 38 L Ed 2d 147, 94 S Ct 228.
“District court's decision that there is inalienable
right to travel upon and use highways, which right cannot, by reason of Ninth
Amendment, be limited, circumscribed, or denied, must be reversed, since
limitations may be placed upon inalienable or inherent right based upon proper
exercise of police power.” People v Brown,
(1971) 174 Colo 513, 485 P2d 500, app dismd (1972) 404 US 1007, 30 L Ed 2d 656,
92 S Ct 671.
statute requiring all motorcyclists to wear helmet was not violative of Ninth
Amendment.” State v Albertson, (1970)
93 Idaho 640, 470 P2d 300.
“Any primary right in natural parents to custody of children under Ninth
Amendment to Constitution is not absolute; any such right may be overridden
where there is potentiality for serious psychological harm resulting from
transfer of custody from intending adoptive parents to natural parents where
adoptive home, for substantial period of time, has been only real home child
has known.” Sorentino v Family &
Children's Soc., (1977) 74 NJ 313, 378 A2d 18.
“Fundamental integrity of family unit has found
protection in Ninth Amendment and is subject to intrusion and dismemberment
only where "compelling" government interest arises and protecting
child from harm is requisite government interest.” In re S., (1978, Okla) 581 P2d 884.
which authorizes juvenile court to decree involuntary termination of all
parental rights solely on basis of finding that such termination will be in
child's best interest violates parent's constitutionally protected rights under
Ninth, Fourteenth Amendment.” In re J.P.,
(1982, Utah) 648 P2d 1364.
USCS Const. Amend. 9
“Draft law applied during period in which there is no dire national emergency
does not violate Ninth Amendment inasmuch as conscription is constitutional.” United States v Uhl, (1970, CA9 Cal) 436
“Selective Service System is not unconstitutional
under Ninth Amendment.” United States v
Zaugh. (1971, CA9 Cal) 445 F2d 300.
USCS Const. Amend. 9
“Ninth Amendment does not create substantive privacy right to be free from
video surveillance in workplace, since it does not create substantive rights
beyond those conferred by governing law.” Vega-Rodriguez
v Puerto Rico Tel. Co., (1997, CA1 Puerto Rico) 110 F3d 174, 12 BNA IER Cas
state bar does not suffer violation of his due process rights nor his right to
privacy by requirement of state board of bar examiners that applicant disclose
names and addresses of psychologists, psychiatrists, or other medical
practitioners who have treated applicant, and authorize release of records or
other information relevant to good moral character and fitness to perform
responsibilities of attorney.” Florida
Bd. of Bar Examiners Re: Applicant, (1983, Fla) 443 So 2d 71, subsequent
app (1983, Fla) 443 So 2d 77, cert den (1984) 469 US 822, 83 L Ed 2d 42, 105 S
“Right of personal privacy extends to protect
individual's decision regarding what he will or will not ingest into his body,
but individual would not have constitutional prerogative to refuse fluoridated
water, to justify refusal of city to comply with statute mandating fluoridation
of municipal water supply.” Minnesota
State Board of Health by Lawson v Brainerd, (1976) 308 Minn 24, 241 NW2d
624, app dismd (1976) 429 US 803, 50 L Ed 2d 63, 97 S Ct 35.
“Defendants were properly granted summary judgment in plaintiffs' action
challenging county ordinance prohibiting smoking in public places and places of
work as violating their rights under Fourth, Fifth, Ninth, and Fourteenth
Amendments because plaintiffs had no constitutional right to smoke or control
smoking on premises that they had open to public.” Steele v County of Beltrami. (2007, CA8 Minn) 238 Fed Appx 180,
cert den (2007) 552 US 1022, 128 S Ct 619, 169 L Ed 2d 394.
Unpublished: “Bar applicant had no
authority under Ninth and Tenth Amendments to initiate criminal prosecutions in
name of United States against federal judges; Congress had delegated power to
prosecute crimes in name of U.S. to U.S. Attorney General, and such power was
exclusive.” Smith v Krieger, (2010,
CA10 Colo) 389 Fed Appx 789, cert den (2011, US) 131 S Ct 1511, 179 L Ed 2d
“Textual exegesis, while not conclusive, suggests that, in contrast to terms
"person" and "accused" in 5th and 6th Amendments,
regulating procedure in criminal cases, term "the people" as used in
1st, 2nd, 4th, 9th, and 10th Amendments, refers to class of persons who are
part of national community or who have otherwise developed sufficient connection
with U.S. to be considered part of that community. United
States v Verdugo-Urquidez, 494 US 259, 110 S Ct 1056, (reh den (1990) and
criticized in Martinez v City of Oxnard,
(CA9 Cal, 2001)).
“Municipal ordinance prohibiting person to
intentionally appear in state of nudity in public place did not violate
amendment.” United States v Biocic, (CA4
Md, 1991) 928 F2d 112. USCS Const.
“Civil rights action brought against city, police chief, police dispatcher and
all officers on duty on relevant date, by parents of motorcyclist who after to
his arrest for traffic violations was found hung in his jail cell, was properly
dismissed with respect to claims based on Ninth and Tenth Amendment, since,
inter alia, Ninth Amendment has never been recognized as independently securing
any constitutional right for purposes of pursuing civil rights claim, and
parents point to no case law supporting contention that Tenth Amendment alone
or in conjunction with Ninth Amendment provides grounds upon which to bring
civil rights claim.” Strandberg v Helena,
(CA9 Mont, 1986) 791 F2d 744 (criticized in Holloway
v Magness, 2011 US Dist LEXIS 6190) (ED Ark, 2011).
“Ninth Amendment, which stipulated that enumeration in
Constitution of certain rights, shall not be construed to deny or disparage
others retained by people, did not create substantive rights beyond those
conferred by governing law; accordingly, district court properly dismissed any
Ninth Amendment claim brought by deceased's family members against police
officers and state officials.” Martinez-Rivera
v Ramos, 498 F3d 3 (CA1 Puerto Rico, 2007). USCS Const. Amend. 9
under Ninth Amendment are only those so basic and fundamental and so deeply
rooted in our society to be truly "essential rights," and which
nevertheless, cannot find direct support elsewhere in Constitution. United States v Choate, 576 F2d 165 (CA9
Cal, 1978), cert den 439 US 953, 99 S Ct
Amendment does not confer substantive rights in addition to those conferred by
other portions of our governing law.” Gibson
v Matthews, 926 F2d 532 (CA6 Ky,