Friday, January 25, 2019

The Ninth Amendment. What is it?



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.

But nevertheless, I wanted to post it.  Mostly for future reference.  Also, per chance, for anyone else who might be interested. 
AVT  (January 2019)

So, anyway…



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.”[1]

I.             Introduction:
                This 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[2].

II.            Background:
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 claims. 

A.            The 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.[3]    

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 Amendment either.  

B.            The Confusion Endures from its Date of Inception
After completing 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 exact meaning.
“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.”[4]

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." [5]

Modernly, 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.[6]  Others seem to believe this Amendment offers much more.[7]  And yet there exists others who seem to argue the Ninth Amendment could be whatever we want it to be.[8]  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
While the Ninth Amendment and/or unenumerated rights was surely referenced in one form or another in long-ago case law,[9] 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),[10] 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).[11]  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.[12])
Findlaw.com comments:
“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.''”[13]
Findlaw.com continues:
“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).[[14]] 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).”[15]

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). 
Not surprisingly, 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.[16]  Aside from those, however, the Ninth Amendment seemingly is invoked in all types of actions.  From immigration[17] to medical privacy,[18] from marriage to medical treatment,[19] from abortion to public nudity, [20] the Ninth Amendment has been claimed to provide all types of rights.  From its successes (in the realms of contraceptives and personal appearance), [21] to its failures (drug possession, sentencing, and marijuana rights),[22] modern-day prospectors seemed to be on the hunt for the remedial equivalent of the judicial mother lode.[23]  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 activities, [24] racketeering,[25] sexual privacy,[26] driver’s licensing,[27] helmet laws,[28] child custody,[29] selective service,[30] and other assorted privacy rights[31] have all been sought with the enlistment of the Ninth Amendment.  Moreover, the list extends beyond these topics as well (even smoking cigarettes[32] and attacks upon the judiciary itself[33]).  But the point has long-since been made and has - at this point in this note - become belabored as well.
Whatever benefits the Ninth Amendment might hold for future litigants, again, they best have independent standing to reap any such benefits.[34]  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.[35] 
Regardless of all else, however, the matter of remedies through the Ninth Amendment still sounds promising, for many a reason.[36]  However, there are likely many others who would not agree with such a statement.[37]  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.


Conclusion:
Ironically, this 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 world. 
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.

Adam Trotter
August, 2017



[1] The U.S. Constitution And Fascinating Facts About I, P.47;. ISBN 978-1-891743-00-7, www.ConstitutionFacts.com; Oak Hill Publishing Co.
[2] Of 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.
[3] See footnote 1 at P. 88.
[4] From: http://constitution.findlaw.com/amendment9.html; accessed Jan. 23, 2017.
[5] 5 Writings of James Madison 271 (G. Hunt ed. 1904).
[6] “The 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.
[7] The Ninth Amendment: It Means what it Says. Barnett.  85 Tex L Rev 1, Nov. 2006.
[8] 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). 
[9] “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).
[10] “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 (1965)
[11]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).
[12] "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 Dissent).
[13] 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.”
[14]  “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 (1980).
[15] 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 constitutional provision.”
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).
[16] 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. Amend. 9.
[17] “Ninth 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).
[18] “Where 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.
[19]“ 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
[20] “State 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 Supp 189.
USCS Const. Amend. 9 (Lexis)
[21] “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
“Under Ninth 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.
[22] “Ninth 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, 1981).
“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 Ky, 1981).
“Refusal to permit inmate use of marijuana for religious purposes as sacrament does not violate Ninth Amendment.” L'Aquarius v Maynard, 634 P2d 1310 (Okla, 1981).
“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
[23] 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 Colo, 2000).
USCS Const. Amend. 9
[24] :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
[25] “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
[26] “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 1351.
USCS Const. Amend. 9
[27] “Driver 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.
[28] “State statute requiring all motorcyclists to wear helmet was not violative of Ninth Amendment.” State v Albertson, (1970) 93 Idaho 640, 470 P2d 300.
[29] “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.
“State statute 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
[30] “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 F2d 773.
“Selective Service System is not unconstitutional under Ninth Amendment.” United States v Zaugh. (1971, CA9 Cal) 445 F2d 300.
USCS Const. Amend. 9
[31] “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 1253.
“Applicant to 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 Ct 96.
“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.
[32] Unpublished: “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.
[33] 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 307.
[34] “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. Amend. 9.
[35] “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
[36] “Rights 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 350 (1978).”
[37] “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).



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