Abrams 1988 The Ninth Amendment and the Protection of Unenumerated Rights

Summary

Reasoning

2023-09-18: Abrams The Ninth Amendment and the Protection of Unenumerated Rights 1988

• The Griswold Opinions
• However, since Griswold is plainly the single most important Supreme Court offering dealing with the Ninth Amendment, it may be useful at this point briefly to summarize the positions taken in the opinions of the Court with respect to the amendment.
• Justice Douglas did not state the relevance of the Ninth Amendment to his conclusion [of his majority opinion] and merely quoted its text in support of the proposition that "[v]arious guarantees create zones of privacy."
• [Goldberg concurring opinion] Dealing solely with the relevance of the Ninth Amendment to the case, ..., concluding that "the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments".
• In Justice Goldberg's opinion "the right of privacy in the marital relation is fundamental and basic--a personal right 'retained by the people' within the meaning of the Ninth Amendment". ... that Connecticut was barred by the Fourteenth Amendment from infringing the Ninth Amendment right of Mr. Griswold.
• Justices Black and Stewart filed separate dissenting opinions each of which maintained that the right of privacy referred to in the opinions of the Justices constituting the majority in Griswold was not referred to as such in the Constitution and was therefore unprotected except insofar as the alleged interference therewith violated one of the first eight amendments--a conclusion neither Justice was prepared to reach under the due process clause of the Fourteenth Amendment.
• As will be seen, it is this author's conclusion that the text and history of adoption of the Ninth Amendment lend general support to the conclusions reached by Justice Goldberg.
• Adoption of the Amendment
• Neither the text of the Ninth Amendment, therefore, nor the history of its passage contains any solution to the question of what rights, if any, are retained by the people.
• ... the absence of a specific constitutional provision dealing with privacy should not, of itself, have compelled Justice Black to have voted to sustain Connecticut's challenged statute.
• The Ninth and Tenth Amendments
• Eleven years later [Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936)] in United Public Workers of America v. Mitchell, 330 U.S. 75 (1947), the single most significant pre-Griswold case decided by the Supreme Court with respect to the Ninth Amendment, the Court, in a four-to-three decision, upheld the Hatch Act against the argument that it was unconstitutional.
• After first conceding that the act did constitute "a measure of interference" with the freedom of civil servants under the First, Ninth and Tenth Amendments to act as party officials or workers for the purpose of furthering their own political views, the Court then upheld the act as a reasonable and therefore constitutional restriction.
• [Tenth Amendment] The Constitution enumerates no retained state powers. States, pursuant to the Tenth Amendment, retain the residue of powers ungranted to the Federal Government.
• The Ninth Amendment is different. While no retained states' rights are enumerated in the Constitution, many rights retained by the people are enumerated throughout Article I, Section 9 and the first eight amendments. Insofar as the Ninth Amendment was designed to protect against the possibility that the retained rights of the people were insufficiently specified, the amendment suggests [by analogy to enumerated rights]--as the Tenth does not--that certain reserved rights may override certain broadly granted federal powers.
• Where such explicit power has not been granted, however, the Ninth Amendment--like the first eight amendments--has a positive role to play and may lead to the conclusion that Congress's powers are not a broad as claimed.
• Taken together, the taxing cases [Grosiean v. American Press Company Inc., 297 U.S. 233, 250 (1936) and Steward Machine Company v. Davis, 301 U.S. 548, 585 (1937)] well illustrate that the otherwise unencumbered enumerated powers of Congress are simultaneously limited by the first eight amendments to the Constitution and shaped by those amendments.
• That being true with respect to those amendments, it follows that, to the extent that the Ninth Amendment was designed to protect rights omitted from the enumeration in the first eight amendments, Congress is no more free to limit or destroy those rights than it is to abrogate other rights protected by the Bill of Rights.
• The Ninth Amendment and Due Process
• In fact, the Connecticut statute held unconstitutional in Griswold was so held on the basis of the due process clause of the Fourteenth Amendment.
• ... the Ninth Amendment supports a sufficiently liberal reading of the due process clauses of both the Fifth and Fourteenth Amendments to encompass rights not specifically enumerated in the first eight amendments.
• ... Justice Goldberg argues ... the adoption of the Fourteenth Amendment prohibited state abridgment of fundamental personal liberties ....
• ... the due process clauses of the Fifth and Fourteenth Amendments were held applicable in spite of the fact that specific constitutional prohibitions against the challenged activities were not found in the first eight amendments of the Constitution. [examples at both federal and state levels]
• ... the Ninth Amendment appears to lend aid to the conclusion, that "liberty" as utilized in the due process clauses means more than the specifically enumerated liberties of the first eight amendments.
• ... with respect to the application of the Ninth Amendment to the states ... the amendment at least lends support to an interpretation of the due process clause of the Fourteenth Amendment sufficiently broad to encompass the fundamental liberties sought to be protected by the Bill of Rights ... whether or not the particular liberty involved was specifically enumerated ....
• ... if the Ninth Amendment is accepted as a check against the possibility that the Bill of Rights did not adequately enumerate the fundamental liberties of the people listed in the first eight amendments and a particular liberty is deemed protected by the Ninth Amendment, no valid reason exists to deny protection of the Ninth Amend- ment right under a Fourteenth Amend- ment which, by its terms, specifically protects "liberty".
• One area of Justice Goldberg's opinion with respect to the due process clause, however, appears unsound. The argument that the Ninth Amendment is not an "independent source" of rights but merely an aid in interpretation of the Fifth and Fourteenth Amendments ....
• The Unenumerated Rights
• The principal effect of the Ninth Amendment is to underscore the intention of the framers of the Constitution that essential human rights are to be protected from governmental interference or destruction and to complement the due process clause in providing a flexible instrument for protecting such rights.
• Any attempt, however, to list the rights likely to be judicially denomi- nated as Ninth Amendment rights is futile.
• The "right to travel" held by Kent v. Dulles, 357 U.S. 166 (1958), to be protected by the due process clause is no more specifically enumerated in the text of the Constitution than the Griswold right of marital privacy.
• ... a reference to the Ninth Amendment would be likely to be most useful in a case where it was difficult to characterize the governmental infringe- ment as a deprivation of life, liberty or property.
• In short, the Ninth Amendment is of substantive importance as it allows judicial protection to be granted to non-procedural rights not otherwise specified in the Constitution.