Ninth Amendment

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    Professor Gutzman,

    What is the legitimate construction of the Ninth Amendment, based on the ratifying conventions’ legislative intent?

    My interpretation is that it is basically a statement that, people have unlimited rights, not just the ones specifically enumerated. Is that correct?

    If so, how does that reconcile with state sovereignty and the rights of states to pass laws prohibiting specific actions?

    Also, I’m reading Raoul Berger’s Government by Judiciary. In it, he makes the argument that the original Civil Rights Act and the Fourteenth Amendment were only intended to protect certain rights. When discussing suffrage, he cites the framers of that amendment and says that the Amendment was intended only to protect civil rights, not “political privileges”. How does this reconcile with the Ninth Amendment?

    Thank you


    Hey John,

    I would keep on read Berger’s book as it will lay out the point that the 14th Amendment did not intend the Federal Bill of Rights to be enforced on the States (a.k.a. Incorporation)

    The Ninth Amendment, in plain terms, states that the government cannot infringe on rights just because they aren’t specifically expressed in the Constitution. For example, Congress could not pass a law making it a crime to wear shoes. You could make an arguement claiming that you had that right under the Ninth Amendment (I use this example understanding fully that Congress does not have the power in general to write a law like this)

    So, to answer you question more specifically, the States do not have to abide by the Ninth Amendment. States can pass legislation they see fit to govern their State, so long as it doesn’t violate anything in that particular State’s constitution. As for the ratification debates on the topic of the Ninth Amendment, I’m sure the professors can point you in the right directions on the specific documents or conversations that I don’t have easily accessible. I hope this helps.


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