The Genius And The Neglect Of The Ninth Amendment
The Genius and the Neglect of the Ninth Amendment
The development and ratification of the Constitution of the United States was one of the greatest breakthroughs for governance in world history. One of the promises that secured the ratification of this document was the promise that a "Bill of Rights" would be developed, passed, and included in this new Constitution within a very short period of time. The first eight Bill of Rights amendments asserted and guaranteed the rights our Founding Fathers considered the most essential and inherent to the citizens of the United States and for that matter the world.
There were some major concerns regarding the inclusion of a Bill of Rights into the Constitution. James Madison and Alexander Hamilton both felt that the original U.S. Constitution was a strong enough document to protect the American people's rights on its own. Thomas Jefferson and many others vehemently disagreed. Madison and Hamilton felt that the enumeration of only these eight rights would be interpreted as stating that these rights were the only ones to be upheld and preserved for this new country. Therefore a compromise was reached by including the Ninth and Tenth Amendments in the Bill of Rights.
The Ninth Amendment reads as follows, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". I believe this amendment was an ingenious compromise as well as a solution to Madison and Hamilton's concerns. Similarly, the Tenth Amendment clarified the powers, jurisdictions, and rights of governments. The United States Constitution spells out the powers, juridictions, and rights the federal government is entitled to. Any of these not granted to them within the Constitution are automatically placed under the purview of the individual states. I am going to concentrate on the Ninth Amendment within this Hub and save my analysis of the Tenth Amendment for another article. I believe that both amendments perfectly display the wisdom of the creators of the Constitution. Unfortunately, at least in my view, the Ninth Amendment has been hugely underutilized and often ignored.
I will begin this Hub by describing some of the arguments the Founding Fathers wrestled with before creating this amendment. Then I will give a brief history of the instances where the Ninth Amendment was used both unsuccessfully as well as successfully. Finally I will attempt to convey my own vision of how I feel this unique and wise amendment should be used now and in the future to ensure that the rights and welfare of American citizens are protected more fully.
The United States Constitution was argued over and written at the Constitutional Convention in Philadelphia during the summer of 1787. The Articles of Confederation, which were governing the U.S. at this time, had proven itself to be too weak and ineffective to allow the government to operative efficiently and productively. The subject of including a Bill of Rights was discussed at this convention but was never agreed upon or included in the original Constitution. The ratification by the states of this newly proposed Constitution was far from assured. Many states and political leaders were insisting upon a Bill of Rights being incorporated into it before they would ratify the document. Thomas Jefferson and other anti-Federalists were extremely wary of the stronger federal powers that this new Constitution would install. Jefferson convinced a reluctant Madison to develop and submit a Bill of Rights which would act as a barrier against the federal government infringing upon its citizens rights. An understanding was finally reached which entailed instructions for the first United States Congress to develop and pass a Bill of Rights.
The Constitutional Convention completed and signed the new Constitution on December 17, 1788. This document was submitted to the thirteen individual states for ratification. All thirteen did so but only after some very bruising battles in each state. On September 13, 1788 the Constitution was finally certified and it became the governing document of the United States. James Madison submitted his proposal for the Bill of Rights to the first Congress on June 8, 1789. The Bill of Rights was passed by Congress on September 25, 1789. It was sent to the states for ratification and became law and part of the United States Constitution on December 15, 1791.
The Ninth Amendment has proven to be a very elusive amendment to define and interpret from its very inception. The Founding Fathers stated that the first eight amendments of the Bill of Rights were by no means the only ones essential to United States citizens as well as all human beings. The problem then arises as to how we determine what other rights are also to be retained by the people. Most strict constructionists argue that the only way to recognize other rights not already enumerated would be to pass Constitutional Amendments. What then is the utility of the Ninth Amendment if that is the case?
The first constitutional case where the Ninth Amendment was even vaguely referred to was in Barron v. Baltimore in 1833. The Supreme Court ruled that the Ninth Amendment and all of the original ten amendments could only be considered in federal cases. The first case where the Ninth Amendment was used directly was United Public Workers (UPW) v. Mitchell in 1947. The case challenged the Hatch Act of 1939 which restricted political activities of federal employees. The House of Representatives discovered that the UPW had supported several candidates and parties for federal office. The union's argument against the Hatch Act was that the Constitution did not give the federal government the power to restrict their campaign activities. Therefore the Ninth Amendment confers the right to these activities because they are thus retained by the people. The Court ruled against the UPW and upheld Congress' authority under the Constitution to legislate as they did.
The Ninth Amendment did not receive a victory in the Supreme Court until 1965 by way of the Griswold v. Connecticut case. This case challenged a Connecticut law that prohibited the use of any medicines or instruments to prevent pregnancy. Estelle Griswold was the Executive Director of the Connecticut Planned Parenthood and her branch opened a birth control center. The Supreme Court ruled by a 7-2 margin that this law violated marital privacy. They used the Ninth Amendment as the direct basis for recognizing this implicit right. They extended this right to unmarried couples in the 1972 Eisenstadt v. Baird case.
In 1973 the Supreme Court used this "Right to Privacy" and extended it while helping to decide the Roe v. Wade abortion case. Unfortunately the Court decided to use the Fourteenth Amendment's due process clause as its primary citation. The lower district court had used the Ninth Amendment as their primary justification for allowing women to have abortions if they chose to because they had a right to privacy. The Ninth Amendment has only been used in supporting roles since this decision.
The current makeup of the Supreme Court is much more conservative than in the recent past. It is thus very unlikely to consider most or any Ninth Amendment arguments. The reason for this is that this amendment does not explicitly name any particular rights. Most conservative justices are anathema to citing this amendment in their decisions for that reason.
The Ninth Amendment clearly has a thin history in regards to Supreme Court cases. Privacy rights are the only rights that the Court has been willing to extrapolate from it. Even then they needed support from other amendments. The current conservative Supreme Court will most likely never use the Ninth Amendment or any others to recognize other implicit Constitutional rights. A more progressive Supreme Court will be needed for that. What should a more progressive Court look to do in regards to using the Ninth Amendment to recognize other rights?
I believe they should look to identifying the essential life sustaining rights of all people. One that immediately comes to mind is healthcare. The Healthcare industry is no longer the basic and inexpensive profession of previous generations. Drug development costs, complex and expensive diagnostic medical equipment, and expensive hospital expenses are among the many factors that have dramatically ballooned the size of medical bills. Most American citizens cannot afford proper healthcare if left on their own to purchase it. This is due to the massive cost. Currently most people receive their healthcare insurance through their employer. The elderly receive it through the government by way of Medicare. Americans who are not employed or elderly have no access to affordable healthcare insurance. This is because they do not have the benefit of access to pooled insurance that spreads risk. The result is that most unemployed Americans go without this vital need because they cannot afford the insurance. I submit that this condition is cruel, inhumane, and unfair.
I propose that National Healthcare Insurance should be mandatory for all Americans because it is an implied right that can be derived from the Ninth Amendment. Medical care is almost as necessary to human existence as food and water. How can we in all good conscience effectively deprive many Americans of this essential life sustaining service? I say that we should not and cannot. My belief is just as privacy rights have been upheld as implicit by the Supreme Court by way of the Ninth Amendment, so should essential human needs such as affordable healthcare be upheld as implicit rights.
James Madison could never have imagined healthcare becoming as expensive as it is now and thus becoming an urgent need and perhaps even a right. That is why Madison created the Ninth Amendment. He knew that the eight amendments that he wrote for the first Congress could never encompass all rights that citizens are entitled to. This was as true for that time with its less complex issues and technology as it is now. The Founding Fathers probably felt that privacy rights were implicit within the Fourth Amendment. Unfortunately this was only partly true and only in regards to unreasonable searches. Thus the Supreme Court extended it to privacy by way of the Ninth and Fourteenth Amendments.
Why not use the Ninth Amendment for a right to affordable healthcare and other life sustaining needs? I know this is an unconventional and most likely controversial view. Most worthwhile ideas start out that way. I believe it is about time we started considering the Ninth Amendment more broadly to protect American citizens from the deprivation of life sustaining needs and rights. Our economic system has become an increasingly cruel and unequal system that casts its unfortunate citizens outside the system to make do for themselves. I believe it is now time to become innovative to correct these injustices. The Ninth Amendment is my prime tool to facilitate this. The neglect of this wise and ingenious amendment should end now. We need to put it to proper use to protect all of our fellow Americans.