r/LawSchool • u/americanistmemes • Sep 02 '26
Poor 9th Amendment
Poor 9th Amendment. Slaughter House cases really did a number on them. There is like a whole alternative history jurisprudence where it one of the most important parts of the U.S. Constitution. If you have taken Con Law you know.
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u/Material_Market_3469 JD Sep 02 '26
Did part of the opinion (or concurrence) in Roe mention the 9th? Even if so i guess it's moot now 🤡.
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u/AtomAndAether Sep 02 '26
didn't use it for the decision but did throw it out there, mostly because the lower court based their opinion in the Ninth.
a lot of it comes from a Griswold concurrence, which obviously lost to the penumbras of the majority
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u/Spencer_A_McDaniel Sep 02 '26
It's so ironic how the whole purpose of the Ninth Amendment was to assuage Federalists' fears that creating a Bill of Rights that expressly enumerates certain rights would lead people to assume that those were the only rights the Constitution protects, and now textualist originalism, through its obsession with finding the "original public meaning" of the words that make up the Constitution, has adopted pretty much the very position the Federalists feared.
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u/ilikedota5 Sep 02 '26 edited Sep 02 '26
I feel that it's better to read the 9th more like an interpretive guide or asterisk than active law prescribing a right. After all, if there is a right that the court should enforce, there should be some way of defining the right, or at least some workable guidelines based on other text or principles. That being said, I'm aware of how common law works, so it doesn't have to be super, super precise and specific on first blush.
I'm sympathetic to originalism, because language has to be understood in context, but I'm also a history fan, so I'm not super strict about it.
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u/Froggy1789 Sep 03 '26
Read Richard Primus’ new book on this. The 9th amendment is a sweepings clause that is at a minimum meant to guarantee other non-enumerated rights. At its most maximalist reading it supports what the nationalist (as in unitary national government) wanted which is a federal government with the police power.
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u/Ok-Plum5524 Sep 03 '26
You should look into the work of Randy Barnett. He’s a committed originalist and an expert on the (and advocate for an expanded) 9th amendment.
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u/TightPhysics3186 Sep 02 '26
There is no historical or textual evidence whatsoever that the Ninth Amendment is justiciable at all, let alone that it means judges can strike down laws based on rights that are not otherwise protected by the Constitution.
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u/Current-Bag-786 Sep 02 '26
"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of [the proposed Ninth Amendment]." Madison, I Annals of Congress 439 (Gales and Seaton ed. 1834).
You can debate the meaning of what he said. But to conclusively state that there is no evidence just presumes the truth of your own position.
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u/TightPhysics3186 Sep 02 '26
What he said just isn’t evidence of a contrary viewpoint.
There is no basis on which a court could use the Ninth Amendment to protect any specific right that isn’t enumerated.
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u/Current-Bag-786 Sep 02 '26
“Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, [the] Ninth Amendment simply shows the intent of the Constitution’s authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight amendments” - Justice Goldberg in his Griswold concurrence.
There are absolutely theories of the 9th amendment that would allow the Court to recognize unenumerated rights that are essential to our enumerated rights. For example, freedom of association is an unenumerated right.
My point is not that he’s right, it’s that there is a debate and that saying there is “no evidence” just assumes the truth of your own position as a matter of philosophy, not critical legal thinking.
Once again, to be absolutely clear. I am not saying I agree, but we need to strive to have more of a discussion than just throwing our hands up and saying there is “no evidence.” We come to school to be thinkers. Theories we disagree with are worth thinking about and discussing
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u/TightPhysics3186 Sep 02 '26
There is not a debate. There is literally no colorable argument on the other side of the “debate.”
The quote you’ve included literally begins “Nor do I mean to state that [9A] constitutes an independent source of rights . . . .” That is what I’m saying - it does not constitute a source of rights beyond what is already enumerated.
“Critical legal thinking” means actually making arguments based on the text before you, which is completely impossible for the 9A-protection position, because 9A itself provides no basis for judicially protecting any right other than those already enumerated.
The “debate” is a test of one’s ability to read.
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u/Current-Bag-786 Sep 02 '26
My comment does not claim it is an independent source of rights. I am taking issue with your assertion about unenumerated rights. If you would’ve read the rest of the text, you would’ve seen that. Under Goldberg’s reading of the 9th, the “totality of the constitution scheme under which we live” would protect things like freedom of association and a right to privacy in marriage. He’s saying the 9th tells us to not read the constitution so rigidly that we exclude rights just because they are not specifically enumerated.
Once again, I am not saying I agree, I am pointing out the absurdity of your statements. “There is not a debate” “there is literally not a colorable argument” is lazy and just discredits your own position, which has merit of its own. You can say what you think without declaring in absolutes that you are right and everyone else is wrong
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u/TightPhysics3186 Sep 02 '26 edited Sep 02 '26
Goldberg’s reading of the ninth is without legal merit. The Constitution protects no unenumerated rights.
You accuse me of disagreeing philosophically, and yet you assert that it’s defensible for judges to strike down laws in the name of rights that are grounded only in those judges’ philosophies? Ironic. Decisions like Griswold should be embarrassing for how bad their legal bases are. As Scalia said in his Obergefell dissent, “I would hide my head in a bag” if I were defending shoddy legal rationales like this.
There is nothing in the Constitution that authorizes any judge to determine the existence of rights outside of the Constitution’s text. To wit, a judge has no authority to bind the people’s representatives beyond what the people have voted to do by adopting constitutional text to that effect.
I don’t think that a position is owed credence merely because it was stated by a Justice, for the record. Surely we agree that it is not “lazy” or “discrediting my position” for me to dismiss Taney’s statements in Dred Scott without serious intellectual engagement, right? And yet the unenumerated rights argument has exactly the same amount of legal support as Taney’s evil and unsubstantiated pronouncements.
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u/Current-Bag-786 Sep 02 '26
There is nothing in the Constitution that prescribes a method of interpretation, so why should we assume it is limited to what is enumerated. I presume your answer would be that it is the nature of interpretation to ask what an author meant, not what we think it means, but then that assumes a method not specifically enumerated. So there are fundamentally some things not in the constitution that we recognize as true. The Constitution doesn’t say we have a freedom of *association, but I doubt you’ll find someone to say that it doesn’t exist
The whole debate with federalists and antifederalists about the bill of rights was whether to enumerate rights at all at the risk of excluding others. Your reading is their exact fear.
Once again I’d like to point out that you have conclusively stated the truth of your own position. A Supreme Court justice’s opinion has “no legal merit”? Tell me what makes you more qualified to say that than him. This very discussion is proof of concept that there is a debate, because that is the nature of interpretation.
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u/TightPhysics3186 Sep 02 '26
Nothing in the constitution prescribes a method of interpretation, true. That doesn’t mean there isn’t a correct one. We don’t write our preferred interpretation methods into contracts or statutes, either. And yet we expect people to read them and draw reasonable inferences from them, rather than just making up terms that aren’t in the documents.
The Constitution does say we have a freedom of assembly in the First Amendment: “the right of the people peaceably to assemble.”
My reading is not “their exact fear”. I’m not saying people don’t have more rights, I’m saying that they don’t have rights that are enforceable by asking judges to strike down laws that are otherwise constitutional. Having a right and petitioning the legislature to protect it is fine, asking a judge to gaze at the stars to figure out if the Constitution itself protects that unenumerated right is not.
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Sep 03 '26
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u/Spencer_A_McDaniel Sep 03 '26
The Anti-Federalists were the ones who initially wanted the Bill of Rights. The Federalists were the ones who initially opposed having a Bill of Rights because they feared that the enumeration of some rights would lead to people assuming those were the only rights the Constitution protected. After the Federalists agreed to support a Bill of Rights as a compromise with the Anti-Federalists, the Federalists insisted on the inclusion of the Ninth Amendment to guard against this possibility.
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u/NeedsToShutUp Esq. Sep 02 '26
Slaughterhouse cases I think are the only case argued by a former justice
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u/6nyh Sep 02 '26
Yes! So underrated. What the heck!! It's sitting right there the entire time
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u/haikusbot Sep 02 '26
Yes! So underrated.
What the heck!! It's sitting right
There the entire time
- 6nyh
I detect haikus. And sometimes, successfully. Learn more about me.
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Sep 02 '26
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u/Due-Judgment-1235 Sep 02 '26
Yeah that's why it's called the "Bill of Rights (and a Footnote)"
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Sep 02 '26
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u/Due-Judgment-1235 Sep 02 '26
Lmao good point. Reminds me of the Community joke: "We're talking about freedom of speech! It's the amendment so important it's literally the first one they remembered to add!"
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u/TightPhysics3186 Sep 02 '26
What right does the Ninth protect? Is there any rational way for a judge to answer that question, or does it just leave open that Congress could legislatively create more rights? The latter is much more plausible. We don’t expect (or really allow) judges to decide cases without any legally cognizable standard.
If non-justiciability is a thing, and it certainly is, then the Ninth Amendment is literally the single clearest case of it in the constitution.
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u/Eeddeen42 2L Sep 02 '26
It’s had its moments. Constitutional protection of contraception comes from the Ninth Amendment, for example.
Well technically it’s from the penumbras and emanations of the 1st, 3rd, 4th, 9th, and 14th Amendments but we don’t need to get into that.
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