May 14, 2022

That Pesky 9th Amendment: The Common-Sense Amendment.

by Hal Gershowitz

Comments Below

I really love the 9th Amendment to our Constitution. I love it because of its simplicity. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”  

It is so nebulously simple as to be relied upon by the courts rarely, but so indispensable simply because it reminds us that we do not solely depend upon what is written or given by man to define what it means to be free. The 9th Amendment is in our Bill of Rights for a reason. While it is rarely cited in judicial opinions, it is a pillar of the American experiment. It says to government authority, stay out of my private and personal life as long as my private and personal life does not impinge upon the rights of other citizens. It says stay out of my private and personal space as long as I have not disturbed or interfered with other citizens. It sort of says don’t tread on me.

I think of the 9th Amendment as the common-sense amendment. One needn’t be a lawyer to grasp its meaning. The founders knew they couldn’t think of every right to which the citizens of our new country were entitled or those to which we should be entitled as the new nation would grow and evolve. They knew there were a host of private and personal matters (rights) that should not be the government’s to divine or bestow.

Civil libertarians tend to like that thinking. Many lawyers do not. Lawyers generally like things spelled out in black and white, and that’s perfectly understandable. It’s certainly the bedrock of contract law. As the old legal quip goes, “An oral contract is worth the paper it’s printed on.” On the other hand, it is repugnant to contemplate the absence of a perfectly reasonable or logical right, such as the right to privacy, simply because no one knew how to define it or, perhaps, because a particular right wasn’t contemplated or considered 245 years ago. Besides, while few people would disagree that there should be a reasonable right to privacy, many might disagree on what is reasonably private.

We have James Madison, perhaps the most brilliant and thoughtful of our founders, to thank for the 9th Amendment. While Madison studied some law, he was never a serious or practicing lawyer. Instead, he was simply a serious and practicing thinker. His passion was the study of language. He devoted most of his studies to Greek and Latin and continued to study Hebrew and philosophy after graduation from the College of New Jersey (today Princeton).

Along with a few others like Washington, Hamilton, Jefferson, Franklin, and John Jay, he was an essential personality without whom it is hard even to imagine America. But it was Madison who understood the need for the nebulous 9th Amendment. Nebulous because it specified so little while recognizing so much.

The 9th Amendment didn’t come into prominence until it was cited by Justice Arthur Goldberg in the landmark 1965 case, Griswold vs. the State of Connecticut. That landmark case affirmed that married couples have the right to use birth control, a right now granted to all adults. Yes, the sale of birth control products was illegal in some states until the Supreme Court acknowledged that using birth control is a personal matter, a private matter. Today the courts recognize, because of the 9th Amendment, that the use of birth control products is a private, personal decision and, essentially, none of the government’s business.

The 9th Amendment was written (as were all of the first ten amendments) for those of us who are not lawyers so that the language is as plain and straightforward as possible. The wording of the 9th Amendment is so simple and devoid of esoteric language that lawyers often twist themselves into knots trying to divine what the drafters had in mind when they drafted the simple eloquent 9th Amendment to the Constitution. How could such a simple, declarative sentence that requires no mastery of the law to understand possibly be so important? The founders were telling us that some rights, very personal rights, needn’t be spelled out in our Constitution and that it would be impossible to identify all of them anyway. So, in drafting the 9th Amendment, James Madison made the founders’ intention simple and straightforward.

In other words, some rights simply speak to the privacy and personal lives of the people and do not, and should not, require the government’s permission. What incredibly progressive thinking for its time. Who had ever heard of a ruling government granting such common-sense rights to its subjects? Of course, that’s the point. Americans were not “subjects” in the old-world sense. They were “citizens” in the new-world sense. And our founders were determined to make these new American citizens a class by themselves in the time and the place known as the United States of America.

And later, when drafting the 14th Amendment, Congressman John A. Bingham of Ohio, the primary author of the first section of the 14th Amendment, was also quite unambiguous. “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It is this 14th Amendment, the due process amendment, upon which the courts have relied to establish the right to privacy that all citizens (persons born or naturalized in the United States) enjoy. Some legal authorities argue that the simple 9th Amendment would have been a better basis today for acknowledging the right to privacy because it is eloquently simple, uncomplicated, and rests upon a foundation of common sense. They make a strong point. It speaks to what Justice Louis Brandeis called “the right to be left alone.”

Supreme Court Justice Samuel Alito argues in his draft opinion overturning Roe versus Wade that when Roe was codified in 1973, based on the 14th Amendment, no long-standing tradition recognized the right to abortion in the United States. For the right to terminate an early pregnancy to be protected by the 14th Amendment, Alito argues that “that right must be deeply rooted in this Nation’s history and tradition,” and the specific right to abortion is not. And Alito is right.

However, the Alito draft opinion on Roe raises the question of how much privacy is too much privacy. As a matter of personal privacy, the justification for terminating a pregnancy before fetal viability would have been reasonably accommodated by the 9th Amendment, which recognizes that some rights (personal and private rights) just shouldn’t require a state government’s approval.

According to Alito and the four other concurring Republican justices, a woman’s personal decision to terminate even a microscopic fertilized egg cell, a zygote, even one that is diseased, or the result of rape or incest, may be too much privacy to bear.

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24 responses to “That Pesky 9th Amendment: The Common-Sense Amendment.”

  1. Susan Duman says:

    I found myself shocked at my response to the new meds that can terminate a pregnancy. As an older liberal, I am very pro choice. That being said, I am appalled at young people’s casualness about sex first, then we’ll wait and see. What happened to time honored forms of contraception for males and females? This culture shift is wreaking havoc on groups of people who used to quietly plan their lives.

  2. Carol Terry says:

    And yet, is there any accountability for men who are necessary to produce a child?
    I believe that the decision to terminate a pregnancy is between the woman, her doctor and God. The rest of the country should have NO say in this matter.

  3. Paul Lubar says:

    And the definition of fetal viability is…………?

  4. Perry says:

    Thank you for well researched history of the court and legislators who authored legislation. I do have two comments relative to today’s
    decision to be made. #1 The leaker is not even being pursued as to identity which speaks
    volumes for this administration.
    #2 The presence of protesters at the homes of of jurists who are pondering their decisions is so unbelievable. Civility is certainly missing in America today.

    • B. J. Olson says:

      Two excellent points Perry!

    • Prover Stephen E. says:

      Perry,
      What would you have the administration do with the leaker? What law did he break?
      Members of Congress and jurists have been picketed for years. There are permanent picketers outside Schumer’s home. Does this bother you?. As long as no laws are broken (and I know there are vague laws against intimidating jurists…NEVER enforced) this falls under free speech and the right to assemble peacefully . BTW I do not like these protests either but when you condemn pm demonstrations only when it is your ox/conservative jurist being gored I am a bit suspicious.

    • Julie says:

      I thought Roberts launched an investigation to discover the leak.

    • So are the lies told by the three jurists who were elected based on lies they made during their confirmation hearings.

  5. Ben Rinkey says:

    Hal,
    Wonderfully researched essay as usual. I agree with Roe v Wade completely, but Perry’s points are good ones. I particularly find protests at Judges’ homes to be abhorrent, even if legal. Thanks for helping to keep my brain in gear.

  6. Alex James says:

    Civility? Why did we not hear your shock about lack of civility when the former guy was campaigning for and was holding office? He has the most vile mouth and mean spirit of any individual in my lifetime to hold high office in our country. He sullied his office and our country with his “lack of civility” — can anyone forget his statement of “fine people on both sides”, or his rallies in which he encouraged his supporters to “knock the sh__” out of protesters — or anyone who publically disagreed with him, for that matter? Not to mention January 6 and his incitement of the insurrection. For anyone who has ever supported the former president to talk about lack of civility — aside from the breathtaking hypocrisy, all I can say is that the emperor and his followers truly have no clothes.

  7. Mike Regan says:

    Hal, I have weighed in when I thought your columns missed critical points, but this is an outstanding column – especially in light the tensions and emotions around this issue

  8. Hal, this is a thoughtful and well written column. It seems clear that you support a woman’s right to abortion. I too believe abortion should be available at a woman’s choice if the pregnancy is a consequence of abortion or if the fetus has a potentially lethal malformation. However, to fully understand your position I would appreciate you and your readers clarifying your thoughts as to whether an abortion should be allowed up to minutes before birth? Many scientists have speculated that the unborn fetus begins to perceive a sense of pain after the 20th week of gestation . It’s quite impossible to imagine that a fetus after mid-term subject, to the trauma of being forcefully removed from the womb without benefit of any anesthesia doesn’t perceive some sensation akin to pain albeit maybe of a primitive variety. We worry and wring our hands over the emotional pain the mother of the unborn fetus must endure carrying an unwanted baby. However, where is our sense of humanity inflicting potentially inordinate pain and certain death on this little human? Are we to be the judge and jury on what God hath wrought?
    This obviously a impossible situation, attempting to solve all the parties deeply held convictions but it unquestionably should not be used as a bludgeon used by one political party against the other to gain political advantage.

  9. Response to Paul Silverstein: I think Roe got it right. First trimester, the woman’s decision.

  10. Chris Haedt says:

    Thank you again, Hal, for a terrific historical essay. I totally agree with you that a woman’s choice ends after the first trimester.

  11. LWY says:

    With respect to demonstrating in front of Supreme Court Judges, they have violated Federal law which states,
    “Where, with the intent of interfering with, obstructing or impeding the administration of justice or with the intent of influencing any judge….. In the discharge of his duty, pickets or parades…. or in or near a building of residence occupied or used by a judge… shall be fined under the title or imprisoned not more than one or both…”

  12. SJG says:

    LWY and Perry, I’d like to hear your outrage about impeding justice and lack of civility next time the former president is in a political race or smears in the vilest way possible, anyone who doesn’t support him Where were your voices at the “good people on all sides” rally, and after the January 6 insurrection in which the Nazi supporters of the former guy set up a gallows for the VP and called for the death of Nancy Pelosi. LWY — just remember your quote the next time the former guy attempts to extort any number of public officials, including the DOJ, to change the vote to benefit his own campaign or pocketbook. I’d like to hear your outrage then.

  13. Karen says:

    A remarkable commentary on the right to privacy for the citizens of the United States of America. The freedom of choice of abortion is a right that women fought for but I do believe that planning for the future such as using contraceptive measures should indeed be taken so that we are not needlessly ending new life. Well done Hal!

  14. Julie says:

    The fact that a rape victim can be forced to carry to term and then could eventually be forced to co-parent with their rapist is beyond even Gilead.

  15. Tom R.Hulst says:

    This article by Gershowitz on the Ninth Amendment is so well-done; and I agree as a teacher of political science should be read by all students. I will add it to my reading list. The Ninth Amendment has, sadly, been kind of a dead letter in constitutional law as the writer points out. In Griswold v. Connecticut, which preceded Roe by eight years, the justices debated whether to base the right of privacy on the First Amendment (freedom of association); due process clauses of the Fifth and Fourteenth; the Ninth Amendment or the “penumbras and zones” of the First, Third, Fourth, Fifth and Ninth Amendments. In the end a majority of the justices went with Justice Douglas’s opinion which declared that the right of privacy emerges from zones that lie on the edges of a number of the Bill of Rights. In the Douglas concurring opinion in Roe he mentioned the Ninth Amendment. Perhaps it will emerge as a more sturdy basis for privacy in the future. But doesn’t look like it will this year given the make-up of current Court and what we have seen from the leaked opinion.

  16. Robert Clifton says:

    OF THEE I SING1776
    1776 is the year the United States of America was Founded. In July 1776 the 2nd Continental Congress adopted the (Declaration of Independence) as America’s first and founding and naturally sovereign law. Why is it that the 2nd law adopted by the 2nd Continental Congress in September 1788 (US Constitution), holds Sovereignty over the First and Founding and I believe Legally Sovereign Declaration of Independence? This is a question that’s been on my mind for years and I’d love to hear your thoughts about it, thanks for your response.

    • Hal Gershowitz says:

      Response to Robert Clifton: while the Declaration of Independence is a treasured document. It establishes no law. Think of it more as a letter of resignation from a boss who thought he owned the person(s) retiring.

  17. Tom Bailey says:

    Should Alito’s draft opinion be called a daft opinion? I think so.

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