The Ninth is a general rights provision. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." It clearly is intended to avoid the construction you make that because some rights are listed, those that aren't listed might not exist.
I am not denying that the Constitution protects rights beyond those listed. I am merely claiming that such protections relate solely to the federal government, and do not apply to the states.
The Ninth Amendment declares that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. What exactly are these "other" rights? The amendment does not say. It is necessary, therefore, to discern what the society that adopted the Ninth Amendment understood the word "right" to mean. Once the original meaning of this term is comprehended, it becomes abundantly clear that the Ninth Amendment is a provision related to federalism.
It is important to remember that, to the framing generation, rights and powers were like two sides of the same coin. James Wilson, for example, said that "A bill of rights annexed to a constitution is an enumeration of the powers reserved." If the Constitution does not delegate a power to the government, then the people have a corresponding right against the exercise of that power. Similarly, if the Constitution
does delegate a power to the government, then the people do not have any such corresponding right. Taking the original understanding of the word "right" into account, the Ninth Amendment can be taken to mean as follows: the enumeration of certain limitations on federal power shall not be taken to imply that federal power is otherwise unlimited.
For example, the Constitution does not grant the federal government the power to regulate abortion in the states. However, it does not specifically prohibit the federal government from regulating abortion either. Can someone argue that, because the Constitution fails to specifically mention a prohibition on federal abortion, the federal government has the power to regulate it? No, the Ninth Amendment prohibits such a line of reasoning. The people of the several states have a Ninth Amendment "right" to be free from federal abortion regulation, and the failure to enumerate that right does not imply an expansion of federal power. This "right" to abortion does not stem from any theory of natural rights, natural justice, or the like. It merely stems from the fact that the power to regulate abortion is not enumerated.
Although it is not necessary to investigate the history of the Ninth Amendment, doing so will (I believe) confirm the interpretation that A18 and I have advanced in this thread. The Ninth Amendment was an answer to federalist objections about the Bill of Rights. At the Pennsylvania ratifying convention, for example, James Wilson expressed these fears as follows:
"A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration [of reserved powers], every thing that is not enumerated is presumed to be given."Wilson argued that, if the Constitution enumerated only some limitations on federal power, it might be assumed that federal power was unlimited in all other areas. Thus, he said, it would be safer to simply enumerate the powers of government, rather than enumerating exceptions to those powers.
Several state ratifying conventions were concerned about the same problem. For example, the New York ratifying convention made the following declaration:
"[T]hose Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater caution."James Madison introduced the Ninth Amendment to address these concerns. He said, when proposing it to the House of Representatives:
"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."Clearly, Madison equates "rights" and "exceptions to the grant of power." He was concerned that if the Constitution listed only some exceptions to federal power, some might assume that all powers not specifically excluded were meant to be granted to the "General Government." Hence, the history and purpose of the Ninth Amendment fit very neatly with the explanation suggested above.
If the Ninth Amendment is indeed a provision related to the extent of enumerated powers, then, clearly, it cannot be incorporated. Applying the Ninth Amendment to the states would make just about as much sense as incorporating the Tenth. The Framers of the Fourteenth Amendment, of course, recognized this fact. Consider, for instance, one speech by John Bingham (the author of the privileges or immunities clause):
"Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights. Those amendments secured the citizens against any deprivation of any essential rights of person by any act of Congress ...
"Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows…
"These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' are an express prohibition upon every State of the Union."
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