It's the dreaded 9th!!!! amendment

[Emsworth]

In order to understand the Ninth Amendment, one must first determine what a "right" is. As far as the Constitution is concerned, a right is nothing more than an exception to the government's powers.

Thus, when introducing the Bill of Rights on the floor of the House of Representatives, James Madison said, "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" (emphasis added). Madison's statement shows quite clearly that, as far as the Bill of Rights was concerned, "rights" and "exceptions to the grant of power" were synonymous.

Many feared that, if only a few exceptions to the grant of power were enumerated, then the federal government might expand its powers in areas not specifically excepted. For example, someone might have claimed, "The federal government may regulate intrastate commerce, because nothing in the Constitution specifically prohibits it from doing so." It is precisely this line of reasoning that the Ninth Amendment precludes.

It is apparent from history and from the text itself that the Ninth Amendment does nothing more than limit the federal government to its enumerated powers. As Jfern's own link suggests, "the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement."

On its own, the Bill of Rights does not apply to the states, as John Marshall made clear in Barron v. Baltimore. It extends to the states only by virtue of the privileges or immunities clause of the Fourteenth Amendment.

Yet, by their very nature, the Ninth and Tenth Amendments cannot apply to the states, even by virtue of the Fourteenth Amendment. Both of these amendments were meant to chain the federal government to its enumerated powers; naturally, such a consideration does not arise with regard to the states.

The original interpretation of the Fourteenth Amendment is in accord with the view that the term "privileges or immunities" only encompassed the first eight amendments to the Constitution. For example, the House sponsor of the amendment (John Bingham) argued in a debate in 1871:

"[T]he privileges and immunities of citizens of the United States, which are defined in the [first] eight articles of amendment, ... were not limitations on the power of the States before the fourteenth amendment made them limitations."

Other speeches from the same time period show a similar understanding of the privileges or immunities clause.

Neither the Fourteenth Amendment nor the Ninth Amendment authorizes judges to strike down laws that they dislike. For every liberal activist who claims that there is a constitutional right to privacy, there is a conservative activist who claims that there is a constitutional liberty of contract. For every Griswold v. Connecticut, there is a Lochner v. New York.