Retained by the People: The Ninth Amendment

It has been called a dead letter, an inkblot, the most important amendment in the Constitution. Although the Ninth Amendment was ratified in 1791, its history and purpose are contested to this day. It reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But what does this mean? How have the courts interpreted it? What does it say about the role of government in protecting our rights?

Three distinguished law professors, Laurence H. Tribe, Randy E. Barnett, and Michael W. McConnell, take on these questions and more in Retained by the People.

00:00 - Opening
01:12 - Title Card
01:19 - Original Meaning of the Ninth Amendment
03:35 - The New Deal Effect
04:17: Court Cases and the Ninth Amendment
06:51 - Enumerated Rights and the Supreme Court
10:30 - Protection of Enumerated Rights
13:15 - Future of the Ninth Amendment in Court
15:34 - End Credits

#NinthAmendment #9thAmendment #Constitution #deadletter #law #FedSocFilms

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Follow Professor Laurence H. Tribe: @TribeLaw

Learn more about Professor Tribe:

Follow Professor Randy E. Barnett: @RandyEBarnett

Learn more about Professor Barnett:

Follow Professor Michael W. McConnell: @StanfordConLaw

Learn more about Professor McConnell:

Related Links & Differing views:

Judge Michael McConnell delivers fourth annual Hayek lecture [NYU Law]

The Ninth Amendment: It Means What It Says [Georgetown University Law Center]

The Ninth Amendment in Light of Text and History [Cato Supreme Court Review]

Dissenting from Natural Rights Nationalism: A Reply to Randy Barnett [Law & Liberty]

Reconceiving the Ninth Amendment [Georgetown Law]

[ArchangelTruth]

Thank you for such a good explanation of the 9th and the failure by Scotus to sufficiently weigh its limiting impact against government vs the Natrual or inalienable Unenumerated Rights. I would like to request a greater explanation of the part of the 10th Amendment that says OR THE PEOPLE. I thank you for your very educational videos.

[robjohn]

My favorite amendment, and sadly the most under utilized.

[bryonwatkins]

Great, great video!!!! Thank you all!!!!

[autentico]

American citizens must retain the freedom and right to protect family and properties from foreign persons or countries, as individuals, in cases of child custody cases, properties and persons. No foreign person should be allowed to take, control or possessed anything or child of a natural born u.s citizens. This is a right that is natural in form, with no requirements, when transfer of an American born child to a non citizen or foreign in a child custody dispute, in my opinion is a crime against both the child and American citizens right to self protection and freedom to do so.

[dtour]

To collect water that falls out of the sky should be an unspoken right, but it has been outlawed in many regions in the U.S.
Just an example I thought of.

[sweetroscoeful]

Great Vid. I better understand those that argue that the 9th amendment is the most important amdmendment.

[Ms.GreenJeans]

People always go to 10th amendment BUT, I'm always screaming NINTH!! Great video.

[spartanboxing]

The 9th amendment clearly states that elected and unelected officials cannot take away any inherent rights stated in the amendments.

[BlakeChastainFitness]

Excellent video, helped me greatly with an essay I am writing!

[YourAirworthiness]

Interesting they didn’t mention the full scope of the first clause, of the 9th Amendment.

[oihilguest]

I was arrested and charge d for tresspass on my own rental property and three other felonies added falsely prosecuted Arizona

[jrod]

Very informative and well explained. Thank you.

[AdmoreMethod]

FACT: Supreme Court decisions are OPINIONS. In fact, the day the Supreme Court meets to hand down their decisions are called OPINION DAYS. They’re not rules or laws. They’re merely OPINIONS. Which is why one Supreme Court can change or overrule or even strike down another Supreme Courts decision — because, they’re only OPINIONS. Let that sink in.

[jasonking]

The 9th means the rights granted to the legislature cannot use abuse the rights retained by the people by using the law making process to deprive or limit rights(enumerated or not).

[teoanselmi]

9:16 but he was also joined by Chief Justice Earl Warren and MR.justice William Brennan

[MrApplewine]

I like natural law, but if you want to make that argument you would have to be very creative and elegant about the use of the 9th amendment for that purpose. One way to do that would be to say the court must meet with the legislature and explain to the legislators why the law is a violation of natural law and provide some enhanced mechanism to change the law in light of this case. This may include informing the public directly through the postal service of the ruling and how this is a violation of natural law and the 9th amendment. However, the ruling would not change the law by itself because the judges should not have the power. This would also preclude capital punishment for violation of any law which is a violation of natural law because if the person is dead then there would be no chance for them to be pardoned in the future, or for the change of law to effect them, or for amnesty to be granted upon the change of law.

[Wyrmwould]

Terrific ideo. The Ninth Amendment has always been my favorite and no one ever talks about it. People act like it is either indecipherable or they ignore it altogether. But how what the suggested jurispendence work? Are we to wait for each of the 50 state legilsatures to declare something a fundamental right before we can claim that it is a constitutional right? That seems backwards to me because we are clearly talking about a federal right; in other words, a right that would have to be respected in all 50 states---a right claimed by federal citizenship instead of state citizenship. If that is so, why is a "ninth amendment right" determined by what the state governments declare? Is it simply that you have to start somewhere in your quest for unnumerated rights and the legislatures of the several states is as good a place to start as any?

[starbaseshiptestingfacil]

The definition of the word "certain" has deviated from it's original meaning. The original "certain" which is still intact today is "sure; or without doubt or established beyond doubt". An alternate and erroneous definition has taken hold of the word "certain", "vague, selection of"

The use of the word "certain" was to indicate that the founders had ABSOLUTELY no doubts about these rights. The abuse of powers has been an ongoing problem since the beginning of civilization, long before it was made into the Constitution.

The enumerated rights, established in the Constitution shall not be interpreted to be denied, nor deprecated (or lessened) others (other rights) retained by the people.

The 10 Amendments are the Bill (law) of Rights and protection against government powers (for the purposes of checks and balances), from either unintentional (incompetence) or intentional (criminal) abuse of power. The 9th Amendment is to state that the protections granted in the Bill of Rights can not be denied, nor can other rights be deprecated. Not all of the rights could be spelled out as it would take too long.



There are currently 2 real-world examples of 9th Amendment violations.

1) Sarah Hohenberg of Shelbyville, TN. The city, using Home Owners Association (HOA) style city ordinance, excessively fined the owner for the appearance of the property for large sums of money, and took possession of the property when she couldn't pay the fines and kicked her out of her home. The problem is the appearance of the property is protected under the 1st Amendment, Freedom of Expression, and the city also ignored her property rights. The fines are unconstitutional, excessive, and illegal.

1st Amendment violation, the appearance of the house falls under the protection of Freedom of Expression.

3rd Amendment (Exhibit A) is an example of property owner's rights supersedes those of the governments. It's narrowest interpretation only applies to the housing of soldiers, while a 1 degree of broadening its interpretation would make property rights an enumerated right.

4th Amendment violation, the seizure of property was unreasonable (theft). Also, a 4th Amendment violation, unreasonable search (invasion of privacy) using HOA style ordinance, came inside her home to cite violations.

5th Amendment violation, Sarah Hohenberg was illegally fined, and her property was seized unlawfully (through fraudulent means) without Due Process.

6th Amendment violation, she was denied an appeal for injunctive relief, so the plaintiff could proceed to a fair trial. (ongoing, scheduled)

8th Amendment violations, the fines were excessive and illegal (fraud, government corruption)

9th Amendment violations, city ordinance is construed to be legal and completely oblivious to 1st Amendment (enumerated rights) protection and deprecated her property rights (other rights retained by the people). Being oblivious (just another word for stupid), her 1st Amendment right and property rights were deprived, which is unconstitutional. HOA-style ordinances are somewhat new, and many judges have not gotten up to speed, they are unconstitutional and illegal.

It is a case of exceedingly egregious violation of a person's rights. The case is ongoing.


2) Civil and Administrative Asset Forfeiture. Law enforcement claims they are "dismantling criminal organizations". However, they failed to follow procedures to prove it. They never charged anyone with a crime. The government never got around to proving there was a crime. Money is simply stolen from the owner. In some cases, to prevent the owner from challenging the theft in court, "law enforcement" threatened to falsely imprison the owner, unless they waive their claim to the property, which is extortion (a crime). "Law enforcement" is so incompetent they don't even know they are committing a crime. Civil and Administrative Asset Forfeiture is construed as if 5th Amendment Due Process does not exist and 4th Amendment violation (unreason seizure, or theft) has not occurred.

Apparently, many judges do not understand what Due Process means. Due Process is where the government charges the owner with a crime, then proceeds to prove it. Going to court to have stolen money returned is not Due Process. Due Process listed in the 5th Amendment is to ensure that seized property is legally seized (also must be prescribed as the penalty by law), which means the judge must render a verdict against the person charged, before seizing of property takes place. Seizing property illegally is theft by the government and the reason why it is unconstitutional.


In both cases, government officials(s) could be charged with fraud, theft, grand larceny, racketeering, and government corruption.

[spencerantoniomarlen-starr]

Could you please do a video on how the 9th and 10th Amendment collectively mean much more than the sum of their parts?

[MrApplewine]

These ruling reasons are pretty bad, but the ruling sounds correct in the unique circumstances for totally different reasons than stated. There are logical and not expansive or arbitrary at all.

For the 1998 case all you have to do it point to the right to a trial and say the 9th amendment says you should broadly interpret that with necessary and proper actions to support it. For example, if you can't observe trials, then how do you know the government is following the right to trial as protected? Boom!

And, for the 2000 case, the right to raise your child doesn't have to be some sacrosanct thing that the 9th amendment implores judges to stand up for, that is stupid, and the judge isn't deciding what right a person has. The judge just has to say, show me the state law that says you can't raise your child as you see fit, and if there is no law then the court has no authority to do impose it. And, further if there is a law and you challenge it on the 9th amendment, then the state must try it in a court which follows due process, not a FAMILY COURT, because family court does not follow due process, equal protection etc. Boom!

See, there are perfectly simple and basic, concrete, good reasons that these cases could be decided like they were, which are totally different than the arbitrary and vague, expansive reasons given.