the Right to Privacy and the Ninth Amendment to the Constitution
The Ninth Amendment states. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other rights retained by the people.
Most of this text was taken from [the Constitution of the United States of America, analysis and interpretation, annotations of cases decided by the Supreme Court of United States.] Prepared by the Congressional Research Service, Library of Congress: The Ninth Amendment.
Aside from contending that the Bill of Rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights, by arguing that inasmuch as it would be impossible to list all rights, it would be dangerous to list some, because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those. James Madison averted to this argument in presenting his proposed amendments 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 disparaged those rights which are 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 against the admission of a Bill of Rights into the 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 fourth resolution." It is clear from this text and from Madison statement that the Amendment states but a role 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. Recently, however, the Amendment has been construed to be a positive affirmation of the existence of Rights which are not enumerated but which are nonetheless protected by other provisions.
Earlier, Madison had written to Jefferson: "My own opinion has always been in favor of a Bill of Rights; provided it is so framed as not to imply powers not meant to be included in the enumeration.... I have not viewed it in an important light, because there is great reason to fear that a positive declaration of some of the most essential rights cannot be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely to ever be by an assumed power. To some extent, the Ninth and Ten Amendments overlap with respect to the question of unenumerated powers, one of the two concerns expressed by Madison, more clearly in his letter to Jefferson, but also present in his introductory speech.
The Ninth Amendment was sited rarely until 1965 in the Supreme Court case of Griswold vs. Connecticut, it was not until then we were provided with a Right to Privacy in a 7 to 2 decision by the Supreme Court. The case involved a statute prohibiting the use of contraceptives, and was voided as an infringement of the right of marital privacy. Justice Douglas, writing the opinion of the court, asserted that the "specific guarantees in the Bill of Rights have penumbras, formed by the emanations from those guarantees that help give them life and substance." Thus, while privacy is nowhere mentioned, it is one of the values served and protected by the First Amendment, through its protection of Associational Rights, and by the Third the Fourth and the Fifth Amendments as well. The Justice recurred to the text the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the 9th Amendment. The opinion was joined by Chief Justice Warren and Justices Clark, Goldberg and Brennan, "The language and history of the ninth amendment revealed that the Framers of the Constitution believed that there are additional Fundamental Rights, protected from Governmental infringement, which exist alongside those Fundamental Rights specifically mentioned in the first 8 Constitutional Amendments.... To hold that a Right so basic and fundamental and so deep rooted in our society as the Right of Privacy in a marriage may be infringed because that right is not guaranteed in so many words by the first Eight Amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first Eight Amendments or elsewhere in the Constitution would violate the Ninth Amendment.... Nor do I mean to state that the ninth amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's Authors, that Fundamental Rights exists that are not expressly enumerated in the first eight Amendments and an intent that the list of Rights included their not be deemed exhaustive." Justices Harlan and White concurred independently, without alluding to the ninth amendment, but instead basing their conclusions on substantive due process, finding that the state statute, "Violates basic values implicit in the concept of order and Liberty."
Our Privacy Rights and our Fourth Amendment Rights are under attack as never before; because of [the War on Terrorism] Please tell your Senators, your Congressman, and the President of the United States, how you feel about your Privacy Rights and Fourth Amendment Rights, and that you do not want them violated, by Congress or the Presidency.
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