My reading of the 9th Amendment is that the writers clearly recognized that they could not feasibly enumerate every single right a person could have or would have in this new republic. When you historically look at what was going on that triggered the Bill of Rights, there are almost direct correlations between what they were currently experiencing, i.e. anti-federalists who were calling for clear protections from a large, controlling government. So, these people had just left Britain and the crown and are essentially writing a new charter to ensure they are not just going to make another mini-Britain in the U.S. The third amendment in response to the Quartering Act, the 2nd Amendment to ensure civilians can always have the ability -- and firepower-- to overthrow a government if it becomes too corrupt; a well-regulated militia of citizens. And then comes the 9th Amendment to say basically that just because something is not spelled out here, does not mean that the right does not exist. That citizens cannot decide they want to protect themselves in other ways. Essentially, the absence or silence on an enumerated right does not mean it does not exist.
I wonder if there are any other amendments like the Ninth Amendment that hint at principles rather than laying out clear rulings? Personally, the Tenth Amendment comes to mind, as it also works as a constitutional reminder and preserves powers not given to the federal government to the states and their people. These both suggest that the Constitution's text does not provide the full story, which makes me think: how much should courts rely on these unwritten rules when deciding our rights and what they really are?
(1) Yes, courts should rely on unwritten principles: Ignoring the Ninth (and Tenth) Amendment risks denying freedoms the Constitution was meant to protect. Courts need these broad principles to safeguard fundamental rights that the Framers didn’t (or couldn’t) list explicitly.
(2) No, courts should not rely on unwritten principles: Relying on vague ideas not grounded in text or history risks giving unelected judges too much power to define rights based on personal views. If rights are to be expanded, that’s a job for the people and their representatives, not the courts.
My reading of the 9th Amendment is that the writers clearly recognized that they could not feasibly enumerate every single right a person could have or would have in this new republic. When you historically look at what was going on that triggered the Bill of Rights, there are almost direct correlations between what they were currently experiencing, i.e. anti-federalists who were calling for clear protections from a large, controlling government. So, these people had just left Britain and the crown and are essentially writing a new charter to ensure they are not just going to make another mini-Britain in the U.S. The third amendment in response to the Quartering Act, the 2nd Amendment to ensure civilians can always have the ability -- and firepower-- to overthrow a government if it becomes too corrupt; a well-regulated militia of citizens. And then comes the 9th Amendment to say basically that just because something is not spelled out here, does not mean that the right does not exist. That citizens cannot decide they want to protect themselves in other ways. Essentially, the absence or silence on an enumerated right does not mean it does not exist.
I wonder if there are any other amendments like the Ninth Amendment that hint at principles rather than laying out clear rulings? Personally, the Tenth Amendment comes to mind, as it also works as a constitutional reminder and preserves powers not given to the federal government to the states and their people. These both suggest that the Constitution's text does not provide the full story, which makes me think: how much should courts rely on these unwritten rules when deciding our rights and what they really are?
No easy answers!
The two sides of the debate:
(1) Yes, courts should rely on unwritten principles: Ignoring the Ninth (and Tenth) Amendment risks denying freedoms the Constitution was meant to protect. Courts need these broad principles to safeguard fundamental rights that the Framers didn’t (or couldn’t) list explicitly.
(2) No, courts should not rely on unwritten principles: Relying on vague ideas not grounded in text or history risks giving unelected judges too much power to define rights based on personal views. If rights are to be expanded, that’s a job for the people and their representatives, not the courts.