Meaning of the Ninth Amendment
The Ninth Amendment says the list of rights explicitly protected from federal interference in the Bill of Rights and in Article 1, Section 9, is not a complete list. Worded differently, the Ninth Amendment says the rights of the people protected from federal interference are not and cannot be listed in their entirety – the list is incomplete because the rights of the people cannot be listed in their entirety.
Recall that the Bill of Rights was a shield erected by the states against the federal government to ensure the federal government would remain confined and limited to its delegated, Enumerated Powers. In this context, the Ninth Amendment reinforces the logical structure of the Constitution, the Enumerated Powers structure, and addresses Alexander Hamilton’s argument as to why a federal Bill of Rights would be dangerous.
Ninth Amendment addresses Alexander Hamilton’s argument against a Federal Bill of Rights
Alexander Hamilton said lists are generally interpreted as being complete and exhaustive. If the rights of the people protected from federal interference were listed, then it would be implied that all other rights not listed would not be protected from federal interference. In Federalist 84, Hamilton said a Bill of Rights would provide a “colorable pretext” for the federal government to try to assume powers not delegated. The Ninth Amendment addresses Hamilton and says the list of rights protected from federal interference is not complete.
Proper Interpretation of the Ninth Amendment
Congress only has authority to pass laws pursuant to its delegated powers (Article 1, Section 8). Beyond those Enumerated Powers, Congress has no legislative authority. But, in case Congress gets any crazy ideas and passes laws outside its delegated authority, the first eight amendments stand to explicitly protect certain important rights from unconstitutional exercises of federal power. The Ninth Amendment just makes it clear that only certain very important rights have been listed in the first eight amendments to the Bill of Rights, and in Article 1, Section 9. The Ninth Amendment says this list of rights protected from federal interference is not complete since the rights of the people protected from federal interference cannot be listed in their entirety. The logic then flows to the Tenth Amendment which tells Congress not to pass laws outside the scope of the delegated, Enumerated Powers.
Ninth Amendment and the Incorporation Doctrine
In the modern, post-Incorporation Doctrine world, the Ninth Amendment is completely illogical. If the Bill of Rights applies against the state governments and protects substantive rights, then what does the Ninth Amendment mean? Does it mean courts can arbitrarily pick and choose what rights they wish to protect based on their arbitrary personal preferences? Under the present form of government in the United States today, where Congress can make whatever law it wants, and the federal courts make up laws as they go, the Ninth Amendment cannot and does not make any sense whatsoever… which is why the Ninth Amendment is largely ignored today.
United States Constitution – Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.