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hi this is Kim from Khan Academy today we're learning more about the ninth amendments to the US Constitution which reads the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people this along with the Tenth Amendment doesn't protect a specific right like freedom of religion or due process under the law but rather advances an interpretation of the scope of the Constitution and of government power to learn more about the ninth amendment I talked with two experts Curt lash is the e clay Warren Robbins distinguished chair in law at the University of Richmond School of Law Jeffrey Rosen is the president and CEO of the National Constitution Center he's written extensively on the history of the Supreme Court Professor lash can you tell us a little bit more about this amendment why did the framers include this amendment in the first place the ninth amendment like the rest of the Bill of Rights was added at the insistence of the states although the advocates of the proposed Constitution had claimed that the national government would have only limited enumerated power the state ratifying conventions wanted that promise put in writing originally the Constitution didn't contain a bill of rights because James Madison said the Bill of Rights would be unnecessary or dangerous unnecessary because the Constitution itself was a bill of rights it only granted Congress limited powers and therefore Congress had no power to infringe free speech for example a religious liberty and therefore wouldn't he be able to do so and dangerous Madison said because if you had a Bill of Rights people might wrongly assume that if a right wasn't written down it wasn't protected but in response to objections by anti-federalists that is those opposed to the ratification of the Constitution led by George Mason of Virginia as well as Edmund Randolph of Virginia and Elbridge Gerry of Massachusetts so those three guys said hey unless we include a bill of rights for greater security and safety then we don't think the Constitution should be ratified and in response to their objections and those in ratifying conventions many of which demanded a bill of rights Madison changed his mind and he included a bill of rights which he cut and pasted from revolutionary-era state constitutions and viewers and listeners can check those out at the interactive Constitution but then that raised interpretive problem Madison and others were worried if you just had a limited list of Rights ten amendments in particular protecting particular rights people might assume that if a right wasn't written down then it wasn't protected and the framers didn't want you to reach that conclusion because they believe that our rights come from God or nature and not from government Thomas Jefferson and Declaration of Independence said we're all endowed by our creator with certain unalienable rights and when you look at these amendments our first ten amendments you'll notice that some address specific issues like speech and the right to bear arms the last two amendments on that list however address broader issues of constitutional interpretation these are rules of construction the Tenth Amendment declares that all powers not delegated it away remain under the control of the people in the states the ninth amendment addresses the problem potentially raised by adding this list in a bill of rights the 9th amendment tells us that just because the Constitution lists certain important limitations on federal power this doesn't mean that the federal government has otherwise unlimited power or as the 9th amendment puts it the enumeration in the constitution of certain rights shall not be construed to deny or disparage to others retained by the people and in this way those two last rules of construction ensure that every subject not placed under the control of the national government would remain under the control of the people in the States and remain there as a matter of right these amendments protect the people's retained right to local self-government so I've talked a bit about natural rights because that same notion of the idea that you retain natural rights when you move from the state of nature to the civil society is picked up in the language of the ninth amendment which says that the enumeration of certain rights shall not be construed to deny or disparage others were by the people so one big theory of the ninth amendment is that it refers to these natural rights that you to come from God or nature and that you retain during the transition from the state of nature to civil society all right so can you give us a few examples of what those unenumerated rights that people have debated have been the paradigmatic source for identifying what unenumerated rights are protected is a case for called core field versus Correale it was decided in the early 19th century and it was cited repeatedly by the people who wrote the privileges or immunities clause to the 14th Amendment to the Constitution and basically the privileges or immunities Clause says that no state shall abridge the privileges or immunities of citizens of the United States and the question is what are those privileges or immunities and in trying to define them John Bingham who wrote the Fourteenth Amendment and a lot of other people said well some of the privileges or immunities include the rights written down in the Bill of Rights but others are not written down in the Bill of Rights and you can find them in in the core field and Coryell case their rights that are fundamental they're uniform from state to state and they've been considered basic rights of Americans from the beginning and some of these rights include the right to make and enforce contracts to sue and be sued to have basic economic rights and also to have the benefit of the writ of habeas corpus which is in the original Constitution but and that's the right to challenge the constitutionality of your conviction it's in the original Constitution but not in the Bill of Rights so those are just some examples of the unenumerated economic rights that the framers of the Fourteenth Amendment considered to be protected by the Fourteenth Amendment and by implication by the ninth amendment to because they because they are natural rights as we heard Roger Sherman say the basic rights of acquiring and possessing property and obtaining happiness and safety those are some of those rights the 9th amendment raises the difficult issue of how exactly you determine what the rights are that are actually retained by the people and the text of the 9th amendment itself tells us very little about the specific content of our retained rights but in fact these retained right answer is numerous the stars in the sky they include everything from wearing a hat to walking on the sidewalk to purchasing life insurance or determining where you can park your car or what classes should be offered in the local high school basically everything that was never meant to be handed to the control of the national government all of these our rights retained to the control of the people in the several states and all of these rights will be protected if you limit the scope of federal power a limited interpretation of the Commerce Clause for example preserves the people's retained right to establish local educational policy and to pass all manner of local civil rights legislation that's not expressly covered by the Federal Constitution the greater the limits on federal power the greater the freedom of local communities and by making a limited interpretation of federal power a right this ensures the matter can be litigated in federal court and not just left to political compromise over time courts will produce a body of law that invalidates attempts by the federal government to regulate our lives in forbidden ways such as not having the power under the Commerce Clause to force us to purchase private health insurance or not having the power to commandeer state officials and force them to enforce federal immigration policy does this refer back to some extent to kind of the common law of England and the things that were considered the natural rights of Englishmen yes it does although we should distinguish it we're gonna be precise which we should not all of the common law rights of Englishmen were natural rights could the common law rights basically are rights that were traditionally protected by English law they're they're rights that had been recognized by English judges over centuries natural rights come from God or nature not from government and there's overlap between those groups but they're worse might have been some common law rights of English people that were denied by tradition like the right to jury trial for example that's not a natural right because there are no juries in the state of nature they're just people who heard you know imagining forming governments so it makes it a little tricky but it's actually not analytically tricky and it's so interesting that over and over again the framework said you know this is just everyone knows what these natural rights are they're they're the ones that are recognized in core field and Coryell they might have and them and other enumerated rights might include the common law rights of Englishmen but it was a pretty short list and the best way to just figure out which rights were natural go to the interactive constitution click down and look at those look at the Virginia Declaration of Rights look at the Massachusetts Constitution at 1780 the New Hampshire Constitution which has this beautiful preamble about what a natural right is and you'll just see that all of these state constitutions are recognizing the same natural rights over and over again so has the Supreme Court ever decided a case based on the ninth amendment the first judicial opinion was actually written by Justice Joseph story one of the most famous justices in American history in his opinion in Houston against Moore decided in 1820 story explained that the spirit and letter of the ninth amendment called for the limited interpreting of the scope of federal power in order to avoid interfering with state laws regarding the local of militia in fact it wasn't until the 20th century that you find scholars and justices trying to invert the ninth amendment in a manner that allowed or even required federal interference with local policies in Griswold against Connecticut for example justice Arthur Goldberg argued that the ninth amendment supported the courts invalidation of state contraception laws Douglass says in this case that the Constitution in the particular rights and the Bill of Rights include certain penumbra's formed by emanations from the particular guarantees that may create broader unenumerated rights and privacy was one of them a Douglass says privacy is protected in different ways in different parts of the Bill of Rights the Fourth Amendment protects our right against unreasonable searches and seizures the third amendment protects the right not to have soldiers courted in the home the First Amendment protects a right of freedom of association and from these particular expressions of privacy Douglass extracted or inferred a broader and more sweeping right of privacy which could extended to cover our married couples right to use contraception when the Bill of Rights was ratified in the late 18th century it only applied to the federal government it was not until after the Civil War in the late 1860's in early 1870s that the Fourteenth Amendment applied some of the protections of the Bill of Rights to state governments so how does the Fourteenth Amendment impact our understanding of the 9th amendment most constitutional historians believe that the privileges or immunities clause was originally understood as applying the first eight amendments against the states but what of the ninth amendment is it possible that the privileges or immunities Clause turns the ninth amendment from a provision protecting local government to one that interferes with local government many libertarian scholars believe so a close look at the historical record however shows that this is not likely to begin with John Bingham the man who framed the privileges or immunities clause publicly declared to the House of Representatives that the privileges or immunities clause made the first eight amendments enforceable against the states he said nothing about either the ninth or 10th amendments meanwhile in the Senate the man who introduced the proposed 14th amendment to his colleagues Jacob Howard also said that the privileges or immunities Clause would apply the first eight amendments against the states and he too said nothing about the ninth or tenth amendments and finally the public that debated and ratified the 14th amendment remained broadly committed to the Federalist principle of dividing power between the state and local governments it had been the slaveholding rebel states that had violated this principle by demanding that slavery be enforced throughout the nation regardless of local freedom laws if we look at the period in which they adopted the 14th amendment it appears that that amendment did in fact apply the textual right so the first eight amendments against the states but it left everything else to local control subject only to the requirements of due process and equal protection well the night the the very least is a question of interpretation it says don't assume that if a right isn't written down it's not protected so when Robert Bork the late Robert Bork who was nominated to the Supreme Court in 1987 but didn't get through said that the Ninth Amendment should be treated as an inkblot because we can't know what rights are actually protected by the ninth amendment it should be ignored that can't be right then that's the one thing that Madison said don't do don't assume that if the right isn't written down it's not protected but st. saying that that matter of construction is important and that there are certain rights not enumerated in the Constitution that are protected doesn't tell us which rights are protected and that's where all of the action and all of the drama and all the excitement and constitutional interpretation in the 20th and 21st century has come from how do we identify the rights that are not written down or not enumerated but are protected and there's a whole lot to say about that and in fact that's why we teach constitutional law is to study the methodologies of interpretation that lead people to different conclusions about which unenumerated rights are protected so we've learned that the 9th amendment served as an assurance that the Bill of Rights was not an exhaustive list of the rights retained by the people or the states but how can you protect unenumerated rights which by their very definition aren't named in the Constitution Curt lash sees the original meaning of the ninth amendment as a restriction on federal power Jeff Rossen reminds us that although it's difficult to tell which rights the framers intended to protect with the ninth amendment it's likely that those rights included the same natural unalienable rights enshrined in the Declaration of Independence to learn more about the 9th amendment visit the National Constitution Center's interactive Constitution and Khan Academy's resources on US government and politics