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The Ninth Amendment states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

So how is it lawful that laws or ordinances are created that infringe on people's preferences where these preferences create no harm to another person or their property or no significant threat of harm to others or their property?

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    Can you add examples of laws/ordinances you're referring to? – BruceWayne Jan 5 at 3:01
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    As the poster, I didn't want to risk sidetracking things. – Keenan Jan 5 at 4:19
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The 9th amendment has very little jurisprudence (binding court decisions, particularly from SCOTUS) behind it*. Most of what is available are in non-binding concurrences or dissents. It has very rarely been used to any legal effect, with the 14th amendment in particular providing the overwhelming majority of constitutional rights protections. Before about the 1980's one would be reasonably left with the impression that the amendment was completely forgotten and without effect (though note that the district court decision in Roe v. Wade used a 9th amendment argument, but was replaced with a 14th amendment one by SCOTUS).

The historical basis for the enactment of the 9th amendment was a fear that the fact that some rights are explicitly enumerated in the constitution would be used as a basis to deny (the existence of) other rights. So the amendment was intended to deny an "if they wanted to acknowledge and protect the right to X, they would have specifically listed it, just as they did with freedom of the press, religion, etc." argument. They also feared that such arguments would permit an expansion of federal powers, by offering up the implication that anything not denied to the federal government must implicitly be reserved to its power. This contradicted the intent of the constitution to restrict federal powers exclusively to specifically enumerated (or necessarily implied) ones. And that's the usual interpretation used by the judiciary.

This can take some repeating to really understand.

  • The amendment is not interpreted as protecting or acknowledging any rights in any direct fashion.
  • Rather it shields such potential rights from non-existence arguments that are based on the enumeration of other rights.
  • The amendment's real purpose is to prevent expansion of federal powers beyond those expressly enumerated in the constitution.
  • As a consequence (or in addition), the amendment does not protect such unenumerated rights from the constitution's enumerated powers.

The last point is specifically mentioned in the majority opinion for United Public Workers v. Mitchell

The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.


*However, in The Lost Jurisprudence of the Ninth Amendment, Kurt Lash argues that this is a pervasive but ultimately fallacious modern impression. He says in particular:

In fact, there is a surprisingly rich history of legal interpretation and judicial application of the Ninth Amendment prior to Griswold [v. Connecticut (1965)]. Beginning in 1789 and extending to 1964, the Ninth Amendment played a significant role in some of the most important constitutional disputes in our nation's history, including the ratification of the Bill of Rights, the constitutionality of the Bank of the United States, the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the right of states to secede from the Union, the constitutionality of the New Deal, and the legitimacy and scope of the incorporation doctrine.

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    "The amendment's real purpose is to prevent expansion of federal powers beyond those expressly enumerated in the constitution." I would venture to say that on this point the amendment has been forgotten. – EvilSnack Jan 5 at 12:17
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    @EvilSnack, Agreed. One example that I think of is the 'right' to privacy. Since that right is not explicitly stated in the Constitution, it seems the government has given itself incredible liberty to take any measures to any lengths to dismiss this right. And more than a few times I've heard the defense, "But the right to privacy doesn't exist..." I consider that a logical fallacy. Just because the right doesn't exists in the Constitution, doesn't mean it doesn't exist. And I think the founders were considering just exactly those kind of scenarios with the 9th Amendment. – ouflak Jan 7 at 10:56
  • @ouflak Given "The right of the people to be secure in their persons, houses, papers, and effects ..." you've actually encountered more than one person making the claim "the right to privacy does not exist"? I'd probably wind up staring flabbergasted at such a person for a while. Then I'd be tempted to grab a flashlight, turn it on, press it against the back of their head, and see if the light shined out of their eyes... – Just Me Jan 7 at 13:04
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    @JustMe, It's actually been entire government agencies (NSA, CIA, Congress, Executive branch) making that claim. And I do think the light would shine bright and clearly through for a good number of the elected officials. It's a massive debate. The two top links that came up when I did a search on, "The right to privacy does not exist"-those words exactly: Wikipedia's article and a FAQ from usconstituion.net. If you're interested, search on "NSA right to privacy" and read away. – ouflak Jan 7 at 15:43
  • You guys may find the article in my footnote helpful, as it essentially argues that the change in the 9th's meaning and relevance happened as a result of the broad expansion of federal powers necessary for the New Deal. But also that the 9th essentially got folded into the 10th, making the 9th appear irrelevant on face value when in fact it's still operating in much the same fashion under the guise of the 10th. – zibadawa timmy Jan 8 at 7:16
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The ninth does not prohibit laws that are "necessary and proper" for the running of the constitution and in particular necessary for the regulation of commerce between states. Since most human activities have an element of commerce, this has a wide application. For example, it allows for Federal laws regulating drugs.

Moreover, States can create laws that restrict preferences based on their own constitution (providing said constitution is republican in nature). The people in a state can choose, through the democratic processes of the state, to create laws that regulate or infringe on individual preferences. So it is legal for a State to (for example) create laws that regulate motorcycle helmet wearing, if it is the will of the people expressed through their representatives that it be so.

The 9th amendment just states that further rights may exist. It doesn't say that everything that you might want to do is an inalienable right, and courts have not found that the freedom to ride a motorbike without a helmet is a right.

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