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The 9th Amendment to the US Constitution is one of the least referred to amendments in decisions of
the Supreme Court. It is also one of the most confusing, controversial and misunderstood amendments
to the Constitution. This amendment reserves all rights not listed in the Constitution to the people. The
9th Amendment to the Constitution reads like this:
"The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people."
Purpose of the 9th Amendment
The 9th Amendment's purpose is clear. The Bill of Rights mentions certain rights that are to be
protected from government interference, these rights include freedom of speech, freedom of religion,
freedom of the press, freedom of assembly and the right to keep and bear arms, among others.
Just because a right is not mentioned in the Bill of Rights, though, does not mean that the government
automatically has the right to interfere with it. Instead, the 9th Amendment says that any right not
enumerated, or listed, in the Constitution is still retained by the people. So, in plain language, it means
that there are other rights that people have that are not listed in the Constitution.
The Founding Fathers realized that they could not possibly list every natural right of human beings that
needed protection. Instead, they delegated certain powers to the government that were specifically
spelled out in the Constitution, and said everything else is left up to individuals and to their state
Original Bill of Rights
What is a natural right? Natural rights are those rights that people have just because they are human.
They are natural to mankind and should not be violated by the government. So, things like freedom of
speech, freedom of religion and freedom from cruel and unusual punishment, were judged by the
Founding Fathers, to be natural rights that the government can not violate.
9th Amendment Clauses
The first part of the 9th Amendment is called "The Enumeration of Rights Clause." It states that there are
certain rights of the people, which are specifically listed, in the Constitution.
The second part of the 9th Amendment is called "The Rights Retained by the People Clause." This
clause states that any rights that naturally belong to human beings, that are not specifically listed in the
Constitution, are still protected rights. In other words, the government still cannot infringe on these
rights, even though the Constitution doesn't say it can't. Those rights are still "retained" by the people.
History of the 9th Amendment
Why was the 9th Amendment added to the Bill of Rights? After the Constitution was written by the
Constitutional Convention at Philadelphia in 1787 and submitted to the States for ratification, many
voices arose saying the Constitution did not sufficiently protect the basic natural rights of the citizens.
The Anti-Federalist Party in particular claimed that unless certain rights were spelled out in a Bill of
Rights, the government would easily take over these rights and abuse the people. Thomas Jefferson,
Patrick Henry and George Mason were all of the Anti-Federalist opinion.
On the other hand, people in the Federalist Party, such as George Washington, John Adams, James
Madison and Alexander Hamilton, believed that the Constitution did not give the government the right
to do anything that was not specifically stated in it. Therefore, they reasoned, that a Bill of Rights was
first of all unnecessary, but also possibly dangerous. Why? Because they thought that if specific rights
were listed to be protected from government intrusion, it would imply that any other rights not listed,
were under the power of the government.
James Madison was the primary author of the Constitution. He eventually decided to fight to see a Bill
of Rights added, in spite of the fact that he didn't really think it necessary, in order to persuade enough
people to join in ratifying the Constitution. On June 8, 1789, he presented to the First Congress, a list of
suggested amendments to the Constitution. Referring to this debate about rights not specifically listed,
he said this:
"It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the
grant of power, it would disparage those rights which were 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 this 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."
This passage comes from James Madison's June 8, 1789 speech to Congress, which presented his
Madison's suggested amendment to solve the problem of the government taking powers that it was not
intended to have was worded like this:
"The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so
construed as to diminish the just importance of other rights retained by the people; or as to enlarge the
powers delegated by the constitution; but either as actual limitations of such powers, or as inserted
merely for greater caution."
Congress changed the wording slightly to the arrangement that we now know as the 9th Amendment.
So, in the end, the Anti-Federalists won the argument and the Bill of Rights was added to the