Ninth Amendment: Rights in the United States are not created by Government
Although there is some authority for the proposition that the Ninth Amendment is a source of fundamental rights, see Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring)
The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Onyiuke v. New Jersey 242 Fed. Appx. 794 (3d Cir. 2007) Indeed, the Ninth Amendment does not independently provide a source of individual constitutional rights. See, e.g., Jenkins v. C.I.R., 483 F.3d 90, 92 (2d Cir. 2007); Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991).
The ninth amendment had its genesis in the Federalist answer to this argument. The Federalists insisted that if a bill of rights were written, the fears of the Antifederalists would be realized, for an imperfect enumeration of rights would imply that other rights had indeed been given up to the federal government. * * * Therefore, the Federalists perceived the new government as one of enumerated powers, and, as long as no contrary inferences prevailed, the government would have no power to interfere with the exercise of individual rights. See L. Dunbar, “James Madison and the Ninth Amendment,” 42 Va. L. Rev. 627 (1956).
Some of the more influential Antifederalist delegates to the Virginia convention to ratify the Constitution, however, were insistent on a bill of rights and wanted to make ratification of the Constitution conditional on the passage of the amendments in the first session of Congress. James Madison, a leading Federalist spokesman, feared the impact such a conditional ratification would have on other States. He therefore promised the delegates that he would submit the desired amendments to the first Congress if they would ratify the Constitution in its then form. “The promise to seek amendments apparently shifted the votes of enough delegates to permit ratification by a narrow margin. A number of proposed amendments and a suggested bill of rights were attached to the resolution of ratification, with the request that Congress consider and enact them.” 33 U. Chi. L. Rev. at 819-820.
After the Constitution had been ratified, and the House of Representatives had been assembled, Mr. Madison submitted several amendments to the Constitution. The original proposal for the ninth amendment read: “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.”
In his introductory remarks, Madison stated, in reference to the above proposal: “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 urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against … (by the proposed amendment).”
Eventually the House formed a select committee, of which Madison was a member, to review the proposals. While the amendment was in committee it underwent an important revision. Madison’s original proposal had contained two parts, the second of which stated that the enumeration of certain rights should not be construed “to enlarge the powers delegated by the constitution.” This section was stricken in the select committee, which reported back the ninth amendment in virtually final form: “The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” (33 U. Chi. L. Rev. at 820-821; fn. refs. omitted.)
The Ninth Amendment thus represented an endeavor to preserve the underlying theory of the framers of the Constitution that individual rights exist independently of government, and to negate the Federalist argument that the enumeration of certain rights would imply the forfeiture of others. See L. Dunbar, supra at 631.
The petitioner, in support of his argument that the Ninth Amendment safeguards the right to obey moral conscience, quotes from a letter Mr. Madison wrote to Thomas Jefferson in 1788 in which Mr. Madison wrote: There is a great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience, in particular, if submitted to public definition would be narrowed much more than they are likely to be by an assumed power.
However, Mr. Madison’s statement does not go so far as the petitioner infers. In discussing the precise letter, quoted by the petitioner, a commentator has stated: “Madison’s fear was simply that definitions of specific rights which required ratification by Congress and the states might not be as broadly stated as he would prefer.” (33 U. Chi. L. Rev. at 824.)
As another commentator has written regarding the intent and purpose of the acknowledged “author” of the Ninth Amendment: Madison had wanted guarantees of procedural decency and a declaration of the rights of conscience. What he further proposed, and what he got in abbreviated form in the ninth amendment, was an affirmation of the principle that, as rights in the United States are not created by government, so they are not to be diminished by government, unless by the appropriate exercise of an express power. (L. Dunbar, supra at 637-638.) Tingle v. Comm’r of Internal Revenue 73 T.C. 816 (U.S.T.C. 1980)
In Stull v. School Board of Western Beaver Jr.-Sr. H.S., 459 F.2d 339 (3d Cir. 1972), the Court of Appeals held that the right of an individual to control his personal appearance, including his hairstyle, was sufficiently substantial to be accorded the protection of the liberty assurance of the Due Process Clause of the Fourteenth Amendment. Stull involved a school dress code proscribing the wearing of hair covering the ears and below the collar line. Eschewing two grounds often cited in other cases in support of this type of claim, James has settled upon the assertions that his rights are founded upon the due process clause of the Fourteenth Amendment, and upon the Ninth Amendment (although the Ninth Amendment claim was not stressed on this appeal, it is pleaded in the complaint).
There are circuit court cases supporting both theories, and it is fitting that we review them before enunciating our own view. “Whether this right is designated as within the `penumbras’ of the first amendment freedom of speech, see Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), or as encompassed within the ninth amendment as an `additional fundamental right[s] . . . which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments’ Griswold v. Connecticut, 381 U.S. at 488, 85 S.Ct. at 1684 (J. Goldberg concurring), it clearly exists and is applicable to the states through the due process clause of the fourteenth amendment.” Id. at 1036
In Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970), the court expounded upon this formulation: “Our holding [in Breen] rested upon the premise that the Constitution contemplated protection for additional fundamental right[s] . . . which exist alongside those fundamental rights specifically mentioned in the first eight amendments, Griswold v. Connecticut, 381 U.S. 479, 488, 85 S.Ct. 1678, 14 L.Ed.2d 510. . . .” 432 F.2d at 1263. Thus, the Seventh Circuit has adopted the rationale of Griswold, which held that the Constitution, through the Ninth Amendment, recognized the existence of rights other than those specifically enumerated in the Constitution, and made them applicable to the states through the Due Process Clause of the Fourteenth Amendment. Where it is found that a right is protected either through one of the specific enumerations of the first eight amendments to the Constitution, or through the “rights retained by the people” provision of the Ninth Amendment, or through the penumbras of any of these amendments, vis-a-vis the State the protection afforded against infringement will be through the application to the states of these rights through the Fourteenth Amendment. Stull v. School Board of the Western Beaver Junior-Senior High School 459 F.2d 339 (3d Cir. 1972)
We are inclined to agree with Judge Nealon that if a right to long hair vis-a-vis the State exists under the Constitution, it must arise under the “liberty” and “due process” portions of the Fourteenth Amendment. Contrary to what plaintiff seems to argue, the Ninth Amendment does not apply directly to the states, see e.g., Brown v. Walker, 161 U.S. 591, 606, 16 S.Ct. 644, 40 L.Ed. 819 (1896). Rather if it applies at all, it would do so through the sections of the Fourteenth Amendment cited above. Gere v. Stanley 453 F.2d 205 (3d Cir. 1971)