Kurt.Lash at lls.edu
Wed Feb 8 09:40:40 PST 2006
The question is complicated by the fact that the claim arises in a US
The Ninth Amendment itself does not protect any rights, of course.
The text announces a rule of construction: The enumeration in the
constitution of certain rights shall shall not be construed to deny or
disparage others retained by the people.
"Retained rights" in 1791 were those not given over to the federal
government, such as freedom of speech. But the term "rights" included
everything not given to the feds, from speech, to wearing
a hat, to running a school. All of these were retained rights. The
idea was to prevent the federal government from extending its
enumerated powers into everything not expressly placed off limits in
the Bill of Rights. Regulation of all these "retained" areas
(including speech and religion) were left to the states.
But when it comes to US territory, the federal government takes on
general police powers, just like the states. There no longer being a
federalism barrier to regulation, presumably the federal
government could regulate suffrage every bit as much as the states,
and, in 1791 I believe there were a great many restrictions on the
right to vote. I doubt, then, that the Ninth can be read as
originally preventing such laws.
My articles on the Ninth Amendment, for those with far too much time
on their hands, are posted at:
The Lost Original Meaning of the Ninth Amendment:
The Lost Jurisprudence of the Ninth Amendment:
Loyola Law School, Los Angeles
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