Ninth Amendment

[Kurt Lash]

The question is complicated by the fact that the claim arises in a US 
territory.

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:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=613621

The Lost Jurisprudence of the Ninth Amendment:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=615701

Kurt Lash
Loyola Law School, Los Angeles