Constitutional Law: Could the 9th Amendment save us from tyranny or is it a slippery slope to tyranny itself?

law political science

Statistical Mediation & Moderation in Psychological Research-Jan-27-2021-03-34-04-75-PMGriswold v. Connecticut, 381 U.S. 479 (1965), was a formative case for the Supreme Court jurisprudence regarding the Fourteenth Amendment. But it’s the discussion regarding the Ninth Amendment among several of the opinions that is irresistibly intriguing, spurring the imagination as to what the Amendment could do. Six justices felt moved to speak on the Due Process Clause. Of the six, four commented on the role of the Ninth Amendment, and the other two were likely influenced by it. 

Justice Douglas suggested that the Due Process Clause incorporates the Bill of Rights, and he argued that several of these rights have penumbras whose emanations establish an undefined zone of privacy for the United States citizen. Douglas included the Ninth Amendment among his emanating Amendments. Justice Goldberg would not incorporate all of the first eight Amendments into the Due Process Clause, but he did argue that the Ninth Amendment evidently through text and history provided unenumerated individual rights, some of which can be identified by their fundamentality. Justice Harlan did not make use of the Ninth Amendment but found that the Due Process Clause alone protects basic values, “implicit in the concept of ordered liberty.” Justice White came to the same conclusion but focused more on his repulsion to and assessment of the law in question. Justices Black and Stewart disparaged the Ninth Amendment argument as “shocking doctrine” and a concept that “turn[s] somersaults with history.”

The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Douglas’s majority and Goldberg’s concurrence rely on this text for their arguments. Douglas’s emanating Amendments (his “penumbras”) could not be understood from the Bill of Rights unless there were greater reasons to read the rights broadly. A narrow reading of the Bill of Rights would be a regular interpretive assumption, but the Ninth Amendment provides for the possibility of more rights outside of the enumerated ones in the Constitution. Because justices often purport to adhere closely to the narrow text, these unenumerated rights could really only be cognized in close relationship to the enumerated rights. But the Ninth Amendment allows cognizability so that emanations appear around the enumerated rights, and form the zone of privacy that Douglas expounds. This zone of privacy might be considered an area of rights created by the overlapping emanations of the First, Third, Fourth, Fifth, and Ninth Amendments. But another analysis might reveal that while Amendments 1, 3, 4, and 5 create a zone of privacy on a two-dimensional plane, the Ninth Amendment provides the third dimension that allows jurists to see the zone of privacy in full.

The Ninth Amendment is central to Goldberg’s argument for a right of privacy, but he is more easily able to pull the right of privacy directly out of the opening that the Ninth Amendment creates. Less adherent to the text, Goldberg’s inclination to cognize rights, and his liberality, earned the ire of the dissenting justices.

Stewart and Black recognized the slippery slope of Goldberg’s and Douglas’s analyses. If the Ninth Amendment opened up jurisprudence to rights and zones of rights, such as the zone of privacy, jurists would find themselves wielding “broad” decision-making power. They understood the majority’s exercise, similar to that of the spurned Lochner v. New York, 198 U.S. 45 (1908), to give judges power to invalidate any legislation they found “irrational, unreasonable, or offensive.” 

These dissenting justices recognized a tyranny of the judiciary to which the other justices were exposing the Court under the banner of the Ninth Amendment. Black and Stewart opposed it vehemently. The current efforts of political parties to pack the federal judiciary with partisan judges is evidence that political parties recognize a “tyranny” at their disposal. So perhaps Black and Stewart were correct, and the Ninth Amendment is a slippery slope to tyranny of the judiciary. On the other hand, Douglas’s zone of privacy has allowed the court to defend individuals from states’ infiltration into matters that citizens have found essential to their privacy. So, perhaps the Ninth Amendment is instead a saving grace from the tyranny of the state. Perhaps it is both. But while Griswold has become the foundation for many landmark cases, the Ninth Amendment has remained relatively dormant. So perhaps we have yet to know.

 

Founded by Harvard English PhDs, Cambridge Coaching takes great care to employ law school admissions coaches, like Zekariah, who are authors, editors, and writing teachers with unparalleled experience. A significant share our coaches are law school students and graduates of the most distinguished law schools, primarily Harvard and Columbia. Our service is a collaborative process, with students and coaches working closely together to craft the final application.

Contact us!

Excited at the thought of a career in law? Take a look at some of our related blog posts below!

Law School Admissions: Researching Law Schools Part I

Law School Admissions: Drafting the personal statement

Wait, what is the electoral college again??

Comments

topicTopics
academics study skills MCAT medical school admissions SAT college admissions expository writing English strategy MD/PhD admissions writing LSAT GMAT physics GRE chemistry biology math graduate admissions academic advice law school admissions ACT interview prep language learning test anxiety career advice premed MBA admissions personal statements homework help AP exams creative writing MD test prep study schedules computer science Common Application mathematics summer activities history philosophy secondary applications organic chemistry economics supplements research grammar 1L PSAT admissions coaching law psychology statistics & probability dental admissions legal studies ESL CARS PhD admissions SSAT covid-19 logic games reading comprehension calculus engineering USMLE mentorship Spanish parents Latin biochemistry case coaching verbal reasoning AMCAS DAT English literature STEM admissions advice excel medical school political science skills French Linguistics MBA coursework Tutoring Approaches academic integrity astrophysics chinese gap year genetics letters of recommendation mechanical engineering Anki DO Social Advocacy algebra art history artificial intelligence business careers cell biology classics data science dental school diversity statement geometry kinematics linear algebra mental health presentations quantitative reasoning study abroad tech industry technical interviews time management work and activities 2L DMD IB exams ISEE MD/PhD programs Sentence Correction adjusting to college algorithms amino acids analysis essay athletics business skills cold emails finance first generation student functions graphing information sessions international students internships logic networking poetry proofs resume revising science social sciences software engineering trigonometry units writer's block 3L AAMC Academic Interest EMT FlexMed Fourier Series Greek Health Professional Shortage Area Italian JD/MBA admissions Lagrange multipliers London MD vs PhD MMI Montessori National Health Service Corps Pythagorean Theorem Python Shakespeare Step 2 TMDSAS Taylor Series Truss Analysis Zoom acids and bases active learning architecture argumentative writing art art and design schools art portfolios bacteriology bibliographies biomedicine brain teaser campus visits cantonese capacitors capital markets central limit theorem centrifugal force chemical engineering chess chromatography class participation climate change clinical experience community service constitutional law consulting cover letters curriculum dementia demonstrated interest dimensional analysis distance learning econometrics electric engineering electricity and magnetism escape velocity evolution executive function fellowships freewriting genomics harmonics health policy history of medicine history of science hybrid vehicles hydrophobic effect ideal gas law immunology induction infinite institutional actions integrated reasoning intermolecular forces intern investing investment banking lab reports letter of continued interest linear maps mandarin chinese matrices mba medical physics meiosis microeconomics mitosis mnemonics music music theory nervous system