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THE FIFTH AND FOURTEENTH AMENDMENTS—PROCEDURAL AND SUBSTANTIVE DUE

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					University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

THE FIFTH AND FOURTEENTH AMENDMENTS—PROCEDURAL AND SUBSTANTIVE DUE PROCESS
Teaching Guide: This lesson is designed to teach the students about the Due Process Clauses of the Fifth and Fourteenth Amendments and about procedural and substantive Due Process. Through the lesson plan, students should better understand what due process is, the difference between substantive and procedural due process, why we have two due process clauses (5th and 14th Amendments) and the importance of procedural and substantive due process. Students will also be briefly introduced to the 9th amendment for purposes of clarifying the origins of fundamental rights.

1. Have the students read out loud the Fifth, Fourteenth, and Ninth Amendments. 2. Go over the discussion questions 3. Have the students read out loud the information on the Ninth Amendment and on Procedural and Substantive due process. 4. Play the trivia game. Divide the class in half/ two teams. Have each team take turns playing the Jeopardy-style game below.

Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Fourteenth Amendment: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Questions for Discussion: 1. What does the due process clause protect? 2. Why are there two separate amendments with the same language/due process clause? 3. What does the 9th amendment protect? 4. Does the 9th Amendment grant additional rights?

NINTH AMENDMENT
Today, the predominant view, based on the history of the passage of the Bill of Rights, is that the Ninth Amendment does NOT grant affirmative rights. While some Supreme Court justices and scholars have taken the position that the Ninth Amendment does create affirmative rights, this has never been the dominant view. The debates surrounding the passage of the Bill of Rights indicates that the founders did not intend for the Ninth Amendment to create additional rights. Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those. Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. ''It has been objected also against

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

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.'' It is clear from its text and from Madison's statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.

PROCEDURAL AND SUBSTANTIVE DUE PROCESS
The phrase due process embodies society’s basic notions of legal fairness. A first reading of the due process clauses in the Fifth and Fourteenth Amendments of the U.S. Constitution suggests a limitation that only relates to procedures. In fact, many due process cases do involve the question of fair procedures or procedural due process. However, courts have also interpreted the language of these amendments as a limitation on the substantive powers of legislatures to pass laws affecting various aspects of life. When applying what is called substantive due process, courts look at whether the law or government action unreasonably infringes on a fundamental liberty. Due process, in the context of the United States, refers to how and why laws are enforced. Procedural Due Process: Procedural due process refers to the fair administration of the law (the “how” question). Due process procedures do not guarantee that the result of government action will always be to a citizen’s liking. However, fair procedures

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

do help prevent arbitrary, unreasonable decisions. Due process requirements vary depending on the situation. At a minimum, due process means that citizens who will be affected by a government decision must be given notice of what the government plans to do and have an opportunity to comment on the action before it occurs. Government takes many actions that may deprive people of life, liberty or property. In each case, some form of due process is required. For example, a state might fire someone from a government job, revoke a prisoner’s parole, or cut off someone’s Social Security payments. Due process does not prohibit these actions but it does require that certain procedures be followed before action is taken. Due process is a flexible concept. The procedures required in specific situations depend on several factors: (1) the seriousness of the harm that might be done to the citizen; (2) the risk of making an error without the procedures; and (3) the cost to the government, in time and money, of carrying out the procedures. According to past decisions of the U.S. Supreme Court, the primary reason for establishing procedural safeguards—when a life, liberty, or property interest is affected by government action—is to prevent inaccurate or unjustified decisions. In a case decided by the Supreme Court in 2003, a sex offender released from prison complained that personal information about him was made available through a state-sponsored internet site. The site provided information to residents about convicted sex offenders as part of their state’s Megan Law—a law passed in every state and the District of Columbia in memory of a New Jersey girl raped and killed in 1994 by a neighbor who, unbeknownst to the girl’s parents, was a convicted sex offender. The former inmate in the 2003 case contended that listing his name and personal information without a court hearing to determine whether or not he was currently dangerous harmed his reputation—his interest in liberty—and therefore violated his procedural due process rights. The Court found that the operation of Megan’s Law was valid because it simply provided residents with truthful information about convicted sex offenders without maintaining that they were currently dangerous. There was no need for individual hearings because there was no substantial risk of error.

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

In addition to providing notice and a chance to be heard, due process must follow certain procedures. These may include a hearing before an impartial person, representation by an attorney, calling witnesses on one’s behalf, crossexamination of witnesses, a written decision with reasons based on evidence introduced, a transcript of the proceeding, and an opportunity to appeal the decision. Substantive Due Process: The doctrine of Substantive Due Process holds that the Due Process Clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights. "Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary. These are rights like freedom of speech and religion. "Procedural" rights are special rights that, instead, dictate how the government can lawfully go about taking away a person’s freedom or property or life, when the law otherwise gives them the power to do so. During the first third of the twentieth century, the U.S. Supreme Court used the due process clause to strike down certain social and economic legislation, such as child labor and minimum wage laws. In those cases, the Court believed that legislatures were treating the property rights of businesses unfairly. Since the late 1930’s, however, the courts have deferred much more to the legislative judgments of elected officials. It is common in current court opinions upholding economic regulations for judges to write that “we will not substitute our wisdom for that of the legislators.” In reviewing social and economic welfare laws, the Court now simply requires that the law be rational in order to be constitutional. Only a law with no rational relationship to a legitimate legislative purpose will be declared unconstitutional. This is a fairly easy test to meet, hence the notion of deferring to the wisdom of state and federal lawmakers. During the 1960’s, the Court began to use a stricter test when social and economic welfare laws had an impact on fundamental rights. These fundamental rights, while not spelled out in the Constitution, include the right to marry, to bear and rear children, and to travel. Fundamental rights also include the

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

controversial right to privacy—including a wide range of rights related to reproduction. A law will not necessarily be struck down as unconstitutional because it affects a fundamental right. In some circumstances, the government may be able to show that it has a very strong, or compelling interest when taking action that affects a fundamental right. For example, as noted above, parents have a fundamental right to bear and rear their children. However, the government has a compelling interest in protecting children and therefore may be able to remove children from abusive parents and place them in foster care. Substantive due process has been used to establish, as fundamental rights: 1. 2. 3. 4. The right to marry The right to bear and rear children the right to travel The right to privacy

JEOPARDY

Procedural Due Process 100 200 300 400 500

Substantive Due Process 100 200 300 400 500

Rights Not Named 100 200 300 400 500

Potpourri 100 200 300 400 500

Procedural Due Process 100— True or False. The Fifth Amendment applies to all entities including federal and state governments and private individuals?

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

ANSWER: FALSE 200— The primary reason for establishing procedural requirements under procedural due process? ANSWER: What is to prevent inaccurate or unjustified decisions. 300—The two things that are required at a minimum under procedural due process. ANSWER: What are Notice and opportunity to be heard. 400— Name two additional requirements which might exist under procedural due process. ANSWER: Right to be represented by attorney, opportunity to appeal the decision, transcript of proceeding, written decision with reasons based on the evidence produced, hearing before impartial person, calling witnesses on ones behalf,, cross examination of witnesses.

500— These are the three factors taken into consideration when determining the procedures required under procedural due process. ANSWER: (1) the seriousness of the harm that might be done to the citizen; (2) the risk of making an error without the procedures; and (3) the cost to the government, in time and money, of carrying out the procedures.

Substantive Due Process 100—The right of parents to choose to send their children to public or private school is part of what fundamental right under substantive due process. ANSWER: Right to bear and rear children

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

200— Name three fundamental rights that have been recognized under substantive due process ANSWER: right to marry, right to bear and rear children, right to privacy, right to travel. 300— True or False—the fundamental right of parents to raise their children is absolute and can never be abridged by the state? ANSWER: False 400— What must the government show in order to establish a law that abridges a fundamental right? ANSWER: Compelling governmental interest.

500— During the early twentieth century, the U.S. Supreme Court used the due process clause to strike down certain social and economic legislation such as— ANSWER: What are child labor and minimum wage laws. Ninth Amendment 100—True or False, According to the predominant view, the Ninth Amendment does grant affirmative rights. ANSWER: FALSE 200— True or False, the right to privacy is established by the Ninth Amendment. ANSWER: FALSE 300— The text of the Ninth Amendment provides that the enumeration in the Constitution, of certain rights, shall not be construed to deny or what others retained by the people.

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

ANSWER: What is disparage. 400— During the debate over the constitution, this group argued that it would be dangerous to list some rights within the constitution because some would seize upon the absence of the omitted rights to assert that government was unrestrained as to those. ANSWER: FEDERALISTS 500— The predominant view provides that the Ninth Amendment is a rule of what? ANSWER: Construction.

Potpourri 100— This Amendment applies to the federal government. ANSWER: Fifth Amendment 200—True or False, Courts have interpreted the fifth and fourteenth amendments’ due process clauses identically with the fifth amendment limiting power of the federal government and Fourteenth amendment limited the powe of state and local governments ANSWER-TRUE 300— True or False—the Due process clause of the Fourteenth Amendment reads nor shall any State deprive any person of life, liberty, or happiness, without due process of law. ANSWER: False. 400— True or False—Due process is a rigid concept, mandating that where life, liberty, or property has been deprived, an individual is entitled to a full trial.

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

500— General rights that reserve to the individual the power to possess or do certain things, despite the government’s desire to the contrary. ANSWER: What is substantive Due process.

ADDITIONAL READING MATERIAL ADDITIONAL READING MATERIALS/BACKGROUND MATERIALS
Procedural due process
Procedural due process is essentially based on the concept of "fundamental fairness." As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, and the opportunity to be heard at these proceedings. Procedural due process has also been an important factor in the development of the law of personal jurisdiction. In the United States, criminal prosecutions and civil cases are governed by explicit guarantees of procedural rights under the Bill of Rights, most of which have been incorporated under the Fourteenth Amendment to the States. Due process has also been construed to generally protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived of "life, liberty, or property" without a fair opportunity to affect the judgment or result. This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being punished, which would be tantamount to cruel and unusual punishment.[20] In 1934, the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental".[21]

[edit] Substantive due process

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

[edit] Substantive due process basics Most courts have viewed the due process clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are "implicit in the concept of ordered liberty" (Palko v. Connecticut). Just what those rights are is not always clear. Some of these rights have long histories or "are deeply rooted" in American society. The courts have largely abandoned the Lochner era approach (approximately 1890-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract. Since then, the Court has decided that numerous substantive rights, that do not appear in the plain text of the Constitution, are nevertheless protected by the Constitution. Thus, citizens no longer rely upon legislatures to protect these rights, and instead rely upon the judiciary. [edit] Development and use of substantive due process as legal doctrine Early in American judicial history, various jurists attempted to form theories of natural rights and natural justice that would limit the power of government, especially regarding property and the rights of persons. Opposing "vested rights" were jurists who argued that the written constitution was the supreme law of the State and that judicial review could look only to that document — not to the "unwritten law" of "natural rights". Opponents further argued that the "police power" of government enabled legislatures to regulate the holding of property in the public interest, subject only to specific prohibitions of the written constitution. The idea of substantive due process came in as a way to import natural law norms into the United States Constitution; prior to the Civil War, the state courts — ungoverned by the Fifth Amendment — were the arenas in which this struggle was carried out. Some critics of substantive due process argue that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford. Some advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott, but argue that it was employed incorrectly. The "vested rights" jurists saw in the "law of the land" and "due process" clauses of state constitutions restrictions on the substantive content of legislation. Those jurists were sometimes successful in arguing that certain government infringements were prohibited, regardless of procedure. For example, the New York Court of Appeals held in Wynehamer v. New York that "without 'due process of law,' no act of legislation can deprive a man of his property, and that in civil cases an act of the legislature alone is wholly inoperative to take from a man his property."[22] However, the rationale of Wynehamer was subsequently rejected by the U.S. Supreme Court.[23] Other antebellum cases on due process include Murray v. Hoboken Land,

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008 which dealt with procedural due process.[24] But, the rationale of Murray was subsequently characterized by the U.S. Supreme Court, in the case of Hurtado v. California, as not providing "an indispensable test" of due process.[25] Another important pre-Civil-War milestone in the history of due process was Daniel Webster's argument as counsel in Dartmouth College v. Woodward, that the Due Process Clause forbids bills of attainder and various other types of bad legislation.[26] Nevertheless, the U.S. Supreme Court declined in the Dartmouth case to address that aspect of Webster's argument, the New Hampshire Supreme Court had already rejected it,[27] and the U.S. Supreme Court would later contradict Webster's rationale.[28] Given the preceding jurisprudence regarding due process, Chief Justice Taney was not entirely breaking ground in his Dred Scott opinion when, without elaboration, he pronounced the Missouri Compromise unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law." In Dred Scott, neither Taney nor dissenting Justice Curtis mentioned or relied upon the Court's previous discussion of due process in Murray, and Curtis disagreed with Taney about what "due process" meant in Dred Scott. The phrase substantive due process was not used until the twentieth century. But, the concept was arguably employed during the nineteenth century. Following the Civil War, the Fourteenth Amendment's due process clause prompted substantive due process interpretations to be urged on the Supreme Court as a limitation on state legislation. Some of those arguments came to be accepted by the Court over time, imposing on both federal and state legislation a firm judicial hand on property and economic rights that was not removed until the crisis of the 1930s. Because many of the first applications protected the rights of corporations and employers to be free of governmental regulation, it has been charged that substantive due process developed as a consequence of the Court's desire to accommodate 19th-century railroads and trusts. Although economic liberty restrictions on legislation were largely abandoned by the courts, substantive due process rights continue to be successfully asserted today in non-economic legislation affecting intimate issues like bodily integrity, marriage, religion, childbirth, child rearing, and sexuality. Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v. Connecticut, wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

amendments that arguably refer to certain privacy rights, such as the First Amendment (protecting freedom of expression), Third Amendment (protecting homes from being used by soldiers), and Fourth Amendment (security against unreasonable searches). The penumbra-based rationale of Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights, as Justice Harlan had argued in his concurring Griswold opinion, instead of relying on the "penumbras" and "emanations" of the Bill of Rights as the majority opinion did in Griswold. Although it has never been the majority view, some have argued that the Ninth Amendment (addressing unenumerated rights) could also be used as a source of fundamental judicially enforceable rights, including a general right to privacy. Social conservatives who oppose sexual privacy rights, or who believe that those rights are properly subject to the democratic process absent further constitutional amendment, can nevertheless perhaps find some things to like in the line of substantive due process decisions. For example, religious parents persuaded the Supreme Court to recognize a substantive due process right "to control the education of one's children" and void state laws mandating that all students attend public school. In Pierce v. Society of Sisters, the Supreme Court said:[29]
We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.

Thus, if the entire substantive due process line was reversed, it is conceivable that religious parents' option of home schooling or private schooling might be in danger from some state universal education laws, although it is also possible that those laws might be deemed to violate "First Amendment principles", as Justice Kennedy speculated in Troxel v. Granville.[30] Current Supreme Court doctrine prohibits the judiciary from using the Due Process Clause instead of an applicable specific constitutional provision when one is available.[31] Several further cases will now be briefly discussed. The right to marry a person of a different race was addressed in Loving v. Virginia,[32] in which the Court said that its decision striking down anti-miscegenation laws could be justified either by substantive due process, or by the Equal Protection Clause. Advocates of substantive due process have sought to extend Loving in order to establish other rights (e.g. a right to gay marriage and a right to polygamy).[33] A right to have children was addressed in Skinner v. Oklahoma,[34] but the Court in Skinner explicitly declined to base its decision on due process, instead citing the Equal Protection Clause since the Oklahoma law required sterilization of some 3-time felons but not others. A substantive due process right of a parent to educate a young child (i.e. before ninth grade) in a foreign language was recognized in Meyer v. Nebraska, with two justices dissenting,[35] and Justice Kennedy has

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008 mentioned that Meyer might be decided on different grounds in modern times.[30] The freedom from arbitrary bodily invasion was addressed in Rochin v. California;[36] the freedom from arbitrary detainment, in O'Connor v. Donaldson;[37] freedom from excessive punitive damages, in BMW v. Gore;[38] the right to refuse medical treatment, in Cruzan v. Missouri;[39] the right to public criminal trials, in Richmond Newspapers v. Virginia;[40] and the right to reside with family members, in Moore v. East Cleveland.[41] Procedural due process conveys that when an individual is deprived of life, liberty, or property, the constitution stipulates a course of action to follow. Concisely when one is going to deprive an individual of life, liberty, or property, it is essential to notify him or her of the deprivation, the individual must also be given the occasion for others to hear his or her side; officials need to conduct the hearing in a fair manner. Failure to follow procedural requisites will conclude in a violation of the individual's constitutional rights (Essex, 2005). Procedural due process necessitates that individuals engage in a legally defendable process to make sure that appropriate precautions are accessible to guard the rights of individuals whose rights are in jeopardy. The suspension and expulsion of students in educational organizations frequently cause legal action; much of this legal action concerns the conditions of the Fourteenth Amendment's right to due process (Zirkel, & Gluckman, 1997). In an educational setting, procedural due process means that educational administrators must provide a student with notice and a hearing before taking action. The sum of procedural due process necessary is dependent upon the seriousness of the circumstances (Bell, 2004). Procedural due process for minor offenses may be as simple as informing the student of the offense that he or she commits and offer the student the opportunity to clarify his or her actions. For more serious school action, due process may necessitate a student receiving written notice of the offense and time for a hearing before the school board (Bell, 2004). Substantive due process conveys that the state has a justifiable objective when intending to deprive a person of life, liberty, or property, and sensibly plan the measures employed to accomplish the objective (Essex, 2005). Educational administrators must satisfy the conditions of both procedural and substantive due process. Some decisions by educational administrators accurate by substantive due process overturn on appeal when failing to meet procedural due

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

process conditions (Essex, 2005). Educational administrators may engage procedural due process conditions when the evidence demonstrates that a legitimate cause did not exist to affirm depriving students of his or her rights. The decision by educational administrators in this case will overturn as well (Essex, 2005). Substantive due process proposes that when teachers' rights are limited, a legitimate reason should be established to validate such limitations and the real measures engaged to deny a teacher's rights must be logically considered (Essex, 2005). Substantive due process associates with the type of the decision made by the school. If a student is suspended, a dispute based on substantive due process will contend that the measures taken by the school were arbitrary and capricious (Bell, 2004). In other words, the decision of the school did not adhere to standards of fundamental fairness and can be constitutionally upheld (Bell, 2004). Hypothetical situation to illustrate procedural due process In educational organizations, there exists a policy against weapons and gang related attire. Jeremy, a student at a middle school in Austin, TX was in history class wearing a red bandana. His teacher, noticing the bandana, made a request of Jeremy to remove it. After several pleas, the bandana was still being worn in class. The teacher then asked Jeremy to proceed to the office with a referral for the principle. When Jeremy stood up a pocketknife was lying on the chair. Upon arrival to the principle's office, Jeremy's parents were called and a notice of suspension was sent home with him. The notice stated that due to the wearing of the red bandana on school property and the possession of a knife on school property, Jeremy was suspended for 10 days. This case clearly involves a violation of procedural due process since a hearing did not take place and Jeremy was not given an opportunity to address the situation.

The Ninth Amendment has generally been regarded by the courts as negating any expansion of governmental power on account of the enumeration of rights in the Constitution, but the Amendment has not been regarded as further limiting governmental power. The U.S. Supreme Court explained this, in U.S. Public Workers v. Mitchell 330 U.S. 75 (1947): "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

Some jurists have asserted that the Ninth Amendment is relevant to interpretation of the Fourteenth Amendment. Justice Arthur Goldberg (joined by Chief Justice Warren and Justice Brennan) expressed this view in a concurring opinion in the case of Griswold v. Connecticut (1965):
[T]he Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights.... I do not mean to imply that the .... Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government....While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement.

Subsequent to Griswold, some judges have tried to use the Ninth Amendment to justify judicially enforcing rights that are not enumerated. For example, the District Court that heard the case of Roe v. Wade ruled in favor of a "Ninth Amendment right to choose to have an abortion."[5] However, Justice William O. Douglas rejected that view; Douglas wrote that, "The Ninth Amendment obviously does not create federally enforceable rights." See Doe v. Bolton (1973). Douglas joined the majority opinion of the U.S. Supreme Court in Roe, which stated that a federally enforceable right to privacy, "whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."[6] The Sixth Circuit Court of Appeals stated as follows in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991):
[T]he ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution.

Professor Laurence Tribe shares this view: "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution."[7] Likewise, Justice Antonin Scalia has expressed the same view, in Troxel v. Granville (2000):
The Declaration of Independence...is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.

University of Miami School of Law Center for Ethics and Public Service STREET Law Miami Senior High March 8th, 2008

In the year 2000, the Harvard historian Bernard Bailyn gave a speech at the White House on the subject of the Ninth Amendment. He said that the Ninth Amendment refers to "a universe of rights, possessed by the people — latent rights, still to be evoked and enacted into law....a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law."[8] It is important, when discussing the history of the Bill of Rights, to realize the Supreme Court held in Barron v. Baltimore (1833) that it was enforceable by the federal courts only against the federal government, and not against the states. Thus, the Ninth Amendment originally applied only to the federal government, which is a government of enumerated powers. Robert Bork, often considered an originalist, has likened the Ninth Amendment to an inkblot. Bork argued in The Tempting of America that, while the amendment clearly had some meaning, its meaning is indeterminate; because the language is opaque, its meaning is as irretrievable as it would be had the words been covered by an inkblot. According to Bork, if another provision of the Constitution were covered by an actual inkblot, judges should not be permitted to make up what might be under the inkblot lest any judges twist the meaning to their own ends (cf. underdeterminacy). Originalist Randy Barnett has argued that the Ninth Amendment requires what he calls a presumption of liberty. Other originalists, such as Thomas B. McAffee, have argued that the Ninth Amendment protects the unenumerated "residuum" of rights which the federal government was never empowered to violate.[9] Constitutional historian Jon Roland has argued,[10] that the Ninth Amendment included by reference all of the rights proposed by the state ratifying conventions, in addition to those enumerated in the first eight amendments. Gun rights activists in recent decades have sometimes argued for a fundamental natural right to keep and bear arms that both predates the U.S. Constitution and is covered by the Constitution's Ninth Amendment; according to this viewpoint, the Second Amendment protects only a preexisting right to keep and bear arms.[11] In the related case of United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court held that while Congress has broad lawmaking authority under the Commerce Clause, it is not unlimited, and does not apply to something as far from commerce as carrying handguns. The Ninth Amendment bars denial of unenumerated rights if the denial is based on the enumeration of certain rights in the Constitution, but does not bar denial of unenumerated rights if the denial is based on the enumeration of certain powers in the Constitution. It is to that enumeration of powers that the courts have said we must look, in order to determine the extent of the unenumerated rights mentioned in the Ninth Amendment.[12]


				
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