Research On The Ninth Amendment Of The U.S.Constitution

Since it came into effect in 1791, the Ninth Amendment of the U. S. Constitution had been copied both by constitutions of vast majority of the states domestically and many countries abroad and by "International Covenant on Civil and Political Rights" and "International Covenant on Economic, Social and Cultural Rights", which indicates that it’s one of the modern trends of constitutional development to protect unenumerated rights. But the judicial enforcement of the Ninth Amendment has caused prolonged debates including the follows:(1) whether the Ninth Amendment which was intended to apply to the federal government is applicable to the state governments? (2) whether the Ninth Amendment ought to be applied by the court? (3) Is the Ninth Amendment a right-presumption provision or a rule of construction that confirms that the federal government is one of limited powers? (4) What kind of rights are unenumerated rights in their nature? (5) Whether the Ninth Amendment or the "due process clause of law" is more suitable for the basis of identifying the unenumerated right? This dissertation, resorting to such methods as historical analysis, textual analysis, axiological analysis and comparative analysis, discusses those questions above after a review of the Ninth Amendment’s formulation background, formulation process and its historical circumstances.Chapter 1 is an introduction of the Ninth Amendment’s formulation background. The Ninth Amendment was made to remedy the shortcoming of the "Bill of Rights" that its first 8 amendments could not exhaust all the fundamental rights of the people; The "Bill of Rights" was introduced to remedy the shortcoming of the drafted Constitution (1787) that it enumerated all the powers delegated to the government but lacked a declaration of rights; While the drafted Constitution (1787) was drafted to correct the political system of "the state sovereignty independent, the Confederation no power" that was founded on the basis of the Articles of Confederation(1777). The drafted Constitution(1787)was intended as the basis for a powerful central government by Federalists such as Alexander Hamilton and James Madison, but it caused fierce opposition against its ratification for its lack of a declaration of rights, because it is a constitutional tradition formed in the colony era that the written constitution should include a declaration of rights. In order that 3/4 of the 13 states Ratification Conventions may pass the drafted Constitution (1787), the Federalists promised to add a declaration of rights to it after its passage.Chapter 2 is a review of the Ninth Amendment’s formulation process and its historical circumstances. During the Ratification Convention period, Virginia and other 7 states put forward 186 clauses of proposed amendments including proposed bill of rights, on the basis of which Madison, in June,1789, introduced to the First Congress a proposed "Bill of Rights" of 9 clauses among which only 5 clauses were adopted. After wording disposition, those 5 clauses became the later "Bill of Rights" (including 10 clauses) in December, 1791. The original contents of "retained rights" and "retained powers" contained in the 4th among the 5 clauses turned respectively into present AmendmentⅨand AmendmentⅩ. The Ninth Amendment’s historical circumstances after its passage can be divided into 3 periods:(1)The hibernation period(1791—1965). Before Griswold v. Connecticut(1965), the Ninth Amendment had been described by the Supreme Court as a rule limiting the interpreted scope of federal power in order to preserve state regulatory autonomy, not as a provision protecting individual rights. This kind of interpretation resulted in a functional confusion between the Ninth and Tenth Amendment, and the former was replaced functionally by the latter. During this period, academic circles paid least attention to the Ninth Amendment. (2) The period that the Ninth Amendment drew double attention from the Supreme Court and academic circles (1965—2000). In Griswold v. Connecticut(1965), the majority opinions of the Supreme Court inferred the unenumerated marital privacy right from the Ninth Amendment which was activated as a "right protection clause" for the first time. Up to Troxel v. Granville (2000), not only had the term "the Ninth Amendment Right" once been invented by the Supreme Court, but also had the Ninth Amendment been mentioned by some justices in a series of cases. Simultaneously, the Ninth Amendment had been discussed warmly in the academic circles. (3) The period that the Ninth Amendment drew unilateral attention from the academic circles (2000—). Since Troxel v. Granville (2000), the Supreme Court had never mentioned the Ninth Amendment, while only the academic circles had been discussing the Ninth Amendment, thus some American scholars say that the Ninth Amendment, as a right protection clause, has hibernated once again.Chapter 3 is a discussion about the Ninth Amendment’s theoretical source. Among the European thinkers, it was John Locke, whose "Natural Rights-Social Compact Theory", and Edward Coke, whose "Common Law Thought", that influenced the Founders’ constitutional idea directly. Before the emergence of the "Bill of Rights" (1791), some state courts began resorting to natural law to define natural rights and protected them through limitation of legislative and executive powers. Meanwhile, the Founders put the term "natural right(s)" into Declaration of Independence (1776), Articles of Confederation (1777) and the proposed amendments to the drafted Constitution (1787). To what does the phrase "other rights retained by the people", in Madison’s proposed amendments, refer is naturally natural rights. Therefore, the Ninth Amendment is a description of natural rights.Chapter 4 is a literal reading of the Ninth Amendment. The Ninth Amendment’s text is the most open-ended provision, in the U. S. Constitution, of whose literal meaning there exist many understanding in its Chinese readers. As far as whether the unenumerated individual rights can be inferred from it is concerned, there exists an opposition between two groups of its American readers. One group holds a positive answer, while the other a negative one. This article justified the former on the basis of a research into the Chinese version of the Ninth Amendment and regard the Ninth Amendment as a "right(s) presumption clause". In the meantime, this article concludes that the Ninth Amendment should only be used as an indirect source of unenumerated rights by the courts lest the judicial discretion might be abused; that other provisions of the Constitution, the common law and state laws should be used as direct sources of unenumerated rights; that the Ninth Amendment provides lawful base for the judicial identification of unenumerated right(s) under these direct sources.Chapter 5 is a discussion about the Ninth Amendment’s judicial applicability and its scope of spatial validity taking Griswold v. Connecticut (1965) as an example. Griswold v. Connecticut(1965) was the first case for the Supreme Court to quote the Ninth Amendment identifying an unenumerated right, but the quotation raised two doubts:(1) Whether the review of constitutionality, performed by an non-democratically elected court against the law made by an democratically elected legislature, violates both the doctrine of democracy and the principle of rule of law? According to the exposition of the Framers such as Madison and Hamilton, the "Bill of Rights" should be applied by the least dangerous judicial branches in order to avoid the jeopardy of "majoritarian tyranny". From the viewpoint of the nature of judicial power, the judicial branch is fitter for institutional judgments than the legislative organization. It does fit the common law tradition for the judicial branch to interpret the constitution. From the viewpoint of practice, the pattern of constitutional evaluation through interpretation by judicial branch is better to maintain the constitutional stability than the pattern of constitutional evaluation through framing. Thus, it is appropriate and probably do not violate the doctrine of democracy and the principle of rule of law for the court to apply the Ninth Amendment and declare the law unconstitutional. (2) Whether the Ninth Amendment, which was originally intended to apply to the federal government, can be applied to the state governments? When the "Bill of Rights" was formulated, the state governments were regarded as the defenders of civil rights while the federal government’s management one kind of "foreign rule". In this sense, the viewpoint that the Ninth Amendment is applicable only to the federal government accords with the "Framer’s intention". The history shows that both the federal and state governments can do harm to civil rights, so the Ninth Amendment shall be interpreted under such circumstances that it is applicable to both the federal and state governments.Chapter 6 is an analysis of the Ninth Amendment’s right-presumption function in comparison with that of the "due process clause of law". In Griswold v. Connecticut (1965), the majority of the justices’ practice identifying unenumerated marital privacy mainly on the basis of the Ninth Amendment was criticized by the minority of justices and the scholars because of the suspicion about abused judicial discretion. In identifying other unenumerated rights, the justices of the Supreme Court turned their attentions to the "due process clause of law" instead of the Ninth Amendment, which is called by some scholars the revival of "substantive due process of law" doctrine. In fact, the new practice of the Supreme Court had resulted in sharper criticism than ever because:(1) There exist contradiction in the term "substantive due process" itself; (2) It violates the source-course relationship between the constitutional right and constitutional freedom to infer "right" from the concept "freedom" in the "due process clause of law"; (3) It is similarly suspicious of abused judicial discretion to identify unenumerated right on the basis of "due process clause of law". As a result, the recommendable answer is that the Ninth Amendment is a more suitable textual base for unenumerated right than the "due process clause of law".Chapter 7 is both an analysis of the Ninth Amendment rights’ scope and nature and a discussion about those rights’ identification methods and judging standards as well. The unenumerated rights to which the Ninth Amendment refers include those enumerated in the main body of the Constitution, the first 8 amendments of the "Bill of Rights" and the other 16 effective amendments, and those that can be inferred from the restrictive provisions of powers as well. From the viewpoint of their natures, the unenumerated rights include negative and positive rights; they are individual rights, not collective rights; they are fundamental rights, not non-fundamental rights. In identifying unenumerated rights, the court will be less suspicious of abusing judicial discretion if some methods, such as the original method, the textual method, the constructive method, the presumptive method and the synthetic method, etc., are applied. An unenumerated right should be considered being identified objectively by the court if it is accepted by the public or it is recorded in the international conventions on human rights.Chapter 8 is an evaluation of the Ninth Amendment’s future. The attitude of the Supreme Court is decisive toward the future of the Ninth Amendment. Although the Ninth Amendment had never been mentioned by the Supreme Court (or the justices) since Troxel v. Granville (2000), this does not mean that the starting 21st century may be an era that the Ninth Amendment be covered with dust. Viewed from the educational background, the professional experience and the judicial philosophy trends of the justices and the renaissance of textualism, some justices may cite the Ninth Amendment to identify and protect an unenumerated right once an unenumerated right requirement emerges and is ultimately sued before the Bench for protection.Chapter 9 is concerned about the inspiration from the Ninth Amendment to China. The protection of civil rights is the key to construct a harmonious society. That is to say that both the enumerated and the unenumerated rights ought to be protected. Since it is more complicated to protect the unenumerated rights than it is to protect the enumerated ones, the use of foreign experiences as a source of reference is a must. The validity mechanism of the Ninth Amendment of the U. S. Constitution shows that the feasible approaches to the implementation of our Human Right Clause may include the follows:the existence of the unenumerated right claims, the consummation of our current constitutional supervision system and the full play of its Human Right protection function as well as the reasonable interpretation of the Human Right Clause.