Text and original understanding
The Ninth Amendment addresses rights not listed in the Constitution. In the account Carol Berkin gives, the amendment reminds us that just because Madison and the founders chose to specifically tell us that government cannot interfere with freedom of the press, freedom to practice religion, and similar rights, it is not in derogation of other rights which we have which are not mentioned. She describes it as the unenumerated rights protected to the people, and says that after 235 years it remains an ongoing debate. Carol Berkin on The Bill of Rights No One Wanted (2016)
Berkin distinguishes the Ninth from the Tenth Amendment. The fight over the word “expressly,” she says, belongs to the Tenth Amendment, which provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states and the people. The Anti-Federalists in Congress, outnumbered, wanted language providing that no power not expressly given to the federal government could be used. Berkin rejects what she calls a conspiratorial view of why the drafters proceeded as they did: the founders believed they had to have the power to make decisions as things came up and to legislate on things they had not thought about when writing the Constitution, which is why they wanted implied powers and the necessary and proper clause. Carol Berkin on The Bill of Rights No One Wanted (2016)
Bob Zadek frames the underlying structure as one of enumerated powers: the federal government had very limited powers given to it and none others, and there was fear that Congress would take those specifically enumerated powers and, through the necessary and proper clause and other language, effect an expansion of them. He notes that Madison and the drafters discussed making it really clear that Congress only had those powers. Carol Berkin on The Bill of Rights No One Wanted (2016)
Madison’s political strategy
Berkin presents Madison as a wily politician. When he proposed a Bill of Rights in the first Congress, he argued that passing it would let the Federalists get credit for it and separate the Anti-Federalist base from its leadership. She reports that he was greeted with groans: members said they had not set the tonnage rates, had not organized the judiciary, and had to find a permanent spot for the capital, and it took him a month of continually badgering them before they would agree to discuss it. By the middle of the summer, she says, they realized it would be as close to a death blow to the opponents of the Constitution as anything they would ever do. Carol Berkin on The Bill of Rights No One Wanted (2016)
Zadek adds two facts: Madison made a campaign promise to his district when running against Monroe for the House of Representatives that he would take steps to adopt a Bill of Rights, and many states conditioned ratification on an unenforceable promise that Congress would adopt one. Berkin modifies this, noting that two states did not ratify because they could not make the amendment, and that most states said they would ratify on the condition that Congress consider amendments. She adds that Madison wanted to protect the power to tax and the power to regulate commerce, and that he believed adding a Bill of Rights did nothing of substance because the federal government already lacked power to interfere with the freedoms protected. Carol Berkin on The Bill of Rights No One Wanted (2016)
Berkin also describes a Madisonian concern that runs beyond the Ninth Amendment’s text: Madison wanted to give the federal government power to step in if states abused the civil rights of minorities, fearing tyranny of the majority over minorities—not African Americans or gays, she specifies, but members of religious sects like the small Baptist sects, the Moravians, or the Quakers, and people who disagreed with the majority about policy. Carol Berkin on The Bill of Rights No One Wanted (2016)
Unenumerated rights and bodily integrity
In a later episode, Jenin Younes and Todd Zywicki invoke the Ninth Amendment in litigation against a vaccine mandate at George Mason University. Younes, an attorney with the New Civil Liberties Alliance, says they raised several constitutional claims and that a line of case law under the Ninth and Fourteenth Amendments recognizes a right to bodily integrity and to decline medical treatment. She argues that when the government violates a fundamental constitutional right, it has to be balanced against the interest, and that naturally immune people present no risk of harm to themselves or society. Vaccine Mandates, George Mason, and the Bill of Rights (2021)
Zywicki, describing his own position as an employee subject to the policy, says the compulsion was that anyone who did not comply or get an exemption would be subject to disciplinary process, including possible loss of employment. He frames a constitutional right as imposing an obligation on the state to justify what it wants to do, not as a veto power. Vaccine Mandates, George Mason, and the Bill of Rights (2021)
Younes explains that the Constitution does not lay out all of our rights, that the Bill of Rights preserved certain specific rights but not everything society accepts as reasonable, and that courts have said rights such as the right to parent one’s own children are implicitly recognized in amendments like the Ninth and Fourteenth. She cites Jacobson v. Massachusetts as the case standing for the proposition that vaccines can be mandated, and says she thinks there are problems with it and that it is not applicable to the present situation. Vaccine Mandates, George Mason, and the Bill of Rights (2021)
Zywicki connects Jacobson to Buck v. Bell, which he calls a notorious and revolting case and a low-water mark for American jurisprudence. He says the Supreme Court upheld a Virginia law permitting forced sterilization, and that Justice Oliver Wendell Holmes wrote that a law permitting forced vaccination can also require forced tying of the fallopian tubes, with the aphorism about three generations of imbeciles. Zywicki says Holmes’s sole citation for that was Jacobson. Vaccine Mandates, George Mason, and the Bill of Rights (2021)
The Fourteenth Amendment route
Evan Bernick approaches unenumerated rights through the Fourteenth Amendment rather than the Ninth. He says that long before Roe, the Court had recognized that the guarantee of liberty in the Fourteenth Amendment’s Due Process Clause includes rights not specifically listed in the Constitution—such as the right to raise and guide the upbringing of one’s own children—and that over a series of cases the Court held that people have the right to choose whether to have children and to contracept or not, first for married couples and then for unmarried couples. Roe, he says, was the next step: concluding that one has the right to choose whether to bear children once conceived. Evan Bernick on the Dobbs Draft (2022)
Bernick notes that the Dobbs draft says that besides the right to terminate a pregnancy, which is unique in involving potentially the life of another person, the other due process precedents are safe—but that if one applies the analysis the Court actually applies to conclude that abortion is not protected, there might be questions about how good that promise is if challengers raise the possibility that other rights should be revisited. Evan Bernick on the Dobbs Draft (2022)
Zadek supplies the framing: the Bill of Rights was not in the original Constitution but was understood during ratification to be included, Madison made that promise and followed through, and it was enacted in 1791 in the first sitting of the first Congress. He lists enumerated rights—speech, association, worship, assembly, petition, and negative rights such as not having to house soldiers and protections against searches and seizures—and says Madison, who opposed a Bill of Rights, reminded us expressly in the Ninth Amendment that just because a right is not listed does not mean you do not have it. Evan Bernick on the Dobbs Draft (2022)
Across episodes: no development
The excerpts show the Ninth Amendment raised in three episodes—Carol Berkin’s account of the founding and the fight over “expressly,” Clint Bolick’s discussion of federalism and grassroots tyranny, and the vaccine-mandate litigation invoking bodily integrity—with Evan Bernick’s Dobbs discussion approaching unenumerated rights through the Fourteenth Amendment instead. The excerpts do not show the same question argued and then revisited with a changed position; they show different speakers using the amendment for different purposes, and no development between an earlier and later treatment can be traced from what is given. Local Leviathan: Clint Bolick on Grassroots Tyranny (2018)
What the sources do not cover
The excerpts do not state what the Ninth Amendment says verbatim, nor do they supply the outcome of the vaccine-mandate litigation or the holding of any case beyond what the speakers assert. The Bolick episode is represented only by a topic list and speaker roster, with no substantive discussion of the Ninth Amendment in the excerpt. The Berkin excerpt breaks off mid-sentence at the end of her final answer, and the Zywicki and Younes excerpts end at section breaks, so any further argument they made is unavailable here.