Hugh said:
As for the Ninth Amendment, I believe it was intended to declare that the USBOR shall not be construed so as to further empower the US. And so I believe it was intended to protect the rights of the States i.e. the collective rights of Virginians from infringement by the US, just as much as it was intended to protect individual rights from infringement by the US. The intent of the USBOR was to limit the US.
That differs from my understanding.
There was some discussion in which it was suggested (and rightfully so) that by enumerating certain rights, these would come to be the primary and even sole rights of the people
1:
"It has been objected also against 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 urged 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."
What Madison is speaking about here, is this clause, previously stated in his speech:
"The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution."
What we see today is that the federalists were correct in this one thing. If the right in question is not an enumerated right, then it's not a right at all! The Supreme Court has dismissed the 9th amendment as having any importance at all:
"The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail." 2
Your right to privacy? It's not in the 9th amendment (where it properly belongs) but in "emanations and penumbras"
3 in other parts of the Constitution... Phaugh!
As Madison explains, the amendment was to restrict the
necessary and proper clause of Art. I section 8, which he deemed could be used to abuse the rights of the people.
That's the history of the 9th amendment, straight from the horses mouth, so to speak.
Footnotes:
1. The Annals of Congress, House of Representatives, First Congress, 1st Session, pp 448-460.
2. Justice Reed; United Pub. Workers v. Mitchell, 330 U.S. 75, 95–96 (1947).
3. “...specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Justice William O. Douglas, Griswold v. Connecticut, 381 U.S. 479 (1965).