Malcolm Rivera
The United States Constitution has 27 amendments, the first 10 of which are collectively known as the Bill of Rights. The Bill of Rights was ratified on December 15, 1791, and for a long time, the Supreme Court held that it restricted only the federal government and did not limit the authority of the states. However, following the ratification of the Fourteenth Amendment in 1868, the Supreme Court interpreted the Fourteenth Amendment's Due Process Clause to impose on the states many of the Bill of Rights' limitations, a doctrine known as incorporation. While incorporation has been used to apply various constitutional protections to the states, not all amendments have been incorporated. Notably, the Ninth and Tenth Amendments have not been incorporated and are unlikely to be due to their wording and the fact that they do not enumerate separate substantive rights for protection.
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What You'll Learn
Ninth Amendment
The Ninth Amendment to the United States Constitution, proposed by Congress in 1789 and ratified in 1791, states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The Ninth Amendment was introduced during the drafting of the Bill of Rights when some of the American founders became concerned that future generations might argue that any rights not listed in the Bill of Rights did not exist. The amendment was intended to protect against the idea that by listing specific rights, those not mentioned were implicitly given to the federal government.
Despite its inclusion in the Bill of Rights, the Ninth Amendment has rarely played a significant role in US constitutional law. The Supreme Court has largely ignored it, and until the 1980s, many legal scholars considered it "forgotten" or "irrelevant". The amendment's wording suggests it is not a source of rights but rather a guideline for interpreting the Constitution.
The Ninth Amendment has been described as a Baby Ninth or a form of "etcetera, etcetera" in state constitutions, indicating that it protects other rights beyond those explicitly enumerated. As of 2022, 33 states have included similar language in their bills of rights. However, judges who interpret these provisions have often remained silent, and the Supreme Court rarely relies on the Ninth Amendment in its decisions.
The Ninth Amendment has not been incorporated and is unlikely ever to be. The incorporation doctrine makes parts of the Bill of Rights applicable to the states through the Due Process Clause of the Fourteenth Amendment. However, the Ninth Amendment's focus on federalism and the rights retained by the people makes it unsuitable for incorporation, which primarily deals with extending rights to the states.
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Tenth Amendment
The Tenth Amendment to the United States Constitution, a part of the Bill of Rights, was ratified on December 15, 1791. The Tenth Amendment has not been incorporated, and it is unlikely that it ever will be. The text of the Tenth Amendment directly interacts with state law, and the Supreme Court rarely relies on this amendment when deciding cases.
The Tenth Amendment expresses the principle of federalism, whereby the federal government and the individual states share power by mutual agreement. It prescribes that the federal government has only those powers delegated to it by the Constitution, and that all other powers not forbidden to the states by the Constitution are reserved for each state or the people. The amendment, with origins before the American Revolution, was proposed by the 1st United States Congress in 1789 during its first term following the adoption of the Constitution. It was considered by many members as a prerequisite before they would ratify the Constitution, particularly to satisfy the demands of Anti-Federalists, who opposed the creation of a stronger federal government.
The Tenth Amendment is similar to Article II of the Articles of Confederation, which states that each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. The Tenth Amendment has been declared a truism by the Supreme Court, which asserted that the amendment added nothing to the [Constitution] as originally ratified. The amendment has been used by states and local governments to assert exemption from various federal regulations, especially in the areas of labour and environmental controls.
In Gonzales v. Raich (2005), a California woman sued the Drug Enforcement Administration after her medical cannabis crop was seized and destroyed by federal agents. Medical cannabis was explicitly made legal under California state law, despite being prohibited at the federal level. The Supreme Court stated that growing one's own cannabis affects the interstate market, even if it was grown for personal consumption and never entered the stream of interstate commerce.
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Right to indictment by a grand jury
The right to indictment by a grand jury is enshrined in the Fifth Amendment of the United States Constitution. The text of the Fifth Amendment states that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury".
The Fifth Amendment was ratified in 1791 as part of the Bill of Rights. The Bill of Rights was initially held to apply only to the federal government and federal court cases. However, the Fourteenth Amendment, ratified after the Civil War, included a Due Process Clause that explicitly applied to the states. This gave rise to the incorporation doctrine, through which parts of the Bill of Rights were made applicable to the states.
Despite the Fourteenth Amendment, the right to indictment by a grand jury has not been incorporated at the state level. In Hurtado v. California (1884), the Supreme Court held that this right was not a requisite of due process and could be dispensed with in state criminal proceedings. This decision was one of the earliest incorporation rulings following the Fourteenth Amendment's ratification. As a result, the right to indictment by a grand jury applies only to felony charges in the federal court system.
While many states employ grand juries, no defendant has a Fifth Amendment right to a grand jury for criminal charges in state court. States are free to abolish grand juries, and some have replaced them with preliminary hearings. Grand juries possess broad investigative powers and may make a presentment, informing the court of their decision to indict or not indict a suspect. If they indict, it means they have found probable cause to believe that the charged crime was committed by the suspect.
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Freedom of expressive association
Expressive associations are groups that engage in activities protected by the First Amendment, such as speech, assembly, press, petitioning the government, and the free exercise of religion. The Supreme Court has held that laws banning associations from excluding people for reasons unrelated to the group's expression are constitutional. However, in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Court ruled that a group may exclude individuals from membership if their presence would affect the group's ability to advocate a particular viewpoint.
The right to freedom of association may also include the right to freedom of assembly. However, this right is not absolute and may be waived under certain circumstances, such as a guilty plea or conviction, restraining orders, and probationer's search and seizure procedures. Additionally, the Civil Rights Act makes it illegal to discriminate against certain protected classes.
The implicit First Amendment right of association has been limited by court rulings. For example, considering race when making or enforcing private contracts is illegal in the United States, except in the case of marriage. This limit on freedom of association results from Section 1981 of Title 42 of the United States Code. Governments often require contracts of adhesion with private entities for licensing purposes, which can restrict association with specific individuals or groups.
In conclusion, freedom of expressive association is a fundamental right in democratic societies, closely tied to the First Amendment. While it is not explicitly mentioned in the First Amendment, it is recognised by the Supreme Court as vital for preserving other freedoms. This right encompasses the ability to form and join groups, collectively bargain, and take action to promote common interests. However, legal restrictions and limitations apply in certain circumstances.
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Freedom from unreasonable search and seizure
The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures. It states that:
> "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Fourth Amendment aims to protect people's right to privacy and freedom from unreasonable intrusions by the government. It is worth noting that the amendment does not guarantee protection from all searches and seizures, but only those conducted by the government and deemed unreasonable under the law.
To claim a violation of Fourth Amendment rights and suppress relevant evidence, an individual must prove that their privacy was invaded. Generally, evidence found through an unlawful search cannot be used in a criminal proceeding. This principle is based on the idea that the government cannot invade areas where a person has a reasonable expectation of privacy without substantial justification.
Searches and seizures without a warrant are generally considered unreasonable, except in a few cases. Law enforcement officers must demonstrate probable cause for a search or seizure to obtain a warrant. A court authority, typically a magistrate, will then assess the totality of the circumstances to determine whether to issue the warrant. However, in exigent circumstances, the warrant requirement may be waived if obtaining a warrant is impractical. For example, in State v. Helmbright, the Ohio court ruled that a warrantless search of a probationer's residence did not violate the Fourth Amendment if the officer conducting the search had "reasonable grounds" to believe the probationer had failed to comply with their probation terms.
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Frequently asked questions
The incorporation doctrine is a constitutional doctrine that applies parts of the Bill of Rights to the states through the Due Process Clause of the Fourteenth Amendment.
The Ninth and Tenth Amendments have not been incorporated and are unlikely to ever be.
The Bill of Rights comprises the first ten amendments of the United States Constitution, ratified on December 15, 1791.
Since 1789, approximately 11,848 proposals to amend the Constitution have been introduced in Congress, with 33 amendments proposed and sent to the states for ratification.
