What does the Ninth Amendment mean?

The http://press-pubs.uchicago.edu/founders/tocs/amendIX.html provides contemporary texts about the 9th Amendment, which can be useful in parsing its meaning. But, yes, there's a lot out there about what it means and how it no longer means that.

Very interesting reading, I have skimmed over a few of these sources. I guess the quote that I have seen that I based my "official" interpretation is from Justice Reed in 1947. This is addressed right at the beginning of the first article that willbaude linked.

You should be aware that the position that the sorts of arguments that Barnett (and presumably Lash though I didn't skim that) bring up are borderline fringe right-libertarian positions, and that their statements are far from politically neutral. The primary way that the 9th and 10th Amendments get brought up in these circles is to deny the legitimacy of federal economic regulations, which include the Civil Rights Act. The official interpretation is not some crazy thing. It says that if your argument is that there is no right to X because X is not listed in the bill of rights, that's a non starter. But if your argument is that there is no right to X because the power to Anti-X is enumerated in the Constitution, then that argument might work.

Cornell Law School's Legal Information Institute has a pretty good annotated Constitution. http://www.law.cornell.edu/anncon/html/amdt9_user.html

ROU: I don't find your position very convincing. For one thing, the Ninth Amendment is rarely if ever applied that way. As Will points out, the case law is very sparse and open to a lot of interpretation. Additionally, the ever-expanding ability of the federal government to engage in exercises of power that aren't enumerated at all would render such an interpretation meaningless. If the conservative position on 9A is "fringe," at least it isn't self-contradictory; the liberal reading of federal power combined with the liberal reading of 9A utterly disembowels the amendment.

I don't follow what you are saying ROU_Xenophobe. And this might be why I can't understand how it is currently interpreted. It seems like this renders the whole Amendment meaningless. What would a Ninth Amendment right be under this interpretation? I guess privacy was something that came up in some cases related to Roe v. Wade, but then the court said that privacy wasn't a right under the Ninth Amendment. It sounds like you are saying that the Amendment means that you have rights that exist only as long as the government decides not to take them away. When the government decides to take them away, then they aren't rights any more. This interpretation of the Ninth Amendment would be very different from say the First Amendment or the Second Amendment, where the whole point is that the government can't take away these rights. If there is a conflict between the powers of the government and the first few rights in the Bill of Rights, the rights seem to get some recognition in court cases. I find it kind of funny that in most things that are political I tend to agree with people on the left, but it seems like this is a pretty tortured way to interpret what the Amendment says. Nothing that anyone has brought up so far indicates how the courts went from one to the other. It seems like for most of the 1800s the Ninth Amendment was ignored by everyone and then it turned up at the beginning of the 1900s and didn't really mean anything. As someone who agrees with what the Civil Rights Act was trying to accomplish, I find it kind of problematic that the Constitutional basis of the whole thing seems so flimsy. It seems like the Commerce clause has been construed so broadly that what we are left with is the enumerated rights. I would think that the Commerce clause was intended to keep the states from putting duties and taxes on products that were produced in other states. The odd part to me is that I can't see how the U.S. went from one to the other. I guess it might be in the history of other clauses, then the whole Ninth Amendment was just invalidated by saying that it doesn't give people any real rights, it just means that the government doesn't have any powers that aren't in the Constitution.

So looking through the links, I think I understand it a bit better. The Constitution gives powers to the government. The Bill of Rights gives rights to the people. It seems like the government can exercise its powers unless it conflicts with the rights of the people. Then it gets kind of murky. Even going back as far as James Madison, it seems like he was conflicted over the relationship between the two. From DevilsAdvocate's link "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[p.1504]not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement." So according to this interpretation, the Ninth Amendment means that just because a power that the government grants itself doesn't violate the enumerated rights, doesn't mean that it is constitutional. In other words, the government has only the powers granted by the Constitution. It seems like other people who helped write the Constitution had different ideas about what it meant, but the dispute goes back to that time.

I don't follow what you are saying ROU_Xenophobe. I'm saying two things. One thing: (1) You have rights under the Constitution that aren't listed in the Bill of Rights. The Court has affirmed several of them numerous times. In Loving, for example, they discuss marriage as a fundamental right even though it is not specified in the Bill of Rights. The Court has also upheld a right to interstate travel that, likewise, is not specifically enumerated in the Bill of Rights. (2) An argument that you do not have a right because it is not listed in the Constitution is, by the 9th Amendment, dead. Virginia couldn't win arguing that there is no right to marry because there is no such right listed in the Bill of Rights. (3) An argument that you do not have a right because the Constitution specifically grants the government a power that implies the nonexistence of that right might succeed; this is what the 1947 case is saying. You can't win a case that you have a fundamental right not to pay taxes under the 9th Amendment, because the Constitution specifically grants Congress the power to impose taxes. It's not saying you have a 9th Amendment right until the government decides you don't, it's saying that you don't have (or at least might not have) a 9th Amendment right if the power to violate the purported right is expressly granted to the federal government in the text of the Constitution. Other thing: People taking the 9th Amendment positions you see above tend to be strongly right-libertarian, and the "rights" they're talking about are generally economic rights to be free of regulation. Normative arguments about what the Constitution "really" says or the One True Way to interpret it are advertising or propaganda, and a useful element in reading propaganda or advertising is to understand the broader goals associated with it.

I'm not certain I share ROU_Xenophobe's reading of the Ninth Amendment (although I'm not certain I share Professor Barnett's either), but it isn't circular. Here's an example of how it can work. Government: We're claiming this house through the use of eminent domain. Citizen: You can't do that! Government: Why not? Citizen: The Constitution says you can only exercise powers that are granted by the Constitution, and there is no clause of the Constitution that gives you the power to take my house. Government: Oh yeah? But the Fifth Amendment says that we can't take private property "for public use without just compensation." That would only make sense if we can take private property with compensation. Therefore, we must have that power. Citizen: Wrong! The Ninth Amendment says that the "enumeration in the Constitution" of my right to just compensation can't be used "to deny or disparage" my argument that I have a right not to have my property taken at all. So you need to go back to the drawing board. What's the source of your authority to take my property? Government: Hmm . . .