norml21 - Page 19
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ratification by three-fourths of the states, and the Eleventh
proposed amendment was finally adopted as the Ninth Amendment to
the Constitution.
As one of the first commentators on :he Ninth Amendment,
Knowton Kelsey, observed:
The Ninth Amendment is not meaningless or
superfluous° Surely it is more than a mere
negative on implied grants of power that might
otherwise be asserted because of the express
enumeration of rights in respect: of matters where
no power was granted. It must be more than a mere
net to catch fish in supposedly fishless water.
It is certainly more than a mere emphasis on the
doctrine of delegated and enumerated powers. It
must be a positive declaration of existing, though
unnamed rights, which ma" re vindicated under the
authoi_t,i_____ h9 Amendment whenever and if ever
any governmental authority shall aspire to
Zi!_qranted p_gwer in contravention of "unenumerated
rights."
Kelsey_ The Ninth Amendment of theFederal Constitution, Ii Ind.
LoJ. 309, 323 (1936) (emphasis added).
Thus, the Ninth Amendment was intended by the First Congress
to embody substantive protection for unenumerated rights of the
people°
E. The Tenth _m_endment, by reserving to the States or
to the peoples powers not delegated to the Federal
Government_ supports the substantive
interpretation of the Ninth Amendment and
establishes that the creation of crimes without
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