The failure of the justices on the Supreme Courr to understand the interplay between the Ninth and Tenth amendemenst has led to the President of the United States and some members of the United States Congress to believe that an amendcment to the United States Constitution could outlaw so-called gay marriages. See the book on this website on the Constitutional Crisis Facing American Democracy and its discussion of, and the bases for, the Ninth and Tenth Amendment. The Supreme Court in previously treating the unenumerated right to an abortion as a enumerated right under the Constitution contributed to much confused thinking by not only associate justices ot the Supreme Court but also also the present Chief Justice.

At the time of the adoption of the United States Constitution, the Federalists believed that a declaration of fundamental rights was not only unnecessary but also contrary to the freedom of the America people: The failure to set forth some rights of the American people might be used to disparage those rights not enumerated under the rights expressly set forth. Madison stated as follows: "It has been objected that also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparages those rights that were not placed in that enumeration, and it might follow by implication, that those rights that were not singled out, were intended to be assigned into the hands of the General Government, and were consequwently insecure." It is clear from Madison`s statement that the Ninth Amendement states a rule of construction, making it certain that a bill of rights might not by implication be taken to increase the powers, contrary to the beliefs of the President of the United States and of certain legislators, of the national government in areas not enumerated.

A judicial construction that the fundamental right of marriage, independent of the sexes of the parties, is not protected by the Constitution merely because it is not mentioned in explicit terms in the first eight amendments or elsewhere in the Constitution, would violate the Ninth Amendment. In Richard Newspapers v. Virginia (1980) 488 US. 555, 579-80, Chief Justice Burger`s plurality opinion treated the Ninth Amendment as "a constitutional savings clause." "For a collection of articlces on the Ninth Amendment, see The Rights Retained by the People: The History and Meaning of the Ninth Amendment (Randy E. Barnett, ed., 1989).

As in its phraseology and intent the amendmednt is inconsistent with the Constitution as wriiten and is incapable of meaningful interpretation and enforcement. The draftsmen clearly have no understanding of the compass of the Ninth and Tenth Amendments and have phrased the proposed amendment in both confusion and ignorance of principles of constitutional interpretation. There would seem to be no way that the courts could construe the proposed amendment in a meaningful manner, much less in determining the intent underlying the proposed amendment. In any event, the amendment will not receive sufficient votes to become effective and is only proposed for poltical reasons and not to achieve enforceable change in marriage law.

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