The Ninth Amendment and the Tenth Amendment are the specific amendments to the U.S. Constitution that have not been incorporated. It is considered unlikely that they ever will be.
Understanding the Incorporation Doctrine
The concept of "incorporation" refers to the process by which the U.S. Supreme Court has applied provisions of the Bill of Rights to the states through the Due Process Clause of the Fourteenth Amendment. Initially, the Bill of Rights only limited the power of the federal government. However, over time, the Court has selectively "incorporated" most of these protections, meaning states are also bound by them.
The Non-Incorporated Amendments
While the vast majority of the Bill of Rights has been incorporated, two amendments stand out as not having been applied to the states:
- The Ninth Amendment: This amendment states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." It acknowledges that individuals possess rights beyond those explicitly listed in the Constitution.
- The Tenth Amendment: This amendment declares that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It reinforces the principle of federalism, defining the balance of power between the federal government and state governments.
Summary of Non-Incorporated Amendments
Amendment | Core Principle | Reason for Non-Incorporation (Nature) |
---|---|---|
Ninth Amendment | Rights not explicitly listed are still retained by the people. | Addresses unenumerated rights, not specific individual liberties. |
Tenth Amendment | Powers not delegated to federal government are reserved to states or people. | Defines federal-state power balance, not individual rights. |
Why These Amendments Remain Unincorporated
These two amendments differ fundamentally from others in the Bill of Rights that protect specific individual liberties (like freedom of speech, protection against unreasonable searches, or the right to a jury trial). The Ninth Amendment speaks to the existence of unenumerated rights, while the Tenth Amendment addresses the division of powers between the federal government and the states. Their nature makes them less amenable to direct incorporation as limits on state power in the same way that specific rights like free speech or due process are. Given their structural and interpretive roles, rather than granting specific individual rights that can be enforced against states, their incorporation is considered improbable.
For further information on the incorporation doctrine and its history, you can refer to legal resources such as the Legal Information Institute at Cornell Law School.