The Ninth Amendment Argument for Monogamy

The ninth amendment to the constitution is one of those wonderfully vague constitutional provisions that delights arm-chair theorists and annoys judges who might actually have to figure out what it means. It reads:

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

It turns out that this provision was an unlikely character in some of the earliest legal battles over polygamy. When the Mormons arrived in Utah it was Mexican territory, a months later it was annexed to the United States. For two years thereafter it was “unorganized territory” for purposes of federal law. In reality, it was govered by the State of Deseret, which acted at the direction of priesthood leaders. In 1850, Congress organized the Territory of Utah, which had a locally elected legislature in charge of passing laws to govern the Territory. At the time, there was no federal statue outlawing polygamy either in the territories or in unorganized territory. The legislatures of both Deseret and Utah very pointedly refused to pass any criminal law on the subject. Hence, the question arose of whether there was any law for which polygamists could be prosecuted for breaking. There was some talk of prosecuting them under the common law, which made polgyamy a crime. The problem here was the the U.S. Supreme Court ruled early in the 19th century that there were no federal common law crimes. So naturally enough, anti-polygamy activists turned to the Ninth Amendment as a kind of legal hail-Mary argument. They argued:

[U]nder no circumstances, either of law or policy, can that which is a crime and punishable by the laws of the seperate States be allowed in the common domain as the right of any body. As you justly remark, every man is entittled, in every State to one wife and no more; so every woman is entitled to one husband, not part of a husband. Now, this is an absolute right and the ninth amendment to the Constitution secures to the people, women as well as men, all their rights. And so long as the amendment forms part of the Constitution, polygamy, even were it not a crim by the laws of every State in the Union, could not be legally established or even countenanced in portion of teh common domain; because it nulifies the rights of an entire sex, constituting one-half of the whole people. (The Valley Tan Nov. 6, 1858)

As a legal matter, this is not an exceptionally coherent argument. (Of course, is is very difficult to have a legally coherent argument about the Ninth Amendment. For that matter, there are whole schools of legal philosophy that deny the possibility of any coherent legal argument.) The argument is bootstrapping from the common law prohibition on polygamy to the idea that one has a right to be free of polygamy to the conclusiont that the right is protected by the Ninth Amendment. Yet the whole problem started precisely because the Supreme Court had disclaimed the existence of common law crimes under the constitution. Interestingly, we also have what amounts to a gender-based equal protection arguement a good ten years before the adoption of the Equal Protection Clause of the Fourteenth Amendment and over a century before any federal court found that Clause to extend to gender-based discrimination.

These sorts of exotic constitutional arguments were mooted in 1862, when Congress passed a law explicitly forbidding polygamy in the territories. Still, it is a fun example of the sort of odd legal relics that one can find swirling around the edges of Mormon legal history if you look hard enough.

12 comments for “The Ninth Amendment Argument for Monogamy

  1. gst
    December 5, 2006 at 6:23 pm

    In sophisticated legal circles mentioning the Ninth Amendment is a surefire way to get a laugh. (“What are you planning to rely on to support that argument, Lester, the Ninth Amendment?”)

    John Hart Ely, Democracy and Distrust, p.34 (Harvard UP 1980).

  2. Jeremiah J.
    December 5, 2006 at 11:39 pm

    Legal hail mary or not, I don’t know. But the conjunction of a common law conception of marriage and the 9th Amendment which seems to constitute the basis of Griswold v. Connecticut (perhaps more plausibly). Your thoughts on the two cases read together.

    It seems you are arguing that the Ninth Amendment is an “inkblot”. Is that true, or what is your interpretation?

  3. Brenda
    December 6, 2006 at 1:37 am

    Speaking of ambiguous laws and plural marriage, do Mormons still believe in polygamy? For some reason, I can’t bring myself to ask this question directly in Relief Society and the lesson materials are craftily vague.

  4. December 6, 2006 at 10:59 am

    Jeremiah J.: I think that the Ninth Amendment is best read a fount of unenumerated rights. On the other hand, I am not sure that this means that it ought to be judicially enforceable. In other words, you can think of the Ninth Amendment as more than ink blot without turning it into a vehicle for hog-wild Warren Court style judging. There is a basic problem with using the common law as the fount for Ninth Amendment rights, namely the consistent hostility of the federal courts from the beginning toward the idea of federal common law, Swift v. Tyson and the actual federal common law that exists notwithstanding.

    Incidentally, the Valley Tan’s argument is somewhat different than Griswald, in that the rabbit that it is ultimately trying to pull out of the hat is a criminal prohibition on polygamy.

  5. December 6, 2006 at 11:20 am

    do Mormons still believe in polygamy?

    President Hinckley told Larry King that it wasn’t doctrinal.

  6. Frank McIntyre
    December 6, 2006 at 11:55 am


    “President Hinckley told Larry King that it wasn’t doctrinal.”

    By “it” do you think he meant the current practice of polygamy? In that sense we certainly do not believe in that and we have a scripture saying so. We could probably agree that practicing polygamy has been ordained of God in the past. Whether it will be re-ordained in the future is, I think, still an open question.

  7. Starfoxy
    December 6, 2006 at 12:24 pm

    That argument is shockingly progressive. Women need rights, but only when it suits the people in charge I guess.

    Brenda, the lessons are indeed craftily vague and whether or not we still believe in polygamy is something of a favorite topic among several of us here. These are a few major points that get brought out rather frequently:
    ~As J. Stapley pointed out, President Hinkley did say ‘it’ wasn’t doctrinal. (And as Frank pointed out, what that means depends on your definition of ‘it’)
    ~Church policy allows men to be sealed to more than one woman serially (after deaths or divorces) while women are not allowed to be sealed to multiple men in the same way.
    ~Section 132 remains part of the D&C.
    ~Nothing favorable towards polygamy has been said in ages, and the lesson manuals and quotes are stripped of anything that promotes polygamy.
    ~Nothing condemning the previous or potential future practice of polygamy has been said.
    ~In countries where polygamy is legal converts must be monogamous, or become monogamous (by divorcing their ‘extra’ wives) before they are allowed to be baptised.

    It is more or less a matter of personal opinion among individual members (hopefully informed by personal study and prayer). I would advise against taking any stories claiming “My mission president said…” or “The Temple President of such and such said…” as doctrine.

  8. bbell
    December 6, 2006 at 1:42 pm

    #7 is a prety good response.

    Its missing:

    – Excommunication for those that take an additional wife
    – A temple rec question that discusses affiliation with groups opposed to the LDS church. Most observers belive that this was originally included to screen those with polygamous ties.
    – Recent members of the Q12 who were widowers and were remarried and resealed to new spouses.

  9. December 6, 2006 at 3:25 pm

    “Recent members of the Q12 who were widowers and were remarried and resealed to new spouses.”

    I don’t see how that factors into the above considerations, bbell. Explanation?

  10. bbell
    December 6, 2006 at 3:50 pm


    In trying to figure out the whole polygamy thing its important to note that men can still be sealed to multiple women if they remarry after a spouses death.

    Polygamy in the celestial kingdom is still part of our current practice in these circumstances. My own grandfather is currently sealed to his wife whom he remarried after my grandmothers death. His case is interesting. He was first married civilly to his second wife in the temple and then after a few years and some prayers and fasting they decided to get sealed after consultation with a Bishop and a SP.

    We currently do not practice polygamy in any way when people are alive but its still part of our post death cosmology.

    RAF you know this already and suspect that you are in part descended from Polygamists as I am.

  11. December 7, 2006 at 2:12 pm

    I’ve done sealings for female ancestors who were married more than once, and when I asked to whom they should be sealed, I was told that we should do sealings for all of these women’s marriages– kind of a “seal ’em all and let the angels sort ’em out” thing. So women are allowed to be sealed to more than one man, provided that all the parties are dead. Now I don’t know if all those sealings are going to “stick” in the hereafter or if the woman will have to decide which one to accept.

  12. keysew
    December 8, 2006 at 4:29 pm

    It is interesting to note that, recent pronouncements not withstanding, Official Declaration 1, as currently published in the Doctrine and Covenants and as sustained in General Conference, does not prohibit plural marriage. It simply requires the Saints \”to refrain from contracting any marriage forbidden by the law of the land.\” In order to insure there is no confusion in the Lord\’s Church, that prohibitiion has been extended over the breadth of the Church. I have to wonder, if the Supreme Court hears the Holm case, in light of the Sullivan decision, what effect that will have on the Church\’s future decision. Is it possible that what was doctrinal, is not now doctrinal, but may be doctrinal again? (That said, I\’ll wait for the Lord to make his will known.) Merry Christmas to all.

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