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.