Ninth Amendment

Introduction

The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Ratified in 1791 as part of the Bill of Rights, the Ninth Amendment addresses a concern raised during the ratification debates: that listing specific rights might imply that the people possessed no other rights. The amendment ensures that the enumeration of certain constitutional rights does not implicitly negate the existence of other rights that the people retain. It reflects the Framers’ understanding that the Constitution creates a government of limited, enumerated powers and that the people retain all rights not surrendered to the government.

The Ninth Amendment has been described as both enigmatic and profound. Unlike other Bill of Rights provisions that protect specific enumerated rights, the Ninth Amendment protects unenumerated rights — rights not specifically listed in the Constitution. This language has generated extensive debate about the amendment’s meaning, purpose, and justiciability.

Historical Background and Purpose

During the ratification debates, Anti-Federalists criticized the Constitution’s absence of a bill of rights, arguing that the enumeration of congressional powers might be read to imply that the federal government possessed unlimited authority. Federalists responded that a bill of rights might be dangerous because listing some rights could imply that the government could infringe any right not listed. Alexander Hamilton argued in Federalist No. 84 that the Constitution itself was a bill of rights and that a separate enumeration was unnecessary and potentially dangerous.

The Ninth Amendment resolved this debate by providing a rule of construction: the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. The amendment ensures that the Bill of Rights cannot be read to limit the people’s rights to those specifically listed, preserving the principle that the people retain all rights not affirmatively surrendered to the federal government. James Madison, who drafted the Tenth Amendment, explained that the amendment was intended to prevent any perverse inference that might arise from the enumeration of particular rights.

Interpretive Theories

The meaning and justiciability of the Ninth Amendment have been subjects of significant scholarly debate. One view holds that the amendment is a rule of construction that prevents the government from arguing that rights not listed are nonexistent, but does not itself provide a textual basis for identifying or enforcing unenumerated rights. Under this view, the Ninth Amendment is a background principle of constitutional interpretation rather than an independent source of rights.

Another view holds that the Ninth Amendment protects unenumerated fundamental rights that courts may enforce. Justice Goldberg’s concurrence in Griswold v. Connecticut (1965) argued that the Ninth Amendment supports the recognition of unenumerated rights fundamental to liberty, including the right to marital privacy. Justice Goldberg reasoned that the amendment shows that the Framers did not intend the Bill of Rights to be exhaustive and that courts have the authority to protect rights not specifically enumerated.

A third view treats the Ninth Amendment as a federalism provision that reserves rights to the people against the federal government, analogous to the Tenth Amendment’s reservation of powers to the states. Under this interpretation, the amendment prevents the federal government from claiming powers based on the implication that unenumerated rights do not exist.

The Ninth Amendment and Substantive Due Process

The Ninth Amendment has been linked to the development of substantive due process doctrine, which protects fundamental rights not specifically enumerated in the Constitution. In Griswold v. Connecticut (1965), Justice Douglas’s opinion for the Court cited the Ninth Amendment as one of the constitutional provisions creating penumbras of privacy emanating from the Bill of Rights’ specific guarantees. The Court held that the First, Third, Fourth, Fifth, and Ninth Amendments together create a zone of privacy protecting marital relations.

Justice Goldberg’s concurrence in Griswold relied more directly on the Ninth Amendment, arguing that the amendment supports the proposition that fundamental rights not enumerated in the Constitution may still be protected by the federal courts. He argued that marital privacy is such a fundamental right, deeply rooted in American history and tradition, and that the Ninth Amendment confirms that the enumeration of specific rights does not extinguish other fundamental rights.

Subsequent cases developing substantive due process, including Roe v. Wade (1973), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015), have relied primarily on the Due Process Clause rather than the Ninth Amendment. However, the Ninth Amendment’s recognition of unenumerated rights has informed the substantive due process analysis of what constitutes a fundamental right.

The Ninth Amendment and the Tenth Amendment

The Ninth and Tenth Amendments are closely related. Both were designed to allay concerns about the scope of federal power under the new Constitution. The Ninth Amendment addresses individual rights not enumerated; the Tenth Amendment addresses state powers not enumerated. Together, they establish the principle that the federal government possesses only delegated powers and that both the states and the people retain residual authority and rights.

The Supreme Court has rarely relied on the Ninth or Tenth Amendments to invalidate federal action in cases involving individual rights. The Tenth Amendment has been applied in federalism cases concerning state sovereignty, while the Ninth Amendment has been cited primarily in concurring and dissenting opinions. The Court has generally preferred to ground recognition of unenumerated rights in the Due Process Clause rather than the Ninth Amendment.

The Ninth Amendment in Modern Constitutional Law

The Ninth Amendment continues to generate scholarly and judicial debate about the existence and enforcement of unenumerated rights. Justice Thomas has questioned whether the Ninth Amendment provides any judicially enforceable rights. Justice Scalia argued that the Ninth Amendment is a rule of interpretation rather than a source of substantive rights. Other justices have suggested that the Ninth Amendment supports the protection of fundamental rights not specifically enumerated.

The amendment has been cited in support of various unenumerated rights, including the right to privacy, the right to travel, the right to vote, the right to bodily autonomy, and the right to parental control over children’s education. However, courts have generally declined to rely on the Ninth Amendment as the primary basis for recognizing such rights, preferring to ground protection in more specific constitutional provisions or in the Due Process Clause.

Conclusion

The Ninth Amendment establishes the important constitutional principle that the enumeration of rights in the Constitution is not exhaustive. The people retain rights not specifically listed, and the fact that a right is not enumerated does not mean that it does not exist. While the amendment has not been a primary vehicle for the recognition of unenumerated rights in Supreme Court jurisprudence, it reflects the Framers’ understanding that constitutional rights are not limited to those spelled out in the text. The Ninth Amendment remains a textual foundation for the proposition that the Constitution protects fundamental rights beyond those specifically enumerated, ensuring that the Bill of Rights is read as a floor rather than a ceiling for individual liberty.