The Ninth Amendment

The Ninth Amendment, ratified in 1791, reads in full: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Its purpose was to answer one of the principal objections to adding a Bill of Rights to the Constitution. Federalists like Alexander Hamilton had argued that a written list of rights was dangerous. By enumerating some rights, the list might be read to imply that any right not listed could be denied. James Madison drafted the Ninth Amendment to foreclose that reading.

The amendment has had a quiet career. For more than 150 years, it received almost no judicial attention. It appears in only a handful of Supreme Court decisions before the mid-twentieth century. The most prominent modern reference came in Justice Goldberg's concurrence in Griswold v. Connecticut in 1965, which cited the Ninth Amendment as support for the idea that the Constitution protects unenumerated rights, including a right to marital privacy. The majority opinion in that case rested on penumbras of other amendments rather than on the Ninth itself.

Scholars and judges have disagreed about whether the Ninth Amendment confers any judicially enforceable rights or merely states a rule of construction. Originalists generally read it as a rule against negative inference, not as an open-ended grant of unspecified liberties. Others read it as recognizing natural rights that exist independently of the Constitution and that courts may enforce. The amendment has rarely been the sole basis for any decision. It functions instead as a reminder, written into the text by the framers themselves, that the rights of the American people are not limited to what some lawyer happened to write down in 1789.