Ninth Amendment

Amendment to the U.S. Constitution stating that the enumeration of certain rights in that document does not mean other, unenumerated rights should be denied.

The Ninth Amendment is among the most enigmatic parts of the Bill of Rights. At one level, the thrust of the amendment is relatively clear. The Bill of Rights and other parts of the constitutional text do not contain an exhaustive listing of the people’s rights. However, the questions of what other rights the Constitution protects and from whom, as well as who may enforce such rights and how they relate to delegated and reserved governmental powers, raise complex interpretive problems.Unenumerated rightsUnenumerated rights

Historical Origins and Early Invocations

Federalist James MadisonMadison, James apparently drafted the amendment to address concerns that adding a bill of rights to the constitutional text might imply that the people held only the rights listed in that document. Claims that the people held other rights were often linked to a premise that the Constitution delegated limited powers to the federal government. Accordingly, the Ninth Amendment was viewed as a companion to the Tenth AmendmentTenth Amendment, which reserved for the states or the people all powers “not delegated to the United States by the Constitution, nor prohibited by it to the States.”

Even before the Bill of Rights was ratified by three-fourths of the states, Madison relied on the terms of these two amendments to support arguments that Congress had no authority to establish a national bank. In debates within the House of Representatives on February 2, 1791, Madison claimed the Ninth Amendment “guard[ed] against a latitude of interpretation” and the Tenth Amendment “exclude[ed] every source of power not within the Constitution itself.”

The Supreme Court’s decision in McCulloch v. Maryland[case]McCulloch v. Maryland[MacCulloch v. Maryland] (1819) had implications for interpreting the Ninth and Tenth Amendments. In arguing that Congress had authority to establish a national bank, Chief Justice John Marshall rejected a narrow rule of construction for interpreting the Constitution’s delegations of power. He argued instead that the Constitution gave Congress “vast powers,” on whose execution “the happiness and prosperity of the nation so vitally depends.”

Variations of this reasoning would eventually support expansive conceptions of federal power and correspondingly narrow conceptions of residuals including reserved powers and retained rights. In Fletcher v. Peck[case]Fletcher v. Peck[Fletcher v. Peck] (1810), however, Chief Justice Marshall suggested that judges might enforce unenumerated rights as limits on the states. In subsequent cases, the justices linked the idea of unenumerated rights to principles of limited federal power.

The Ninth Amendment and Slavery

In Scott v. Sandford[case]Scott v. Sandford[Scott v. Sandford] (1857), Chief Justice Roger Brooke Taney argued in his majority opinion that the Missouri Compromise ActMissouri Compromise Act of 1850 of 1850 was invalid because it exceeded constitutional delegations, encroached on reserved powers, and abridged retained rights.Slavery Referring to rights of slave ownership, Taney wrote, “The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them.” More specifically, he argued that Congress “has no power over the person or property of a citizen but what the citizens of the United States have granted.”

Reinforcing Taney’s arguments, Justice John A. Campbell quoted statements made by the authors of the Constitution intended to assure Antifederalists that the federal government would be limited to certain enumerated powers. Despite these assurances, the Constitution’s critics demanded an “explicit declaration” that the federal government would not assume powers not specifically delegated to it. As a result, Campbell said, the Ninth and Tenth Amendments were “designed to include the reserved rights of the States, and the people . . . and to bind the authorities, State and Federal…to their recognition and observance.” Claiming faithfulness to these interpretive premises, Campbell denied that Congress had power to prohibit slavery in the territories.

The Civil War AmendmentsCivil War Amendments (especially the Thirteenth and Fourteenth) overturned the central holdings of Scott and formalized the results of the Civil War by invalidating slavery and making all native-born people, including African Americans, citizens. However, these changes, along with others, did not end controversy over the scope of delegated powers or their relationship to reserved and retained prerogatives. Accordingly, the justices continued to deal with the problems of constitutional construction that were at the heart of the Ninth Amendment.

Twentieth Century Precedents

These problems came to a head again during the New Deal era. The mid-1930’s inaugurated an increasingly deferential approach to assertions of national power and had corresponding implications for interpreting limitations on those powers. In this context, the Ninth Amendment made its first substantial appearance in a majority opinion for the Court.

In Ashwander v. Tennessee Valley Authority[case]Ashwander v. Tennessee Valley Authority[Ashwander v. Tennessee Valley Authority] (1936), the justices upheld the operation of the Wilson Dam by the Tennessee Valley Authority, an agency of the U.S. government. Among other things, the plaintiffs argued that the sale of electric energy generated by the dam exceeded constitutional delegations of power and abridged rights protected by the Ninth Amendment. Chief Justice Charles Evans Hughes,Hughes, Charles Evans writing the majority opinion, dismissed both arguments. Referring to the Ninth Amendment, he claimed that “the maintenance of rights retained by the people does not withdraw the rights which are expressly granted to the Federal Government. The question is as to the scope of the grant and whether there are inherent limitations which render invalid the disposition of property with which we are now concerned.”

In this passage, Chief Justice Hughes relied on normative premises similar to those implicit in debates by the creators of the Constitution on matters of structure. Following Madison’s example, the chief justice treated delegated powers and retained rights as mutually exclusive and reciprocally limiting prerogatives. However, Hughes suggested that a finding of delegated power precluded opposing claims of retained rights. He characterized the latter, like reserved powers, as residuals beyond the legitimate reach of federal delegations.

Eleven years later, Justice Stanley F. Reed commented further on the Ninth Amendment in his opinion for the majority in United Public Workers v. Mitchell[case]United Public Workers v. Mitchell[United Public Workers v. Mitchell] (1947). In that case, the justices upheld a section of the Hatch ActHatch Act (1939) that prohibited employees of the federal government from active participation in political campaigns. Reed accepted the employees’ stance that “the nature of political rights reserved to the people by the Ninth and Tenth Amendments are involved. The rights claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views.” The justice claimed, however, that “these fundamental human rights are not absolutes” and thus were subject to reasonable governmental restriction.

By this time, the Court had already enforced many of the guarantees of the Bill of Rights against the states through the Fourteenth Amendment’s due process clause. In such cases, the Court repeatedly treated popular rights as “trumps” capable of preempting otherwise legitimate assertions of governmental power. The Court had also repeatedly interpreted enumerated rights as similar limitations on federal powers. In Mitchell, however, Justice Reed did not explore the possibility of judges’ enforcing unenumerated rights as such limitations. Absent such a reconceptualization, the Ninth Amendment along with the Tenth would have diminished practical significance. Claims of unenumerated rights would be preempted by increasingly expansive conceptions of delegated powers.

The Right of Privacy

In the 1960’s, the Court first relied on the Ninth Amendment to enforce unenumerated rights as limits on state powers. The Court made this move in the landmark case of Griswold v. Connecticut[case]Griswold v. Connecticut[Griswold v. Connecticut] (1965). The majority opinion, written by Justice William O. Douglas,Douglas, William O. invoked the Ninth along with the First, Third, Fourth, Fifth, and Fourteenth Amendments, to support the Court’s invalidation of a state law prohibiting the use of contraceptives by married couples. According to Douglas, the state law abridged a right of privacyPrivacy, right of that was “older than the Bill of Rights.” He presumed that the government’s purpose was valid but suggested that the means chosen “swe[pt] unnecessarily broadly and thereby invade[d] the area of protected freedoms.”

Justice Arthur J. Goldberg in his concurrence offered his view of the Ninth Amendment’s relevance in this context. In the most extensive explicit analysis of the Ninth Amendment in a Court opinion to date, Goldberg reviewed commentary on the amendment by Madison and Joseph Story, along with judicial precedents enforcing fundamental liberties in addition to enumerated rights. His central claim was that the Ninth Amendment supported interpreting the Fourteenth Amendment as embracing unenumerated along with enumerated liberties.

Justice Hugo L. Black in his dissent criticized both the majority opinion and Justice Goldberg’s concurrence. He denied that the Constitution protected a right of privacy and claimed that relying on the Ninth Amendment to enforce such a right against the states turned somersaults with history. He stated that the Ninth Amendment was added to constitutional text “to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication.”

In Roe v. Wade[case]Roe v. Wade[Roe v. Wade] (1973), the Court extended its holding in Griswold. Justice Harry A. Blackmun, in the majority opinion, wrote, “The right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Blackmun hesitated to rely squarely on the Ninth Amendment to strike down the challenged state law. Following Douglas and Goldberg’s opinions in Griswold, however, he suggested connections between the Ninth and Fourteenth Amendments.

A Saving Clause

In Richmond Newspapers v. Virginia[case]Richmond Newspapers v. Virginia[Richmond Newspapers v. Virginia] (1980), Chief Justice Warren E. Burger announced the Court’s ruling that the First and Fourteenth Amendments guaranteed a right of the public and press to attend criminal trials. Burger relied on the Ninth Amendment to rebut arguments that such a right was not protected simply because it was nowhere spelled out in the Constitution. In his view, the Ninth Amendment was significant as a saving clause designed to allay fears that the explicit listing of certain guarantees could be interpreted as excluding others. The amendment prevented people from claiming that “the affirmation of particular rights implies a negation of those not expressly defined.” Burger pointed out, moreover, that the Court repeatedly enforced fundamental rights going beyond those explicitly defined in the Constitution, including the rights of association, of privacy, to be presumed innocent, to travel freely, and to be judged by a standard of proof beyond a reasonable doubt in criminal trial.

It is impossible to ascertain with confidence the extent to which justices have relied on the Ninth Amendment as an interpretive guide but not cited it in their opinions. However, Chief Justice Burger’s opinion in Richmond Newspapers is a reminder that justices have not confined themselves to protecting enumerated rights. They have also protected unenumerated rights and taken positions on what rights the people hold in connection with interpreting the character and scope of federal and state governmental powers.

Further Reading

  • The most comprehensive collection of materials on the Ninth Amendment is The Rights Retained by the People: The History and Meaning of the Ninth Amendment (2 vols., Fairfax, Va.: George Mason University Press, 1989-1993), edited by Randy E. Barnett. These two volumes include documentary sources, selections from books, reprints of law review articles, and a bibliography of writings on the amendment through 1992. Much of volume 2 reprints essays from a symposium on the amendment that were originally published in volume 64 of the Chicago-Kent Law Review (1988). More recent works analyzing the Ninth Amendment include Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights (Philadelphia: Temple University Press, 1995) and Wayne D. Moore’s Constitutional Rights and Powers of the People (Princeton, N.J.: Princeton University Press, 1996). The latter explores premises of popular sovereignty and conceptions of constitutional structure, including how they inform interpretation of the Ninth Amendment. For a more current exploration of the same subject, see Larry D. Kramer’s The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2005).


Ashwander v. Tennessee Valley Authority

Bill of Rights

Birth control and contraception

Griswold v. Connecticut

McCulloch v. Maryland

Privacy, right to

Richmond Newspapers v. Virginia

Roe v. Wade

Tenth Amendment

United Public Workers v. Mitchell