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.
Federalist James Madison
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
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
In Scott v. Sandford
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 Amendments
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
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
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.
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
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
In Richmond Newspapers v. Virginia
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.
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
United Public Workers v. Mitchell