The Ninth Amendment: Unenumerated Rights

“In sophisticated legal circles, mentioning the Ninth Amendment is a surefire way to get a laugh.” (John Hart Ely)

One of the arguments against adding a bill of rights to the Constitution was that such a list might imply those were the only rights the people had. Therefore, when James Madison introduced the Bill of Rights in Congress, he included a provision protecting rights “retained by the people,” but not written down in the Constitution. These unenumerated rights referred to in the Ninth Amendment have proven to be very controversial.

Libertarians believe that the Ninth Amendment includes certain fundamental rights, such as privacy, that are so important they must be protected by judges, whether or not they are specifically listed in the Constitution. Advocates of judicial restraint argue that such interpretations of the Ninth Amendment give judges too much discretion, and that it is the job of state legislatures and the people themselves to protect unenumerated rights.

“The enumeration in the Constitution, of certain rights”

The rights that are specifically listed in the Constitution receive the highest form of judicial protection. These rights-such as freedom of religion, freedom of speech, and the right to a trial by juryare considered to be among the most important that Americans have, and judges clearly have the power to compel government officials to enforce them. The Supreme Court has also recognized certain unenumerated rights not listed in the Constitution. Included among these unenumerated rights are the right to travel, the right to vote, and the right to privacy.

Although the Ninth Amendment ostensibly protects unenumerated rights, it has never been the basis for a majority decision of the Supreme Court. Instead, the Court has relied on other provisions in the Constitution.
For instance, the Court ruled that freedom of association is implied by other First Amendment rights. Also, the Court has held that some aspects of the right to privacy are derived from the Third, Fourth, and Fifth Amendments.
Sidebar: unenumerated rights those rights not specifically listed in

But the most common way that the Supreme Court recognizes unenumerated rights is through the Due Process Clause of the Fourteenth Amendment. That amendment says that no state shall deprive any person “of life, liberty, or property without due process of law.” If the Supreme Court determines that a right not listed in the Constitution is “fundamental,” then it becomes a “liberty” interest covered by the Due Process Clause. This method of protecting unenumerated rights is known as substantive due process, which is explained in greater detail in the Fourteenth Amendment chapter.

The Right to Privacy

Perhaps the most controversial right not specifically listed in the Bill of Rights is the right to privacy. The Supreme Court has recognized many aspects of the right to privacy-among them the right to marry, to have children, and to have an abortion. In Griswoldn Connecticut (1965), the Court struck down an 1879 state law that prohibited the use of contraceptives, at least as applied to married couples. The Court’s opinion by Justice William O. Douglas declared that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” A penumbra is a type of astronomical shadow. Douglas added that “zones of privacy” created by the First, Third, Fourth, Fifth, and Ninth Amendments protected marital privacy. In a concurring opinion by Justice Arthur Goldberg, three justices argued that the Ninth Amendment itself protected the right to marital privacy.

After the Griswold decision, the Supreme Court ruled in several cases that sexual privacy applied outside marriage as well. Such privacy included a woman’s right to have an abortion, held the Court in Roe v. Wade (1973):
This 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 women’s decision whether or not to terminate her pregnancy.

Because the Supreme Court’s abortion cases are based on the Fourteenth Amendment, they are discussed in greater detail in that entry.

Until Bowers v. Hardwick (1986), a case involving a gay man, the Court consistently upheld the right to sexual privacy. Michael Hardwick contested a Georgia law prohibiting sodomy defined as oral or anal sexas a violation of his sexual privacy under the Ninth and Fourteenth Amendments. An Atlanta police officer with an expired warrant for a misdemeanor offense had witnessed Hardwick, in his own bedroom, engaging in oral sex with another adult male and arrested him for sodomy.

The Supreme Court upheld Georgia’s sodomy law, saying that the Court refused to recognize “a fundamental right to engage in homosexual sodomy.”

However, Justice Harry Blackmun’s dissent emphasized that the law applied to both heterosexuals and homosexuals: “Unlike the Court, the Georgia legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens.”

“Shall not be construed to deny or disparage others retained by the people”

Perhaps the biggest debate over the Ninth Amendment is who should protect the rights it includes. Do rights that are “retained by the people” receive protection by the courts, or by state legislatures, or by the people themselves? Some legal scholars believe that the Ninth Amendment’s vague language could give unelected judges an unlimited license to create constitutional rights and overturn the decisions of democratic majorities.

As Judge Robert Bork testified at his confirmation hearings for a Supreme Court appointment in 1987: “I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says “Congress shall make no” and then there was an inkblot, and you cannot read the rest of it, and that is the only copy you have, I do not think the court can make up what might be under the inkblot.”

Other legal experts see the Ninth Amendment as something more than an inkblot, although they disagree over exactly how its protections should be implemented. Constitutional scholar John Hart Ely, for example, argues that judges should only recognize Ninth Amendment rights that strengthen participation in the democratic process, not that reflect choices among substantive values.

But other scholars maintain that the language of the Ninth Amendment is no more vague than other constitutional phrases, such as “due process of law,” that judges frequently interpret. According to law professor Randy Barnett, refusing to allow judges to recognize Ninth Amendment rights would be to “disparage” them in relation to the rights protected by the first eight amendments. The Ninth Amendment, Barnett says, must be implemented as fully as any other part of the Bill of Rights.

In James Madison’s original version of the Bill of Rights, one proposed amendment both retained unenumerated rights for the people and reserved undelegated powers to the states. These provisions were later split into the Ninth and Tenth Amendments. Consequently, some commentators believe that the Ninth and Tenth Amendments have virtually the same meaning, and that unenumerated rights should be protected by the states, not the federal courts. Others argue that the Ninth Amendment secures implied rights for individuals, just as the Article I’s Necessary and Proper Clause secures implied powers for Congress.

But thus far a majority of the Supreme Court has not agreed with either interpretation, preferring to ignore the Ninth Amendment altogether. That’s why many scholars refer to it as the forgotten amendment.

Where Do Rights Come From?

The Ninth Amendment raises the question of what a “right” is, and where it comes from. A right is a power or privilege that belongs to a person by law, nature, or tradition.

Natural rights are based on the belief that all people have certain rights simply by being human.

Therefore, the government cannot create or destroy natural rights, but it doesn’t necessarily protect them, either. Legal or positive rights are those recognized by the statutes and court decisions of a society’s government. Since legal rights are created by the government, the government can also take them away. The Ninth Amendment says that just because certain rights are not listed in the Constitution doesn’t mean they don’t exist. But does the Ninth Amendment refer to legal rights, that should be enforced by courts, or natural rights?