Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Ratification Facts

Proposed:

Submitted by Congress to the states on September 25, 1789.

Ratification:

Ratified by the required three-fourths of states (11 of 14) on December 15, 1791. Declared to be part of the Constitution on December 15, 1791.

Ratifying states:

Ratifying states: New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; New York, February 24, 1790; Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791 (amendment adopted).

The Bill of Rights is primarily a list of restrictions on the government, preventing it from acting against the people’s rights. When the idea of adding a bill of rights to the Constitution was first brought up, many people argued against it. Some believed that the Constitution itself was a bill of rights, as it prohibits ex post facto (after the fact) laws and bills of attainders. Some people felt such a list was not needed because the Constitution specifically lists what actions the government can take. In other words, because the government can only do the things the Constitution gives it the power to do, a list of things it cannot do serves no real purpose.

At the time the Constitution was adopted, the public was largely in favor of a bill of rights that would specifically protect certain rights. But creating a list of rights raised another concern. Opponents of a bill of rights worried that listing some of the rights might lead the government to take away or trample on any rights that were not listed.

The Ninth Amendment was written to address that worry. It states that the listing or enumerating of certain rights in the Constitution “shall not be construed [understood] to deny or disparage [discredit] others retained by the people.” In other words, the amendment states that the Bill of Rights should in no way be considered a complete list of people’s rights.

Edmund Randolph (1753–1813), a politician from Virginia who later became the country’s first U.S. attorney general, argued that the amendment was meaningless. He warned that the rights in the first eight amendments “were not all that a free people would require” but felt that the Ninth Amendment was too weak to guarantee other rights. To some extent, Randolph’s predictions came true. Because the Ninth Amendment does not list specific rights, it has played a role in only a handful of Supreme Court cases since its adoption.

But the Ninth Amendment served two valuable roles. First, it eased fears that the Bill of Rights might be used to limit people’s rights rather than protect them. Second, it serves as a formal reminder that the government’s powers are limited to those granted to it by the Constitution and that the government has no power beyond those listed in the Constitution to limit the individual’s rights.

A case of mistaken identity

Other than the Third Amendment (see chapter three) the Ninth Amendment has had less impact on Supreme Court decisions than any of the other Bill of Rights amendment. Indeed, the first time the Supreme Court referred to the amendment, it was a mistake.

In Lessee of Livingston v. Moore (1833), the Court discussed the Ninth “Article” of the constitutional amendments, but the Court was actually referring to the Seventh Amendment. It’s possible the justices on the Court were inadvertently referring to the Ninth proposed Amendment.

James Madison (1751–1836) had written seventeen proposals for the Bill of Rights. Congress, however, only passed twelve of those proposals, and the states in turn ratified just ten. The case involved the right to a jury trial, which is protected by the Seventh Amendment but which was the ninth amendment proposed to the states. Alas, the real Ninth Amendment would not play a significant role in a case for more than 130 more years.

Origins of the Ninth Amendment

In 1775, war broke out between Great Britain and its thirteen American colonies. At the conclusion of the American Revolutionary War in 1783, the colonies had won their independence, and the newly independent states united under the terms of a document known as the Articles of Confederation.

Under the Articles of Confederation, the states kept most governmental powers while the federal (central) government was given very little power to act on its own. Within a few years, it became apparent that the new nation would require a more powerful central government, especially when dealing with foreign countries. In 1787, representatives from twelve (all except Rhode Island) of the states were sent to the Constitutional Convention in Philadelphia, Pennsylvania, where they worked to create a constitution for a new federal government.

In 1788 the states adopted the U.S. Constitution (see chapter one), which established a strong national government with power divided among a powerful president, Congress (the legislative or lawmaking body of government), and the Supreme Court.

The argument against a bill of rights

Although many state constitutions featured a bill of rights (a list of the people’s rights that were protected from government interference), nothing in the new Constitution spelled out the people’s rights. Backers of the new Constitution (known as Federalists) argued that such a bill of rights was unnecessary because the new government would only have the powers given to it by the Constitution. For instance, because the Constitution did not give Congress the power to regulate the press or the church, there was no need to for an amendment that protected freedom of the press or freedom of religion.

The Federalists were not against limiting the government’s powers. In fact, many of them were worried that a bill of rights would actually give the government more power. Alexander Hamilton (1755–1804), a prominent Federalist, opposed a bill of rights. In an essay in favor of the new Constitution, he argued that a list of rights was “not only unnecessary in the proposed Constitution but would even be dangerous.”

Hamilton (who under George Washington became the nation’s first secretary of the treasury), and others argued that listing some rights might give the government an excuse to take away rights that were not listed. As James Wilson (1742–1798), a prominent Federalist politician from Pennsylvania who later served on the U.S. Supreme Court, put it: “Enumerate all the rights of men! I am sure, sir, that no gentleman would have attempted such a thing. To every suggestion concerning a bill of rights, the citizens of the United States may always say, ‘We reserve the right to do what we please.’”

Federalist Theodore Sedgwick (1746–1813) of Massachusetts, who served in the House of Representatives, jokingly asked whether the Anti-Federalists thought it was necessary for Congress to have “declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and to go to bed when he thought proper.”

The argument in favor of a bill of rights

Opponents of the new constitution (Anti-Federalists) nonetheless argued that without a bill of rights, the new government would eventually trample the people’s rights. George Mason (1725–1792), a leading Anti-Federalist from Virginia, had attended the Constitutional Convention but refused to sign the document because it had no bill of rights. Mason argued that the Articles of Confederation had declared that “Each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not expressly delegated to the United States, in Congress assembled.”

“Why not have a similar clause in this Constitution,” Mason wondered. The lack of such a clause seemed to suggest that the new government was not limited in any way.

Patrick Henry (1736–1799), a well-known revolutionary leader from Virginia, agreed with Mason. “If you intend to reserve your unalienable rights,” Henry declared, “you must have the most express stipulation (of those rights).” In other words, Henry believed that to protect the rights of the individual’s, the rights themselves have to be defined in a written document.

The Anti-Federalists lost the fight against the new Constitution but managed to raise the public’s concern over the absence of a bill of rights. The states voted to adopt the new Constitution in 1788. But Congress (the lawmaking body of the new federal government) immediately began drafting a bill of rights once the Constitution was in place.

Filling the “dangerous” gap

James Madison (1751–1836), a Virginia lawyer who later became the fourth president of the United States, was one of Virginia’s representatives in the House of Representatives in Congress. Madison had been a strong supporter of the new Constitution, but by 1789 he had come to support the addition of a bill of rights.

Madison wrote the original drafts of all ten of the Bill of Rights amendments. But Madison agreed with other Federalists about the danger that a list of rights might imply that the people were only entitled to the rights listed.

“This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into the system,” he said, “but I conceive, that it may be guarded against.” Clearly, he believed there was a way to avoid difficulties that a list of rights might present.

Madison proposed an amendment stating that “[t]he exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed [understood] as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated [to the government] by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

Madison’s wording was edited in Congress to its final simpler form: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

While not all Federalists or Anti-Federalists were satisfied with the amendment, its inclusion in the Bill of Rights served as a reminder that the people’s rights were not limited to those listed in the other amendments. And the amendment also helped ease fears that a bill of rights would give the government more power, not less.

The Ninth Amendment became part of the Constitution on December 15, 1791, when Virginia became the twelfth state (of the existing fourteen) to ratify the first ten so-called Bill of Rights amendments to the U.S. Constitution.

Supreme Court Stays Mum on Unenumerated Rights

The Constitution established the Supreme Court of the United States as the nation’s highest court. The Court originally consisted of six justices (judges), but since 1869, it has included nine justices. A justice may write an opinion supporting either side of a given case, but the Court’s final ruling is left to a simple vote of all the justices. The justices typically hear appeals of cases first heard by lower courts. An appeal is a legal request to reconsider a lower court’s ruling.

The Supreme Court holds the final power to interpret the country’s laws, including the Constitution and its amendments. Yet the Court has rarely tried to interpret the Ninth Amendment. In the first 160 years after the passage of the Bill of Rights, the Supreme Court heard very few cases involving the Ninth Amendment. In those few cases, the Court shed little light on what rights, if any, the Ninth Amendment protected.

Granted powers trump Ninth Amendment rights

In Ashwander v. Tennessee Valley Authority (1936), the Supreme Court described rights that were not protected by the amendment.

“The Ninth Amendment does not withdraw the rights that are expressly granted to the federal government,” the Court ruled. In other words, while the people may have rights that are not spelled out in the Constitution, no such rights can interfere with the government’s right to do what the Constitution specifically says it may do.

So in Tennessee Electric Power Co. v. Tennessee Valley Authority (1939), the Court ruled that the Ninth Amendment did not prevent the federal government from controlling the retail price of its electrical energy. In that case, public utilities (power companies) claimed that the government was interfering with their right to acquire property and use it in lawful business.

But the Court ruled that Congress had the constitutional right to regulate the prices because that power existed within “the generally existing conception of governmental powers.” Because those powers were granted to Congress by the Constitution, the Ninth Amendment could not be used to override them.

In Woods v. Miller (1948), the Supreme Court ruled again that there were no “unenumerated rights” in cases where the Constitution gave Congress the power to act. In this case, landlords argued that laws passed during World War II (which the United States participated in from 1941–1945) violated their Ninth Amendment rights, which existed even though they were not set out in the Constitution.

But the Court ruled that because the Constitution granted Congress far-reaching powers during times of war, the laws did not take away any Ninth Amendment rights the landlords might have claimed.

Fourteen versus Nine: Due Process and the People’s Rights

One of the reasons the Ninth Amendment has played such a small role in constitutional cases is that the Supreme Court has often used the Fourteenth Amendment (ratified in 1868) to establish broader rights for the people (see chapter fourteen).

The Fourteenth Amendment’s due process and equal protection clauses require federal and state governments to treat all citizens equally and fairly. The Supreme Court has used this clause to establish civil rights (see chapter fourteen) and to strike down laws that violate certain individual rights, including those that are not specifically spelled out in the Constitution.

In Skinner v. Oklahoma (1942), for instance, the Court used the Fourteenth Amendment’s equal protection clause to uphold a person’s right to procreate (have children). Although the right to procreate is not listed anywhere in the Bill of Rights or the rest of the Constitution, the Court found that the right was protected by the Fourteenth Amendment. Interestingly, the ruling did not even mention the Ninth Amendment.

The Right to Privacy

The Ninth Amendment was first used by the Supreme Court to define an “unenumerated right” in the case of Griswold v. Connecticut (1965). The right to privacy is not referred to anywhere in the Bill of Rights. However, in deciding Griswold, the Court found that the right was indeed protected by the Constitution.

The case involved a Connecticut law that made it illegal for people to use contraceptives (birth control devices). Estelle T. Griswold, executive director of the Planned Parenthood League of Connecticut, and C. Lee Buxton, a doctor at the Planned Parenthood Center in New Haven, had given out contraceptives to clients for ten days before being arrested on November 10, 1961.

Griswold and Buxton were convicted in a Connecticut court and fined one hundred dollars each. However, the U.S. Supreme Court agreed to hear the case on appeal. (An appeal is a legal request for the Supreme Court to reconsider a lower court’s decision.)

The Supreme Court found that the Connecticut law was unconstitutional. The majority of the Court’s nine justices ruled (for the first time) that the Constitution guaranteed a right to privacy. This right, according to the Court, was suggested in the margins of the Bill of Rights in the First, Third, Fourth, Fifth, and Ninth Amendments (see chapters one, three, four, and five).

Although the Court relied on other amendments as well, this was the first case where the Ninth Amendment played a significant role in the Court’s deliberations. In his concurring opinion, Justice Arthur Goldberg (1908–1990) (see sidebar) wrote specifically about the importance of the Ninth Amendment in the case. He noted: “since 1791 [the Ninth Amendment] has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right to privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and give it no effect whatsoever.”

Justice Arthur Goldberg: Champion of the Ninth Amendment

The Ninth Amendment was largely ignored by the Supreme Court for a century and a half. But in the 1965 case of Griswold v. Connecticut (see main essay), Justice Arthur Goldberg (1908–1990) tried to give the Ninth Amendment substance.

Estelle Griswold and C. Lee Buxton were convicted under a Connecticut law prohibiting the prescription of contraceptive devices. The Supreme Court overturned their convictions ruling that amendments to the Constitution, especially the First, Third, Fourth, Fifth, and Ninth, acted together to create a right to privacy that protected such personal decisions as the use of contraception in a marriage.

Justice Goldberg, who served on the Supreme Court from 1962 to 1965, agreed with the decision but argued that the Court did not need to look beyond the Ninth Amendment to justify its ruling. The Ninth Amendment asserts that people have rights that are not necessarily spelled out in the Constitution. To determine what these rights are, Goldberg said that judges “must look to the traditions and collective conscience of our people to determine whether a principle is so rooted there as to be ranked as fundamental.”

The right to privacy in marriage, Goldberg insisted, was just such a principle and, therefore, fell under the protection of the Ninth Amendment as a fundamental but unenumerated (unwritten) right.

Justice Potter Stewart in his dissent questioned Goldberg’s reliance on the Ninth Amendment by writing: “But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history.” Stewart believed the Ninth Amendment had no relevance to the case. The Ninth Amendment had lain dormant for many years and was considered something of a constitutional curiosity.

Although the majority of the Supreme Court justices decided that the right to privacy comes from several amendments and was not protected by the Ninth Amendment alone, Justice Goldberg’s arguments helped to increase public’s awareness of the Ninth Amendment more than any other justice had since the amendment’s adoption in 1791.

Following the Griswold case, the Supreme Court began to extend the right to privacy, especially in sexual and marital issues. In Loving v. Virginia (1967), the Court struck down a Virginia law that banned interracial marriages. The Court later strengthened the Griswold ruling in Eisenstadt v. Baird (1972). In that case, the Court threw out a Massachusetts statute that permitted married people to use condoms (a birth control device) but did not allow single people to use them.

Roe v. Wade: Privacy and Abortion

In the 1850s, the American Medical Association (AMA) urged state legislatures (lawmaking bodies) to outlaw abortion, primarily because the procedures used at the time were considered quite dangerous. (Abortion is a medical procedure which ends a pregnancy in its early stages by removing a fetus and other fetal material from a woman’s body.) By 1900, most states had made abortion illegal. Women who wished to end their pregnancies sometimes found doctors willing to perform illegal abortions or chose to have abortions performed by unskilled people. These types of abortions were likely to threaten the woman’s health.

By the 1950s and 1960s, new medical procedures had made abortions a much safer procedure. But, because abortions were still illegal, many women were still risking highly dangerous abortions. Many professional groups, including the AMA, announced that they now supported the legalization of abortion, and a few states got rid of their antiabortion laws.

On March 3, 1970, Norma McCorvey filed suit in a federal district court challenging a Texas law that made it illegal for her to have an abortion. McCorvey was six months pregnant at the time. She used the fictitious name “Jane Roe” in the case to avoid unwanted publicity.

The district court agreed that the law violated McCorvey’s right to privacy but did not strike down the law to let McCorvey have an abortion. McCorvey gave birth in June 1970 and put her child up for adoption. But she proceeded to take her case to the Supreme Court, arguing that the abortion law violated the right to privacy as recognized by the Court in Griswold v. Connecticut (1965).

The Supreme Court ruled on McCorvey’s case, known as Roe v. Wade on January 22, 1973. The Court found that the right to privacy included a limited right to an abortion. By a vote of seven to two, the Court held that the due process clause of the Fourteenth Amendment, “which protects against state action the right to privacy,” included a woman’s “qualified right to terminate her pregnancy.”

The Court again acknowledged that the Constitution contained no explicit right to privacy. However, the plurality believed that “the roots” of such a right did exist in the “First Amendment, in the Fourth and Fifth Amendments, in the [margins] of the Bill of Rights, in the Ninth Amendment, or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment” (see related chapters).

The Court relied primarily on the due process clause of the Fourteenth Amendment to grant the right to privacy in this case, but it also mentioned the Ninth Amendment. “The right to privacy,” Justice Harry Blackmun (1908–1999) wrote, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty or 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.”

The “right to loaf”

Justice William O. Douglas (1898–1980) also referred to the Ninth Amendment in relation to Roe v. Wade.

“The Ninth Amendment obviously does not create federally enforceable rights,” Justice Douglas admitted. “But a catalogue of these rights includes customary, traditional, and time-honored rights that come within the sweep of ‘the Blessings of Liberty’ mentioned in the preamble to the Constitution.”

Douglas then listed what he considered to be the fundamental rights that existed under the Ninth Amendment:

“First is the autonomous [independent] control over the development and expression of one’s intellect, interests, tastes, and personality.”

“Second is the freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.”

“Third is the freedom to care for one’s health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.”

These fundamental rights, Justice Douglas conceded, were “subject to regulation on a showing of ‘compelling state interest.” The Court, however, never adopted Douglas’s listing of the Ninth Amendment’s unenumerated rights.

Court finds unenumerated rights without Ninth Amendment

As mentioned above, the Supreme Court has established a number of unenumerated rights, but has routinely relied on its interpretation of the Fourteenth Amendment to do so and generally ignored the Ninth.

The Court has refused to say that the Ninth Amendment guarantees the right of people to engage in homosexual activities (sexual relations between people of the same sex). However, in Romer v. Evans (1996), the Supreme Court ruled that amendments to Colorado’s constitution that forbade the state and local governments from passing laws to protect the civil rights of gays, lesbians, and bisexuals violated the equal protection clause of the Fourteenth Amendment.

The U.S. Supreme Court has also found that the right to vote and the right to participate in politics are protected by the Fourteenth Amendment, despite the fact that they are not specifically mentioned in that amendment.

The Supreme Court has also found that other rights do not exist within the Constitution. The Court ruled, for instance, that the right to a public education is not a fundamental constitutional right in San Antonio Independent School District v. Rodriguez (1993). It also ruled that the Constitution does not provide for the right to resist a military draft, United States v. Uhl (9th Cir. 1970); the right to a radiation-free environment, Concerned Citizens of Nebraska v. U.S. Nuclear Regulatory Commission (8th Cir. 1992); or the right to experiment with mind-altering drugs such as marijuana, United States v. Fry (4th Cir. 1986).

However, in all these case, the Court relied on other parts of the Constitution to reach its conclusions and did not rely on the Ninth Amendment for guidance.

The Ninth Amendment’s Legacy

After Justice Goldberg focused attention on it in Griswold v. Connecticut, the amendment gradually faded from view. Indeed, because the Ninth Amendment is so vague, it has never been used by itself in a Supreme Court case decision.

But it should be remembered that the amendment was intended to be vague. In fact, it is probably best understood as a statement of fact, rather than as a useful legal tool. The role of the Ninth Amendment was not to spell out certain rights, but to formally state that the people had more rights than were contained in the other Bill of Rights amendments.

Though the Supreme Court has rarely used the Ninth Amendment to find these unenumerated rights in the Constitution, it has repeatedly established the existence of such rights under the Fourteenth Amendment.

Perhaps the Ninth Amendment’s most important role was its first. By assuring the public that the Bill of Rights was not to be understood as a complete list of the people’s rights, it helped win over many of the Bill of Rights opponents and ease its eventual ratification by the states.

FOR MORE INFORMATION

Books

Abramson, Paul R., Steven D. Pinkerton, and Mark Huppin. Sexual Rights in America: The Ninth Amendment and the Pursuit of Happiness. New York: New York University Press, 2007.

Black, Charles L. A New Birth of Freedom: Human Rights, Named and Unnamed. New York: Grosset/Putnam, 1997.

Farber, Daniel A. Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don’t Know They Have. New York: Basic Books, 2007.

Friedman, Lawrence. Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy. Stanford, CA: Stanford University Press, 2007.

Hardaway, Robert M. No Price Too High: Victimless Crimes and the Ninth Amendment. Westport, CT: Praeger, 2003.

Johnson, John W. Griswold v. Connecticut: Birth Control and the Constitutional Right to Privacy. Lawrence: University of Kansas Press, 2005.

Periodicals

Adkison, Danny M. “The Ninth Amendment and the Negative Pregnant.” Forum, (July 19, 2004).

Web sites

FindLaw Internet Legal Resources. U.S. Supreme Court Opinions. (accessed August 1, 2007.)

SOURCES

Caplan, Russell L. “The History and Meaning of the Ninth Amendment.” Virginia Law Review 69 (March 1983): 223–68.

Curie, David P. The Constitution of the United States: A Primer for the People. Chicago: University of Chicago Press, 1988.

Kersch, Ken I. "Everything Is Enumerated: The Developmental Past and Future of an Interpretive Problem." University of Pennsylvania Journal of Constitutional Law 8 (2006): 957–982.

Kickok, Eugene W. Jr., ed. The Bill of Rights: Original Meaning and Current Understanding. Charlottesville, VA: University Press of Virginia, 1991.

Kinsella, N. Stephan. “Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights.” Hastings Constitutional Law Quarterly 24 (spring 1997): 757–63.

Klinkner, Philip A. The American Heritage History of the Bill of Rights: The Ninth Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Lehman, Jeffrey, and Shirelle Phelps, eds. West’s Encyclopedia of American Law. Farmington Hills, MI: Thomson Gale, 2004.

Levinson, Sanford. “Constitutional Rhetoric and the Ninth Amendment.” Chicago-Kent Law Review 64 (1988): 131, 134.

Marks, Jason S. “Beyond Penumbras and Emanations: Fundamental Rights, the Spirit of the Revolution, and the Ninth Amendment.” Seton Hall Constitutional Law Journal 5 (spring 1995): 435–787.

Matheson, Cameron S. “The Once and Future Ninth Amendment.” Boston College Law Review 38 (December 1996): 179–204.

Thapa, Tejshree. “Expounding the Constitution: Legal Fictions and the Ninth Amendment.” Cornell Law Review 78 (November 1992): 139–40.