The Ninth Amendment Is Neither a Blank Check for Judges Nor a Dead Letter

The Ninth Amendment has a strange fan club. Its loudest admirers have often been judges who wanted to strike down laws without the bother of finding a clause that forbade them. Its most famous skeptic was a conservative nominee who said, in effect, that a provision whose meaning you cannot read is like a provision covered by an inkblot. So the amendment has been treated as a magic wand by one side and a smudge by the other.

Both are wrong, and the Founders told us why. The Ninth Amendment is a short, precise answer to a specific argument made during ratification. It does something real, it binds the federal government, and it does not hand judges a blank check to invent rights. Getting it right matters for privacy, for federalism and for the integrity of the whole Bill of Rights. Let us give each conservative camp a fair hearing and then reach a verdict.

The text

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

Four things stand out.

1. It is a rule about construction. It tells readers how not to read the Constitution. It does not itself list any right.
2. Its target is an inference. The forbidden move is to take the fact of enumeration, the listing of some rights, and treat it as proof that other rights do not exist or matter less.
3. The rights are "retained." The word assumes the people held these rights before the Constitution and kept them. Government did not grant them.
4. It speaks of "the people." The same phrase appears in the First, Second, Fourth and Tenth Amendments and in the Preamble. The people are the source of authority and the holders of the retained rights.

Where it came from: Federalist 84 and the argument against a bill of rights

When the Constitution went to the states in 1787 without a bill of rights, Federalists defended the omission with an argument that sounds odd today and was taken seriously then. Alexander Hamilton made it most sharply in Federalist 84. He wrote that bills of rights "are not only unnecessary in the proposed Constitution, but would even be dangerous." Why dangerous? Because the new government had only enumerated powers. Listing exceptions to powers it was never given would imply that it had been given them. In his words:

For why declare that things shall not be done which there is no power to do?

The danger ran in two directions. A list of rights could be read as complete, so that anything left off was fair game. And a list of rights could be read as implying powers, so that a guarantee of press freedom suggested Congress otherwise had power to regulate the press. Hamilton's essay is examined closely in Hamilton Argued in Federalist 84 That a Bill of Rights Could Be Dangerous.

The Anti-Federalists did not buy the reassurance. Several ratifying conventions demanded amendments, and Virginia's recommended a rule of construction aimed at precisely this problem: clauses limiting Congress were not to be read as extending its powers by implication.

Madison's answer on June 8, 1789

James Madison had once agreed with Hamilton that a bill of rights was a "parchment barrier" of limited use. By 1789 he had changed his mind, partly from conviction and partly because he had promised voters in Virginia that he would pursue amendments. His reasons are traced in Madison Changed His Mind on a Bill of Rights, and His Reasons Still Teach.

On June 8, 1789, Madison rose in the House and introduced his proposals. He addressed the Federalist objection head on. He granted that it was among the most plausible arguments he had heard against adding a bill of rights: that by enumerating particular exceptions to the grant of power, the amendments would disparage the rights not listed, and might imply that those rights were assigned into the hands of the general government and were therefore insecure. Then he said the objection could be guarded against, and pointed to a clause in his proposals.

That clause, as Madison drafted it, said that the exceptions made in the Constitution in favor of particular rights should not be construed to diminish the just importance of other rights retained by the people, or to enlarge the powers delegated by the Constitution. The House and Senate later compressed it into the twenty-one words we have now.

Notice the two halves of Madison's draft. One half protects unlisted rights from being diminished. The other half prevents the listing of rights from enlarging powers. The final Ninth Amendment keeps the first half explicitly. The Tenth Amendment, ratified at the same time, does the second job by reserving undelegated powers to the states or the people. The two amendments are a pair. You cannot read one well without the other; see The Tenth Amendment Left Out One Word, Expressly, and the Omission Mattered.

Camp one: unlisted rights are for legislatures

Here is the first conservative view, stated in its strongest form.

The Ninth Amendment is a rule of construction, not a source of enforceable rights. It tells us not to infer from the Bill of Rights that the federal government has powers it was never given. But it does not tell judges what the unlisted rights are, and it gives them no standard for finding out. The Constitution's structure leaves those questions to the people's representatives, chiefly in the states, which have their own constitutions and their own bills of rights, many of which include clauses like the Ninth.

Robert Bork made this case most famously at his confirmation hearings in 1987. He said, in substance, that if an amendment's words were hidden under an inkblot, a judge could not make up what was written beneath it, and that he did not know what the Ninth Amendment meant in terms a judge could apply. Justice Antonin Scalia took a similar line in a dissent in Troxel v. Granville (2000), observing in substance that the Constitution's refusal to deny or disparage other rights is a long way from affirming any one of them, and further still from authorizing judges to identify them.

The strength of this view is real. Judges who claim to enforce unnamed rights have, more than once, simply enforced their own preferences. If the Ninth Amendment were a license to protect whatever rights the Justices believe the people retain, it would be the most powerful clause in the Constitution and the least democratic. The 1987 hearings themselves, and what they did to the confirmation process, are told in The 1987 Bork Hearings Turned Supreme Court Confirmation Into a Campaign.

Camp two: natural rights the courts must protect

Now the other conservative and libertarian view, also in its strongest form.

The Ninth Amendment says rights are retained. That word only makes sense if the Founders believed in natural rights that exist before government: the rights the Declaration of Independence names as unalienable, including life, liberty and the pursuit of happiness. The Founders could not list every such right, and they said so; that was the whole point of the amendment. To treat unlisted rights as unenforceable is to do exactly what the Ninth Amendment forbids: to deny or disparage them because they were not enumerated. If a federal law invaded a right that every Founder would have recognized, such as the right to marry, to raise one's children, or to follow a lawful calling, a court that refused to protect that right because it was not in the list would be construing the enumeration to deny it.

Scholars such as Randy Barnett have developed this view into a "presumption of liberty": government must justify its restrictions on liberty, rather than the citizen having to locate his liberty in a numbered clause. The appeal to conservatives is obvious. The Declaration's second paragraph is a theory of rights before government, explained in The Declaration's Second Paragraph Is a Complete Theory of Government, and James Wilson's lectures on natural law, discussed in James Wilson Lectured on Natural Law While Washington Was President, show how seriously the founding generation took it.

The strength of this view is also real. A Constitution built on natural rights should not treat those rights as if they existed only by permission of the text.

Griswold: the case everyone points to

Both camps argue over Griswold v. Connecticut (1965). Connecticut banned the use of contraceptives, even by married couples. The Supreme Court struck the law down. Justice William O. Douglas's majority opinion relied on "penumbras" of several amendments. Justice Arthur Goldberg, joined by Chief Justice Earl Warren and Justice William Brennan, wrote a concurrence relying heavily on the Ninth Amendment, arguing that it showed the Founders believed fundamental rights exist beyond those listed.

Justice Hugo Black, no conservative, dissented and argued that the Ninth Amendment was written to limit the federal government's powers, not to expand the power of federal judges to strike down state laws. Justice Potter Stewart, also dissenting, called the Connecticut statute an uncommonly silly law, and said he could find no provision of the Constitution that forbade it. That dissent is the best summary of the restraint camp ever written: a judge can think a law is foolish and still conclude he has no power to strike it. The fuller story is in Griswold v. Connecticut and the Right to Privacy Built From Penumbras.

Goldberg's concurrence shows the first camp's fear in action. Notice what happened. A provision written to restrain the federal government was used to strike down a state law. The Ninth Amendment speaks of rights retained by the people against the powers delegated to the national government. Using it as a weapon against state legislatures turns Madison's design on its head.

The verdict: a real rule with a real job

Here is where the evidence leads, in five steps.

1. The Ninth Amendment is binding law. It is not an inkblot. Its words are clear: a reader may not infer from the listing of some rights that others are denied or diminished. That is a rule of construction, and rules of construction bind courts as surely as any other law.
2. Its main target is federal power. Madison's draft paired the protection of unlisted rights with a warning against enlarging delegated powers. When a court asks whether a federal law falls within Congress's enumerated powers, the Ninth Amendment, with the Tenth, forbids reading those powers broadly on the theory that the people's other liberties are unprotected. In that sense courts enforce it every time they take enumerated limits seriously.
3. It does not create a judicial roving commission against the states. The Ninth Amendment was written for the federal government. When Americans need protection from state laws that invade fundamental rights, the proper textual home is the Fourteenth Amendment, especially its Privileges or Immunities Clause, which the Supreme Court gutted in 1873; see The Slaughter-House Cases Gutted the 14th Amendment's Best Clause in 1873. Unlisted rights against the states also live in state constitutions, enforced by state courts, and in ordinary legislation.
4. The natural-rights camp is right about what the rights are. The Founders believed in retained natural rights, and the Ninth Amendment says so. A conservative should never say that a right does not exist merely because it is not in the first eight amendments. That argument is exactly what the Ninth forbids.
5. The restraint camp is right about who decides most of the time. Recognising that a right exists is different from claiming that federal judges hold a general power to define and enforce it against every level of government. The Constitution protects retained rights chiefly through structure: enumerated powers, separation of powers, federalism and elections.

So: not a blank check, because it does not authorize judges to make up rights and impose them on the states. Not a dead letter, because it forbids a specific and tempting interpretive move, and that prohibition binds every official who reads the Constitution, judges included.

Answering the strongest objection

The natural-rights camp will press back: if a right is real and the government violates it, and judges may not intervene, then the Ninth Amendment's promise is empty in the cases that matter most.

The reply is that structure is not empty. The Founders' primary defense of liberty was not a list of rights enforced by courts; it was a government of limited, enumerated powers with checks at every turn. In Federalist 84 itself, Hamilton argued that the Constitution is itself, in every rational sense, a bill of rights. When courts enforce limits on federal power honestly, retained rights are protected without any judge having to define them, because the government simply lacks authority to invade them. And where a right is threatened by a state, the Fourteenth Amendment provides a textual basis that the Ninth was never designed to supply. The cure for a misused clause is not a new license; it is the faithful use of the clauses the Constitution already contains.

The case in brief

1. The Ninth Amendment is a rule of construction: the listing of some rights may not be read to deny or disparage others retained by the people.
2. It answered the danger Hamilton described in Federalist 84 and the objection Madison addressed on June 8, 1789, and Madison's draft also warned against enlarging federal powers, a job the Tenth Amendment completes.
3. Both conservative camps hold part of the truth: the natural-rights reading is right that unlisted rights are real, and the restraint reading, from the 1987 Bork hearings to Stewart's Griswold dissent, is right that judges may not invent and impose them.
4. Read properly, the Ninth binds the federal government, supports narrow readings of enumerated powers, and leaves rights against the states to the Fourteenth Amendment, state constitutions and legislatures.

What you can do: read your own state constitution's declaration of rights, check whether it contains a clause like the Ninth Amendment, and bring that clause to your next conversation with a state legislator.