The Ninth Amendment: Rights Retained by the People

The text

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

In plain English

The Ninth Amendment is a rule of construction, not a source of new rights. It tells readers of the Constitution how not to read the Bill of Rights.

The problem it answers. Some Founders, including James Wilson and Hamilton, argued against a bill of rights because listing certain rights might imply that others were not protected. The Ninth Amendment was written to prevent that inference.

What it says. The "enumeration in the Constitution, of certain rights" is not to be taken as denying or disparaging "others retained by the people." The rights "retained" are those the people held before the Constitution and did not give up.

What it does not say. It does not name the other rights, and it does not authorize courts to create them. The question of who identifies the retained rights, courts, legislatures or the people, has been debated ever since.

Together with the Tenth Amendment, it states the basic structure: the national government has enumerated powers, and everything else is retained.

What the Founders said

In Federalist No. 84, Hamilton argued that a bill of rights would be "not only unnecessary in the proposed Constitution but would even be dangerous," because it would contain "various exceptions to powers which are not granted" and might give "a colorable pretext to claim more than were granted." The Ninth Amendment responds directly to that argument.

Madison, introducing the amendments in the House on June 8, 1789, described the concern: by enumerating particular exceptions to the grant of power, it might be inferred that those not specified were meant to be assigned to the national government. He proposed language to guard against that conclusion, and it became the Ninth Amendment.

Virginia's ratifying convention had proposed a similar protection, and the Declaration of Independence's reference to "unalienable Rights" reflects the same premise: rights come first, and governments are formed to secure them.

How the courts have read it

The Ninth Amendment has rarely been the basis for a decision.

• Griswold v. Connecticut (1965): Justice Goldberg's concurrence cited the Ninth Amendment in support of a right of marital privacy; Justice Black's dissent and others rejected that use.
• Richmond Newspapers, Inc. v. Virginia (1980): a plurality of the Court cited the Ninth Amendment in recognizing a right of the public to attend criminal trials.
• Washington v. Glucksberg (1997): the Court declined to find a right to assisted suicide, with its analysis resting on due process and history, and without relying on the Ninth Amendment.
• Troxel v. Granville (2000): a plurality recognized parents' fundamental right to direct the care of their children.

Many scholars argue the amendment is better read as a rule against construing federal powers broadly than as a source of judicial rights.

Why it matters now

Conservatives approach the Ninth Amendment with caution, for good reason. A clause that allows judges to name unenumerated rights can become a license for them to enact their own preferences, and that has happened under the banner of "privacy" and "dignity." The risk is real, and the Founders understood it.

Yet the Amendment cannot be dismissed. It records a premise that conservatives share, that people have rights that precede government and that the Constitution does not exhaust. The better reading, held by a number of originalist scholars, is that the Amendment protects natural and common-law rights against federal power, together with the Tenth Amendment's reservation to the states and the people. It keeps the government's powers narrow without conferring new powers on courts.

The practical lesson is a rule of interpretation. Where the Constitution is silent about a right, silence should not be taken as permission for the government to infringe it, and it should not be taken as a mandate for judges to define it either. The political process and the amendment process are the proper channels.

Related

• The Ninth Amendment Is Neither a Blank Check for Judges Nor a Dead Letter
• Hamilton Argued in Federalist 84 That a Bill of Rights Could Be Dangerous
• Madison Changed His Mind on a Bill of Rights, and His Reasons Still Teach
• Griswold v. Connecticut and the Right to Privacy Built From Penumbras
• The Tenth Amendment: Powers Reserved to the States and the People