The Ninth Amendment

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

—Ryan Williams

Introduction

During Judge Robert Bork’s much-publicized Supreme Court confirmation hearing in 1987, he famously analogized the Ninth Amendment to a constitutional “inkblot.” Bork explained that judges could not use the amendment to decide cases “without knowing something of what it means.”¹ In the years since Bork’s testimony, originalist scholars have uncovered a wealth of information regarding the circumstances that led to the amendment’s inclusion in the Bill of Rights and the specific concerns it was designed to address. But these historical excavations have not led to a consensus view among originalists regarding the amendment’s proper interpretation.

The Constitutional Convention and Ratification Debates

The story of the Ninth Amendment’s adoption begins with the Constitutional Convention’s omission of a bill of rights from the original Constitution. The absence of a bill of rights provided a rallying point for Anti-Federalist opposition during the state ratification debates.² Supporters of ratification quickly converged on a defense of the decision to omit a bill of rights that was first articulated by James Wilson of Pennsylvania. Wilson, who was a delegate to the Convention, defended the Framers’ decision to leave even very popular rights, such as the freedom of the press, unprotected. In a public speech in Philadelphia on October 6, 1787, Wilson explained that the “very declaration” of such a right in the Constitution “might have been construed to imply that some degree of power was given” to the federal government to regulate the press “since [the Constitution] undertook to define its extent.”³

Wilson’s argument drew upon a widely accepted interpretive canon providing that the inclusion of one thing in a list or enumeration should ordinarily be read to exclude those things not enumerated.

Federalists in other states quickly rallied to Wilson’s argument. They contended that a bill of rights was not only unnecessary but also potentially dangerous.⁴ In Federalist No. 84, Alexander Hamilton warned about a bill of rights that “contain[ed] various exceptions to powers which are not granted.” Such a limited and almost certainly incomplete enumeration of particular rights, Hamilton wrote, would “afford a colourable pretext” for the government “to claim more [powers] than were granted.” Instead, Hamilton and others argued that such rights would be better protected by the limited enumeration of federal powers.

Not everyone was convinced by the Federalists’ arguments about the danger of a bill of rights. Multiple state conventions proposed lists of amendments that they wished to see adopted following ratification. These amendments, proponents argued, would better secure individual rights. Although none of these proposals perfectly mirrored the language that was ultimately included in the Ninth Amendment, two sets of such proposed amendments have been identified by modern scholars as potentially relevant to the amendment’s original meaning.

The first set of proposals called for an amendment that would expressly recognize the existence of “retained” individual natural rights that individuals would have possessed in the state of nature and that they retained when forming their governments. Sir William Blackstone described “natural liberty” as “consist[ing] properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature” but observed that “every man, when he enters into society, gives up a part of his natural liberty.”⁵ The Virginia convention offered one such proposal. It acknowledged the existence of “certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity.”⁶ These rights included “the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”⁷

The second set of amendment proposals was targeted more directly at addressing the Federalists’ concerns about the potential dangers of enumerating rights. The text of Virginia’s proposal, for example, provided that “those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress.”⁸

Adoption of the Ninth Amendment

Following ratification, Representative James Madison of Virginia became the leading champion of a federal bill of rights.⁹ In the First Congress, Madison synthesized several of the proposals from the state ratifying conventions into a list of proposed amendments that would provide an important template for the first ten amendments to the Constitution. One of Madison’s texts combined aspects of both sets of proposals from the states, referring both to “retained” individual rights and to the constructive enlargement of federal power. Specifically, Madison’s proposal declared that “exceptions” of constitutional powers “made in favor of particular rights” should “not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution.”¹⁰ This text eventually evolved into the Ninth Amendment.

Madison’s speech introducing his proposals acknowledged the Federalists’ objection. He said that “enumerating particular exceptions” to the powers granted to the federal government might be read to “disparage those rights which were not placed in that enumeration” and that “it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.”¹¹ Madison conceded that this objection was “one of the most plausible arguments” he had “ever heard urged against the admission of a bill of rights into this system,” but he believed that it could “be guarded against” and pointed to this proposed text as his attempt to do so.¹²

Madison’s proposals were referred to a committee of the House of Representatives on which he served.¹³ Unfortunately, this committee kept no formal record of its proceedings, leaving modern interpreters with limited information regarding the considerations that influenced the amendment’s final wording.

A possible clue to the committee’s internal deliberations is provided by a handwritten list of proposed amendments penned by one of its members, Roger Sherman of Connecticut. The second proposed amendment listed in Sherman’s draft declared that “[t]he people have certain natural rights which are retained by them when they enter into Society.”¹⁴ These rights included the “rights of Conscience in matters of religion,” “of acquiring property and of pursuing happiness & Safety,” and “of Speaking, writing and publishing their Sentiments.”¹⁵ The draft further specified that the federal government would be barred from “depriv[ing]” the people of such rights.¹⁶

A separate proposed amendment in the Sherman draft bears some resemblance to the rule-of-construction proposals urged by several of the state ratifying conventions. It provided that powers not delegated to the federal government nor prohibited to the states should be “retained by the states.”¹⁷ It further provided that “the exercise of power by the Government of the united States” in “particular instances here in enumerated by way of caution” should not “be construed to imply the contrary.”¹⁸

In the end, the committee settled on new language that departed both from Madison’s initial proposal and from the language reflected in Sherman’s draft. This new language closely tracked the language that was ultimately included in the Ninth Amendment. For reasons that are not known, the reference to constructive enlargement of federal powers, which had appeared both in Madison’s initial proposal and in proposals submitted by the state ratifying conventions, was dropped from what became the Ninth Amendment. Similar concerns were addressed by what would become the Tenth Amendment. (See Essay No. 188.) Instead, the rule of construction supplied by the Ninth Amendment prohibited “constru[ing]” the “enumeration in the Constitution of certain rights to deny or disparage others retained by the people.”

Original Meaning of the Ninth Amendment

The text of the Ninth Amendment, when read literally, only states a rule about how other provisions in the Constitution should be read. The Ninth Amendment’s explicit command does not directly confer rights or constrain the scope of federal powers. Rather, the amendment simply instructs interpreters to reject arguments that seek to use the existence of particular enumerated rights in the Constitution to “deny or disparage” other “retained” rights.

This rule-of-construction function is at the center of the traditional view that the Ninth Amendment was solely a response to the concerns expressed during the ratification debates of 1787 and 1788. Many modern originalist scholars articulate this perspective.¹⁹ Proponents of this traditional view generally agree that the Ninth Amendment’s rule of construction comes into play only when particular rights are denied or disparaged, because other rights are enumerated in the Constitution. Proponents of this view further agree that the “retained” rights referred to in the amendment cannot be enforced by the courts; instead, such rights are simply left with whatever legal status they would have possessed if an enumeration of rights had not been included in the Constitution.

This narrow understanding of the Ninth Amendment has been called into question by Professor Randy Barnett.²⁰ According to Barnett, the Ninth Amendment’s “retained” rights are individual natural rights that individuals possessed before the Constitution’s adoption and “retained” upon forming their government. Barnett agrees that the traditional interpretation is valid as far as it goes but maintains that these “retained” natural rights should be protected by the courts. The judiciary, he believes, should follow a “presumption of liberty.” Under this presumption, the federal government must demonstrate that its regulations are truly necessary to protect the liberties of others and not merely a pretext for the imposition of undue burdens on the rightful exercise of natural rights by individuals.

Professor Kurt Lash has responded to Barnett’s theory.²¹ Lash emphasizes the similarity between the Ninth Amendment and the calls from numerous state ratifying conventions for a rule of construction that would limit the constructive enlargement of federal powers. Lash argues that the amendment’s reference to “retained rights” is best understood as encompassing both individual natural rights and the peoples’ collective right to local self-government within their respective states. According to Lash, the amendment should thus be read to support a general interpretive rule that limits the constructive enlargement of federal powers in violation of state authority even where the argument for expanding federal powers does not depend on the fact that any particular rights were enumerated.

Judicial Precedent

The scholarly attention lavished on the Ninth Amendment has not been matched by a similar level of judicial interest. Throughout the nineteenth century and early twentieth century, the U.S. Supreme Court invoked the amendment only sporadically, and these decisions almost always concerned limiting the scope of federal powers. For example, in Houston v. Moore (1820), Justice Joseph Story’s dissent observed that under the Ninth Amendment, “the states retain concurrent authority with Congress” over matters not exclusively confided to the federal government.²² A century later, in Ashwander v. Tennessee Valley Authority (1936), the Court found that the Ninth Amendment did not limit the scope of federal power to dispose of federal property.²³ Following the New Deal expansion of federal regulatory power, the significance of this interpretation faded, and the amendment fell largely into judicial disuse.

In Griswold v. Connecticut (1965), Justice Arthur Goldberg wrote a concurring opinion that signaled a possible revival of judicial interest in the Ninth Amendment. Goldberg wrote that the “language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.” Goldberg cited this history to support the Court’s decision to declare unconstitutional a state law that infringed on an unenumerated right to marital privacy, but his suggestion that unenumerated rights should be grounded in the Ninth Amendment went unheeded. Justice William O. Douglas’s majority opinion in Griswold mentioned the Ninth Amendment briefly as part of a laundry list of textually specified individual rights but did not rely on it.

Roe v. Wade (1973) extended the privacy right first recognized in Griswold to protect a constitutional right to abortion, but the Court did not rely on the reasoning from Justice Douglas’s Griswold opinion. Rather, the Roe majority simply declared that the right to 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 . . . 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.”²⁴

The Roe Court’s subtle suggestion that the Fourteenth Amendment’s Due Process Clause provided the proper textual source for the privacy right was firmly embraced in later cases. For example, the controlling plurality opinion in Planned Parenthood v. Casey (1992), which reaffirmed key aspects of Roe, relied exclusively on Fourteenth Amendment substantive due process. (See Essay No. 195.) Casey did not mention the Ninth Amendment at all.²⁵ Later decisions extending protection to other unenumerated rights, such as a right to same-sex sexual relations and same-sex marriage, similarly avoided any mention of the Ninth Amendment.²⁶

Dobbs v. Jackson Women’s Health Organization (2022) overruled both Roe and Casey as inconsistent with the Court’s established substantive due process methodology. Dobbs required that to be judicially protected, “rights that are not mentioned in the Constitution . . . must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”²⁷ Consistent with the trend of the Court’s post-Roe unenumerated-rights decisions, Dobbs did not mention the Ninth Amendment aside from a passing reference in discussing the reasoning of Roe.²⁸

1. Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. 248–50 (1987). ↩︎
2. Kenneth R. Bowling, “A Tub to the Whale”: The Founding Fathers and Adoption of the Federal Bill of Rights, 8 J. Early Rep. 223, 225–26 (1988). ↩︎
3. Federalists and Antifederalists: The Debate Over the Ratification of the Constitution 167–68 (John P. Kaminski & Richard Leffler eds., 2d ed. 1998). ↩︎
4. Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 Tex. L. Rev. 1, 27–28 (2006). ↩︎
5. 1 Blackstone 125. ↩︎
6. 3 Elliot’s 657; The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 636 (Neil H. Cogan ed., 1997). ↩︎
7. Id. ↩︎
8. 3 Elliot’s 661; Creating the Bill of Rights: The Documentary Record from the First Federal Congress 21 (Helen E. Veit et al. eds., 1991); Kurt Lash, The Lost History of the Ninth Amendment, 20–23 (2009). ↩︎
9. Bowling, supra at 231–35. ↩︎
10. 1 Annals of Cong. 452 (1789). ↩︎
11. Id. at 456. ↩︎
12. Id. ↩︎
13. Id. at 467–68. ↩︎
14. 1 The Rights Retained by the People: The History and Meaning of the Ninth Amendment app. A, at 351, 351 (Randy E. Barnett ed., 1989). ↩︎
15. Id. ↩︎
16. Id. ↩︎
17. Id. at 362. ↩︎
18. Id. ↩︎
19. Michael W. McConnell, Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation?, N.Y.U. J.L. & Liberty 1 (2010); Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 Mich. L. Rev. 1555, 1591–93 (2004); Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 Colum. L. Rev. 1215 (1990); Raoul Berger, The Ninth Amendment, 66 Cornell L. Rev. 1 (1980). ↩︎
20. Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004); Barnett, Ninth Amendment, supra. ↩︎
21. Lash, supra. ↩︎
22. 18 U.S. 1, 48–49 (1820) (Story, J., dissenting). ↩︎
23. 297 U.S. 288, 330–31 (1936). ↩︎
24. Roe v. Wade, 410 U.S. 113, 153 (1973). ↩︎
25. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). ↩︎
26. Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 576 U.S. 644 (2015). ↩︎
27. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 231 (2022) (quoting Washington v. Glucksberg, 521 U. S. 702, 721 (1997)) (internal quotation marks omitted). ↩︎
28. Id. at 235 & n.16. ↩︎