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Ninth Amendment: We Didn’t Think of Everything

The Passage

The Ninth Amendment was passed along with nine others that together became known as the Bill of Rights in 1791. There was a huge concern that without written rights, the national government would obtain too much power and become oppressive. At the same time, opponents of the Bill of Rights feared that no one could make an exhaustive list of every right a person has. Thus, the Ninth Amendment restricts the government's power by protecting the people's unlisted rights.

Amendment Text

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

What Does It Mean? 

The Ninth Amendment states that the rights of the people aren't strictly limited by what's written down in the Constitution. Even these unwritten rights need to be accepted and protected. Thus, this Amendment helps solidify the spirit of the Constitution: namely, that government serves to protect its people and their betterment. For this reason, many legal scholars consider the Ninth Amendment a statement on how to read the Constitution rather than a specific, substantive right. Other modern experts point to the Amendment as a declaration of the people's natural or human rights. Regardless, it's clear that the people's rights aren't just those listed in the first eight amendments, or any other amendments adopted afterward. The people have more rights than the American government could ever list. 

Major Court Cases 

Despite its apparent sweeping jurisdiction, the Ninth Amendment has rarely been cited as the only or even main subject disputed in Supreme Court cases. The few times the Supreme Court has addressed the Ninth Amendment, it's been in conjunction with the Tenth and, more recently, Fourth Amendments. 

The 1947 case of United Public Workers v. Mitchell significantly limited the power of the Ninth Amendment. In the majority holding, the justices found that no rights listed in the Constitution are absolute. Furthermore, the Ninth and Tenth Amendments hold less power than the other amendments in the Bill of Rights since they deal with reserved rather than enumerated rights.

The Amendment wasn't mentioned significantly again until 1965 during Griswold v. Connecticut. The majority found that people have a right to privacy. Although this right isn't explicitly stated in the Constitution, the Supreme Court pointed to the Fifth Amendment, arguing that the listed rights all have a common theme of privacy. In a concurring opinion, several justices used the Ninth Amendment to bolster the legitimacy of the right to privacy. The precedent of this case allowed justices to decide Roe v. Wade (1973) on the basis of the right to privacy.

Controversies

Controversies over the Ninth Amendment stem mainly from whether the Amendment has the power to grant previously unmentioned rights as the Court discovers them. Griswold v. Connecticut seems to point towards this interpretation, but the majority opinion only cited the Fifth Amendment, not the Ninth. Historically, the courts have mostly ignored the Ninth Amendment, only citing it as a way to read the Constitution rather than an explicit right. However, Griswold v. Connecticut opened up the possibility of using the Amendment to expand the rights of the people beyond what the Constitution lists. Claims of unenumerated rights based solely on the Ninth Amendment have been met with little success at the federal level, though.

The right to privacy is easily the most debated aspect of the Ninth Amendment, mainly because it was partially established using more well-known amendments. Furthermore, the right to privacy has been used to defend the right to abortion and gender and sexuality expression, all of which are hot-button issues on their own. The issue of privacy has become more contentious as it's been applied to cases concerning these topics.

The Ninth Amendment, like the Tenth, has yet to be incorporated, which means it only applies to the federal government. However, this has been the subject of little debate, likely because, in the public eye, the Ninth Amendment remains largely ignored.

Why Care?

The Ninth Amendment helps limit the power of the federal government, but more importantly, it protects the people's unenumerated rights. While the Bill of Rights lists some incredibly important rights, the document isn't all-encompassing. There are certain rights that, even unnamed, should never be trampled on.

Think Further

  1. Do you agree that unenumerated rights are less powerful than stated ones? Why?
  2. What are some rights not listed in the Bill of Rights that you would include?
  3. Why do you think the Ninth Amendment is often only used to support a specific reading of a different amendment?

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  1. Barnett, Randy E. “The Ninth Amendment: It Means What It Says”. Georgetown University Law Center, Texas Law Review, vol 85, no 1, Nov 2006, https://scholarship.law.georgetown.edu/facpub/?utm_source=scholarship.law.georgetown.edu%2Ffacpub%2F842&utm_medium=PDF&utm_campaign=PDFCoverPages.
  2. Barnett, Randy E. and Louis Michael Seidman. “Common Interpretation: The Ninth Amendment”. Interactive Constitution, National Constitution Center, 2020, https://constitutioncenter.org/interactive-constitution/interpretation/amendment-ix/interps/131.
  3. Levy, Michael. “Ninth Amendment”. Encyclopædia Britannica, May 2020, https://www.britannica.com/topic/Ninth-Amendment.
  4. McAffee, Thomas B. “The Original Meaning of the Ninth Amendment.” University of Nevada, Las Vegas, Scholarly Works, 1990, https://scholars.law.unlv.edu/facpub/520/?utm_source=scholars.law.unlv.edu%2Ffacpub%2F520&utm_medium=PDF&utm_campaign=PDFCoverPages.
  5. Niles, Mark. “Ninth Amendment Adjudication: An Alternative To Substantive Due Process Analysis of Personal Autonomy Rights”. Seattle University School of Law Digital Commons, 48 UCLA L. REV. 85 (2000), https://digitalcommons.law.seattleu.edu/faculty/609/?utm_source=digitalcommons.law.seattleu.edu%2Ffaculty%2F609&utm_medium=PDF&utm_campaign=PDFCoverPages.