9th amendment
“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?
Overview:
The Ninth Amendment in the United States Constitution serves as a reminder that the enumeration of certain rights in the Constitution should not be interpreted as denying or disparaging other rights not explicitly listed. It was added to the Bill of Rights to address concerns that specifying certain rights might inadvertently imply that other unlisted rights are not protected.
The Ninth Amendment hasn't been extensively analyzed in Supreme Court cases. Before 1965, it was occasionally invoked by litigants, often in conjunction with other Bill of Rights amendments, to challenge government actions, but such claims were consistently rejected by the Court.
In the 1965 case Griswold v. Connecticut, the Court, in the majority opinion, cited the Ninth Amendment along with several other constitutional amendments and recognized the existence of "penumbral rights of 'privacy and repose.'" This decision established that the Constitution protects certain implied rights, such as the right to privacy within marital relationships. However, in the 1973 case Roe v. Wade, the Court based the constitutional right to abortion on the Fourteenth Amendment, rather than invoking the Ninth.
In general, the Court has treated the Ninth Amendment as a guideline for interpreting the Constitution rather than a standalone guarantee of specific rights. In cases like Richmond Newspapers v. Virginia, the Ninth Amendment has been referred to as a "constitutional 'saving clause,'" preventing the misconception that affirming particular rights implies the denial of unenumerated ones.
Historical Background on Ninth Amendment:
The Ninth Amendment is an essential component of the Bill of Rights, and its significance becomes apparent when considering the historical context of debates surrounding the explicit enumeration of protected rights during and after the Founding period.
The original Constitution, as initially drafted and ratified, did not include a bill of rights. A proposal to include such a bill was put forth but ultimately rejected during the Constitutional Convention. Federalists, who supported a strong national government, argued against the need for an explicit bill of rights. They contended that since the federal government possessed limited and enumerated powers, there was no requirement to explicitly protect individual rights. Alexander Hamilton, in the Federalist Papers, questioned why it should be necessary to specify that freedom of the press should not be restricted when the Constitution did not grant the government the power to impose such restrictions. The Federalists feared that including a list of rights might be misconstrued as suggesting that the federal government had powers beyond those explicitly enumerated or that rights not expressly listed were not protected.
On the other hand, many state conventions, considering whether to ratify the Constitution, preferred the inclusion of a bill of rights. Several states ratified the Constitution with the expectation that a bill of rights would be added. Consequently, the first Congress proposed twelve constitutional amendments, ten of which were ratified by the required number of states, becoming the Bill of Rights.
Unlike the first eight amendments in the Bill of Rights, which protect specific substantive rights, the Ninth Amendment was intended to address the Federalists' concerns that explicitly protecting certain rights might imply that other rights were not protected and could be infringed upon. James Madison, who presented the proposed amendments to the House of Representatives, acknowledged this argument and suggested that the Ninth Amendment could alleviate these concerns. He explained that without such an amendment, there could be the misconception that any rights not explicitly mentioned were left to the federal government's discretion.
Madison's statement and the text of the Ninth Amendment itself make it clear that the amendment does not guarantee specific rights. Instead, it establishes a rule of interpretation, ensuring that the Bill of Rights should not be interpreted to diminish or restrict rights in areas that are not explicitly enumerated. This rule prevents a misapplication of the principle that stating something specifically in certain cases implies a negation of it in all other cases.
Ninth Amendment Doctrine:
Before 1965, Supreme Court cases contained limited analysis of the Ninth Amendment, and litigants rarely invoked it. When the Ninth Amendment was invoked in earlier cases, it was often in conjunction with the Tenth Amendment or other provisions of the Bill of Rights to challenge the constitutionality of various government actions. However, the Court generally dismissed these claims with brief explanations.
For instance, in the 1947 case United Public Workers v. Mitchell, the Court faced Ninth and Tenth Amendment challenges to the Hatch Political Activity Act. The Court explained that the federal government's powers, granted by the Constitution, are subtracted from the original totality of sovereignty held by the states and the people. Therefore, when a challenge is raised that the exercise of federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must focus on the granted power under which the federal action was taken. If a granted power is found, objections related to the Ninth and Tenth Amendments must fail. In this case, the Court upheld the Hatch Act, finding that Congress had the authority to enact it, and it did not violate any of the prohibitions in the Bill of Rights.
A more in-depth examination of the Ninth Amendment occurred in the 1965 case Griswold v. Connecticut. In Griswold, the Court held that a statute prohibiting the use of contraceptives was unconstitutional as it infringed upon the right of marital privacy. Justice William O. Douglas, writing for the Court, introduced the concept of "penumbral rights," which are formed by emanations from the specific guarantees in the Bill of Rights. The Court cited the Ninth Amendment in conjunction with other substantive rights while discussing the "penumbral rights of ‘privacy and repose.’" Although the right to privacy is not explicitly mentioned in the Constitution, the Court found that banning contraceptive use by married couples intruded impermissibly into "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees."
Justice Arthur Goldberg, concurring in Griswold, provided an extensive analysis of the Ninth Amendment. He expressed the belief that the Framers of the Constitution intended to protect additional fundamental rights, beyond those explicitly mentioned in the first eight constitutional amendments, from government infringement. He argued that a judicial construction suggesting that such fundamental rights are not protected because they are not explicitly enumerated would violate the Ninth Amendment. However, he clarified that he did not view the Ninth Amendment as an independent source of rights but rather as an indication that fundamental rights exist beyond those explicitly listed.
In the 1973 case Roe v. Wade, the Court held that the Constitution restricted states' ability to prohibit abortion before fetal viability. The district court in Roe had relied on the Ninth Amendment to protect the right to abortion. However, on appeal, the Supreme Court based the right on the Fourteenth Amendment's concept of personal liberty and restrictions on state action. While the Court did not rest its decision on the Ninth Amendment, it referenced both the majority opinion in Griswold and Justice Goldberg's concurrence to highlight the recognition that a right to personal privacy exists under the Constitution.
In the 2022 case Dobbs v. Jackson Women’s Health Organization, the Court overruled Roe but emphasized that this decision should not cast doubt on precedents unrelated to abortion, including Griswold, which recognized the existence of a right to personal privacy.
