[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[Ninth Amendment - Unenumerated Rights]
[From the U.S. Government Printing Office, www.gpo.gov]

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

                      RIGHTS RETAINED BY THE PEOPLE

        Aside from contending that a bill of rights was unnecessary, the 
Federalists responded to those opposing ratification of the Constitution 
because of the lack of a declaration of fundamental rights by arguing 
that inasmuch as it would be impossible to list all rights it would be 
dangerous to list some because there would be those who would seize on 
the absence of the omitted rights to assert that government was 
unrestrained as to those.\1\ Madison adverted to this argument in 
presenting his proposed amendments to the House of Representatives. ``It 
has been objected also against a bill of rights, that, by enumerating 
particular exceptions to the grant of power, it would disparage those 
rights which were not placed in that enumeration; and 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. This is one of the most plausible arguments I 
have ever heard against the admission of a bill of rights into this 
system; but, I conceive, that it may be guarded against. I have 
attempted it, as gentlemen may see by turning to the last clause of the 
fourth resolution.''\2\ It is clear from its text and from Madison's 
statement that the Amendment states but a rule of construction, making 
clear that a Bill of Rights might not by implication be taken to 
increase the powers of the national government in areas

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not enumerated, and that it does not contain within itself any guarantee 
of a right or a proscription of an infringement.\3\ Recently, however, 
the Amendment has been construed to be positive affirmation of the 
existence of rights which are not enumerated but which are nonetheless 
protected by other provisions.

        \1\The Federalist No. 84 (Modern Library ed. 1937).
        \2\1 Annals of Congress 439 (1789). Earlier, Madison had written 
to Jefferson: ``My own opinion has always been in favor of a bill of 
rights; provided it be so framed as not to imply powers not meant to be 
included in the enumeration. . . . I have not viewed it in an important 
light--1. because I conceive that in a certain degree . . . the rights 
in question are reserved by the manner in which the federal powers are 
granted. 2. because there is great reason to fear that a positive 
declaration of some of the most essential rights could not be obtained 
in the requisite latitude. I am sure that the rights of conscience in 
particular, if submitted to public definition would be narrowed much 
more than they are likely ever to be by an assumed power.'' 5 Writings 
of James Madison, 271-72 (G. Hunt ed. 1904). See also 3 J. Story, 
Commentaries on the Constitution of the United States 1898 (1833).
        \3\To some extent, the Ninth and Tenth Amendments overlap with 
respect to the question of unenumerated powers, one of the two concerns 
expressed by Madison, more clearly in his letter to Jefferson but also 
present in his introductory speech. Supra, n.2 and accompanying text.

        The Ninth Amendment had been mentioned infrequently in decisions 
of the Supreme Court\4\ until it became the subject of some exegesis by 
several of the Justices in Griswold v. Connecticut.\5\ There a statute 
prohibiting use of contraceptives was voided as an infringement of the 
right of marital privacy. Justice Douglas, writing the opinion of the 
Court, asserted that the ``specific guarantees in the Bill of Rights 
have penumbras, formed by emanations from those guarantees that help 
give them life and substance.''\6\ Thus, while privacy is nowhere 
mentioned, it is one of the values served and protected by the First 
Amendment, through its protection of associational rights, and by the 
Third, the Fourth, and the Fifth Amendments as well. The Justice 
recurred to the text of the Ninth Amendment, apparently to support the 
thought that these penumbral rights are protected by one Amendment or a 
complex of Amendments despite the absence of a specific reference. 
Justice Goldberg, concurring, devoted several pages to the Amendment.

        \4\In United Public Workers v. Mitchell, 330 U.S. 75, 94-95 
(1947), upholding the Hatch Act, the Court said: ``We accept appellant's 
contention that the nature of political rights reserved to the people by 
the Ninth and Tenth Amendments [is] involved. The right claimed as 
inviolate may be stated as the right of a citizen to act as a party 
official or worker to further his own political views. Thus we have a 
measure of interference by the Hatch Act and the Rules with what 
otherwise would be the freedom of the civil servant under the First, 
Ninth, and Tenth Amendments.'' See Ashwander v. TVA, 297 U.S. 288, 300-
11 (1936), and Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143-44 
(1939). See also Justice Chase's opinion in Calder v. Bull, 3 U.S. (3 
Dall.) 386, 388 (1798), and Justice Miller for the Court in Loan Ass'n 
v. Topeka, 87 U.S. (20 Wall.) 655, 662-63 (1875).
        \5\381 U.S. 479 (1965).
        \6\Id. at 484. The opinion was joined by Chief Justice Warren 
and by Justices Clark, Goldberg, and Brennan.

        ``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. . . . To hold that a right so 
basic and fundamental and so deep-rooted in our society as the right of 
privacy in marriage may be infringed because that right is not 
guaranteed in so many words by the first eight amendments to the 
Constitution is to ignore the Ninth

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Amendment and to give it no effect whatsoever. Moreover, a judicial 
construction that this fundamental right is not protected by the 
Constitution because it is not mentioned in explicit terms by one of the 
first eight amendments or elsewhere in the Constitution would violate 
the Ninth Amendment. . . . Nor do I mean to state that the Ninth 
Amendment constitutes an independent source of right protected from 
infringement by either the States or the Federal Government. Rather, the 
Ninth Amendment shows a belief of the Constitution's authors that 
fundamental rights exist that are not expressly enumerated in the first 
eight amendments and an intent that the list of rights included there 
not be deemed exhaustive.''\7\ While, therefore, neither opinion sought 
to make of the Ninth Amendment a substantive source of constitutional 
guarantees, both did read it as indicating a function of the courts to 
interpose a veto with regard to legislative and executive efforts to 
abridge other fundamental rights. In this case, both opinions seemed to 
concur that the fundamental right claimed and upheld was derivative of 
several express rights and in this case, really, the Ninth Amendment 
added almost nothing to the argument. But if there is a claim of a 
fundamental right which cannot reasonably be derived from one of the 
provisions of the Bill of Rights, even with the Ninth Amendment, how is 
the Court to determine, first, that it is fundamental, and second, that 
it is protected from abridgment?\8\

        \7\Id. at 488, 491, 492. Chief Justice Warren and Justice 
Brennan joined this opinion. Justices Harlan and White concurred id. at 
499, 502, without alluding to the Ninth Amendment, but instead basing 
their conclusions on substantive due process, finding that the state 
statute ``violates basic values implicit in the concept of ordered 
liberty,'' (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Id. 
at 500. It would appear that the source of the fundamental rights to 
which Justices Douglas and Goldberg referred must be found in a concept 
of substantive due process, despite the former's express rejection of 
this ground. Id. at 481-82. Justices Black and Stewart dissented. 
Justice Black viewed the Ninth Amendment ground as essentially a 
variation of the due process argument under which Justices claimed the 
right to void legislation as irrational, unreasonable, or offensive, 
without finding any violation of an express constitutional provision.
        \8\Notice the recurrence to the Ninth Amendment as a 
``constitutional `saving clause''' in Chief Justice Burger's plurality 
opinion in Richmond Newspapers v. Virginia, 448 U.S. 555, 579-80 & n.15 
(1980). Scholarly efforts to establish the clause as a substantive 
protection of rights include J. Ely, Democracy and Distrust--A Theory of 
Judicial Review (Cambridge: 1980), 34-41; and C. Black, Decision 
According to Law (New York: 1981), critically reviewed in W. Van 
Alstyne, Slouching Toward Bethlehem with the Ninth Amendment, 91 Yale L. 
J. 207 (1981). For a collection of articles on the Ninth Amendment, see 
The Rights Retained by the People: The History and Meaning of the Ninth 
Amendment (Randy E. Barnett, ed., 1989).