Ninth Amendment:

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

The Ninth Amendment is a part of the Bill of Rights, and its purpose is best understood in the context of the debate around the express enumeration of protected rights at and soon after the Founding. As originally drafted and ratified, the Constitution did not include a bill of rights. A proposal to include a bill of rights was rejected late in the Constitutional Convention.1 The Federalists argued that because the national government had limited and enumerated powers, there was no need to protect individual rights expressly. As Alexander Hamilton wrote in the Federalist Papers, “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given [in the Constitution] by which restrictions may be imposed?” 2 The Federalists contended that including a list of rights in the Constitution could be “dangerous” because it might be misunderstood to imply that the national government had powers beyond those enumerated, or that rights not expressly identified for protection were not in fact protected.3

In contrast to the prevailing delegates to the Convention, many state conventions considering whether to ratify the Constitution preferred to include a bill of rights. Several states ratified the Constitution on the understanding that a bill of rights would be added.4 The first Congress accordingly proposed twelve constitutional amendments, ten of which were ratified by the requisite number of states and became the Bill of Rights.5

In contrast to the first eight amendments to the Constitution, which protect substantive rights, the Ninth Amendment sought to address Federalist fears that expressly protecting certain rights might implicitly sanction the infringement of other rights.6 James Madison responded to that argument in presenting his proposed amendments to the House of Representatives:

Madison suggested, however, that that concern “may be guarded against” by the text that became the Ninth Amendment.8

Madison’s statement and the text of the Ninth Amendment both indicate that the Amendment itself does not guarantee any substantive rights.9 Instead, it states a rule of construction, making clear that the Bill of Rights may not be construed to limit rights in areas not enumerated. As Justice Joseph Story explained, the “clause was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others.” 10

Footnotes

1

2 Max Farrand, Records of the Federal Convention of 1787, at 341–42, 587–88, 617–618 (1911) [hereinafter Farrand’s Records].

2

See The Federalist No. 84 (Alexander Hamilton).

3

Id. For the Antifederalists, the absence of a bill of rights was a reason to oppose ratification of the Constitution. See, e.g., George Mason, Objections to this Constitution of Government (1787), reprinted in 2 Farrand’s Records, supra note 1, at 637–38 ( “There is no Declaration of Rights.” ).

4

See generally Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 568–70 (1985) (Powell, J., dissenting) (reviewing this history and noting that “eight States voted for the Constitution only after proposing amendments to be adopted after ratification” ).

5

See Intro.3.2 Bill of Rights (First Through Tenth Amendments).

6

The Tenth Amendment responded to related concerns that including a list of rights in the Constitution might be misunderstood to imply that the national government had powers beyond those enumerated. U.S. Const. amend. X; see also Tenth Amendment.

7

1 Annals of Congress 439 (1789). See also 3 J. Story, Commentaries on the Constitution of the United States 1898 (1833).

8

Id.

9

But compare Griswold v. Connecticut, 381 U.S. 479, 491 (1965) (Goldberg, J., concurring) ( “[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.” ) with Troxel v. Granville, 530 U.S. 57, 91 (2000) (Scalia, J., dissenting) (The Ninth Amendment’s “refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.” ).

10

3 Joseph Story, Commentaries on the Constitution of the United States § 1893 (1833).