Ninth Amendment Doctrine

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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.

Supreme Court cases from before 1965 contain little analysis of the Ninth Amendment. Litigants in earlier cases occasionally invoked the Amendment, often along with the Tenth Amendment or other provisions of the Bill of Rights, to challenge the constitutionality of various government actions. The Court dismissed those claims, usually with limited discussion.1 For example, in the 1947 case United Public Workers v. Mitchell, the Court rejected Ninth and Tenth Amendment challenges to the Hatch Political Activity Act.2 The Court explained,

The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.3

Concluding that Congress had the authority to enact the Hatch Act and the Act did not violate any of the prohibitions in the Bill of Rights, the Court upheld the statute.4

Several members of the Court examined the Ninth Amendment in greater depth in the 1965 case Griswold v. Connecticut.5 In Griswold, the Court held that a statute prohibiting use of contraceptives unconstitutionally infringed on the right of marital privacy. Justice William O. Douglas, writing for 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 The majority cited the Ninth Amendment along with the substantive rights protected by the First, Third, Fourth, and Fifth Amendments while discussing the “penumbral rights of ‘privacy and repose.’” 7 Although a right to privacy is not expressly mentioned in the Constitution, the Court concluded that banning contraceptive use by married couples impermissibly intruded on “a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.” 8

Justice Arthur Goldberg, concurring, devoted several pages to the Ninth Amendment. He opined,

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. . . . [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.9

Justice Goldberg disclaimed any belief “that the Ninth Amendment constitutes an independent source of right protected from infringement by either the states or the Federal Government.” Rather, he explained, the 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.” 10

In the 1973 case Roe v. Wade, the Supreme Court held that the Constitution limited the ability of the states to prohibit abortion before fetal viability.11 The district court in Roe held that the Ninth Amendment protected the right to abortion. On appeal, the Supreme Court instead held that the right was “founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action,” but cited both the majority opinion in Griswold and Justice Goldberg’s concurrence among opinions that “recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” 12 In the 2022 case Dobbs v. Jackson Women’s Health Organization, the Court overruled Roe but emphasized that its decision should not cast doubt on precedents not involving abortion, including Griswold.13

1: See Ashwander v. TVA, 297 U.S. 288, 330–31 (1936); Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143–44 (1939); Roth v. United States 354 U.S. 476, 492–93 (1957); Singer v. United States 380 U.S. 24, 26 (1965).
2: 330 U.S. 75 (1947).
3: Id. at 95–96.
4: Id. at 96–104.
5: 381 U.S. 479 (1965).
6: Id. at 484.
7: Id. at 481–85.
8: Id. at 485.
9: Id. at 487–91 (Goldberg, J., concurring).
10: Id. at 492. Justices Hugo Black and Potter Stewart dissented. Justice Black wrote, “I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law.” Id. at 522 (Black, J., dissenting). Justice Stewart contended, “The Ninth Amendment, like its companion the Tenth, . . . ‘states but a truism that all is retained which has not been surrendered.’” Id. at 529 (quoting United States v. Darby, 312 U.S. 100, 124 (1941)).
11: 410 U.S. 113 (1973).
12: Id. at 152–53.
13: No. 19-1392, slip op. (U.S. June 2022).