The Ninth Amendment provides that the enumeration of certain rights in the Constitution should not be construed to mean that the Constitution does not protect rights that are not enumerated. The Amendment was included in the Bill of Rights to address fears that expressly protecting certain rights might be misinterpreted implicitly to sanction the infringement of others.1

Few Supreme Court cases offer significant analysis of the Ninth Amendment. Prior to 1965, litigants occasionally invoked the Amendment, often along with the Tenth Amendment or other provisions of the Bill of Rights, to challenge the constitutionality of government actions, but the Court consistently rejected those claims.2 In 1965, in Griswold v. Connecticut, a majority of the Court cited the Ninth Amendment, along with the substantive rights protected by the First, Third, Fourth, and Fifth Amendments, and held that the Constitution protects “penumbral rights of ‘privacy and repose’” that bar a state from prohibiting the use of contraception by married couples.3 By contrast, in the 1973 case Roe v. Wade, the Court grounded a constitutional right to abortion in the Fourteenth Amendment rather than the Ninth.4

Overall, the Court has generally treated the Ninth Amendment as a rule of construction for the Constitution rather than a freestanding guarantee of any substantive rights. Thus, in Richmond Newspapers v. Virginia, a plurality of the Court referred to the Amendment as a “sort of constitutional ‘saving clause,’ which, among other things, would serve to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those not expressly defined.” 5

Footnotes

1

See Amdt9.2 Historical Background on Ninth Amendment 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.

2

See generally Amdt9.3 Ninth Amendment Doctrine.

3

381 U.S. 479, 481–85 (1965).

4

410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Organization, No. 19-1392, slip op. (U.S. June 2022).

5

448 U.S. 555, 579–80 & n.15 (1980); cf. 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.” ).