The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This proposal ultimately led to the Ninth Amendment. In 1789, while introducing to the House of Representatives nineteen draft Amendments, James Madison addressed what would become the Ninth Amendment as follows:
Like Alexander Hamilton, Madison was concerned that enumerating various rights could "enlarge the powers delegated by the constitution." Id. Here is the draft of the Ninth Amendment that Madison submitted to Congress in order to solve this problem:
This was an intermediate form of the Ninth Amendment that borrowed language from the Virginia proposal, while foreshadowing the final version. Like Madison's draft, the final text of the Ninth Amendment speaks of other rights than those enumerated in the Constitution. The character of those other rights was indicated by Madison in his speech introducing the Bill of Rights (emphasis added):
For the Founders, "rights" (against the actions of government) were always complementary to delegated powers of government, partitioning the space of public action. Each delimits its complement. Every constitutional "right" (or "immunity" to use a term in Article Four of the Constitution) delimits its opposing power, and every delegated power delimits its opposing right.
The First through Eighth Amendments address the means by which the federal government exercises its enumerated powers, while the Ninth Amendment addresses a "great residuum" of rights that have not been "thrown into the hands of the government." The Ninth Amendment became part of the Constitution on December 15, 1791 upon ratification by three-fourths of the states.
The Ninth Amendment has generally been regarded by the courts as negating any expansion of governmental power on account of the enumeration of rights in the Constitution, but the Amendment has not been regarded as further limiting governmental power. The U.S. Supreme Court explained this, in U.S. Public Workers v. Mitchell : "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."
Some jurists have asserted that the Ninth Amendment is relevant to interpretation of the Fourteenth Amendment. Justice Arthur Goldberg (joined by Chief Justice Earl Warren and Justice William Brennan) expressed this view in a concurring opinion in the case of Griswold v. Connecticut (1965):
Subsequent to Griswold, some judges have tried to use the Ninth Amendment to justify judicially enforcing rights that are not enumerated. For example, the District Court that heard the case of Roe v. Wade ruled in favor of a "Ninth Amendment right to choose to have an abortion. However, Justice William O. Douglas rejected that view; Douglas wrote that, "The Ninth Amendment obviously does not create federally enforceable rights." See Doe v. Bolton (1973). Douglas joined the majority opinion of the U.S. Supreme Court in Roe, which stated that a federally enforceable right to privacy, "whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
The Sixth Circuit Court of Appeals stated as follows in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991):
Professor Laurence Tribe shares this view: "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution. Likewise, Justice Antonin Scalia has expressed the same view, in Troxel v. Granville (2000):
In the year 2000, the Harvard historian Bernard Bailyn gave a speech at the White House on the subject of the Ninth Amendment. He said that the Ninth Amendment refers to "a universe of rights, possessed by the people — latent rights, still to be evoked and enacted into law....a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law.
It is important, when discussing the history of the Bill of Rights, to realize the Supreme Court held in Barron v. Baltimore (1833) that it was enforceable by the federal courts only against the federal government, and not against the states. Thus, the Ninth Amendment originally applied only to the federal government, which is a government of enumerated powers.
Robert Bork, often considered an originalist, has likened the Ninth Amendment to an inkblot. Bork argued in The Tempting of America that, while the amendment clearly had some meaning, its meaning is indeterminate; because the language is opaque, its meaning is as irretrievable as it would be had the words been covered by an inkblot. According to Bork, if another provision of the Constitution were covered by an actual inkblot, judges should not be permitted to make up what might be under the inkblot lest any judges twist the meaning to their own ends (cf. underdeterminacy).
Another originalist, Randy Barnett, has argued that the Ninth Amendment requires what he calls a presumption of liberty. Still others, such as Thomas B. McAffee, have argued that the Ninth Amendment protects the unenumerated "residuum" of rights which the federal government was never empowered to violate. Constitutional historian Jon Roland has argued that the Ninth Amendment included by reference all of the rights proposed by the state ratifying conventions, in addition to those enumerated in the first eight amendments.
Gun rights activists in recent decades have sometimes argued for a fundamental natural right to keep and bear arms that both predates the U.S. Constitution and is covered by the Constitution's Ninth Amendment; according to this viewpoint, the Second Amendment protects only a pre-existing right to keep and bear arms. In the related case of United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court held that while Congress has broad lawmaking authority under the Commerce Clause, it is not unlimited, and does not apply to something as far from commerce as carrying handguns.
The Ninth Amendment bars denial of unenumerated rights if the denial is based on the enumeration of certain rights in the Constitution, but does not bar denial of unenumerated rights if the denial is based on the enumeration of certain powers in the Constitution. It is to that enumeration of powers that the courts have said we must look, in order to determine the extent of the unenumerated rights mentioned in the Ninth Amendment.
Independence Day: What the revolution wrought; Founders created the Bill of Rights to spell out the rights that the people possessed
Jul 03, 2005; This week (July 4) in 1776, our Founding Fathers approved a written declaration that transformed 13 former English colonies into...