Provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” On its face, this provision seems to mean that a right is worthy of judicial protection even if it is not listed in the Constitution. To fail to protect these “other” unenumerated rights “retained by the people” in the same manner that we protect the enumerated rights would surely be to “disparage” them if not to “deny” their existence altogether.

Others doubt that this is what the Ninth Amendment means. Some have argued that it expresses a mere “truism” that the government should not do what it is not supposed to do. Some have thought that the “retained” rights refer only to state common‐law rights and state constitutional rights existing at the time of the framing. Unlike enumerated “constitutional” rights, these retained rights could be modified by simple legislation or state constitutional amendment without violating the Constitution.

Background

The Ninth Amendment was conceived after the heated debate surrounding the ratification of the Constitution. Anti‐Federalist opponents of the Constitution emphasized its lack of a bill of rights securing the liberty of the people. Federalist proponents of ratification responded by questioning the wisdom of including a bill of rights in the Constitution. In The Federalist, no. 84, for example, Alexander Hamilton argued that “bills of rights … are not only unnecessary in the proposed Constitution, but would even be dangerous.”

To appreciate the source of the perceived danger, we must remember that the framers believed in natural rights—the idea that people by their nature have certain basic rights that precede the establishment of any government (see Natural Law). As Representative Roger Sherman wrote in his proposed draft of a bill of rights: “The people have certain natural rights which are retained by them when they enter into Society.” Sherman's words reflect the sentiments expressed by several state ratification conventions. According to John Locke, the English natural rights theorist who greatly influenced the founders' generation, the principal justification for founding a government is to make these rights more secure than they would be in a state of nature—that is, in a society without any government.

In this view, natural rights define a bounded domain of liberty for each person within which one may do as one pleases. Exactly how this liberty may be exercised is limited only by one's imagination, so it is impossible to enumerate specifically all of one's natural rights. As framer and bill of rights opponent James Wilson stated: “Enumerate all the rights of men! I am sure, sirs, that no gentleman in the late Convention would have attempted such a thing.”

The anti‐Federalists were defeated only when Federalists promised to propose and support a bill of rights in the First Congress. James Madison and the committee of the House of Representatives charged with drafting a bill of rights had to sort through dozens of rights that state ratification conventions had officially recommended be included in the Constitution. The rights they eventually enumerated in the Bill of Rights appear to be those that their experience suggested were the most in jeopardy. Some (but not all) of the rights they chose to enumerate—such as the right to freedom of speech—were considered by both Madison and Sherman to be natural rights that were “retained” by the people.

As for the Federalist warnings that later interpreters might assert that the people had surrendered any rights omitted from the enumeration, Madison proposed to guard against this possibility by adding the following amendment: “The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.” Eventually, this language was transformed into the words of the Ninth Amendment.

Modern Interpretations

For one and a half centuries following its ratification, the Ninth Amendment was largely ignored by the Supreme Court. Since World War II, the Court has offered two different interpretations of the Ninth Amendment reflecting two views of constitutional rights. The first might be called the “rights‐powers” interpretation. According to this view, retained rights and delegated powers are logically complementary. Retained rights are those left over after powers were delegated to the federal government. To interpret the Ninth Amendment, we simply look to see if the federal government has the power it claims; if so, any right that is logically inconsistent with this power could not be among those retained by the people.

Justice Stanley Reed stated this view in the United Public Workers v. Mitchell (1947) decision: “The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. … If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendment must fail” (p. 95). However, since the Tenth Amendment clearly limits the exercise of federal power to powers delegated by the Constitution, this interpretation seems to render the Ninth Amendment without any practical function. Until recently, most scholars accepted this view.

The other approach may be called the “power‐constraint” interpretation. According to this view, retained rights and delegated powers are functionally complementary. Even a power actually granted to the government can be constrained by a retained right. For example, when a retained right is infringed, the government might have to offer a more weighty justification for exercising its power than it would when no right is infringed. Moreover, although the Ninth Amendment, like the rest of the Bill of Rights, originally applied only to the federal government, this interpretation sees the passage of the Fourteenth Amendment as extending federal protection against state infringement to both enumerated and unenumerated rights.

Justice Arthur Goldberg took a power‐constraint approach in his concurring opinion in Griswold v. Connecticut (1965)—an opinion that did much to revive interest in the Ninth Amendment: “[W]here fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose” (p. 497). Goldberg further argued that the Ninth Amendment justified protecting fundamental liberties that had not been included in the enumeration of rights. On this view, protecting both enumerated and unenumerated retained rights better safeguards the liberties of the people by reinforcing the scheme of limited delegated powers.

These two approaches are not mutually exclusive. Rather than view the set of retained rights as shrinking automatically as governmental powers are interpreted more expansively, we could reverse Justice Reed's rights‐powers method of interpretation. Instead of limiting our inquiry to the expressed delegation of powers, we could examine the rights retained by the people to define the legitimate “ends” or powers of the government and thus provide an additional way of conceptualizing limits on government powers. An analysis of retained rights could also constrain the “means” by which governmental ends can be achieved.

Enumerated rights have long served a power‐constraining function. For example, the First Amendment has been interpreted as protecting the “retained” rights of free speech by constraining government from pursuing the end of regulating the content of one's speech. The Fourth Amendment constrains government from pursuing its proper ends by means of unreasonable searches and seizures.

Similarly, the right to use birth control that was protected in Griswold exemplifies an unenumerated “ends constraint.” If such activities are within the sphere of bounded liberty retained by the people, they are beyond the rightful power of government. The case of *Richmond Newspapers, Inc., v. Virginia (1980) provides an example of an unenumerated “means constraint.” There, a plurality of the Court, relying in part on the Ninth Amendment, protected the rights of the press to attend a public trial. Although the government may have the power to prosecute and try a defendant, it cannot do so by means of excluding the press.

Identifying Unenumerated Rights

Some argue that, lacking an understanding of or belief in the framers' theory of natural rights, modern judges are simply unable to identify these “other” retained rights. As unsuccessful Supreme Court nominee Robert *Bork testified during his Senate confirmation hearings: “I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says ‘Congress shall make no’ and then there is an inkblot, and you cannot read the rest of it, and that is the only copy you have, I do not think the court can make up what might be under the inkblot.” On this view, empowering judges to protect rights where the Constitution is silent enables them illegitimately to “create” rights based only on their personal preferences and improperly obstruct the will of the people as expressed by their democratically elected representatives.

Ironically, this view is commonly advanced by constitutional theorists who profess a deep respect for the framer's intentions. Yet this skeptical view of unenumerated rights would have the practical effect of converting the original scheme of limited defined powers in a sea of individual rights into a scheme of limited enumerated rights in a sea of governmental powers.

There may, however, be a practical way to protect the bounded domain of individual liberty without engaging in an elaborate philosophical analysis of natural rights. We could adopt a constitutional “presumption of liberty,” by which people are presumed to be free to act in any way that did not violate the “common‐law rights” of others. For example, actions that constituted a tort or a breach of contract could justly be prohibited. But actions that did not violate such rights could be regulated by government only upon a strong showing that such regulation was essential or necessary to achieve some proper governmental end.

Placing the burden on government to justify any action restricting a rightful exercise of liberty is precisely how the Court protects retained rights that are enumerated. For example, when legislation restricts the exercise of free speech, a serious burden is placed upon the government to justify such restrictions. A presumption of liberty would avoid “denying” or “disparaging” unenumerated rights by treating them on a par with enumerated rights.

A presumption of liberty would, however, be a departure from the prevailing attitude of the Supreme Court since the New Deal. In cases such as Carolene Products Co. v. United States (1944), the Court created the opposite: a presumption of constitutionality that upholds government action unless it violates an identifiable “fundamental right.” And, since using the unenumerated right of privacy to protect abortion in Roe v. Wade (1973), the Court appeared for a considerable time to be unwilling to deem any other unenumerated liberty to be a fundamental right. In Bowers v. Hardwick (1986), for example, the Court majority belittled the idea that the liberty to engage in consensual homosexual “sodomy” was protected either in its own right or by the unenumerated right of privacy. According to Bowers, an unenumerated liberty was to be deemed fundamental only if shown to be deeply rooted in the tradition or history of the nation or implicit in the concept of ordered liberty. The more narrowly one defines the liberty in question, however, the more difficult it is to show that a particular exercise of liberty, especially a novel one, is deeply rooted in tradition. Without such a showing, a statute restricting a mere “liberty interest” would receive the benefit of the presumption of constitutionality.

In 1992, the Court appeared to shift away from a right of privacy to a willingness to protect “retained” liberty more generally. In the landmark case of *Planned Parenthood v. Casey, the Court found unconstitutional a statute limiting abortion. In the opinion of the Court, the choice restricted was a form of liberty protected by the Due Process Clause of the Fourteenth Amendment. In their joint opinion, Justices Anthony Kennedy, Sandra Day O'Connor, and David Souter explicitly relied on the Ninth Amendment for the following proposition: “Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amend. 9” (p. 848). This was the most prominent use by the Supreme Court of the Ninth Amendment to date, but this renewed protection of “liberty” went unused for over ten years. In Troxel v. Granville (2000), the Court remained within the post–New Deal liberty interest/fundamental right dichotomy by protecting as fundamental the right to raise one's own children.

Then, in Lawrence v. Texas (2003), the Court, in an opinion by Justice Kennedy, reversed its decision in Bowers, holding a state law banning “sodomy” between same‐sex couples unconstitutional under the Due Process Clause of the Fourteenth Amendment. Lawrence is potentially revolutionary for two reasons. First, it rested on a right to liberty, not a right of privacy. “Liberty” is mentioned at least twenty‐five times in the opinion. Privacy is mentioned only in the context of describing the holding of Griswold. The centrality of liberty to Kennedy's reasoning is made clear in the opening paragraph of his opinion for the majority: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”

Second, in Lawrence, the Court struck down the statute without any finding that the liberty in question was fundamental, and without any mention of the presumption of constitutionality. In this case, then, the Court essentially adopted a presumption of liberty for the first time since before the New Deal in the context of an unenumerated right. Having found the activity in question to be liberty, as opposed to one that harms others—what the founders called “license”—the Court then shifted the burden to the government to justify its prohibition. The mere opinion of the legislature that the activity was immoral was deemed to be inadequate. Should its reasoning be extended beyond the realm of intimate activity, Lawrence could represent a marked departure from the post–New Deal jurisprudence of a presumption of constitutionality rebutted only by a fundamental right.

Griswold, Roe, Casey, and Lawrence all involve the constitutionality of state laws which means they were based, not directly on the Ninth Amendment, but on the Fourteenth. In particular, these opinions rely on the Due Process Clause, which has been used to protect the liberties of citizens from infringement by state government—though scholars increasingly think it is more historically warranted to ground this protection in the *Privileges or Immunities Clause. Nonetheless, these cases have an important bearing on the future uses of the Ninth Amendment. For the Ninth Amendment stands as a bulwark against the abuse of federal power and there is no reason why a presumption of liberty of the sort employed implicitly in Lawrence should not equally be applicable to cases where federal laws infringe the liberties or rights “retained by the people.”

Bibliography

• Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004).
• Calvin R. Massey, Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights (1995)

— Randy E. Barnett

The Oxford Companion to the Supreme Court of the United States. Copyright © 1992, 2005 by Oxford University Press. All rights reserved.