Ninth Amendment Supreme Court Cases

The Often Overlooked Ninth Amendment

The Ninth Amendment ensures that you don't lose certain rights just because they're not specifically granted to you or mentioned elsewhere in the U.S. Constitution. By necessity, the amendment is a little vague. The Supreme Court hasn't really explored its territory. The Court hasn't been asked to decide the amendment's merit or interpret it as it relates to a given case. 

When it's incorporated into the Fourteenth Amendment's broad due process and equal protection mandates, however, these unspecified rights can be interpreted as a general endorsement of civil liberties. The Court is obligated to protect them, even if they're not explicitly mentioned elsewhere in the Constitution.​

U.S. Public Workers v. Mitchell (1947)

The Preamble to the U.S. Constitution. Dan Thornberg / EyeEm

At first glance, the 1947 Mitchell ruling as given by Justice Stanley Reed sounds sensible enough:

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.

But there's a problem with this. It has absolutely nothing to do with rights. This jurisdictional approach, focused as it was on the states' rights to challenge federal authority, doesn't acknowledge that people are not jurisdictions.

The Griswold ruling effectively legalized birth control​ in 1965. It relied heavily on an individual's right to privacy, a right that is implicit but not explicitly stated in the language of the Fourth Amendment's "right of the people to be secure in their persons," nor in the Fourteenth Amendment's doctrine of equal protection. Does its status as an implicit right that can be protected depend in part on the Ninth Amendment's protection of unspecified implicit rights? Justice Arthur Goldberg argued that it does in his concurrence:

I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted, and that it embraces the right of marital privacy, though that right is not mentioned explicitly in the Constitution, is supported both by numerous decisions of this Court, referred to in the Court's opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment … I add these words to emphasize the relevance of that Amendment to the Court's holding …

This Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and applies to the States those specifics of the first eight amendments which express fundamental personal rights. 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 … It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights, and that the specific mention of certain rights would be interpreted as a denial that others were protected …

The Ninth Amendment to the Constitution may be regarded by some as a recent discovery, and may be forgotten by others, but, since 1791, it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment, and to give it no effect whatsoever.
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Griswold v. Connecticut (1965) -- Dissenting Opinion

In his dissent, Justice Potter Stewart disagreed:

…to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion, the Tenth … was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today, no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.

Two Centuries Later

Although the implicit right to privacy has survived for over half a century, Justice Goldberg's direct appeal to the Ninth Amendment has not survived with it. More than two centuries after its ratification, the Ninth Amendment has yet to constitute the primary basis of a single Supreme Court ruling.