The Ninth Amendment: Text, Origins, and Meaning

Ensures Rights Not Explicitly Listed in the Constitution

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The Ninth Amendment to the U.S. Constitution attempts to ensure that certain rights — while not specifically listed as being granted to the American people in the other sections of the Bill of Rights — should not be violated.

The complete text of the Ninth Amendment states:

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Over the years, the federal courts have interpreted the Ninth Amendment as confirming the existence of such implied or “unenumerated” rights outside those expressly protected by the Bill of Rights. Today, the Amendment is often cited in legal attempts to prevent the federal government from expanding the powers of Congress specifically granted to it under Article I, Section 8 of the Constitution.

The Ninth Amendment, included as part of the original 12 provisions of the Bill of Rights, was submitted to the states on September 5, 1789, and was ratified on December 15, 1791.

Why This Amendment Exists

When the then proposed U.S. Constitution was submitted to the states in 1787, it was still strongly opposed by the Anti-Federalist Party, Led by Patrick Henry. One of their main objection to the Constitution as submitted was its omission of a list of rights specifically granted to the people — a “bill of rights.”

However, the Federalist Party, led by James Madison and Thomas Jefferson, contended that it would be impossible for such a bill of rights to list all conceivable rights, and that a partial list would be dangerous because some might claim that because a given right was not specifically listed as protected, the government had the power to limit or even deny it.

In an attempt to resolve the debate, the Virginia Ratifying Convention proposed a compromise in the form of a constitutional amendment stating that any future amendments limiting the powers of Congress should not be taken as justification for expanding those powers. This proposal led to the creation of the Ninth Amendment.b

Practical Effect

Of all the amendments in the Bill of Rights, none is stranger or harder to interpret than the Ninth. At the time it was proposed, there was no mechanism by which the Bill of Rights could be enforced. The Supreme Court had not yet established the power to strike down unconstitutional legislation, and it was not widely expected to. The Bill of Rights was, in other words, unenforceable. So what would an enforceable Ninth Amendment look like?

Strict Constructionism and the Ninth Amendment

There are multiple schools of thought on this issue. Supreme Court justices who belong to the strict constructionist school of interpretation essentially say that the Ninth Amendment is too vague to have any binding authority. They push it aside as a historical curiosity, in much the same way that more modernist justices sometimes push the Second Amendment aside.

Implicit Rights

At the Supreme Court level, most justices do believe that the Ninth Amendment has binding authority, and they use it to protect implicit rights hinted at but not explicated elsewhere in the Constitution.

Implicit rights include both the right to privacy outlined in the landmark 1965 Supreme Court case of Griswold v. Connecticut, but also basic unspecified rights such as the right to travel and the right to the presumption of innocence until proven guilty. 

Writing in the Court’s majority opinion Justice William O. Douglas stated that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

In a lengthy concurrence, Justice Arthur Goldberg added, “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.”

Updated by Robert Longley

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Head, Tom. "The Ninth Amendment: Text, Origins, and Meaning." ThoughtCo, Jan. 26, 2018, thoughtco.com/the-ninth-amendment-721162. Head, Tom. (2018, January 26). The Ninth Amendment: Text, Origins, and Meaning. Retrieved from https://www.thoughtco.com/the-ninth-amendment-721162 Head, Tom. "The Ninth Amendment: Text, Origins, and Meaning." ThoughtCo. https://www.thoughtco.com/the-ninth-amendment-721162 (accessed February 20, 2018).