Ninth Amendment

Original public meaning

The clause answers a specific ratification-era objection to listing any rights at all. Natural-rights theory supplied the background assumption: Blackstone's Commentaries treat personal security, personal liberty, and private property as a "residuum" of natural liberty never surrendered to society, and Samuel Adams's Rights of the Colonists (20 Nov. 1772) states the principle even more directly — "Every natural Right not expressly given up or from the nature of a Social Compact necessarily ceded remains." The Continental Congress's Declaration and Resolves (14 Oct. 1774) grounded colonial rights the same way, in "the immutable laws of nature."

Once the Constitution itself was drafted without a bill of rights, that background assumption produced a specific worry, stated on both sides of ratification. "John DeWitt," no. 2 (Oct. 1787) argued that any list of retained rights invites the opposite inference — that the people, in enumerating some rights, tacitly grant the government the rest by "tacit implication," "the favorite theme of every tyrant." The Federal Farmer, no. 16 (20 Jan. 1788), reasoned the same danger to the opposite conclusion: because the new government held only enumerated powers, the safer course was to enumerate rights explicitly too, since silence about a right "similarly circumstanced" would imply the people meant "to relinquish" it.

Madison's House speech of 8 June 1789, introducing the amendments that became the Bill of Rights, addressed the objection directly:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment]." — James Madison, House of Representatives, 8 June 1789

The House adopted the clause on 17 Aug. 1789, rejecting only a stylistic amendment (Gerry's unseconded motion to substitute "impair" for "disparage").

McGinnis & Rappaport's original-methods reading. McGinnis and Rappaport read the Amendment itself as evidence that the enactors assumed legal interpretive rules — not just word meanings and grammar — governed the constitutional text. They trace two competing accounts of which specific inference the Amendment forecloses, both resting on named legal canons. One traces to Hamilton's objection to a bill of rights in Federalist No. 84: enumerating a right like free speech, when Congress held no enumerated power to restrict speech in the first place, would let an interpreter apply the antisurplusage canon to infer such a power after all, "for why declare that things shall not be done which there is no power to do?" The other, competing account reads the Amendment as blocking an expressio unius est exclusio alterius inference — that listing some rights implies the exclusion of others. McGinnis and Rappaport do not resolve which canon the Amendment targets; their point is that both readings presuppose the framers wrote against a background of specific, named interpretive rules, which is itself evidence for Original methods originalism as a positive theory of constitutional interpretation.

Joseph Story's Commentaries (1833) confirm that the clause operates as a rule of construction, not as an independent grant of judicially enforceable rights:

"This clause was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others; and é converso, that a negation in particular cases implies an affirmation in all others." — Joseph Story, Commentaries on the Constitution 3:§ 1898, 1833

Modern doctrine departure

Twentieth-century doctrine sometimes reads the Ninth Amendment as itself a substantive source of unenumerated fundamental rights, most notably Justice Goldberg's concurrence locating a right to marital privacy partly in the clause. That reading treats the amendment as creating enforceable rights rather than merely blocking a specific interpretive inference — a departure from the clause's own drafting history, where Madison described it as a guard against a particular argument against a bill of rights, and from Story's construction-only account.

Modern doctrine (Annotated Constitution, Amdt9.1-9.3)

Few Supreme Court cases offer significant analysis of the Ninth Amendment. Before 1965, litigants occasionally invoked it, usually alongside the Tenth Amendment, to challenge government action, and the Court consistently rejected those claims with limited discussion — for example, in United Public Workers v. Mitchell (1947), rejecting a Ninth and Tenth Amendment challenge to the Hatch Political Activity Act: "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 ... must fail."

Griswold v. Connecticut (1965) marks the doctrinal turn: the majority, per Justice Douglas, held that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance," and cited the Ninth Amendment alongside the First, Third, Fourth, and Fifth Amendments in recognizing "penumbral rights of 'privacy and repose'" that bar a state from prohibiting contraceptive use by married couples. Justice Goldberg's concurrence went further, devoting several pages to arguing that "the language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights ... which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments," while disclaiming any view that the Amendment is itself "an independent source of right" — rather, it evidences a founding belief that unenumerated fundamental rights exist and that the Bill of Rights was not meant as an exhaustive list. Justices Black and Stewart dissented; Black wrote that he could not "rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law," and Stewart contended the Ninth Amendment, like the Tenth, "states but a truism that all is retained which has not been surrendered."

In Roe v. Wade (1973), the Court instead grounded a constitutional right to abortion in the Fourteenth Amendment's concept of personal liberty, not the Ninth Amendment directly, though it cited Griswold and Goldberg's concurrence among the sources recognizing "a right of personal privacy, or a guarantee of certain areas or zones of privacy." Dobbs v. Jackson Women's Health Organization (2022) overruled Roe, but the Court emphasized that its decision should not cast doubt on precedents not involving abortion, including Griswold.

Overall, the Court has generally treated the Ninth Amendment as a rule of construction for the Constitution, not a freestanding guarantee of substantive rights. In Richmond Newspapers v. Virginia (1980), a plurality 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." Justice Scalia's dissent in Troxel v. Granville (2000) captured the opposing, construction-only reading directly: the 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."

key-insight

The modern doctrinal split tracks the drafting-history divide already documented above: Goldberg's Griswold concurrence and the construction-only line (Richmond Newspapers, Scalia's Troxel dissent) both claim Madison and Story as authority, but only the construction-only line matches what Madison actually described the clause as doing in 1789 — a guard against a specific negative inference, not a grant of judicially enforceable unenumerated rights.