Ninth Amendment--Unenumerated Rights

[[Page 1501]]


                             NINTH AMENDMENT

                               __________

                           UNENUMERATED RIGHTS

[[Page 1503]]



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

                      RIGHTS RETAINED BY THE PEOPLE

        Aside from contending that a bill of rights was unnecessary, the
Federalists responded to those opposing ratification of the Constitution
because of the lack of a declaration of fundamental rights by arguing
that inasmuch as it would be impossible to list all rights it would be
dangerous to list some because there would be those who would seize on
the absence of the omitted rights to assert that government was
unrestrained as to those.\1\ Madison adverted to this argument in
presenting his proposed amendments to the House of Representatives. ``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 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.''\2\ It is clear from its text and from Madison's
statement that the Amendment states but a rule of construction, making
clear that a Bill of Rights might not by implication be taken to
increase the powers of the national government in areas

[[Page 1504]]
not enumerated, and that it does not contain within itself any guarantee
of a right or a proscription of an infringement.\3\ Recently, however,
the Amendment has been construed to be positive affirmation of the
existence of rights which are not enumerated but which are nonetheless
protected by other provisions.

        \1\The Federalist No. 84 (Modern Library ed. 1937).
        \2\1 Annals of Congress 439 (1789). Earlier, Madison had written
to Jefferson: ``My own opinion has always been in favor of a bill of
rights; provided it be so framed as not to imply powers not meant to be
included in the enumeration. . . . I have not viewed it in an important
light--1. because I conceive that in a certain degree . . . the rights
in question are reserved by the manner in which the federal powers are
granted. 2. because there is great reason to fear that a positive
declaration of some of the most essential rights could not be obtained
in the requisite latitude. I am sure that the rights of conscience in
particular, if submitted to public definition would be narrowed much
more than they are likely ever to be by an assumed power.'' 5 Writings
of James Madison, 271-72 (G. Hunt ed. 1904). See also 3 J. Story,
Commentaries on the Constitution of the United States 1898 (1833).
        \3\To some extent, the Ninth and Tenth Amendments overlap with
respect to the question of unenumerated powers, one of the two concerns
expressed by Madison, more clearly in his letter to Jefferson but also
present in his introductory speech. Supra, n.2 and accompanying text.
---------------------------------------------------------------------------

        The Ninth Amendment had been mentioned infrequently in decisions
of the Supreme Court\4\ until it became the subject of some exegesis by
several of the Justices in Griswold v. Connecticut.\5\ There a statute
prohibiting use of contraceptives was voided as an infringement of the
right of marital privacy. Justice Douglas, writing the opinion of the
Court, asserted that the ``specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help
give them life and substance.''\6\ Thus, while privacy is nowhere
mentioned, it is one of the values served and protected by the First
Amendment, through its protection of associational rights, and by the
Third, the Fourth, and the Fifth Amendments as well. The Justice
recurred to the text of the Ninth Amendment, apparently to support the
thought that these penumbral rights are protected by one Amendment or a
complex of Amendments despite the absence of a specific reference.
Justice Goldberg, concurring, devoted several pages to the Amendment.

        \4\In United Public Workers v. Mitchell, 330 U.S. 75, 94-95
(1947), upholding the Hatch Act, the Court said: ``We accept appellant's
contention that the nature of political rights reserved to the people by
the Ninth and Tenth Amendments [is] involved. The right claimed as
inviolate may be stated as the right of a citizen to act as a party
official or worker to further his own political views. Thus we have a
measure of interference by the Hatch Act and the Rules with what
otherwise would be the freedom of the civil servant under the First,
Ninth, and Tenth Amendments.'' See Ashwander v. TVA, 297 U.S. 288, 300-
11 (1936), and Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143-44
(1939). See also Justice Chase's opinion in Calder v. Bull, 3 U.S. (3
Dall.) 386, 388 (1798), and Justice Miller for the Court in Loan Ass'n
v. Topeka, 87 U.S. (20 Wall.) 655, 662-63 (1875).
        \5\381 U.S. 479 (1965).
        \6\Id. at 484. The opinion was joined by Chief Justice Warren
and by Justices Clark, Goldberg, and Brennan.
---------------------------------------------------------------------------

        ``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. . . . 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

[[Page 1505]]
Amendment and to give it no effect whatsoever. Moreover, a judicial
construction that this fundamental right is not protected by the
Constitution because it is not mentioned in explicit terms by one of the
first eight amendments or elsewhere in the Constitution would violate
the Ninth Amendment. . . . Nor do I mean to state that the Ninth
Amendment constitutes an independent source of right protected from
infringement by either the States or the Federal Government. Rather, the
Ninth Amendment shows a belief of the Constitution's authors that
fundamental rights exist that are not expressly enumerated in the first
eight amendments and an intent that the list of rights included there
not be deemed exhaustive.''\7\ While, therefore, neither opinion sought
to make of the Ninth Amendment a substantive source of constitutional
guarantees, both did read it as indicating a function of the courts to
interpose a veto with regard to legislative and executive efforts to
abridge other fundamental rights. In this case, both opinions seemed to
concur that the fundamental right claimed and upheld was derivative of
several express rights and in this case, really, the Ninth Amendment
added almost nothing to the argument. But if there is a claim of a
fundamental right which cannot reasonably be derived from one of the
provisions of the Bill of Rights, even with the Ninth Amendment, how is
the Court to determine, first, that it is fundamental, and second, that
it is protected from abridgment?\8\

        \7\Id. at 488, 491, 492. Chief Justice Warren and Justice
Brennan joined this opinion. Justices Harlan and White concurred id. at
499, 502, without alluding to the Ninth Amendment, but instead basing
their conclusions on substantive due process, finding that the state
statute ``violates basic values implicit in the concept of ordered
liberty,'' (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Id.
at 500. It would appear that the source of the fundamental rights to
which Justices Douglas and Goldberg referred must be found in a concept
of substantive due process, despite the former's express rejection of
this ground. Id. at 481-82. Justices Black and Stewart dissented.
Justice Black viewed the Ninth Amendment ground as essentially a
variation of the due process argument under which Justices claimed the
right to void legislation as irrational, unreasonable, or offensive,
without finding any violation of an express constitutional provision.
        \8\Notice the recurrence to the Ninth Amendment as a
``constitutional `saving clause''' in Chief Justice Burger's plurality
opinion in Richmond Newspapers v. Virginia, 448 U.S. 555, 579-80 & n.15
(1980). Scholarly efforts to establish the clause as a substantive
protection of rights include J. Ely, Democracy and Distrust--A Theory of
Judicial Review (Cambridge: 1980), 34-41; and C. Black, Decision
According to Law (New York: 1981), critically reviewed in W. Van
Alstyne, Slouching Toward Bethlehem with the Ninth Amendment, 91 Yale L.
J. 207 (1981). For a collection of articles on the Ninth Amendment, see
The Rights Retained by the People: The History and Meaning of the Ninth
Amendment (Randy E. Barnett, ed., 1989).