What is the Ninth Amendment?

The Ninth Amendment declares that rights not listed in the Constitution are still retained by the people. Ratified on December 15, 1791, its twenty-one words read: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. James Madison drafted the amendment in response to a Federalist objection to the Bill of Rights, voiced by Alexander Hamilton in Federalist No. 84, that listing some rights might dangerously imply the federal government held all powers not specifically denied. Madison wanted explicit text that prevented such a reading.

The clause has had a quiet legal career, but it gained prominence in Griswold v. Connecticut (1965), where Justice William O. Douglas cited it among the penumbras formed by emanations of the Bill of Rights to recognize a right of marital privacy and strike down a Connecticut law banning contraceptives. Justice Arthur Goldberg's concurrence relied on the Ninth Amendment more directly, arguing that the framers expected unenumerated rights to be protected. Roe v. Wade (1973), Eisenstadt v. Baird (1972), and other privacy cases drew on the same reasoning, though the Court rooted the privacy right primarily in the Fourteenth Amendment Due Process Clause and overruled Roe in Dobbs v. Jackson Women's Health Organization (2022).

The Ninth Amendment expresses the framers' belief that rights are inherent in human nature, not granted by government. The Declaration of Independence had already affirmed that all men are created equal and endowed with certain unalienable Rights, and the Bill of Rights was meant to protect, not exhaustively define, those liberties.

Justice Antonin Scalia argued in his Troxel v. Granville (2000) dissent that the Ninth Amendment refuses to deny or disparage other rights but does not by its terms create them. Scholars including Randy Barnett have argued for a more active role in defending unenumerated rights such as economic liberty, while others such as Robert Bork dismissed the amendment as an inkblot. Despite the disagreement, the amendment continues to support arguments for rights not specifically named in the Constitution, including aspects of personal autonomy, parental authority, the right to travel from Saenz v. Roe (1999), and the right to privacy reflected in cases such as Lawrence v. Texas (2003). Naturalization candidates need to recognize that the Ninth Amendment ensures the Bill of Rights is not the complete catalog of American freedoms.