The Ninth Amendment

by Kapp L. Johnson

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

One of the original 10 Bill of Rights, the Ninth Amendment was ratified on Dec. 15, 1791. The amendment was James Madison’s attempt to ensure that the Bill of Rights was not seen as granting to the people of the United States only the specific rights it addressed.  

The Constitutional Convention was held from May 25 to Sept. 17, 1787. It was a contentious and lively debate. One contention concerned issues that the Eighth Amendment sought to resolve: Should a Bill of Rights be added to the Constitution? The Anti-Federalists argued that a Bill of Rights should be added. The Federalists opposed, arguing that the addition of a Bill of Rights was unnecessary in that it would be impossible to list all the rights and that people would assert that the government could violate those that were omitted.

Specifically, Madison was concerned that enumerating various rights could “enlarge the powers delegated by the constitution.” In an attempt to solve this problem, Madison submitted this draft to the Congress:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such power, or as inserted merely for greater caution.

Given the amendment’s text and Madison’s statement, it is clear that the amendment states 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 not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement. Recently, however, the amendment has been construed to be positive affirmation of the existence of rights that are not enumerated but are nonetheless protected by other provisions.

The Ninth Amendment was used by the Supreme Court in Griswold v. Connecticut to recognize additional fundamental rights that exist alongside those fundamental rights specifically mentioned in the Constitution, such as the right to privacy.

Kapp L. Johnson is a senior lecturer in ethics and law in the School of Management at California Lutheran University. He holds a doctorate from the University of La Verne College of Law and is a member of the California Bar Association.

The Amendment Project is a new weekly series that will appear through October, featuring the Bill of Rights and Amendments 11-27 with a brief synopsis of their purposes written by professors of California Lutheran University and CSU, Channel Islands.