From Privacy to Marriage: How the Ninth Amendment Shaped Modern America

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Of the twelve amendments proposed in the original Bill of Rights, the Ninth Amendment is perhaps the most enigmatic and, for much of American history, the most overlooked.

It makes a profound statement about rights in the new republic: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

If our most fundamental rights are listed in the Constitution, what are these “other” rights, and who gets to define them?

The Founders’ Dilemma

The story of the Ninth Amendment begins with a conspicuous absence. The original Constitution, as drafted by delegates in Philadelphia in 1787, contained no bill of rights. This omission was not an oversight but a deliberate choice rooted in a specific theory of government.

The absence quickly became the single most significant obstacle to the Constitution’s ratification. The ensuing debate revealed a deep philosophical divide about the best way to protect liberty – a divide that the Ninth Amendment was specifically designed to bridge.

A Bill of Rights is Dangerous

Supporters of the new Constitution, known as the Federalists, argued that a bill of rights was unnecessary for a government of limited powers and could be actively dangerous to freedom. Their chief spokesman was Alexander Hamilton, who laid out the argument with forceful clarity in The Federalist No. 84.

The logic was straightforward: the proposed federal government was one of enumerated powers, meaning it could only exercise powers explicitly granted to it in the Constitution. Why, Hamilton asked, should the Constitution declare that things shall not be done which there is no power to do?

He famously wrote, “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

The Federalists feared that creating a list of protected rights would inadvertently flip this logic on its head. By enumerating specific exceptions to federal power (like “Congress shall make no law abridging the freedom of speech”), it might imply that the government possessed all powers not explicitly forbidden.

This, they warned, would provide a “colorable pretext to claim more than were granted.” Furthermore, any such list would inevitably be incomplete. It would be impossible to catalog every right a person possesses. The dangerous implication would be that any right left off the list was not protected and was therefore surrendered to the government.

A Bill of Rights is Essential

Opponents of ratification, the Anti-Federalists, found this reasoning unpersuasive and alarming. Figures like George Mason of Virginia, who had refused to sign the Constitution, pointed to the powerful new national government and the sweeping language of clauses like the Supremacy Clause and the Necessary and Proper Clause.

They argued that without an explicit “Declaration of Rights,” the federal government would inevitably overstep its bounds and infringe upon the traditional liberties of the people.

For the Anti-Federalists, the bills of rights in their own state constitutions were a critical bulwark against government overreach. They saw no reason why the new federal government should not be similarly constrained.

Their pressure was immense and effective. Several key states, including Virginia and New York, agreed to ratify the Constitution only with the strong recommendation and understanding that a bill of rights would be added almost immediately.

Madison’s Brilliant Compromise

James Madison, a key architect of the Constitution and a leading Federalist, initially sided with Hamilton on the dangers of a bill of rights. However, as a pragmatic politician representing a Virginia district with strong Anti-Federalist sentiment, he recognized that adding amendments was a political necessity to ensure the stability and legitimacy of the new government.

Tasked with drafting the amendments, Madison directly confronted what he called “one of the most plausible arguments I have ever heard against the admission of a bill of rights”: the risk that enumeration would disparage unlisted rights.

His solution was the clause that would become the Ninth Amendment. His initial, more verbose draft reveals his thinking with exceptional clarity:

“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 powers, or as inserted merely for greater caution.”

This language shows the amendment’s dual purpose: first, to protect the “just importance of other rights retained by the people,” and second, to ensure that the Bill of Rights could not be used to “enlarge the powers delegated by the constitution.”

After being referred to a Select Committee in the House of Representatives, this language was refined into the concise and powerful 27 words ratified as the Ninth Amendment.

It was a brilliant compromise that satisfied the Anti-Federalists’ desire to protect all rights while simultaneously neutralizing the Federalists’ primary objection to a bill of rights. The amendment was about protecting individual freedoms and served as a structural safeguard for the entire constitutional design of limited government.

It instructed future generations on how to read the document, ensuring that the enumeration of some rights could never be used as a license for government to assume powers it was never given.

The Forgotten Amendment and Its Competing Interpretations

Despite its crucial role in the ratification debates, the Ninth Amendment fell into a long period of constitutional obscurity. For over 150 years, it was rarely cited by the Supreme Court and was often dismissed by legal scholars as irrelevant.

Judge Robert Bork, during his 1987 confirmation hearing, famously called it a constitutional “inkblot” whose meaning was lost to time. When it was mentioned, it was typically in tandem with the Tenth Amendment and rejected as a basis for challenging federal authority.

This long silence masked a deep and unresolved tension within its text, leading to two fundamentally different schools of thought on its meaning and purpose.

The Ninth Amendment as a Rule of Construction

The first and more traditional interpretation holds that the Ninth Amendment is not an independent source of rights but rather a “rule of construction” – a guide for interpreting the rest of the Constitution. According to this view, the amendment’s purpose is purely defensive. It exists to prevent a specific, flawed inference: that the rights listed in the Bill of Rights are the only rights the people have.

This perspective aligns closely with the historical context of the Federalist-Anti-Federalist debate. Early and modern proponents argue that the amendment simply states a truism of the constitutional structure.

Justice Joseph Story, an influential 19th-century Supreme Court justice and legal scholar, explained that the 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.”

In other words, it was meant to stop future lawyers or judges from arguing that because the Constitution protects freedom of speech, it implicitly allows the government to infringe upon an unlisted right, like the right to choose one’s profession.

More recently, jurists like the late Justice Antonin Scalia championed this view. He argued that the amendment’s text does not actively grant or affirm any rights. In his dissent in Troxel v. Granville (2000), he wrote that the Ninth 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.”

Under this interpretation, the Ninth Amendment is a shield that preserves the principle of limited government, not a sword for the judiciary to create new rights.

The Ninth Amendment as a Fountain of Rights

The opposing school of thought views the Ninth Amendment as a positive affirmation of a vast reservoir of unenumerated, substantive rights that are judicially enforceable. Proponents of this interpretation focus on the phrase “rights… retained by the people,” arguing that it is a direct reference to the natural law philosophy that heavily influenced the founding generation.

This philosophy, articulated by thinkers like John Locke, holds that individuals possess certain inherent or “natural” rights – such as the rights to life, liberty, property, and the pursuit of happiness – that pre-exist any government. When people form a government, they delegate certain powers to it but retain these fundamental natural rights.

According to this view, the Ninth Amendment was written to ensure that this “great residuum” of unenumerated natural rights was given the same weight and protection as the rights that were explicitly listed.

Legal scholar Randy Barnett is a leading modern advocate for this view, arguing that the amendment protects the natural liberty rights of individuals and requires courts to apply a “presumption of liberty,” placing the burden on the government to justify any restriction on an individual’s freedom.

The Fourteenth Amendment: The Key that Unlocked the Ninth’s Potential

For most of its history, this debate was largely academic because of a critical structural limitation. In the 1833 case Barron v. Baltimore, the Supreme Court ruled that the Bill of Rights, including the Ninth Amendment, applied only as a restriction on the federal government, not on state governments.

Since state governments regulate most aspects of daily life, the amendment had little practical effect on most Americans.

This all changed with the ratification of the Fourteenth Amendment in 1868. Its powerful command that “No State shall… deprive any person of life, liberty, or property, without due process of law” was eventually interpreted by the Supreme Court to “incorporate” most of the protections of the Bill of Rights, making them applicable to the states.

This development set the stage for the Ninth Amendment’s modern revival. The principles of the Ninth – that fundamental rights exist beyond the text – could now be channeled through the Fourteenth Amendment to challenge state laws.

As Justice Arthur Goldberg would later write, the Ninth Amendment “is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement.”

Without the Fourteenth Amendment, the Ninth would have likely remained a dormant clause, a rule of construction for a federal government that rarely legislated on matters of personal privacy. The Fourteenth provided the constitutional vehicle to carry the Ninth’s powerful ideas into the modern era.

Griswold v. Connecticut: The Spark of a Revolution (1965)

For 174 years, the Ninth Amendment remained a constitutional footnote. That changed dramatically in 1965 with Griswold v. Connecticut, a landmark case that established a constitutional right to privacy and single-handedly resurrected the Ninth Amendment from obscurity, placing it at the center of modern constitutional law.

The Uncommonly Silly Law

The case revolved around a Connecticut law passed in 1879, a relic of the “Comstock era,” which made it a crime for any person to use “any drug, medicinal article or instrument for the purpose of preventing conception.” The law also made it a crime to assist or counsel someone in its use.

For decades, reformers had tried and failed to repeal the statute. By the 1960s, the law was rarely enforced, but it remained on the books, preventing organizations like Planned Parenthood from openly operating birth control clinics.

Determined to force a legal showdown, Estelle Griswold, the Executive Director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, a physician from the Yale School of Medicine, deliberately violated the law.

In November 1961, they opened a birth control clinic in New Haven, with the explicit goal of being arrested to create a “test case” to challenge the law’s constitutionality. They were promptly arrested, convicted, and fined $100 each. Their appeal eventually reached the Supreme Court.

Penumbras and Emanations

The Supreme Court, in a 7-2 decision, struck down the Connecticut law, but the legal reasoning of the majority opinion, written by Justice William O. Douglas, was highly unconventional. Wary of reviving the doctrine of “substantive due process,” which the Court had used in the early 20th century to strike down economic regulations and which had since fallen into disrepute, Justice Douglas charted a different course.

He argued that a right to privacy, though not explicitly mentioned in the Constitution, exists within the “penumbras, formed by emanations” from several specific guarantees in the Bill of Rights. He contended that these specific rights create “zones of privacy.” He drew upon:

• The First Amendment’s right of association
• The Third Amendment’s prohibition against the quartering of soldiers in a home
• The Fourth Amendment’s protection against unreasonable searches and seizures
• The Fifth Amendment’s Self-Incrimination Clause, which “enables the citizen to create a zone of privacy which government may not force him to surrender”

The marriage relationship, Douglas wrote, lies within this zone of privacy, and the Connecticut law, by forbidding the use of contraceptives, had a “maximum destructive impact upon that relationship.”

He famously asked, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

In this framework, Justice Douglas mentioned the Ninth Amendment only briefly, as further evidence that the Bill of Rights was not an exhaustive list and that rights like privacy could be protected even if unenumerated.

The Ninth Amendment’s Grand Re-Introduction

While Douglas’s “penumbra” theory carried the day, it was the concurring opinion by Justice Arthur Goldberg, joined by Chief Justice Earl Warren and Justice William Brennan, that truly breathed new life into the Ninth Amendment.

Goldberg argued that the Court did not need to construct a right to privacy from the “emanations” of other amendments because the Ninth Amendment provided a direct and powerful textual basis for it.

He asserted that 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.”

For Goldberg, the right of marital privacy was precisely such a fundamental right, “so basic and fundamental and so deep-rooted in our society” that it was protected by the Constitution.

He concluded with a powerful declaration: “To hold that a right so basic and fundamental… 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 Amendment and to give it no effect whatsoever.”

Goldberg’s concurrence transformed the Ninth Amendment from a historical curiosity into a living piece of constitutional text, arguing it was a positive affirmation of unenumerated rights that the judiciary was empowered to protect.

A Warning Against Judicial Activism

Justices Hugo Black and Potter Stewart penned forceful dissents. While both personally found the law “uncommonly silly,” they could find no general “right of privacy” in the Constitution. They accused the majority of judicial activism, arguing that the Court was simply substituting its own policy preferences for those of the legislature.

Justice Stewart argued that the Ninth Amendment was not a source of new rights but, like the Tenth, simply “states but a truism that all is retained which has not been surrendered.”

This clash of opinions in Griswold – between the penumbras of the majority, the unenumerated rights of the concurrence, and the judicial restraint of the dissents – set the terms of the debate over privacy and the Ninth Amendment for the next half-century.

The Unenumerated Right to Privacy: From Contraception to Abortion and Beyond

The Griswold decision established a new constitutional principle – the right to privacy in matters of intimate and personal decision-making. This principle, animated by the spirit of the Ninth Amendment even when not directly citing it, became the foundation for a series of landmark Supreme Court rulings that dramatically reshaped American society.

The Court’s journey also reveals a strategic shift in legal reasoning, as the judiciary grappled with how to ground these evolving rights in the constitutional text.

The Logical Leap: Roe v. Wade (1973)

Eight years after Griswold, the Court faced the next major test of its new privacy doctrine in Roe v. Wade. The case involved a challenge to a Texas law that made it a crime to perform an abortion unless necessary to save the mother’s life.

The initial lawsuit, filed on behalf of Norma McCorvey (under the pseudonym “Jane Roe”), explicitly argued that the Texas law violated the right to privacy protected by multiple amendments, including the Ninth. The federal district court that first heard the case agreed, ruling that the right to choose whether to have children was a fundamental right “retained by the people” under the Ninth Amendment.

When the case reached the Supreme Court, however, the majority opinion, authored by Justice Harry Blackmun, took a different path. While heavily relying on the foundation of privacy established in Griswold, the Court chose to ground the right to abortion primarily in the “liberty” component of the Fourteenth Amendment’s Due Process Clause.

The Court declared that this right of personal privacy was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

This deliberate pivot from the Ninth to the Fourteenth Amendment was significant. It reflected the Court’s institutional caution. The Fourteenth Amendment’s Due Process Clause, while controversial, had a long and established history of being interpreted to protect certain fundamental, unenumerated rights under the doctrine of “substantive due process.”

The Ninth Amendment, by contrast, was largely untested and viewed by many as a more ambiguous and radical source of judicial power. The Ninth Amendment provided the essential philosophical inspiration – the idea that fundamental rights exist beyond the text – but the Fourteenth Amendment provided a more familiar and, in the Court’s view, more stable legal vehicle for its application to the states.

Expanding Liberty’s Definition: Lawrence v. Texas (2003)

The evolution of the right to privacy continued in the 2003 case of Lawrence v. Texas. Houston police, responding to a false report of a weapons disturbance, entered John Lawrence’s apartment and found him engaged in a private, consensual sexual act with another man, Tyron Garner. Both were arrested and convicted under a Texas “Homosexual Conduct” law.

In a landmark 6-3 decision, the Supreme Court struck down the Texas law and explicitly overruled its 1986 precedent, Bowers v. Hardwick, which had upheld a similar Georgia anti-sodomy law.

Justice Anthony Kennedy’s majority opinion in Lawrence is a direct descendant of Griswold. He argued that the case was about a broader right to liberty and personal autonomy. He wrote that the petitioners’ right to liberty under the Due Process Clause “gives them the full right to engage in their conduct without intervention of the government.”

The ruling reinforced the core principle that the government has no legitimate interest in intruding into the personal and private lives of individuals to regulate their intimate relationships. By protecting private, consensual adult conduct, Lawrence solidified the constitutional protection for personal autonomy that had begun with the right to use contraception in Griswold, extending it beyond the marital bedroom and applying it to all adults.

This 50-year legal journey demonstrates a clear pattern: the Ninth Amendment’s core idea is foundational, but the Fourteenth Amendment becomes the primary tool for its application to the states.

The Right to Marry: The Culmination of a Constitutional Journey

The legal and philosophical path cleared by Griswold and its successors led directly to the 2015 case of Obergefell v. Hodges, a decision that stands as the culmination of a half-century of jurisprudence on unenumerated rights, privacy, and personal autonomy. The case concerned the most fundamental of human relationships: marriage.

Obergefell v. Hodges (2015)

The case consolidated lawsuits from several states, including Ohio, Michigan, Kentucky, and Tennessee, where same-sex couples challenged state laws that either banned them from marrying or refused to recognize their legal marriages from other states. The plaintiffs argued that these laws violated their fundamental rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

In a 5-4 decision, the Supreme Court ruled in their favor, establishing marriage equality nationwide. The majority opinion, again authored by Justice Anthony Kennedy, is a powerful synthesis of the entire line of privacy cases that began with Griswold.

Kennedy declared that the right to marry is a fundamental right inherent in the liberty of the person, and that this protection extends to same-sex couples.

The opinion explicitly connected the right to marry to the principles of individual autonomy and intimate choice that were central to the Court’s earlier privacy rulings. Citing Griswold, Kennedy affirmed that fundamental rights “extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

He argued that the four principles that make marriage fundamental – individual autonomy, the support of a unique two-person union, the safeguarding of children and families, and its status as a keystone of the social order – apply with equal force to same-sex couples.

To deny them this right, he concluded, would be to “disrespect and subordinate them,” a violation of both the liberty protected by the Due Process Clause and the equality guaranteed by the Equal Protection Clause.

The Ninth Amendment’s Enduring Influence

While the Ninth Amendment was not the direct legal basis for the decisions in Lawrence or Obergefell, its intellectual legacy was indispensable. The amendment’s core principle – that the rights enumerated in the Constitution are not an exhaustive list – provided the crucial philosophical groundwork for the Court to recognize these evolving dimensions of liberty.

The journey from Griswold to Obergefell reveals the Ninth Amendment’s modern function. It has served as a form of constitutional conscience, reminding the judiciary and the nation that the text of the Constitution is not a closed and finite document.

It provided the initial justification for the Court in Griswold to look beyond the explicit text and protect a right to privacy that was essential to the “traditions and [collective] conscience of our people.” The subsequent cases then took this powerful idea – that fundamental aspects of human dignity and autonomy are constitutionally protected even if unwritten – and found a durable legal home for it within the broad guarantee of “liberty” in the Fourteenth Amendment.

In this way, an amendment that is rarely the basis for a majority ruling has been profoundly influential in shaping the trajectory of American law. It fundamentally changed the questions the Supreme Court was willing to ask about the nature of liberty, dignity, and the proper limits of government power in the most personal spheres of life.

Even when another amendment provided the final legal answer, it was often the spirit of the Ninth that first framed the question. The amendment’s legacy lives on in every case where the Court recognizes that constitutional rights extend beyond what the text explicitly states, protecting the fundamental aspects of human freedom that the founders could never have fully enumerated but always intended to preserve.

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