Other Constitutional Freedoms

The Ninth Amendment is a constitutional oddity. It’s single sentence provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, the fact that certain rights are listed in the Constitution does not mean that they are the people’s only rights, as there are others that the people also retain. This reference to unlisted rights is not the only unusual thing about the amendment. It bars the federal government from denying and disparaging rights, as opposed to infringing them, as the First Amendment provides. Why the former and not the latter? There is no legislative history to help us understand this choice. Finally, the Ninth Amendment speaks of rights retained by the people, not just “rights,” suggesting that it protects only rights in existence in 1789, when Congress adopted the amendment.

So why did Congress insert this odd amendment into the Bill of Rights? Why didn’t Congress simply specify all the rights it wanted protected from the federal government? Here there is evidence in the 1787-88 constitutional ratification debates that can help us answer this question. Faced with numerous complaints that the Constitution did not adequately protect rights, Alexander Hamilton responded in Federalist 84 that there could be a disadvantage to specifically listing rights to be protected: “They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?” He suggested that protecting the freedom of the press might suggest that Congress was otherwise empowered to regulate the press, since if it had no such power no amendment would be necessary. Furthermore, if some common law rights were not enumerated, this might imply that Congress could “deny or disparage” those rights as well.

James Madison, the author of the Bill of Rights, took this argument seriously. In his speech introducing the Bill of Rights in 1789, he responded: “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.” The guard was a proposal that would eventually become the Ninth Amendment.

While this might suggest that the Ninth Amendment might be a source of additional rights, this is not how the Supreme Court has read the Constitution. There is an important difference between stating that unenumerated rights are retained by the people and finding a constitutional basis for those rights. The Ninth Amendment certainly accomplishes the first, but it does not attempt to do the second. Rather, its reference to retained rights suggests that the common law basis of the American legal system is the place to start when searching for those rights. This unit will explore several rights that are not mentioned in the Constitution–but which the Supreme Court has nevertheless found are protected by the Constitution. These rights are privacy, interstate travel, association, and marriage.

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