What Are Ninth Amendment Rights?
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Ninth Amendment to the U.S. Constitution does not grant or protect any specific rights, which is exactly what James Madison had in mind when he wrote it. The Bill of Rights, the first 10 amendments, would have been much longer or the rights and freedoms enjoyed by Americans greatly curtailed without it.
Background and historical perspective
A key point of contention stirring debate at the Constitutional Convention in 1787 focused on the federalists favoring a strong central government to govern along with the states and the antifederalists who feared the federal government would infringe on the ability of the states to govern. Antifederalists wanted a bill of rights to place limits on the central government, but the federalists were concerned that individual rights not included in the Constitution could be lost.
The ratification of the Ninth Amendment in 1791 was a victory for the antifederalists who saw its broad language as protecting rights not included or enumerated in the Bill of Rights. There is disagreement even today about the meaning and interpretation courts should give to the amendment because of uncertainty about the rights to which it refers.
Ninth Amendment and the courts
There are essentially two parts to the Ninth Amendment: Enumerated rights and rights retained by the people. Enumerated rights are those protected under the Constitution, including the following:
- Freedom of speech
- Freedom of religion
- Right against self-incrimination
- Right to a trial by jury
- Protection against unreasonable searches and seizures
- Prohibition against excessive bail
What the amendment includes as rights retained by the people is not as clear as the enumerated rights. For example, the right to privacy is not an enumerated right under the Constitution, but the Supreme Court relied upon it in Griswold v. Connecticut to nullify a state law prohibiting the use of contraceptives. The decision of the court relied upon the Ninth Amendment in support of privacy as a protected right even though it is not one enumerated in the Constitution. Other disputes over rights in which the Ninth Amendment comes into play include:
- Laws prohibiting same-sex marriage
- State laws prohibiting assisted suicide
- Laws prohibiting abortion
- Laws restricting the right of a person to travel freely about the country
- Right of a patient to decline medical treatment
Future of the Ninth Amendment
The lack of a clear definition of the unenumerated rights protected by the Ninth Amendment means it should be left to the elected legislators to pass laws representing what the majority of people perceive as protected rights. This school of thought believes a law against assisted suicide, for instance, is constitutional because it demonstrates the willingness of people to give it up as a protected right. If the people wanted to preserve it as a right, they would elect public officials who agreed with them.
A conflicting view of retained rights comes from those who believe the will of the majority should not be imposed on the rest of society. This point of view argues it is the responsibility of judges and the courts to prevent majority rule from taking away rights. More than two centuries after the Ninth Amendment became a part of the Constitution, the debate surrounding it continues.