by Eric Wood
Share
A safeguard against a specific worry the amendment’s own authors had: that listing certain rights might be read to imply no others exist. The Ninth Amendment says the opposite - the list in the Bill of Rights isn’t the whole list.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Ninth Amendment, U.S. Constitution
Why James Madison thought this needed saying
During the ratification debates, some Federalists actually opposed adding a bill of rights at all, for a reason that sounds strange today: they worried that writing down a specific list of protected rights would imply, by omission, that any right not listed wasn’t protected at all. James Madison, who drafted most of the Bill of Rights, took that concern seriously enough to write the Ninth Amendment specifically to head it off - an explicit statement that the enumerated rights aren’t exhaustive.
The amendment doesn’t say what those other, unenumerated rights actually are. That has made it one of the most debated and least consistently applied provisions in the Constitution: everyone agrees the amendment means the list isn’t complete, but there’s no settled method for identifying what belongs on the unwritten part of it.
Worth knowing
The Ninth Amendment has rarely served as the sole basis for a Supreme Court ruling. It played a supporting role in Griswold v. Connecticut (1965), where Justice Arthur Goldberg’s concurring opinion pointed to it directly as evidence that a right to privacy could exist even though privacy is never explicitly named in the Constitution’s text - the majority opinion in that same case relied more on the “penumbras” of several other amendments instead.
Why it still matters
Any legal argument for an unenumerated constitutional right - privacy being the clearest historical example - has to reckon with the Ninth Amendment’s existence, even when courts end up grounding the actual ruling in other constitutional text instead. It remains one of the genuinely open, unresolved corners of constitutional interpretation.
Leave A Comment
Eighty-five essays written under one shared pen name to win over a skeptical New York - who actually wrote them, why the secrecy, and why courts still cite them today.
Why the Declaration of Independence isn't a legal document, what it actually argues, and how its language has shaped American rights movements ever since.
The Declaration of Independence, The Federalist Papers, and the Constitution and Bill of Rights - three documents, three different jobs, and how they relate to each other.
Powers not given to the federal government belong to the states or the people - the constitutional basis for federalism, and where courts have actually enforced it.
