Rights Retained by the People

The Ninth Amendment is the shortest instruction in the Bill of Rights and the easiest to misuse: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

It is worth being precise about what that sentence does. It does not name a right. It does not create one. It tells a reader — including a judge — how to interpret the list that precedes it. Without it, a lawyer could argue that because the Constitution troubles itself to protect speech, religion, and the security of papers, any freedom left off the list must be held at the pleasure of the government. The amendment forecloses that argument.

The reason it exists is a recorded disagreement rather than a mystery. Federalists including Hamilton argued in Federalist No. 84 that a bill of rights was unnecessary and even dangerous, since enumerating rights implies that whatever is unenumerated was surrendered. Madison, drafting in 1789, answered the objection directly by writing the implication out of the document.

The Tenth Amendment then does the parallel job for governments: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Read together, the two amendments state a default. Powers are delegated and therefore limited; rights are retained and therefore not exhausted by a list.

Courts have used the Ninth cautiously, and the caution is understandable. A clause that acknowledges unwritten rights can be filled with almost any content, which is precisely the criticism made from several directions in Griswold v. Connecticut (1965), where the amendment appeared in a concurrence rather than as the ground of decision. A citizen should be honest about that difficulty instead of pretending the clause settles arguments it does not settle.

What the amendment reliably supplies is a burden of explanation. When a government restricts something the Constitution does not mention by name, the Ninth Amendment denies it the shortcut of saying the silence is permission. It still has to justify the restriction. Requiring an explanation is a modest thing, and it is also the ordinary business of self-government.