That the Constitution of the United States as originally adopted by the Philadelphia convention and submitted to Congress on September 17, 1787, contained no bill of rights is the starting point for considering the meaning of the Ninth Amendment. In his letter of December 20, 1787, to James Madison, Thomas Jefferson objected that, ‘‘[A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse....’’ In his letter of October 17, 1788, to Thomas Jefferson, James Madison acknowledged that a ‘‘constitutional declaration of most essential rights’’ would probably have to be added. He wrote that his ‘‘own opinion had always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to be included in the enumeration,’’ although he did express the reservation that ‘‘experience proves the inefficacy of a bill of rights on those occasions when its controul [sic] is most needed.’’ He added the skeptical view that ‘‘[r]epeated violations of these parchment barriers have been committed by overbearing majorities in every State.’’
Indeed, on June 24, 1788, in the Virginia Convention called to consider the ratification of the new Constitution, Patrick Henry was prescient about Madison’s concerns for the implication of specific constitutional language contributing to incorrect inference. ‘‘What is the inference when you enumerate rights which you are to enjoy?’’ His answer was, ‘‘That those that are not enumerated are relinquished.’’ Alexander Hamilton also thought that a Bill of Rights might be dangerous. Hamilton argued in Federalist 84 that the specification of rights, ‘‘would contain various exceptions to powers 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?’’ One answer to these concerns can be found in the Ninth Amendment.
The Ninth Amendment (agreed to on September 27, 1789) contains a straightforward declaration: ‘‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’’ On August 17, 1789, Elbridge Gerry had said that the declaration ought to be ‘‘deny or impair,’’ rather than ‘‘deny or disparage,’’ because the word ‘‘disparage’’ had no plain meaning, but his revision was not adopted. Madison’s first proposal of this article (June 8, 1789) follows:
The exceptions here or elsewhere, 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 on such powers, or as inserted merely for greater caution.
Each version contains the same kernel of meaning: the listing of rights in the Constitution does not mean that there are no others, although Madison’s first version goes further than the eventual provision.
The plain declaration of the Ninth Amendment, and also of Madison’s first proposed formulation of the provision, is consistent with Madison’s understanding of what sort of constitutional government was wanted. Prior to the creation of constitutional government, the people possessed the political power that they might choose to vest in government or retain unto themselves. Thus, by ‘‘ordaining and establishing’’ the Constitution, the people vested only the powers of the federal government that are listed in Article I, Section 8. To be sure, the necessary and proper clause in that section describes the occasion for certain implied powers, but only with reference to the powers previously delegated in Section 8. Indeed, the text of the Tenth Amendment carries forward a provision from the Articles of Confederation which confirms that ‘‘the powers not delegated to the United States or prohibited by it to the States are reserved to the States respectively or to the people,’’ but with the following important differences: (1) that the word ‘‘expressly’’ is not included as a limited on delegated powers, as confirmed in John Marshall’s opinion in McCulloch v. Maryland (1819); and (2) that the state ‘‘sovereignty’’ is not mentioned.
Just as powers flow from the people to the Constitution, the rights held by the people precede the Constitution, and the listing of rights in the Bill of Rights acknowledges their possession by the people, not the creation of them. That additional nonexpressed rights exist and are retained by the people is the declaration of the Ninth Amendment, and clearly this was consistent with the understanding of Madison and other proponents of a bill of rights, but discovering what rights are retained has been a persistent difficulty.
A leading law review article by law professor John Choon Yoo argues that the Ninth Amendment originally referred chiefly to the affirmative rights of the people to exercise their majoritarian rights through representative government. In part, he inferred this conclusion from the ‘‘mini-Ninth Amendments’’ that were added to state constitutions after the ratification of the federal Constitution. Indeed, even during the debates on ratification of the Constitution certain states, including Pennsylvania, Vermont, and Virginia proclaimed that the people had an inalienable right to reform, alter, or abolish the governments they previously had created. These inalienable rights are the essential rights of a sovereign people to create, alter, or abolish governments. Thus, the rights retained by the people as described in the Ninth Amendment were then seen chiefly as the collective rights of a popular majority, at least in Yoo’s analysis.
It was usually later that individual rights were invoked under the Ninth Amendment. For example, abolitionists argued that natural rights of all men included the right of personal security, the right to personal liberty, and the right to own and enjoy property—hence slavery was a violation of fundamental natural rights protected by the Ninth Amendment. Yoo also argues that the reconstruction Congress intended through the Fourteenth Amendment to make another declaration of unenumerated rights by referring to the protection against state action of the privileges or immunities of citizens of the United States, which, according to its chief architect, Representative Charles Bingham, would also have made the first eight amendments of the Bill of Rights applicable to the states. The fundamental rights acknowledged by the Ninth Amendment were believed to include both natural and common law rights, such as Blackstone’s enumeration of the rights to personal security, personal liberty, and to acquire and enjoy property.
As it later happened, the Ninth Amendment eventually came to be associated most clearly with the right of privacy, that is, the right to be left alone unless a government can demonstrate some compelling reason for interference. While the right of privacy has had several manifestations, the most difficult one has been the right to reproductive freedom, first with respect to contraception in Griswold v. Connecticut (1965), and then at its most controversial in the instance of Roe v. Wade (1973), involving a woman’s right to terminate a pregnancy. And the controversy about the rights retained protected by the Ninth Amendment continues still.
DONALD W. JACKSON
References and Further Reading
Cases and Statutes Cited