The US Constitution's Ninth Amendment

Protecting the Unenumerated Natural Rights of Man

Jul 21, 2009

The Bill of Rights was added to the Constitution to explicitly limit the federal government, but there was concern that naming specific rights would exclude others.

After the Confederation Congress sent the proposed Constitution to the States for ratification in 1787, part of the ratification debate surrounded the fact that the document contained no guarantees of individual rights. A good portion of the debates in State ratifying conventions took place over this issue.

Bill of Rights Promised in Return for Ratification

In an effort to allay concerns of constitutional opponents, the proponents of the Constitution promised that the First Congress would propose and send to the States a group of amendments outlining specific freedoms. This promise was fulfilled and in 1791 a group of ten amendments were ratified and became known as the Bill of Rights.

Seven of the first eight amendments are fairly well known. The guarantees of free speech, free press, freedom of religion, right to counsel, right to remain silent, right to bear arms, right to a jury trial, and right to be free from cruel and unusual punishment are among those in Amendments I, II and IV-VIII. The Amendment III right to not have soldiers quartered in one’s home is nearly forgotten.

Ninth Amendment Protects Rights Not Named in the Constitution

The Ninth Amendment is less well known but was very important in the philosophy of the 18th Century Founders. There was great concern that by naming specific rights in the first eight amendments, the implication would be that other rights not named did not exist. The Ninth Amendment was included to dispel this notion and reads as follows:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Enumerated versus Unenumerated Rights

The rights outlined in the first eight amendments have come to be known as enumerated rights. The Ninth Amendment provides the basis for recognizing other rights, generally considered to arise from natural law. These rights are the unenumerated rights. The implication of the Ninth Amendment is that the Constitution recognized rights that exist, not that the Constitution created any rights.

Recognized Rights that are not Enumerated

There are many rights that are recognized in our society that are not named in the first eight amendments. If the Ninth Amendment did not exist, it might be argued that there was no constitutional protection for:

These rights and others commonly taken for granted are never mentioned in the Constitution, but are recognized by the Supreme Court and society generally as having Constitutional protection. This is consistent with the Founders’ philosophy “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,”

There are many legal debates about how to determine if a right not enumerated in the Constitution is constitutionally protected. While few judicial opinions rest firmly on the Ninth Amendment, the existence of the Ninth Amendment gives the courts the philosophical ability to protect citizens from an overzealous government from intrusions upon personal freedoms.

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