The Ninth Amendment

The Ninth Amendment provides that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. It answered a concern raised by Federalists such as Alexander Hamilton, who argued that a bill of rights could be dangerous because listing some rights might imply that any right left off the list was unprotected. James Madison included the amendment to make clear that the Bill of Rights was not a complete catalog of the people's liberties.

Courts have rarely relied on the Ninth Amendment by itself. Its most prominent use came in Griswold v. Connecticut in 1965, when Justice Arthur Goldberg's concurrence cited it in support of a right of marital privacy to use contraception. Most later rulings recognizing unenumerated rights, such as those involving family, marriage, and bodily autonomy, rested instead on the due process clause of the Fourteenth Amendment, and in Dobbs v. Jackson Women's Health Organization in 2022 the Court emphasized that such rights must be deeply rooted in the nation's history and tradition.

Scholars disagree sharply about what the amendment means. Some read it as a rule of construction that simply prevents the Bill of Rights from being read to expand federal power, closely linked to the Tenth Amendment. Others argue it protects natural rights that courts should enforce even though they are not listed. Still others see it as a reminder that unlisted rights are protected chiefly through elections and state law. The debate is part of the broader argument over how judges should identify rights the Constitution does not name.