The Ninth Amendment to the U.S. Constitution is a one-sentence rule of interpretation: the rights written into the Constitution are not the only rights Americans have. Ratified in 1791 as part of the Bill of Rights, it exists to stop anyone from arguing that if a freedom isn’t listed, it doesn’t exist. It has shaped some of the most consequential Supreme Court decisions in American history, from the recognition of a right to privacy in the 1960s to the ongoing fight over which unwritten rights still deserve constitutional protection after Dobbs v. Jackson Women’s Health Organization in 2022.
What the Amendment Says
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”1Legal Information Institute. Ninth Amendment
That single sentence carries a straightforward message. The fact that the first eight amendments list specific freedoms does not mean those are the only freedoms you have. The word “retained” is doing important work. It signals that these additional rights already belong to the people and always have. The government didn’t grant them, and the Constitution’s silence about them doesn’t take them away.
Why the Framers Added It
The Ninth Amendment exists because of a genuine fear that writing down rights would backfire. Before the Constitution was ratified, Alexander Hamilton argued in Federalist No. 84 that a bill of rights would actually be dangerous. His reasoning was sharp. If the Constitution said the government couldn’t restrict the press, someone could argue the government must have had the power to restrict the press in the first place, or why bother prohibiting it? Listing protections against specific abuses, Hamilton warned, would “afford a colorable pretext to claim more [powers] than were granted.”2The Avalon Project. Federalist No 84
James Madison took the concern seriously. When he introduced the Bill of Rights to Congress on June 8, 1789, he acknowledged the problem directly: listing certain rights might imply “that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.” Madison called this “one of the most plausible arguments” against a bill of rights, but he believed it could be solved. His solution became the Ninth Amendment.3University of Chicago Press. Amendment IX: James Madison, House of Representatives
The amendment doesn’t create new rights. It’s a rule for reading the Constitution: don’t treat the listed rights as a complete list.
What the Amendment Does Not Do on Its Own
The Ninth Amendment, standing alone, only limits the federal government. It tells federal officials and federal courts not to treat the Bill of Rights as an exhaustive list. But most of the rights that have been recognized under this framework came up in cases involving state laws, not federal ones.
The bridge is the Fourteenth Amendment, ratified in 1868, which prohibits states from depriving any person of “liberty” without due process of law. When the Supreme Court in Griswold struck down a Connecticut statute, or when it in Obergefell struck down state bans on same-sex marriage, it relied on the Fourteenth Amendment’s Due Process Clause as the enforcement mechanism. The Ninth Amendment supplied the underlying idea that unwritten rights exist; the Fourteenth gave courts the tool to enforce them against the states.
The Ninth Amendment itself has never been formally incorporated against the states the way most of the Bill of Rights has been. Legal scholars generally agree that incorporation is unlikely, because the amendment functions as an interpretive rule rather than a specific prohibition. In practice, it works more as a philosophical backstop than a standalone legal weapon.
How the Ninth Amendment Differs From the Tenth
The two amendments are neighbors in the Bill of Rights and sometimes get confused, but they do different things. The Ninth is about individual rights: the people hold freedoms beyond those spelled out in the Constitution. The Tenth is about governmental power: powers not given to the federal government belong to the states or the people.4Legal Information Institute. Tenth Amendment The Ninth is a shield for personal liberty; the Tenth is a fence around federal authority.
How Courts Decide Which Unenumerated Rights Count
If a right isn’t written in the Constitution, how does a court decide it deserves protection? The Supreme Court laid out the modern framework in Washington v. Glucksberg (1997), a case about whether the Constitution protects a right to assisted suicide. The Court said no, and in the process set out a two-part test that has dominated this area of law ever since.5Justia Law. Washington v. Glucksberg, 521 U.S. 702
First, the claimed right must be “deeply rooted in this Nation’s history and tradition.” A court looks at whether the right has long been recognized in American law and practice, not whether it seems like a good idea today. Second, the person claiming the right must describe it with precision. Broad, vague assertions of liberty don’t pass the test. The more specifically the right can be defined, the easier it is for a court to evaluate whether history supports it.
The “deeply rooted” requirement makes it difficult to establish new unenumerated rights that lack historical precedent. As Dobbs showed in 2022, it can also be used to withdraw protections that earlier Courts had recognized.
Rights the Supreme Court Has Recognized
Despite the Ninth Amendment’s brevity, the Supreme Court has recognized a substantial body of unenumerated rights over the past century. These rights are typically protected through the Fourteenth Amendment’s guarantee of liberty, but the Ninth Amendment supplies the conceptual foundation.
- The right to privacy in marriage, recognized in Griswold v. Connecticut (1965), which struck down a state ban on contraceptives.6Justia Law. Griswold v. Connecticut, 381 U.S. 479
- The right to marry, recognized in Loving v. Virginia (1967), which struck down bans on interracial marriage and called marriage “one of the basic civil rights of man.”7Constitution Annotated. Marriage and Substantive Due Process
- The right to direct your children’s upbringing, recognized as early as Meyer v. Nebraska (1923) and reaffirmed in Troxel v. Granville (2000).8Justia Law. Meyer v. Nebraska, 262 U.S. 3909Legal Information Institute. Troxel v. Granville
- The right to intimate conduct, recognized in Lawrence v. Texas (2003), which struck down a state law criminalizing private consensual sexual activity between adults.10Justia Law. Lawrence v. Texas, 539 U.S. 558
- The right to same-sex marriage, recognized in Obergefell v. Hodges (2015).11U.S. Department of Justice. Obergefell v. Hodges Opinion
- The right to interstate travel, most recently addressed in Saenz v. Roe (1999), where the Court described the right as “a necessary concomitant of the stronger Union the Constitution created” even though the text never mentions it.12Legal Information Institute. Saenz v. Roe
None of these rights appear anywhere in the Constitution’s text. Each was identified by courts examining history, tradition, and the structure of American liberty, exactly the kind of inquiry the Ninth Amendment was designed to support.
The Ninth Amendment in Action: Griswold v. Connecticut
Griswold v. Connecticut remains the clearest example of the Ninth Amendment doing real work. Connecticut had a law making it illegal to use contraceptives, even for married couples. The Supreme Court struck it down 7-2, but the justices couldn’t agree on exactly why.6Justia Law. Griswold v. Connecticut, 381 U.S. 479
Justice William O. Douglas wrote the majority opinion, finding a right to marital privacy in the shadows cast by the First, Third, Fourth, and Fifth Amendments. The Ninth Amendment, in the majority’s view, supported the conclusion that such a right existed even though no single amendment named it.
Justice Arthur Goldberg’s concurrence went further. He relied directly on the Ninth Amendment, writing that its “language and history reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.”13Legal Information Institute. Ninth Amendment Doctrine Goldberg’s concurrence is the strongest judicial defense of the Ninth Amendment as an independent source of rights, and scholars still cite it heavily.
The Court later built on Griswold‘s privacy framework in Roe v. Wade (1973), noting that the right at issue could be “founded in the Ninth Amendment’s reservation of rights to the people,” though it ultimately rested the holding on the Fourteenth Amendment.
Where Things Stand After Dobbs
In June 2022, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overruled Roe and changed the conversation about unenumerated rights.14Justia Law. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022) The majority held that the Constitution “does not prohibit the citizens of each state from regulating or prohibiting abortion,” returning the issue to state legislatures.
The reasoning matters as much as the result. The majority applied the Glucksberg framework strictly, finding that a right to abortion was not “deeply rooted in this Nation’s history and tradition” and was not essential to the nation’s “scheme of ordered liberty.” The Court emphasized that judges must “guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy.”15Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization Opinion This signaled a more skeptical approach to recognizing unenumerated rights.
Justice Clarence Thomas wrote a concurrence arguing the Court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” His position was that any right built on substantive due process is “demonstrably erroneous” and should be revisited.16Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization Opinion – Thomas Concurrence No other justice joined that concurrence, and the majority stated that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Even so, the fact that a sitting justice had put those rights on a list made the stakes of unenumerated rights debates feel newly urgent.
The Ongoing Debate
No provision in the Bill of Rights generates more disagreement than the Ninth Amendment. The core question has never been settled: who decides which unenumerated rights exist, and how?
One camp, broadly aligned with originalism, argues that the Ninth Amendment only protects rights that were understood to exist at the time of ratification or that are deeply embedded in American legal tradition. Under this view, the amendment prevents courts from shrinking existing rights but doesn’t authorize judges to discover new ones.
The opposing camp sees the Ninth Amendment as evidence that the Constitution was designed to accommodate change. Under this view, the framers understood they couldn’t anticipate every freedom future generations would need. Advocates point to Justice Goldberg’s Griswold concurrence and to the Obergefell majority’s statement that “history and tradition guide and discipline this inquiry but do not set its outer boundaries.”11U.S. Department of Justice. Obergefell v. Hodges Opinion
After Dobbs, the debate has real consequences. The majority’s strict application of the “deeply rooted in history” test suggests the current Court favors a narrower approach to identifying unenumerated rights. Whether that approach holds, and whether it extends beyond abortion, will likely define constitutional law for a generation.