Ninth Amendment — Unenumerated Rights Retained by the People
The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This amendment was included in the Bill of Rights to address a specific concern raised during ratification: if the Constitution listed some rights (speech, religion, jury trial), would that imply that the people had no other rights? The Ninth Amendment answers: no — the listing of specific rights does not mean those are the only rights that exist. The people retain all of their natural and fundamental rights, whether or not the Constitution mentions them. Despite its seemingly sweeping language, the Ninth Amendment has been one of the Constitution's most enigmatic and underenforced provisions. The Supreme Court has never used it as the sole basis for striking down a law. Justice Goldberg's famous concurrence in Griswold v. Connecticut (1965) argued that the Ninth Amendment supports a constitutional right to privacy — including the right of married couples to use contraception — but the majority relied on "penumbras" of the Bill of Rights rather than the Ninth Amendment standing alone. The amendment's role in constitutional law remains deeply debated: originalists tend to view it as a rule of construction (don't read the Bill of Rights as implying no other rights exist) rather than an independent source of judicially enforceable rights; others view it as evidence that the Constitution protects a broad range of unenumerated fundamental rights — including privacy, bodily autonomy, and personal liberty — that courts should enforce. In practice, most unenumerated rights are protected through the Due Process Clause (substantive due process) rather than the Ninth Amendment directly.
Current Law (2026)
| Parameter | Value |
|---|---|
| Constitutional provision | Ninth Amendment (1791) |
| Text | "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" |
| Function | Rule of construction — listing specific rights does not negate others |
| Judicial enforcement | Never used as the sole basis for striking down a law |
| Relationship to substantive due process | Unenumerated rights are typically protected through the 14th Amendment Due Process Clause instead |
| Key cases | Griswold v. Connecticut (1965, Goldberg concurrence), Roe v. Wade (1973, dicta), Dobbs v. Jackson (2022, rejecting unenumerated abortion right) |
| Debate | Rule of construction vs. independent source of judicially enforceable rights |
Legal Authority
- U.S. Constitution, Amend. IX — "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"
- Griswold v. Connecticut (1965) — Justice Goldberg's concurrence argued the Ninth Amendment supports a right to marital privacy; majority relied on "penumbras" of other amendments
- Richmond Newspapers v. Virginia (1980) — Chief Justice Burger cited the Ninth Amendment in supporting a right of public access to criminal trials
- Dobbs v. Jackson Women's Health (2022) — Rejected unenumerated right to abortion; reinforced the view that unenumerated rights must be "deeply rooted in this Nation's history and tradition"
How It Works
The Ninth Amendment was James Madison's solution to a specific problem raised during the ratification debates: Alexander Hamilton (Federalist No. 84) argued against a Bill of Rights because listing specific rights would be dangerous — creating the implication that any right not listed didn't exist. If the Constitution said "Congress shall make no law abridging freedom of speech," wouldn't that imply Congress could abridge every other right not mentioned? The Ninth Amendment is, at minimum, a rule of construction: don't read the enumeration of specific rights as a complete or exhaustive list. Its most prominent case-law moment came in Griswold v. Connecticut (1965), where Justice Goldberg's influential concurrence argued that the Ninth Amendment demonstrates the Constitution protects fundamental rights beyond those expressly enumerated — including marital privacy. But the majority opinion by Justice Douglas relied on "penumbras" emanating from specific Bill of Rights guarantees, not the Ninth Amendment standing alone — illustrating the provision's limited doctrinal traction.
In practice, unenumerated rights — privacy, contraception, marriage, bodily autonomy, parental rights — are protected through substantive due process under the Fourteenth Amendment's Due Process Clause, not the Ninth Amendment. The Fourteenth Amendment is incorporated against the states; the Ninth Amendment's applicability to states is debated. Substantive due process has a more developed doctrinal framework (the "deeply rooted in history and tradition" test from Washington v. Glucksberg, 1997, reinforced in Dobbs, 2022), leaving the Ninth Amendment in the background — cited alongside other provisions but never the deciding factor. The underlying interpretive debate remains live: originalists treat the Ninth as a federalism provision limiting federal overreach but not authorizing courts to discover new rights, while rights theorists read it as an affirmative recognition that the people hold fundamental rights beyond those listed, judicially enforceable against both federal and state infringement. The companion structural provision is the Tenth Amendment, which reserves undelegated powers to the states or the people.
How It Affects You
If you're a constitutional litigant or attorney arguing for an unenumerated right: Don't lead with the Ninth Amendment alone — courts have never used it as the sole basis for striking down a law. Structure your argument around substantive due process under the Fourteenth Amendment as the primary doctrine, with the Ninth Amendment as supporting context showing that the Framers themselves understood the Constitution to protect rights beyond those enumerated.
The operative test for unenumerated rights under current Supreme Court doctrine comes from Washington v. Glucksberg (1997), reinforced in Dobbs v. Jackson Women's Health (2022): the right must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." This is a demanding test that the current Court applies strictly. If your right passes Glucksberg's test — because it's deeply rooted — you don't need the Ninth Amendment independently. If it doesn't pass, the Ninth Amendment's uncertain status makes it unlikely to substitute.
Post-Dobbs landscape: Justice Thomas's Dobbs concurrence explicitly called for reconsideration of Griswold v. Connecticut (contraception), Lawrence v. Texas (same-sex intimacy), and Obergefell v. Hodges (marriage equality). These three precedents remain valid law as of 2026 — no majority has overruled them. But the concurrence created legitimate questions about whether Fourteenth Amendment substantive due process can sustain them if the Court shifts. The Ninth Amendment's role in this debate: if the Court ever reconsidered those rights, the Ninth Amendment is one of the textual arguments that the Constitution doesn't mean to leave personal liberty unprotected simply because it isn't spelled out. Whether any current Justice would embrace this argument is uncertain.
State constitutional grounds: Many state constitutions have stronger explicit privacy or retained-rights provisions than the federal Ninth Amendment. If you're litigating an unenumerated rights claim, analyze your state constitution separately — state courts have been more willing than current federal courts to protect unenumerated rights under state constitutional provisions. California, Montana, Florida, and other states have constitutional privacy provisions that provide stronger grounds than the federal Ninth Amendment for certain claims.
If you're a legislator or executive official contemplating restrictions on personal liberty: The Ninth Amendment embodies the Framers' recognition that government power is limited even where no specific constitutional text prohibits action. Legislation restricting personal decisions — healthcare, family structure, intimate relationships, bodily autonomy — may face constitutional challenges even without an express textual prohibition. After Dobbs, the Supreme Court's framework assesses whether the restricted liberty is "deeply rooted in history and tradition"; restrictions on clearly historical personal freedoms face a harder constitutional path than restrictions on rights the Court deems not traditionally protected.
At the state level, the political branches have broader latitude after Dobbs — state restrictions on matters like reproductive rights are evaluated against state constitutional provisions, not federal substantive due process. State courts operating under state constitutions may apply different (sometimes stricter) standards. Before enacting restrictions on personal liberty, understand the applicable state constitutional analysis as well as the federal.
If you're a constitutional scholar or student grappling with the Ninth Amendment's meaning: The core interpretive divide: (1) Rule of construction only (Scalia, Bork, McConnell) — the Ninth Amendment tells courts not to read the enumerated rights as exhaustive, but doesn't independently authorize courts to discover new rights; (2) Federalism provision — it reserves unenumerated rights to the states, not to federal judicial enforcement; (3) Affirmative source of judicially enforceable rights (Barnett, Tribe) — courts should protect fundamental liberties against government restriction, with government bearing the burden of justifying restrictions on natural rights retained by the people; (4) Democratic process protection (Ely) — courts should protect minorities whose rights the democratic majority is structurally unlikely to protect.
The Dobbs decision sharpened the debate by reinforcing the "history and tradition" framework and inviting reconsideration of substantive due process precedents. Scholars who favor a broader Ninth Amendment now argue that if substantive due process is eroded, the Ninth Amendment could serve as an independent textual basis for protecting fundamental liberties — one that doesn't require the historical pedigree test. Whether this argument could gain traction in the current Court is an open question; no Justice in the Dobbs majority explicitly embraced a Ninth Amendment alternative, but Justice Kavanaugh's concurrence suggesting Dobbs wouldn't threaten Griswold or Lawrence implicitly acknowledged that the underlying liberty interests remain constitutionally significant.
State Variations
The Ninth Amendment's applicability to state governments is debated:
- The Supreme Court has never explicitly incorporated the Ninth Amendment against the states through the Fourteenth Amendment
- In practice, unenumerated rights are enforced against states through substantive due process (14th Amendment)
- Some state constitutions have their own "retained rights" provisions modeled on the Ninth Amendment
- State courts may be more willing than federal courts to recognize unenumerated rights under state constitutional provisions
Implementing Regulations
This is a constitutional provision with no implementing regulations in the Code of Federal Regulations. Key judicial doctrine includes:
- Griswold v. Connecticut (1965) — The Ninth Amendment's most prominent appearance in Supreme Court history. Justice Goldberg's influential concurrence argued that the amendment affirmatively recognizes fundamental rights beyond those enumerated, including a right to marital privacy that prohibits states from banning contraceptives. The majority instead relied on "penumbras" of the Bill of Rights, leaving the Ninth Amendment as supporting context rather than a standalone holding.
- Richmond Newspapers, Inc. v. Virginia (1980) — Chief Justice Burger's plurality opinion cited the Ninth Amendment alongside historical tradition to support a First Amendment right of public access to criminal trials. One of the few cases where the Court invoked the Ninth Amendment as affirmative support for an unenumerated right — here, the right to attend trials — rather than merely as interpretive background.
- Troxel v. Granville (2000) — Recognized a fundamental parental right to direct the upbringing of children as an unenumerated liberty protected under substantive due process. The case illustrates how courts protect rights the Ninth Amendment arguably covers — parental rights, family autonomy — through the Due Process Clause rather than the Ninth Amendment directly.
- Dobbs v. Jackson Women's Health Organization (2022) — Overruled Roe v. Wade and rejected the constitutional basis for abortion rights. The majority reinforced the Glucksberg requirement that unenumerated rights must be "deeply rooted in this Nation's history and tradition" — an interpretive framework critics argue conflicts with the Ninth Amendment's express warning against treating enumerated rights as exhaustive. The decision reignited scholarly debate about whether the Ninth Amendment could serve as an alternative doctrinal home for fundamental rights.
Pending Legislation
No standalone legislation pending in the 119th Congress directed at the Ninth Amendment. Constitutional amendment proposals in this area are rare. For legislative activity most directly affecting unenumerated rights — reproductive rights, parental rights, privacy — see Due Process Clause and Equal Protection Clause. The Religion Clauses protect the related unenumerated dimension of religious liberty, where these debates play out legislatively.
Recent Developments
The Ninth Amendment featured prominently in scholarly and public discussion following Dobbs v. Jackson Women's Health Organization (2022), which overruled Roe v. Wade and Planned Parenthood v. Casey. Dobbs reinforced the view that unenumerated rights must be "deeply rooted in this Nation's history and tradition" to receive constitutional protection — an approach that critics argue is inconsistent with the Ninth Amendment's text, which expressly warns against treating the Constitution's list of rights as exhaustive. The decision reignited debate about whether the Ninth Amendment could serve as an alternative basis for protecting fundamental rights that the current Court's approach to substantive due process may not reach.
- Post-Dobbs lower courts have largely rejected the Ninth Amendment as an independent cause of action: federal courts in 2023-2025 consistently held that affirmative rights claims require due process or equal protection grounding; the Ninth Amendment functions as an interpretive guide, not a standalone source of enforceable rights.
- Trump's EO 14168 on biological sex (January 2025) prompted Ninth Amendment arguments from challengers who argued the order denies unenumerated rights recognized over prior decades; courts resolved most challenges on equal protection or APA grounds without reaching Ninth Amendment claims.
- Justice Thomas's Dobbs concurrence flagging Griswold (contraception) and Obergefell (same-sex marriage) for potential reconsideration has elevated the political salience of unenumerated rights in 2025 legislative debates, with some state legislatures drafting preemptive statutes ahead of anticipated Supreme Court review.