Ninth Amendment: Rights not listed are still rights

The Ninth Amendment is a rule of interpretation. It says the list of rights in the Constitution isn't the full list: leaving a right out doesn't mean the people don't have it. It answered a worry raised during ratification, that listing some rights would imply government could violate any right not listed. Courts almost never decide a case on the Ninth Amendment alone.

The text

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

Source: National Archives transcription Verified1

What it says, piece by piece

• "The enumeration in the Constitution, of certain rights": the rights the Constitution lists, such as speech, jury trial and the warrant rule.
• "shall not be construed to deny or disparage": the list may not be read as a sign that other rights don't exist or matter less.
• "others retained by the people": rights the people kept, even though the text doesn't name them.

Our reading: the amendment tells judges how not to read the Constitution. It doesn't tell them which unlisted rights exist. That gap is why the amendment is quoted often and enforced rarely.

History

Opponents of a bill of rights argued that listing some rights might imply the government had powers beyond those listed. Presenting his amendments to the House in 1789, James Madison said that concern "may be guarded against" by the text that became the Ninth Amendment Verified2.

Justice Joseph Story later wrote that the clause "was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others" Verified2. In plain terms: naming some rights doesn't mean every unnamed one is gone.

The Ninth and Tenth Amendments were written as a pair. The Ninth is about rights the people keep; the Tenth is about powers the states and the people keep.

How courts read it

• Before 1965, litigants sometimes raised the Ninth Amendment alongside the Tenth, and the Court "consistently rejected those claims" Verified2. In United Public Workers v. Mitchell (1947), the Court said that when a federal law rests on a power the Constitution grants, an objection that the law invades rights reserved by the Ninth and Tenth Amendments "must fail" Verified2.
• Griswold v. Connecticut (1965). The Court struck down a ban on contraceptives for married couples. The majority found "zones of privacy" in "penumbras" of several amendments and quoted the Ninth in support: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" (Griswold v. Connecticut, 381 U.S. 479 (1965)) Verified3. Justice Goldberg's concurrence leaned on the Ninth but disclaimed any belief "that the Ninth Amendment constitutes an independent source of right protected from infringement by either the states or the Federal Government" Verified2.
• A rule of reading. A plurality in Richmond Newspapers v. Virginia (1980) called the amendment a "sort of constitutional 'saving clause,'" and the Constitution Annotated sums up: the Court "has generally treated the Ninth Amendment as a rule of construction for the Constitution rather than a freestanding guarantee of any substantive rights" Verified2.
• Later cases have located unenumerated rights in the Fourteenth Amendment's Due Process Clause, asking whether a right is "deeply rooted in this Nation's history and tradition." In Dobbs (2022), the Court held "the right to abortion is not deeply rooted in the Nation's history and tradition" and overruled Roe and Casey (Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022)) Verified4. See Fourteenth Amendment: substantive due process.

How it reaches Williams

Only as a principle of reading. A claim that a Williams ordinance violates "the Ninth Amendment" alone will almost always fail; the claim needs to be framed under a specific right or the Fourteenth Amendment. Our reading: this reflects how courts treat the amendment, not a single binding holding.

California's version

"Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution" and "This declaration of rights may not be construed to impair or deny others retained by the people" (Art. I, §24) Verified5. The first sentence is why California courts can read state rights more broadly than federal ones.

California also writes down a right the federal text leaves unnamed. Article I, §1 says: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy" Verified5. See California Article I: liberty and equality.

In Williams

Our reading: the practical lesson is to name the right. If you think a Williams rule or practice goes too far into your private life, the Ninth Amendment won't carry the argument by itself. Start with a right that is written down:

• the Fourth Amendment and Art. I, §13 for searches and entry (Williams: entry and inspection);
• the Fourteenth Amendment's Due Process Clause for fair procedure and deeply rooted liberties;
• California's right of privacy in Art. I, §1 Verified5.

We haven't found a published court decision about a Williams ordinance that rests on the Ninth Amendment, and we don't claim one exists.

Common misconceptions

• "The Ninth Amendment protects any right I can name." Courts don't enforce it as a freestanding source of specific rights.
• "Unlisted rights have no protection." The amendment says the opposite; protection usually comes through due process.
• "Privacy isn't in any constitution." The word isn't in the U.S. Constitution, but it is in California's (Art. I, §1) Verified5.

Check yourself

Pick an answer for each question. You will see right away if it is right, and why.