Module 23: The Ninth Amendment

The Text

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

U.S. Const. amend. IX (ratified December 15, 1791)¹

The sentence has 21 words, and it names no right at all. The enrolled resolution of September 25, 1789 numbered it "Article the eleventh," and it became part of the Constitution on December 15, 1791, when ten of the twelve proposed articles were ratified.¹ Most of the Bill of Rights protects something specific: speech, arms, a jury, a ban on cruel punishments. The Ninth is a sentence about how to read those sentences.

The words do specific work. An "enumeration" is a list, and "certain rights" are the ones on it. "Shall not be construed" is an instruction to interpreters, which means judges, but also legislators and executive officers who decide what the Constitution allows. "Deny or disparage" names two ways of misreading a list: treating the omitted rights as nonexistent, or treating them as lesser. And "others retained by the people" refers to a second set of rights that exist apart from the list and were kept, not granted.

The text leaves several things open. It does not say what the other rights are. It does not say who may enforce them, or whether a court may. It does not say whether they are legal rights, moral rights or both. Nearly everything written about the Ninth Amendment since 1965 is an argument about those gaps, and the rest of this lesson follows that argument from its source.

The phrase "in the Constitution" reaches beyond the eight amendments before it. Michael McConnell, a law professor and former federal appeals judge, counts among the enumerated rights the prohibitions on bills of attainder, ex post facto laws and laws impairing contracts in Article I, sections 9 and 10, along with Article III's guarantee of jury trial in criminal cases.²

Whom does it bind? In Barron v. Baltimore (1833), Chief Justice Marshall wrote for the Court that the first amendments "contain no expression indicating an intention to apply them to the state governments."³ That is the background for the Ninth: when it was ratified it restrained the national government only. Justice Goldberg wrote in 1965 that he did not mean the Fourteenth Amendment applies the Ninth to the states, a point that matters for the opinion discussed below.⁴ The Ninth sits beside the Tenth Amendment, which reserves powers to "the States respectively, or to the people." Madison's first draft of the Ninth carried a warning against enlarging federal powers by implication, which is the Tenth's concern, so the two amendments share a history. The companion lesson is The Tenth Amendment.¹⁵

Retained Rights: The Idea Before the Words

The word "retained" comes from a theory of government that most educated colonists shared. People in a state of nature have rights, and when they form a government they give up some of those rights to gain protection for the rest. The rights kept are retained. The rights given up are surrendered, and the government that receives them holds only what was granted. McConnell identifies this as the language of Lockean social compact theory and argues that the Ninth Amendment borrows its vocabulary directly from it.²

The English law books of the period spoke the same way. Blackstone wrote in 1765 that the principal aim of society is to protect individuals in "those absolute rights, which were vested in them by the immutable laws of nature," and he sorted those rights into personal security, personal liberty and private property.⁶ The Massachusetts House of Representatives told the other colonial legislatures in a circular letter of February 11, 1768 that it is "an essential unalterable Right in nature" that what a man has honestly acquired is his own and cannot be taken without his consent.⁷ Samuel Adams, drafting for a Boston town committee in November 1772, listed the natural rights of the colonists as "a Right to Life; Secondly to Liberty; thirdly to Property."⁸

The Continental Congress used the same grounds on October 14, 1774. Its Declaration and Resolves said the colonists held their rights "by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts." Natural law came first on the list, with the English constitution and the colonial charters as additional supports.⁹ After independence, the new states wrote it into their own constitutions. Pennsylvania's 1776 Declaration of Rights opened by saying that all men "have certain natural, inherent and inalienable rights," among them enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing happiness and safety.¹⁰ The Massachusetts Constitution of 1780 began Article I the same way with "natural, essential, and unalienable rights."¹¹

These documents treat enumeration as illustration. Each lists some rights and says "among which," which means the list is not meant to be complete. That habit of mind is what the Ninth Amendment later put into a sentence.

McConnell draws a distinction that the founding generation also drew. Natural rights are those a person has before government exists. "Retained" rights are the subset of natural rights that survive the compact. "Positive" rights, such as trial by jury, never existed in the state of nature at all; the compact creates them, so they are "stipulated" instead of retained.² The Federal Farmer made the same point in January 1788 when he wrote of rights that individuals "acquire by compact," and Madison drew the same line in his June 8, 1789 speech to the House. Bills of rights, he said, sometimes specify "those rights which are retained when particular powers are given up to be exercised by the Legislature," and sometimes specify "positive rights," and trial by jury, he said, "cannot be considered as a natural right."¹² This matters for the Amendment because the people who wrote it had a specific category in mind, and it was narrower than "anything a person might want to do."

McConnell offers examples of rights that might fit the retained category, and he does so without arguing that any of them is constitutionally protected: the right to control the upbringing of one's children, to travel, to control one's own medical care, to pursue a profession, and of self-defense.² He also notes that during the Bill of Rights debates a member of the House joked about a right to wear a hat and a right to go to bed when one pleases.²

The Objection That Produced the Amendment

The Constitutional Convention of 1787 adopted no bill of rights. The Constitution Annotated says a proposal to add one was rejected late in the Convention, and George Mason's objection that "There is no Declaration of Rights" became one of the standard Anti-Federalist complaints.¹³ Several state conventions ratified on the understanding that amendments would follow, and Justice Powell's dissent in Garcia notes that eight states voted for the Constitution only after proposing amendments.¹³

The argument that mattered most for the Ninth came from the Federalists, and Alexander Hamilton made it in Federalist No. 84 on May 28, 1788. A bill of rights, he wrote, was unnecessary in the proposed Constitution and "would even be dangerous." His reasoning was that it would contain exceptions to powers never granted, and that this would give people "disposed to usurp" a "plausible pretense" for claiming the power was there. He gave the freedom of the press as the example: why say it shall not be restrained when no power to restrain it has been given?¹⁴

The Anti-Federalists reversed the same logic. "John DeWitt," writing in October 1787, described the doctrine of "tacit implication," under which a government holds every power the people did not expressly reserve, as the favorite theme of every tyrant.¹⁵ The Federal Farmer, in Letter 16 of January 20, 1788, reasoned that when a people enumerate some rights and say nothing about others "the implication indubitably is, that they mean to relinquish the latter," so the people "ought to go through enumerating" all the rights of individuals that could come into question.¹⁶ Both sides saw that a list creates an inference about what is left off. They disagreed about which way the inference should cut: against writing a list, or in favor of writing a longer one.

Madison, who had been skeptical of a federal bill of rights, put the danger in his own terms. In a letter to Jefferson in October 1788, quoted in the 1980 opinion in Richmond Newspapers, he said he was "in favor of a bill of rights" but had "not viewed it in an important light." He wrote that the rights in question are in some degree reserved by the way the federal powers are granted, and he feared "a positive declaration of some of the most essential rights could not be obtained in the requisite latitude."¹⁷ That last phrase is the Ninth Amendment's reason in compact form. Any list would be incomplete, and an incomplete list could be read as a complete one.

What the State Conventions Asked For

Three of the state ratifying conventions sent Congress formulas that sit directly behind the Ninth Amendment. New York's declaration of July 26, 1788 said "that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution."¹⁸

Virginia's proposed amendments of June 27, 1788 contained the same idea as the 17th item: those clauses which declare that Congress shall not exercise certain powers "be not interpreted, in any manner whatsoever, to extend the powers of Congress," but "be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution."¹⁹ North Carolina's declaration of August 1, 1788 repeated Virginia's language as its 18th item.²⁰

The closing words are the same in all three: "inserted merely for greater caution." The reasoning answers the worry Hamilton had put in print. If the Constitution says Congress may not do something, the clause is either a limit on a power that was granted or an extra precaution about a power that was not, and in neither case does it imply that Congress has powers it was never given. Each of the three proposals concerns powers.

The word "retained," which became the center of the Ninth, appears in none of the three texts this lesson read. Virginia and North Carolina did open their proposals with a declaration that there are "certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity," and New York asserted "essential rights, which every government ought to respect and preserve."¹⁹²⁰¹⁸ New York also said that every power, jurisdiction and right "not by the said Constitution clearly delegated" to Congress "remains to the people of the several states." That is a statement about powers and it is the ancestor of the Tenth Amendment; the Tenth Amendment lesson covers the wording changes that followed.¹⁸

Kurt Lash, a law professor at the University of Richmond, builds a reading of the Ninth on this record. According to the abstract of his 2004 Texas Law Review article, he argues that the amendment's historical roots lie in the state ratification conventions' demands for a provision against expanding federal power by implication, that Madison's first draft reflected that language, and that the final wording troubled Virginia's governor, Edmund Randolph, whose concerns Anti-Federalists used to delay Virginia's ratification of the Bill of Rights by about two years.²¹ This lesson could not read the article itself and relies on its SSRN abstract page for this description.

Madison's June 8, 1789 Draft

James Madison opened the First Congress's work on amendments on June 8, 1789, when he reminded the House that this was the day he had named for the subject and said he considered himself "bound in honor and in duty" to bring the amendments forward. He offered nine proposals. The fourth would have inserted a list of rights into Article I, section 9, between clauses 3 and 4. The list included religious freedom, speech and press, assembly, arms, the quartering of soldiers, double jeopardy, self-incrimination, due process, takings, excessive bail and cruel punishments, searches, and the rights of the accused in criminal prosecutions. The last sentence in that insertion was the draft of what became the Ninth Amendment.⁵

"The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution."

James Madison, resolutions in the House of Representatives, June 8, 1789 (fourth resolution)⁵

It runs to 57 words, against 21 in the amendment as ratified, and it does two jobs. The first half says the listed rights must not be read to "diminish the just importance of other rights retained by the people." That is the rights side, and it is the part that survived. The second half says the listed rights must not be read "to enlarge the powers delegated by the Constitution," and that they are either "actual limitations of such powers" or "inserted merely for greater caution." That is the powers side, and its closing phrase is the formula from the New York, Virginia and North Carolina proposals.^5181920

Notice what is missing from the three conventions' texts and present in Madison's: the first half. The phrase about "other rights retained by the people" has no counterpart in the three proposals this lesson read, so it appears to be Madison's own addition, bolted onto the conventions' formula. This lesson did not search the other states' proposals for an earlier version and cannot say who first used that language.^5181920

Madison's eighth proposal contained the early form of the Tenth Amendment: "The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively." It had no phrase about "the people" and no word like "expressly."⁵ In the June 8 draft, then, the rights-and-powers clause lived with the list of rights, and the general reservation of powers had a separate article of its own.

His speech gave the reasoning. He conceded that many friends of the Constitution had thought such a provision "even improper," and that some had gone so far as to think it "even dangerous." Then he took up the dangerous argument directly. The objection, he said, was that by enumerating particular exceptions to the grant of power, a bill of rights "would disparage those rights which were not placed in that enumeration," and that it might follow "by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure." He called this "one of the most plausible arguments I have ever heard urged against the admission of a bill of rights," and said he conceived "that it may be guarded against." He pointed to "the last clause of the fourth resolution."²²¹²

The argument is Hamilton's argument from Federalist No. 84 in nearly the same words. Joseph Story later wrote that the amendment "was undoubtedly suggested by the reasoning of the Federalist on the subject of a general bill of rights."²³ Madison also made a second point in the same speech that matters for later debates. If rights were written into the Constitution, he said, "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights," and he spoke of resisting encroachment upon "rights expressly stipulated for in the Constitution." McConnell reads the word "expressly" as a deliberate limit: the courts would guard the listed rights, and the retained rights stood on different footing.¹²² Others read the passage differently. It is quoted here as the primary text that the debate turns on.

From the House Floor to Ratification

The House did not take Madison's package straight to a vote. It referred the subject to a committee with one member from each state, and on August 13 it took up the amendments in a Committee of the Whole.⁵ By then the Ninth had been reworded. When the House reached it on August 17, 1789 it was "the eighth clause of the fourth proposition," and it read: "The enumeration in this constitution of certain rights shall not be construed to deny or disparage others retained by the people." The warning against enlarging federal powers was gone from the clause, and the rights half stood alone.²⁴

The Annals record one exchange. Elbridge Gerry said the clause ought to read "deny or impair," because "disparage" was not of plain import, and he moved the change. His motion was not seconded. The question was taken on the clause as written, and it passed.²⁴ The Annals excerpt this lesson read records no other debate on the clause. Justice Goldberg wrote in 1965 that the Amendment "passed the House and Senate with little or no debate and virtually no change in language."⁴

Gerry's word turned up again a century later in Idaho. Article I, section 21 of the Idaho Constitution says the enumeration of rights "shall not be construed to impair or deny other rights retained by the people."²⁵ This lesson did not find a source that says the Idaho delegates took the word from Gerry's motion, so that connection is a similarity of wording and nothing more.

A fight over form shaped where the Ninth ended up. Madison's plan was to weave the amendments into the existing text, as his fourth proposal did with Article I, section 9. On August 13 Roger Sherman argued that this was the wrong method and said amendments should not be interwoven into the Constitution. His motion to add them as a supplement lost in the Committee of the Whole. On August 19 he renewed the motion in the full House, and the Annals report that it "was carried by two-thirds of the House."²⁶²⁷ The result was that the amendments were appended as a separate list, and the Ninth became a free-standing article instead of the last sentence of a block inside Article I.

The enrolled joint resolution, dated September 25, 1789, set out twelve articles. The rights clause stands as "Article the eleventh," and the text reads "in the Constitution," where the House's August text read "in this constitution."¹²⁴ This lesson did not read the Senate Journal and cannot say when the Senate made that change or why. The articles went to the states, and on December 15, 1791 ten of the twelve had been ratified by three-fourths of the state legislatures. The Ninth was one of the ten.¹

Story's Commentaries of 1833 gave the early reading. The clause, he wrote, "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."²³ His point is about a rule of inference. The maxim is sound when rightly understood, he said, but it had been "strangely forced from its natural meaning into the support of the most dangerous political heresies." The Ninth removes that maxim from the toolbox for reading a list of rights.²³

A Sentence Courts Mostly Left Alone, 1791 to 1964

For most of two centuries the Ninth Amendment sat nearly unused. The Constitution Annotated says cases before 1965 contain little analysis of it, and that litigants who raised it, usually alongside the Tenth or other provisions, saw their claims dismissed with limited discussion. It names Ashwander v. TVA (1936), Tennessee Electric Power Co. v. TVA (1939), Roth v. United States (1957) and Singer v. United States (1965) as examples.²⁸

Part of the reason is Barron. The Bill of Rights restrained the national government and not the states, and Justice Goldberg described the whole Bill of Rights, the Ninth included, as originally concerned with restrictions upon federal power.³⁴ Another part is the way the Court read the Ninth on the occasions when it did address it.

The main early case is United Public Workers v. Mitchell, reargued October 17, 1946 and decided February 10, 1947. Federal employees challenged the Hatch Act's ban on political activity, and among their arguments was that the Act invaded rights reserved by the First, Fifth, Ninth and Tenth Amendments. The Court accepted that "political rights reserved to the people by the Ninth and Tenth Amendments" were involved. It then said that when someone objects that a federal power infringes the rights reserved by those amendments, the inquiry turns to the granted power under which Congress acted, and if the granted power is found the objection fails.²⁹²⁸

That is a reading of the Ninth as the mirror image of enumerated powers. Rights are retained to the extent that powers were not granted, so a claim based on the Ninth rises or falls with the scope of a granted power. The Court did not say the Ninth protects a right Congress's powers could not reach. Justice Stewart summed up the older understanding in 1965 when he described the Ninth, like the Tenth, as stating "but a truism that all is retained which has not been surrendered," a phrase he took from the Court's 1941 decision in United States v. Darby about the Tenth Amendment.⁴

Stewart also wrote, in the same opinion, that as far as he was aware the Court had referred to the Ninth Amendment before 1965 only in Mitchell and a few other cases, and his footnote lists them.⁴ That matches the Constitution Annotated: the Ninth was invoked now and then, and the claims that relied on it failed.

Griswold v. Connecticut (1965): The Ninth Comes Back

Connecticut's law dated from 1879 and made it a crime to use "any drug, medicinal article or instrument for the purpose of preventing conception." The penalty was a fine of not less than fifty dollars or imprisonment of not less than sixty days and not more than one year, or both. A separate statute let the state prosecute anyone who assisted or counseled another to commit an offense as if he were the principal offender.⁴ Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Dr. Buxton, a physician and Yale Medical School professor who served as the League's medical director, ran a New Haven center that gave married people information and medical advice. It was open from November 1 to November 10, 1961, when they were arrested. They were convicted as accessories and fined $100 each.⁴ The Supreme Court heard argument on March 29, 1965 and decided the case on June 7, 1965. Justices Black and Stewart dissented and the other seven joined the judgment.⁴²⁸

Justice Douglas wrote the opinion of the Court. The Court first held that the appellants could raise the rights of the married people they served.⁴ On the merits, Douglas started from decisions in which the Court had protected things the Constitution does not name, such as the freedom to associate. From those cases he drew the sentence the opinion is best known for: "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Various guarantees, he wrote, "create zones of privacy," and he pointed to the First Amendment's association right, the Third Amendment's ban on quartering soldiers in a house, the Fourth Amendment's protection of persons and houses, and the Fifth Amendment's self-incrimination clause. At the end of that list he quoted the Ninth Amendment, in a single sentence, and went on.⁴ The Court concluded that the case "concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." It closed with a passage on marriage that begins, "We deal with a right of privacy older than the Bill of Rights."⁴

So the majority opinion mentions the Ninth once and does not rest on it. The Constitution Annotated puts it the same way: the majority cited the Ninth alongside the substantive rights in the First, Third, Fourth and Fifth Amendments.²⁸

The Ninth Amendment's real moment in Griswold came in a concurrence. Justice Goldberg, joined by Chief Justice Warren and Justice Brennan, joined the Court's opinion and judgment and then wrote separately to "emphasize the relevance" of the Ninth. He wrote that the language and history of the Amendment "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." He quoted Madison's June 8 speech and Story's Commentaries, both discussed above, and concluded that the right of privacy in marriage was a personal right "retained by the people" within the meaning of the Ninth.⁴

Goldberg was careful about what he did not claim. He said he did not mean that the Ninth Amendment is applied against the states by the Fourteenth. He did not mean that the Ninth is "an independent source" of rights protected from infringement by the states or the federal government. His claim was narrower: the Ninth shows "an intent that the list of rights included there not be deemed exhaustive," and so it supports reading the "liberty" protected by the Fifth and Fourteenth Amendments as reaching more than the rights specifically listed.⁴ On the objection that this gave judges too much room, he answered that judges "are not left at large" to decide cases by personal notions, because they must look to the "traditions and (collective) conscience of our people," and he wrote that he did not see how his reading "broadens the authority of the Court."⁴

Justices Harlan and White concurred in the judgment only. Harlan said he could not join the Court's opinion, and White found that the law as applied to married couples deprived them of liberty without due process under the Fourteenth Amendment. Neither relied on the Ninth.⁴

Justice Black, joined by Justice Stewart, dissented and answered Goldberg point by point. He wrote that he discussed the due process and Ninth Amendment arguments together because they "turn out to be the same thing," each a way of claiming for the Court the power to invalidate any legislative act the judges find irrational or offensive. He called the use of the Ninth Amendment to strike down state law a "recent discovery." He wrote that the history of the Constitution and Bill of Rights "points the other way," and observed that for a century and a half no one had seriously suggested that the Ninth, which he said was enacted to protect state powers against federal invasion, could be a weapon of federal power against state legislatures. He wrote that he could not rely on the Due Process Clause, the Ninth Amendment or any "mysterious and uncertain natural law concept" to strike down the law, and that if the law did not reflect the standards of Connecticut's people, they could "freely exercise their true Ninth and Tenth Amendment rights" to persuade their legislators to repeal it.⁴

Justice Stewart's separate dissent called the Connecticut statute "an uncommonly silly law," obviously unenforceable except in the context of the case. The Court, he wrote, was being asked to hold that it violates the Constitution, "And that I cannot do." He noted that the Court's opinion refers to six Amendments, the First, Third, Fourth, Fifth, Ninth and Fourteenth, without saying which of them, if any, the law infringes, and he wrote that he could find no "such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court." On the Ninth, he wrote that to say it has anything to do with the case is "to turn somersaults with history." The Ninth, like the Tenth, he said, was framed by Madison and adopted "simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers." And the idea that a federal court could use it to annul a law passed by the people's elected representatives in Connecticut "would have caused James Madison no little wonder."⁴

The result is a case that is cited for the Ninth Amendment and was decided on other grounds. Seven Justices reversed the convictions. Of those seven, three signed an opinion that gave the Ninth a real role, while the Court's opinion used it as one item in a list. Every later discussion of the Amendment returns to the two sides in this one opinion: Goldberg's reading of the Ninth as evidence that the list is not complete, and Black's and Stewart's reading of it as a rule that leaves federal powers where they were.⁴

Richmond Newspapers v. Virginia (1980): Madison as History

The next major appearance of the Ninth came fifteen years later, in a case about whether the public and the press may attend a criminal trial. The defendant in Richmond Newspapers, Inc. v. Virginia was being tried for murder for the fourth time: his first conviction had been reversed, and two retrials had ended in mistrials. At the start of the fourth trial defense counsel moved to close the proceedings to the public, saying he did not want information passing back and forth during recesses about who had testified to what. Neither the prosecutor nor the newspaper that was covering the trial objected at that point, and the judge ordered the trial to continue "with the press and public excluded." The Court heard argument on February 19, 1980 and decided the case on July 2, 1980.¹⁷

A year earlier, in Gannett Co. v. DePasquale, the Court had held that the Sixth Amendment's public-trial guarantee belongs to the accused and gives the public and press no separate right of access to pretrial proceedings.¹⁷ That left open whether another part of the Constitution did. In Richmond Newspapers the Court held that it did, and it found the right in the First Amendment.

Chief Justice Burger announced the judgment of the Court and wrote an opinion joined by Justices White and Stevens. Justice Powell took no part. Justices White and Stevens filed concurrences, Justice Brennan (joined by Justice Marshall), Justice Stewart and Justice Blackmun each concurred in the judgment, and Justice Rehnquist dissented. The vote was seven to one.¹⁷ The Chief Justice held that the right to attend criminal trials is "implicit in the guarantees of the First Amendment," and that "absent an overriding interest articulated in findings," a criminal trial must be open to the public.¹⁷

The Ninth Amendment enters through the answer to a State argument. The State said the Constitution nowhere spells out a public right to attend trials, so none exists. Burger replied that the drafters had foreseen that move: "they were concerned that some important rights might be thought disparaged because not specifically guaranteed." He cited Federalist No. 84 and Madison's October 1788 letter to Jefferson, and he wrote that arguments like the State's "have not precluded recognition of important rights not enumerated." The Court "has acknowledged that certain unarticulated rights are implicit in enumerated guarantees," and he listed association, privacy, the presumption of innocence, the reasonable-doubt standard and the right to travel as examples. He concluded that the concerns of Madison and others "have thus been resolved."¹⁷

The Ninth Amendment itself appears in footnote 15, where the Chief Justice wrote that Madison's comments in Congress reveal the perceived need for a "saving clause" to foreclose use of the maxim that the affirmation of particular rights implies a negation of those not expressly defined, and that "Madison's efforts, culminating in the Ninth Amendment, served to allay the fears" of those who thought expressing some guarantees could be read as excluding others.¹⁷ The footnote cites Annals 438 to 440 and Story's Commentaries.¹⁷

That is a narrow use. The plurality did not hold that the Ninth Amendment protects a right to attend trials; it held the right is implicit in the First Amendment. The Ninth supplied the historical answer to a particular argument, that a right absent from the text is absent from the Constitution, and the answer is that the text was written to forestall exactly that inference. This reading is closer to Story's than to Goldberg's, since the Ninth is used to resist a negative inference and not as a source of the right.

Two of the other opinions treated the plurality's use of the Ninth in sharply different ways. Justice Blackmun, concurring in the judgment, said the Court had "eschewed the Sixth Amendment route" and turned to "a veritable potpourri" of other sources, including the Speech, Press and Assembly Clauses, the Ninth Amendment and penumbral guarantees, a course he called troublesome but one the Court had chosen. He remained convinced that the right is found in the Sixth Amendment.¹⁷ Justice Rehnquist, dissenting, said he did not believe the First or Sixth Amendment required further review of a closure order that both the prosecutor and defendant had agreed to, and he "most certainly" did not believe that the Ninth Amendment gave the Court power to review orders of state trial judges in that situation.¹⁷

Roe, Glucksberg, Troxel and Dobbs: A Ninth Amendment Without a Holding

The next decision in which the Ninth Amendment figures is Roe v. Wade (argued December 13, 1971, reargued October 11, 1972, decided January 22, 1973). The plaintiffs in Texas claimed that the state's abortion statutes abridged their right of personal privacy "protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments." The district court held that the right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment.³⁰ In the Supreme Court, Justice Blackmun's opinion recorded that the appellant would find her claimed right among "those rights reserved to the people by the Ninth Amendment," citing Goldberg's Griswold concurrence, and later listed the Ninth Amendment among the places where earlier decisions had located a right of privacy. He then wrote that the right of privacy, "whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people," was broad enough to cover a woman's decision whether to end a pregnancy.³⁰ The Court placed the right in the Fourteenth Amendment and did not decide whether the Ninth would also have supported it.³⁰²⁸

The Court's modern route for unenumerated rights is the Due Process Clause of the Fourteenth Amendment. Washington v. Glucksberg (argued January 8, 1997, decided June 26, 1997) gave the test. The case asked whether Washington's ban on assisting a suicide violated the Fourteenth Amendment. Chief Justice Rehnquist wrote for the Court that the Due Process Clause "specially protects" fundamental rights and liberties that are "deeply rooted in this Nation's history and tradition," and that the Court requires a "careful description" of the asserted interest. He wrote that the Court has "always been reluctant to expand the concept of substantive due process."³¹ The opinion text this lesson read never mentions the Ninth Amendment.³¹

Troxel v. Granville (argued January 12, 2000, decided June 5, 2000) tested the same approach on a family-law question. Washington's statute allowed "any person" to petition for visitation "at any time" and let a court grant it whenever it served the child's best interest. The children's father, who had never married their mother, died in 1993, and the mother then told his parents she wished to limit their visits to one short visit per month. The grandparents sued, she offered one day a month with no overnight stay, and the trial court ordered one weekend a month, one week each summer and four hours on each grandparent's birthday. Justice O'Connor, joined by Chief Justice Rehnquist and Justices Ginsburg and Breyer, held that the statute as applied violated the mother's due process right to make decisions about the care, custody and control of her daughters, a liberty interest she called "perhaps the oldest of the fundamental liberty interests recognized by this Court." Justices Souter and Thomas concurred in the judgment, and Justices Stevens, Scalia and Kennedy dissented, so the vote was six to three to affirm.³²

The Ninth Amendment comes into Troxel through Justice Scalia's dissent, and it is a striking use. He wrote that a parent's right to direct the upbringing of children is among the "unalienable Rights" of the Declaration of Independence and "also among the 'othe[r] [rights] retained by the people' which the Ninth Amendment says the Constitution's enumeration of rights 'shall not be construed to deny or disparage.'" And then he drew the line: the Declaration "is not a legal prescription conferring powers upon the courts," and the Constitution's refusal to deny or disparage other rights "is far removed from affirming any one of them," and "even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people." He wrote that the argument that the state has no power to interfere with parents is one to make "in legislative chambers or in electoral campaigns," and he would not enforce it as a judge.³²

That passage reads as a map of the whole debate. One Justice believed the right existed, found its source in the Ninth Amendment's reference to retained rights, and still concluded that the Constitution does not give courts the job of enforcing it. Goldberg in 1965 looked at the same words and found a reason for courts to read "liberty" broadly. Neither said the Ninth creates rights on its own.

The status of Griswold after Dobbs v. Jackson Women's Health Organization (argued December 1, 2021, decided June 24, 2022) is a question the later opinions answered in different ways. In the Court's opinion, Justice Alito noted that Roe had held the abortion right part of a privacy right that springs from "the First, Fourth, Fifth, Ninth, and Fourteenth Amendments," and that its discussion left open at least three ways in which those provisions could protect the right, one of which was the Ninth Amendment's reservation of rights to the people. The Court overruled Roe and Casey and wrote that the decision "concerns the constitutional right to abortion and no other right," adding that nothing in it "should be understood to cast doubt on precedents that do not concern abortion."³³ Justice Thomas, concurring, wrote that "in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell." In a footnote he described Griswold as having "purported not to rely on the Due Process Clause" but to reason from "penumbras, formed by emanations," and said the Court has since characterized the decision as one rooted in substantive due process.³³

The vote in Dobbs was six to three on the judgment: four Justices joined Justice Alito's opinion, the Chief Justice concurred in the judgment, and three Justices dissented.³³ What Justice Thomas's concurrence signals for Griswold is his own view, and not the Court's. This lesson found no holding in Dobbs about the Ninth Amendment itself.

McConnell wrote in 2010 that the Court "has never squarely based a holding on the Ninth Amendment" and has scarcely discussed its meaning.² The cases above are consistent with that sentence. This lesson could not confirm whether any Supreme Court decision in 2025 or 2026 relied on the Ninth Amendment, because the search quota for this lesson was used up before that check, so the 2010 statement is the most recent one it can offer.

The Interpretive Debate

The opinions quoted above agree on one point and disagree on what follows from it. Both sides in Griswold accepted that Madison wrote the clause to answer an argument: a list of rights might be read as a complete list. Justice Black, who dissented from Goldberg's use of the Ninth, wrote that the very material Goldberg quoted shows the Ninth "was intended to protect against the idea" that enumerating exceptions to the grant of power would leave the unlisted rights "assigned into the hands of the General Government."⁴ The dispute is about what the clause does once the inference is blocked. The main readings are described here as their authors state them, and this lesson takes no side.

• A rule of construction and nothing more. The clause tells interpreters not to draw a negative inference from the list, and it creates no rights of its own. The Constitution Annotated describes it this way: the Amendment "states a rule of construction, making clear that the Bill of Rights may not be construed to limit rights in areas not enumerated."¹³ Stewart took this view in Griswold, treating the Ninth like the Tenth as stating a truism, and Black described the Ninth as enacted to protect state powers against federal invasion. Justice Scalia's Troxel dissent is the modern statement: the refusal to deny or disparage other rights "is far removed from affirming any one of them."⁴³² The 1947 Mitchell decision, which tied Ninth Amendment claims to the question whether Congress had a granted power, belongs here as well.²⁹
• Evidence that the list is not exhaustive, supporting protection of other fundamental rights. This is Justice Goldberg's use in 1965. The Ninth, in his words, shows "an intent that the list of rights included there not be deemed exhaustive," and it supports reading the liberty protected by the Fifth and Fourteenth Amendments broadly. On this view the Ninth is a reason to protect unlisted fundamental rights under other clauses, and it is not itself the clause that protects them.⁴ The Richmond Newspapers plurality used it in a related way, as support for recognizing unarticulated rights that are "implicit in enumerated guarantees."¹⁷
• A source of judicially enforceable natural rights. McConnell reports that some scholars, Randy Barnett among them, argue that unenumerated natural rights are now constitutional rights with the same status as the enumerated ones. He quotes Barnett that the Amendment's purpose was to ensure that all individual natural rights had "the same stature and force" after some were listed as before.²
• A protection for federalism or collective rights. According to the abstract of Lash's 2004 article, the Ninth's roots lie in the state conventions' demands for protection against federal power expanded by implication, and Madison later defended the Amendment as a safeguard against broad constructions of the Constitution that could harm the states. McConnell adds that Lash reads the Amendment, besides its application to individual natural rights, as protecting the people's collective political right to enact policies at the state and local level.²¹²

McConnell stakes out a position between the first and third. In his reading the retained rights are individual natural rights, and the founding generation understood them to have a legal status that was not superior to ordinary law. A court that finds a right of this kind should give it presumptive protection by construing statutes narrowly to avoid violating it, and a legislature may override the right with explicit and specific statutory language. He writes that these rights are "simply what all retained rights were before the enactment of the Bill of Rights," and he contrasts his approach with the two poles of modern unenumerated-rights cases, one that gives no protection to a right not found in the text and one that has judges identify rights "without possibility of legislative override."² He also notes that these rights are not the same as modern human rights, which governments must always respect.²

A skeptical view completes the picture. McConnell notes that some scholars regard the Amendment as an "inkblot," and he cites the testimony of Robert Bork at his 1987 Supreme Court confirmation hearings, where Bork compared the Ninth to an indecipherable "ink blot."² The point of the comparison is that a provision whose content cannot be determined cannot be applied by a judge.

Several problems recur across all of these readings. One is the problem of content: the Amendment does not say what the retained rights are, and the lists in the literature (the upbringing of children, travel, medical choices, a livelihood, self-defense) are illustrations from scholars and from the opinions, not part of the text.² Another is the problem of the decider: Goldberg answered that judges are guided by the "traditions and (collective) conscience of our people," while Black said the Court has no machinery to measure what those traditions are, and Scalia said enforcing the judges' list "against laws duly enacted by the people" is a power the Constitution does not give.⁴³² A third is the problem of the source. The modern Court has avoided the question by placing unenumerated rights under the Due Process Clause and asking whether they are "deeply rooted in this Nation's history and tradition," a test that does not depend on the Ninth Amendment at all.³¹

Black's Griswold dissent adds a reading that fits none of these neatly. He wrote that if the Connecticut law was out of step with the state's people, they could exercise their "true Ninth and Tenth Amendment rights" by persuading legislators to repeal it.⁴ On that view the retained rights are political rights, exercised at the ballot box and in legislative chambers, and the same idea runs through Scalia's remark that the argument belongs in "legislative chambers or in electoral campaigns."⁴³² Those who read the Ninth as a protection for retained political authority would find support in both sentences, and those who read it as a source of judicial protection would not.

Common Mix-Ups

Landmark Cases

The table lists the decisions discussed above in the order of the topics. Citations are to the reporter where this lesson confirmed one in a source it opened, and otherwise give the docket number and decision date.

Idaho: Article I, Sections 1 and 21, the 2023 Abortion Decision and the Parental Rights Act

The Idaho counterpart to the Ninth

Article I, section 21 of the Idaho Constitution, titled "Reserved rights not impaired," reads: "This enumeration of rights shall not be construed to impair or deny other rights retained by the people."²⁵ It follows the federal model with changes. The federal text says "deny or disparage" and Idaho's says "impair or deny," and "impair" was the word Elbridge Gerry proposed in the House on August 17, 1789.²⁴²⁵ The Idaho clause speaks of "this enumeration of rights," which means the list in Article I, and it drops the federal clause's word "certain."

Section 21 was adopted at the 1889 convention. The Idaho Supreme Court wrote in 2023 that the framers adopted it "without comment or debate," striking only the word "popular" from the provision's title.³⁴

Section 1: the source of implicit rights

The provision that Idaho courts treat as the home of unlisted rights is section 1. It says: "All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety."³⁵ The wording tracks the Pennsylvania Declaration of Rights of 1776, which listed "the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."¹⁰ This lesson did not find evidence of how the Idaho delegates arrived at the wording, so the resemblance is a point of comparison. The phrase "among which are" carries the same idea as the retained-rights theory, because the list is illustrative.

Murphy v. Pocatello School District No. 25 (1971)

In Murphy, as the Idaho Supreme Court later described it, the court pointed to section 1, section 21 and the Ninth Amendment as protecting "the right to wear one's hair in a manner of his choice." In 2023 the court said it had given "no justification" for lumping the Reserved Rights Clause into an analysis that otherwise turned on Griswold's "zone of privacy," and that Murphy is "the only case where it might be said" that it treated section 21 as a source of implicit rights. The citation is 94 Idaho 32, 480 P.2d 878 (1971).³⁴

Planned Parenthood Great Northwest v. State (2023)

The Idaho Supreme Court's decision of January 5, 2023, in Docket Nos. 49615, 49817 and 49899, was written by Justice Brody and decided challenges to Idaho's total abortion ban, six-week ban and civil liability law. The opinion contains the court's treatment of section 21. It describes the clause as "properly viewed as nothing more than Idaho's version of the Ninth Amendment" and says it "serves as an interpretive instruction" that the listed rights shall not be construed to impair or deny other rights retained by the people. It cites Justice Story, Federalist No. 84 and Madison's proposal of the Ninth.³⁴

The court rejected section 21, and section 17 (the search and seizure clause), as sources of implicit fundamental rights, and it treated section 1 as the clause through which such rights come in. In its words, the framers intended section 1 "to enshrine implicit fundamental rights as they existed in 1889." The court found no evidence that abortion was "deeply rooted" in Idaho's history at statehood, noting territorial laws that criminalized abortion except to save or preserve the woman's life. It said that it interprets the constitution by the meaning intended by those who framed and adopted it, that "the meaning of the constitution is fixed when it is adopted," and that policy views "must play no role in our decision." It held that "we cannot read a fundamental right to abortion into the text of the Idaho Constitution," and that, because no fundamental right applied, each challenged law survived rational-basis review.³⁴

This lesson read the opinion through a summarizing fetch of the Justia page, which showed the first 100,000 of 119,632 characters. It did not read the vote, any concurrence or dissent, or the conclusion, and it quotes only the short phrases the fetch confirmed. The reporter citation for the decision is not given because this lesson did not confirm one.³⁴

The Idaho Parental Rights Act

The Idaho Legislature has used the Ninth Amendment by name in a statute. The Idaho Parental Rights Act, Idaho Code sections 32-1010 through 32-1015, was added in 2015. Section 32-1010(2) says: "The interests and role of parents in the care, custody and control of their children are both implicit in the concept of ordered liberty and deeply rooted in our nation's history and tradition. They are also among the unalienable rights retained by the people under the ninth amendment to the constitution of the United States."³⁶ The first sentence uses vocabulary from the Court's due process cases, including Glucksberg and Roe, and the second sentence places the right under the Ninth.³¹³⁰

The operative sections do not depend on any court accepting that reasoning. Section 32-1011 says parents with legal custody "have the fundamental right to make decisions concerning their care, custody and control." Section 32-1013 bars the state and its political subdivisions from restricting those rights unless the restriction is shown by "clear and convincing evidence" to be "essential to further a compelling governmental interest" and the "least restrictive means" of furthering it. A parent whose rights are violated may raise the violation as a claim or defense and may obtain relief, a prevailing parent recovers reasonable legal fees and costs, and an action must be started within two years after the harm or its discovery.³⁷³⁸ Section 32-1010(5) says the rights are "rooted in the due process of law guaranteed pursuant to section 13, article I" of the Idaho Constitution.³⁶ Section 32-1014 (added in 2021) says an emergency order or declaration cannot count as a compelling interest to justify forced medical action on a child, removal from the home, or interference with these rights, and section 32-1015 (added in 2024) deals with parental rights in medical decision-making.³⁹⁴⁰

The Legislature's route is the one Justice Scalia described in Troxel as open to those who believe the state has no power to interfere with parents: arguing the point "in legislative chambers or in electoral campaigns."³² It created an enforceable statutory right and a stringent standard of review, with no ruling that the Constitution requires it.

The history line for section 32-1010 shows amendments in 2021 and 2026, and sections 32-1013 and 32-1015 were also amended in 2026 (chapter 245 of the 2026 session laws). This lesson could not confirm what the 2026 amendments changed, so the text quoted above is the version on the Legislature's site as of October 2026 and a reader should check the session law before relying on any particular word.³⁶³⁸⁴⁰

Where This Shows Up for Officials, Reporters and Citizens

The citizen at the county meeting

At a meeting of the invented Dunmore County board, a resident named Hollis Wren says the Ninth Amendment gives her the right to keep roosters on her lot. A reporter should write down what she said and then check it. No Supreme Court decision this lesson found holds that the Ninth protects a particular right, and the Court's modern cases on unlisted rights proceed under the Fourteenth Amendment's Due Process Clause, asking whether the right is "deeply rooted in this Nation's history and tradition."³¹² The sentence for the story is what she cited, what the ordinance says, and what source the board's own counsel gives for its authority. Whether she is right about roosters is a separate question and one the story does not need to answer.

The bill with a findings clause

A legislator in the invented state of Marrow drafts a bill whose first section declares that a certain interest is "among the unalienable rights retained by the people under the ninth amendment." That is the pattern in Idaho Code section 32-1010(2).³⁶ Staff and reporters should separate the findings from the operative text. The findings state the sponsor's reading of the Constitution. The operative sections create the duties, the standard of review and the remedies, and Idaho's act puts those in separate sections, 32-1011 through 32-1013.³⁷³⁸

The complaint that cites a string of amendments

A reporter covering a civil suit against the invented city of Pemberly Flats finds a complaint that claims violations of the First, Fourth, Fifth, Ninth and Fourteenth Amendments, the same string the plaintiffs in Roe cited.³⁰ The useful question is which claim carries the case. In Mitchell the Court said an objection under the Ninth and Tenth Amendments to a federal law fails if Congress acted under a granted power, and a claim that the Ninth Amendment applies directly against a city has to account for Barron, which held the first amendments restrain the national government, and for Goldberg's remark that the Fourteenth Amendment is what prohibits the states from abridging fundamental personal liberties.²⁹³⁴ The coverage should report which counts the city and the plaintiffs spend their pages on, since the Ninth Amendment count may be listed and never argued.

The school board and the parent

At the invented Tern Valley school board, a parent objects to a policy and says Idaho law protects her fundamental right to direct her child's upbringing. The claim is statutory as well as constitutional. Idaho Code section 32-1013 sets the standard the state must meet, requires clear and convincing evidence, and provides for a prevailing parent's legal fees, and the two-year filing period is in the same section.³⁸ The reporter should read the current text, because sections 32-1010, 32-1013 and 32-1015 were amended in 2026, and should check whether the policy falls under section 32-1015 on medical decision-making.³⁶³⁸⁴⁰

The state constitutional claim

An advocate in Idaho tells a legislative committee that section 21 of the state constitution protects a right the Legislature should not restrict. After the 2023 decision, the Idaho Supreme Court describes section 21 as an interpretive instruction and the home of implicit fundamental rights as section 1, with the question being whether the right was deeply rooted in Idaho at statehood in 1889.³⁴ A reporter should ask the advocate which clause the argument rests on and what the 1889 evidence is.

Teaching the Amendment

A civics volunteer leading a class asks whether the Ninth Amendment protects privacy. A fair answer is that Griswold is cited for it, that the opinion for the Court used the Ninth only in a list, that one concurrence relied on it as evidence that the list of rights is not exhaustive, and that later cases have placed unlisted rights under the Fourteenth Amendment.⁴³⁰³¹

Related Modules

Related lessons: The Tenth Amendment (Module 24, reserved powers, the companion to this lesson); The Fourteenth Amendment (Module 28, due process and the route the Court uses for unlisted rights); The First Amendment (Module 7, where Richmond Newspapers found the right to attend trials); Search, Due Process and Fair Trials (Module 9); The Fifth Amendment (Module 19, due process); The Eighth Amendment (Module 22); Article VII: Ratification (Module 16, the Federalist and Anti-Federalist fight over a bill of rights); State Declarations of Rights and the Road to the Bill of Rights (Declaration course); Federalism and the States (Module 5); Reading the Constitution (Module 12); Amending the Constitution (Module 6).

Sources & Further Reading

Primary Sources

• National Archives, The Bill of Rights: A Transcription (enrolled resolution of September 25, 1789)
• The Founders' Constitution, Amendment IX, Document 1: Blackstone, Commentaries
• The Founders' Constitution, Amendment IX, Document 2: Massachusetts House circular letter, 1768
• The Founders' Constitution, Amendment IX, Document 3: Samuel Adams, The Rights of the Colonists
• The Founders' Constitution, Amendment IX, Document 4: Continental Congress, Declaration and Resolves
• The Founders' Constitution, Amendment IX, Document 5: "John DeWitt," No. 2
• The Founders' Constitution, Amendment IX, Document 6: Federal Farmer, No. 16
• The Founders' Constitution, Amendment IX, Document 7: Madison in the House, June 8, 1789
• The Founders' Constitution, Amendment IX, Document 8: House debate of August 17, 1789
• The Founders' Constitution, Amendment IX, Document 9: Story, Commentaries
• The Founders' Constitution, Bill of Rights, Document 5: Pennsylvania Declaration of Rights, 1776
• The Founders' Constitution, Bill of Rights, Document 6: Massachusetts Constitution of 1780, Part 1
• The Founders' Constitution, Bill of Rights, Document 8: New York ratification
• The Founders' Constitution, Bill of Rights, Document 9: Virginia proposed amendments
• The Founders' Constitution, Bill of Rights, Document 10: North Carolina proposed amendments
• The Founders' Constitution, Bill of Rights, Document 11: House proceedings, June 8 to August 19, 1789
• Avalon Project, Federalist No. 84
• Idaho Constitution, Article I, section 1
• Idaho Constitution, Article I, section 21
• Idaho Code 32-1010, Idaho Parental Rights Act
• Idaho Code 32-1011, parental right to care, custody and control
• Idaho Code 32-1013, interference with parental rights restricted
• Idaho Code 32-1014, emergency orders
• Idaho Code 32-1015, parental rights in medical decision-making

Opinions

• Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)
• United Public Workers v. Mitchell, 330 U.S. 75 (1947)
• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Roe v. Wade, 410 U.S. 113 (1973)
• Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)
• Washington v. Glucksberg, 521 U.S. 702 (1997)
• Troxel v. Granville, 530 U.S. 57 (2000)
• Dobbs v. Jackson Women's Health Organization, No. 19-1392 (2022)
• Planned Parenthood Great Northwest v. State, Nos. 49615, 49817, 49899 (Idaho Jan. 5, 2023)

Secondary Sources and Further Reading

• Constitution Annotated, Historical Background on Ninth Amendment
• Constitution Annotated, Ninth Amendment Doctrine
• Michael W. McConnell, The Ninth Amendment in Light of Text and History, Cato Supreme Court Review 2009-2010
• Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, Texas Law Review (2004), SSRN abstract page

Footnotes

1. National Archives, The Bill of Rights: A Transcription, https://www.archives.gov/founding-docs/bill-of-rights-transcript. The Ninth Amendment text is quoted from the enrolled joint resolution of September 25, 1789, in which it appears as "Article the eleventh" and the Tenth as "Article the twelfth"; the page states that ten of the twelve proposed amendments were ratified by three-fourths of the state legislatures on December 15, 1791.
2. Michael W. McConnell, The Ninth Amendment in Light of Text and History, Cato Supreme Court Review 2009-2010, pp. 13-28, https://law.stanford.edu/sites/default/files/publication/259408/doc/slspublic/ssrn-id1678203.pdf. The statements about the enumerated rights in Article I, sections 9 and 10 and Article III, the Lockean vocabulary of natural, retained, positive and relinquished rights, the examples of unenumerated rights, the Sedgwick joke about hats (1 Annals of Cong. 759-60), Barnett's statement quoted from 85 Tex. L. Rev. 1, 2 (2006), the note on Lash's collective-rights reading, the "inkblot" remark and its citation to the Bork confirmation hearings (100th Cong. 248-49 (1987)), the equitable-interpretation reading, and the sentence that the Court "has never squarely based a holding on the Ninth Amendment" are all from this lecture. The lecture was published in 2010 and this lesson did not find a later edition.
3. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) (Marshall, C.J.), January Term 1833, https://www.law.cornell.edu/supremecourt/text/32/243. The quotation is from the opinion text: "These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them."
4. Griswold v. Connecticut, 381 U.S. 479 (1965), No. 496, argued March 29, 1965, decided June 7, 1965, https://www.law.cornell.edu/supremecourt/text/381/479. Quotations and facts are from the text of the opinions: Douglas, J., for the Court (the statutes, the facts, "penumbras," "zones of privacy," "older than the Bill of Rights"); Goldberg, J., concurring, joined by Warren, C.J., and Brennan, J.; Harlan, J., concurring in the judgment; White, J., concurring in the judgment; Black, J., dissenting, joined by Stewart, J.; and Stewart, J., dissenting, joined by Black, J. The text of the opinions does not list the Justices who joined Douglas's opinion; the dissents of Black and Stewart are the only ones, so the other seven Justices joined the judgment.
5. James Madison, resolutions in the House of Representatives, June 8, 1789, and the House proceedings that followed, The Founders' Constitution, Bill of Rights, Document 11 (Annals of Congress 1:424-50, 661-65, 707-17, 757-59, 766), https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss11.html. The text of the fourth resolution, with its placement in article 1, section 9 between clauses 3 and 4, and the eighth resolution's reservation of powers "to the States respectively" are quoted from this document. The document also reports the referral to a committee with a member from each state and the Committee of the Whole proceedings of August 13.
6. William Blackstone, Commentaries on the Laws of England (1765), vol. 1, pp. 120-41, The Founders' Constitution, Amendment IX, Document 1, https://press-pubs.uchicago.edu/founders/documents/amendIXs1.html. The passage on "absolute rights" and the three primary rights of personal security, personal liberty and private property are quoted from the text.
7. Massachusetts House of Representatives, Circular Letter to the Colonial Legislatures, February 11, 1768, The Founders' Constitution, Amendment IX, Document 2, https://press-pubs.uchicago.edu/founders/documents/amendIXs2.html.
8. Samuel Adams, The Rights of the Colonists, November 20, 1772, The Founders' Constitution, Amendment IX, Document 3, https://press-pubs.uchicago.edu/founders/documents/amendIXs3.html. The report was drafted for a Boston town committee, as the document's opening states.
9. Continental Congress, Declaration and Resolves, October 14, 1774, The Founders' Constitution, Amendment IX, Document 4, https://press-pubs.uchicago.edu/founders/documents/amendIXs4.html.
10. Pennsylvania Constitution of 1776, Declaration of Rights, article I, The Founders' Constitution, Bill of Rights, Document 5, https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss5.html.
11. Massachusetts Constitution of 1780, Part the First, article I, The Founders' Constitution, Bill of Rights, Document 6, https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss6.html.
12. James Madison, speech in the House of Representatives, June 8, 1789, The Founders' Constitution, Bill of Rights, Document 11, https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss11.html. The quotations about a bill of rights being thought "even improper" and "even dangerous," the types of rights bills of rights specify, trial by jury as not a natural right, and the courts as "guardians of those rights" with "rights expressly stipulated for in the Constitution" are from the Annals text reproduced there.
13. Constitution Annotated, Historical Background on Ninth Amendment, https://www.law.cornell.edu/constitution-conan/amendment-9/historical-background-on-ninth-amendment. The account of the Convention's rejection of a bill of rights (citing 2 Farrand's Records 341-42, 587-88, 617-18), Mason's objection, the statement that eight states ratified after proposing amendments (quoting Powell, J., dissenting in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 568-70 (1985)), and the sentence that the Amendment "states a rule of construction" are drawn from this page. The page cites Story's Commentaries as section 1893 in one note and 1898 in another; the Founders' Constitution gives section 1898 for the passage quoted here.
14. Alexander Hamilton, The Federalist No. 84 (May 28, 1788), Avalon Project text, https://avalon.law.yale.edu/18th_century/fed84.asp. The date is from the Founders' Constitution, Bill of Rights, Document 7. The quotations are from the paragraph beginning "I go further."
15. "John DeWitt," No. 2 (October 1787), The Founders' Constitution, Amendment IX, Document 5, https://press-pubs.uchicago.edu/founders/documents/amendIXs5.html.
16. Federal Farmer, No. 16 (January 20, 1788), The Founders' Constitution, Amendment IX, Document 6, https://press-pubs.uchicago.edu/founders/documents/amendIXs6.html.
17. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), No. 79-243, argued February 19, 1980, decided July 2, 1980, https://www.law.cornell.edu/supremecourt/text/448/555. Burger, C.J., announced the judgment and wrote an opinion joined by White and Stevens, JJ.; Powell, J., took no part; White, Stevens, Brennan (joined by Marshall), Stewart and Blackmun, JJ., concurred; Rehnquist, J., dissented. The facts are from the syllabus and opinion. The Madison letter quotations ("in favor of a bill of rights," "not viewed it in an important light," "a positive declaration of some of the most essential rights could not be obtained in the requisite latitude") are as quoted in the plurality opinion from 5 Writings of James Madison 271 (Hunt ed. 1904), and the plurality dates the letter October 1788. The quotations from Blackmun, J., and Rehnquist, J., are from their separate opinions. Footnote 15 of the plurality cites 1 Annals of Cong. 438-440 (1789) and Story.
18. New York Ratification of the Constitution (July 26, 1788), The Founders' Constitution, Bill of Rights, Document 8, https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss8.html. The text of the declaration is quoted from this document.
19. Virginia Ratifying Convention, Proposed Amendments (June 27, 1788), The Founders' Constitution, Bill of Rights, Document 9, https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss9.html. The 17th item of the proposed amendments and the first item of the declaration of rights are quoted from this document.
20. North Carolina Ratifying Convention, Declaration of Rights and Other Amendments (August 1, 1788), The Founders' Constitution, Bill of Rights, Document 10, https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss10.html. The 18th item of the proposed amendments and the first item of the declaration of rights are quoted from this document. The word "retained" does not appear in the New York, Virginia or North Carolina documents as reproduced there.
21. Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, Texas Law Review (2004), SSRN abstract page, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=613621. The description is of the abstract only; this lesson could not read the article, and it read the abstract page through a fetch tool that returned a summary and a short excerpt, "the historical roots of the Ninth Amendment can be found in the state ratification convention demands." The summary stated that Madison's first draft reflected that language, that the final wording troubled Governor Randolph, that Anti-Federalists used his concerns to delay Virginia's ratification of the Bill of Rights for about two years, and that Madison defended the amendment's original purpose in a House speech opposing a national bank. The citation to a specific volume page was not confirmed.
22. James Madison, House of Representatives, June 8, 1789 (Annals 1:439), The Founders' Constitution, Amendment IX, Document 7, https://press-pubs.uchicago.edu/founders/documents/amendIXs7.html. The passage beginning "It has been objected also against a bill of rights" is quoted in full there and in the Founders' Constitution's longer House proceedings.
23. Joseph Story, Commentaries on the Constitution of the United States, vol. 3, section 1898 (1833), The Founders' Constitution, Amendment IX, Document 9, https://press-pubs.uchicago.edu/founders/documents/amendIXs9.html. The quotations are from this text. Goldberg, J., in Griswold cites the same passages in a later edition at pages 626-27 and 651.
24. House of Representatives, debate on amendments, August 17, 1789 (Annals 1:754-55), The Founders' Constitution, Amendment IX, Document 8, https://press-pubs.uchicago.edu/founders/documents/amendIXs8.html. The text of the "eighth clause of the fourth proposition," Gerry's proposal of "deny or impair" and the outcome are from this document, which reports that Gerry's motion "not being seconded" the question was taken on the clause and it passed.
25. Idaho Constitution, article I, section 21 ("Reserved rights not impaired"), Idaho Legislature, https://legislature.idaho.gov/statutesrules/idconst/ArtI/Sect21/. The page states that the Idaho Constitution is updated to the website July 1 following the legislative session.
26. House proceedings of August 13, 1789, Committee of the Whole, The Founders' Constitution, Bill of Rights, Document 11, https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss11.html. Sherman's statement that the amendments should not be interwoven into the Constitution and the report that his motion "was now put and lost" are from this document.
27. House proceedings of August 19, 1789, The Founders' Constitution, Bill of Rights, Document 11, https://press-pubs.uchicago.edu/founders/documents/bill_of_rightss11.html. The Annals report that Sherman "renewed his motion for adding the amendments to the Constitution by way of supplement" and that it "was carried by two-thirds of the House."
28. Constitution Annotated, Ninth Amendment Doctrine, https://www.law.cornell.edu/constitution-conan/amendment-9/ninth-amendment-doctrine. The list of pre-1965 cases (Ashwander v. TVA, 297 U.S. 288, 330-31 (1936); Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143-44 (1939); Roth v. United States, 354 U.S. 476, 492-93 (1957); Singer v. United States, 380 U.S. 24, 26 (1965)), the description of Mitchell, the summary of the Griswold opinions (including that Justices Black and Stewart dissented), the account of Roe and the note on Dobbs are from this page. This lesson did not open the cases in the first list.
29. United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75 (1947), reargued October 17, 1946, decided February 10, 1947, https://www.law.cornell.edu/supremecourt/text/330/75. The statements that "the nature of political rights reserved to the people by the Ninth and Tenth Amendments" are involved, and the passage about the inquiry turning on the granted power, are from the opinion text.
30. Roe v. Wade, 410 U.S. 113 (1973), No. 70-18, argued December 13, 1971, reargued October 11, 1972, decided January 22, 1973 (Blackmun, J., for the Court), https://www.law.cornell.edu/supremecourt/text/410/113. The quotations are from the opinion text. The Cornell text records the district court's holding with the word "where," which appears to be a typographical error, so the holding is paraphrased here. The text of Roe on Cornell does not include the separate opinions in the companion case, and this lesson did not confirm a vote count.
31. Washington v. Glucksberg, 521 U.S. 702 (1997) (Rehnquist, C.J.), No. 96-110, argued January 8, 1997, decided June 26, 1997, https://www.law.cornell.edu/supremecourt/text/521/702. A search of the opinion text for "Ninth Amendment" found no match.
32. Troxel v. Granville, 530 U.S. 57 (2000), No. 99-138, argued January 12, 2000, decided June 5, 2000, https://www.law.cornell.edu/supremecourt/text/99-138. O'Connor, J., announced the judgment and wrote an opinion joined by Rehnquist, C.J., and Ginsburg and Breyer, JJ.; Souter and Thomas, JJ., concurred in the judgment; Stevens, Scalia and Kennedy, JJ., dissented. The judgment affirmed the Washington Supreme Court. The facts and quotations are from the opinions as reproduced there.
33. Dobbs v. Jackson Women's Health Organization, No. 19-1392, argued December 1, 2021, decided June 24, 2022, https://www.law.cornell.edu/supremecourt/text/19-1392. Alito, J., delivered the opinion of the Court, joined by Thomas, Gorsuch, Kavanaugh and Barrett, JJ.; Roberts, C.J., concurred in the judgment; Breyer, Sotomayor and Kagan, JJ., dissented. The U.S. Reports citation was not confirmed in a source this lesson opened. The quotations are from the majority opinion and from Justice Thomas's concurrence, including its note 1.
34. Planned Parenthood Great Northwest v. State, Docket Nos. 49615, 49817 and 49899 (Idaho Jan. 5, 2023) (Brody, J.), https://law.justia.com/cases/idaho/supreme-court-civil/2023/49615.html. This lesson read the page through a fetch tool that summarized the text and limited quotations; the tool covered the first 100,000 of 119,632 characters and confirmed as verbatim the phrases quoted here. It did not read the vote, any concurrence or dissent, or the conclusion, and the reporter citation was not confirmed. The citation to Murphy v. Pocatello School District No. 25, 94 Idaho 32, 480 P.2d 878 (1971), is as given in that opinion; this lesson did not open Murphy.
35. Idaho Constitution, article I, section 1 ("Inalienable rights of man"), Idaho Legislature, https://legislature.idaho.gov/statutesrules/idconst/ArtI/Sect1/.
36. Idaho Code section 32-1010 (Idaho Parental Rights Act), Idaho Legislature, https://legislature.idaho.gov/statutesrules/idstat/Title32/T32CH10/SECT32-1010/. The history line reads: added 2015, ch. 219, sec. 1; amended 2021, ch. 286, sec. 1; amended 2026, ch. 245, sec. 1. The text quoted is the version on the site as retrieved in October 2026.
37. Idaho Code section 32-1011, Idaho Legislature, https://legislature.idaho.gov/statutesrules/idstat/Title32/T32CH10/SECT32-1011/. The history line reads: added 2015, ch. 219, sec. 2.
38. Idaho Code section 32-1013, Idaho Legislature, https://legislature.idaho.gov/statutesrules/idstat/Title32/T32CH10/SECT32-1013/. The history line reads: added 2015, ch. 219, sec. 4; amended 2026, ch. 245, sec. 2. This lesson did not locate the 2026 session law or a bill summary and could not confirm what the 2026 amendment changed.
39. Idaho Code section 32-1014, Idaho Legislature, https://legislature.idaho.gov/statutesrules/idstat/Title32/T32CH10/SECT32-1014/. The history line reads: added 2021, ch. 286, sec. 2.
40. Idaho Code section 32-1015, Idaho Legislature, https://legislature.idaho.gov/statutesrules/idstat/Title32/T32CH10/SECT32-1015/. The history line reads: added 2024, ch. 148, sec. 1; amended 2026, ch. 245, sec. 3. This lesson did not read the full text of the section beyond its definitions and could not confirm what the 2026 amendment changed.