Throughout the U.S. Supreme Court’s history, whenever a question of congressional overreach was raised, most people looked to the 10th Amendment for validation of state powers in conflict with federal power rather than the 9th Amendment. More recently, however, the Court has become increasingly interested in the 9th Amendment. The Court or individual justices have sometimes sought to find in this amendment an affirmative grant of unenumerated personal rights which the Court must protect against both state and federal intrusion.
In one important 1965 case involving access to contraceptives, Griswold v. Connecticut, the Court referred to the 9th Amendment, among several others, in its opinion. Justice Goldberg wrote a concurring opinion in which he contended that “the right of privacy in the marital relation is fundamental and basic—a personal right ‘retained by the people’ within the meaning of the Ninth Amendment.”
Justice Black, in his dissent, argued that, “as every student of history knows,” the 9th Amendment “was intended to limit the Federal Government to the powers granted expressly or by necessary implication.” Therefore, any power to strike down state laws because they offend rights that go unnamed in the Bill of Rights “was not given by the Framers, but rather has been bestowed on the Court by the Court.” The 9th Amendment was conceived as a way to limit federal powers; therefore, its use by the Court in this decision—which limited a state government’s powers—was ironic, to say the least.
Justice Black said more: “Use of any such broad, unbounded judicial authority would make of this Court’s members a day-to-day constitutional convention.” Justice Stewart, in a separate dissent, likewise criticized the Court’s use of this amendment: “to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history.”