The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

9th Amendment

Applying the 9th Amendment

What are the Rights Retained by the People?

It is a debatable point just how central the 9th Amendment was to the decision in Griswold. Nonetheless, once justices began to speculate on retained rights, they opened up a floodgate of possibilities. Justice Douglas, in his 1971 dissent of Palmer v. Thompson, noted that other modern constitutions from other nations included rights such as “the right of the people to education or to work or to recreation by swimming or otherwise.” It seemed reasonable to infer that these too might “be rights ‘retained by the people’” under the 9th Amendment. The Court in Lawrence v. Texas (2003), relying in general on the privacy right established by Griswold, struck down state laws against sodomy. And perhaps most famously, the Court concluded in Roe v. Wade (1973) that “this 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, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Controversy Over the Court’s Authority to Uphold Individual Rights

The constitutional controversies surrounding these decisions (as opposed to the moral or political ones) concern whether or not the courts have the authority to uphold individual rights that are not named in the Bill of Rights and to forbid an exercise of state power that is not forbidden by the Constitution. Not everyone who disagrees with these decisions of the Courts would wish to defend the particular laws that were struck down. Justice Stewart, in his Griswold dissent, exclaimed that he thought Connecticut’s ban of contraceptives was “an uncommonly silly law.” And Justice Thomas repeated those words in regard to sodomy laws in his dissent of Lawrence. Both believed, however, that not all silly state laws are unconstitutional. And the courts should be limited in their exercise of judicial review.

It may be asked: if the courts do not protect individuals from a ridiculous state law, then who will? To that question, Justice Stewart responded that “the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal [the state’s ban on contraceptives].” In other words, the power to define and protect the rights “retained by the people” was intended to be exercised by the people themselves. The 9th Amendment had been custom-tailored for a constitution that, in the words of Madison’s Federalist No. 45, possessed “few and defined” powers.