Lone Candle

“Constitutional scholars generally agree that the Ninth Amendment originated in a dispute between the two rival political factions that dominated the early republic: the federalists and the anti-federalists. The anti-federalists, anxious to limit the power of the new federal government, demanded a list of explicitly enumerated rights that the government would be constitutionally obligated to respect, but some framers worried that such a list could be construed to mean that citizens surrendered the rights that were not enumerated. The amendment was engineered by James Madison, whom many consider the father of the Constitution, as a means of appeasing both factions.

Although legal scholars generally agree on the amendment’s origins, they agree much less on its meaning and legal function. What, for instance, are the “other rights” that the people supposedly retained? Are they the collective rights of the people, as recognized by the English common law tradition, or are they the inviolable natural rights to life, liberty and happiness laid out in the Declaration of Independence — or something else entirely?

For much of the country’s history, these questions remained unanswered — or, more accurately, they remained unasked. Before 1965, the Supreme Court discussed the Ninth Amendment in fewer than ten cases, during which time the amendment “hid like a neglected child among its more popular sibling amendments in the Bill of Rights,” as the legal scholar Chase J. Sanders has described it.

Then, in 1965, the Supreme Court cited it in the landmark case of Griswold v. Connecticut, in which the Court struck down a Connecticut law that banned the use of medical contraception. In the majority opinion, Associate Justice William O. Douglas cited the Ninth Amendment as one of the amendments that, together with the First, Fourth and Fifth Amendments, collectively implied a right to privacy that protected couples’ right to use contraception. The amendment received even more extensive treatment, though, in a concurring opinion authored by Associate Justice Arthur Goldberg and co-signed by Chief Justice Earl Warren and Associate Justice William J. Brennan. In the concurrence, Goldberg argued that the right to privacy was among the unenumerated rights referred to in the Ninth Amendment. “The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family… surely does not show that the Government was meant to have the power to do so,” Goldberg wrote. “Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government, though not specifically mentioned in the Constitution.””