Rights beyond the written list

When the Constitution was being ratified, some Federalists argued that a bill of rights was unnecessary and even dangerous. Their concern was that a list of protected rights would suggest the government could do anything not on the list. James Madison, who drafted the Bill of Rights in 1789, wrote the Ninth Amendment to answer that objection.

The Ninth Amendment has rarely been the sole basis for a court decision. The best-known appearance is Griswold v. Connecticut (1965), where the Court struck down a state ban on contraceptives for married couples. The opinion of the Court relied on a right to privacy found in several amendments, and Justice Goldberg wrote a separate opinion that leaned on the Ninth.

Today the Court usually protects unlisted rights under the Due Process Clause of the Fourteenth Amendment instead. Examples include the right to marry someone of another race (Loving v. Virginia, 1967) and the right of parents to direct their children’s upbringing.

In Washington v. Glucksberg (1997), the Court said a right that is not written down must be “deeply rooted in this Nation’s history and tradition” to receive protection. In Dobbs v. Jackson Women’s Health Organization (2022), the Court applied that approach and concluded that the Constitution does not protect a right to abortion, overruling Roe v. Wade and Planned Parenthood v. Casey.

People disagree about whether that approach is too narrow or the right one. What is not disputed is the text: the amendment says unlisted rights are not automatically denied, and leaves the work of identifying them to others.