The first eight amendments in the Bill of Rights explicitly articulate some of our natural rights, as defined by the political philosopher John Locke. These rights include the right to own a weapon, to speak freely, and to practice one’s own religion independent of government interference. However, it does not comprehensively list all our rights, given their countless nature, making it impractical to enumerate them all in writing. Due to this, the anti-Federalists opposed the Bill of Rights, arguing that it might counterintuitively limit our rights rather than merely cite them. They feared that by listing only a few rights, other unmentioned rights might be left unprotected, allowing the federal government to pass unjust laws.To address this concern and appease both parties, James Madison proposed the Ninth Amendment, a crucial addition to the Bill of Rights. It states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (U.S. Constitution, Amendment IX). Serving as the cornerstone of the Bill of Rights, it preserves our unalienable rights as inherently above the government and extends our rights beyond those explicitly mentioned in the Constitution.
However, the Ninth Amendment was not incorporated by the Incorporation Doctrine of 1868, as it was never challenged in the Supreme Court. The Incorporation Doctrine, a facet of the Fourteenth Amendment, ensures equal application of the U.S. Constitution across all states, extending parts of the Bill of Rights to the states as well. Before its enactment, states could pass laws overriding the Constitution, as the Bill of Rights only restrained Congress from restricting unalienable rights. Despite guaranteeing substantive and implicit rights, the Ninth Amendment was excluded, possibly due to its vagueness.Over time, the Ninth Amendment found application in cases where unenumerated, unalienable rights were under threat. In the 1965 case of Griswold v. Connecticut, the state attempted to ban contraceptives, and the Ninth Amendment, combined with other amendments, formed the constitutional grounds for defending the right to use contraceptives. In Roe v. Wade (1973), the Supreme Court relied on the Ninth Amendment to declare it unconstitutional to prohibit abortions, emphasizing women’s privacy over their bodies. These cases exemplify the Ninth Amendment’s role in safeguarding implied liberties.In contemporary times, especially with the advent of the Internet and new laws, the Ninth Amendment has fueled controversies concerning rights, particularly regarding the protection of data, privacy, and private information. Decades after Roe v. Wade, the constitutional debate on abortion remains on the policy agenda.
Despite being utilized alongside other amendments, the Ninth Amendment has not been independently effective in judicial courts due to its perceived limitations. In the 1947 case, The Public Workers of America v. Mitchell, federal civil service employees challenged the constitutionality of the Hatch Act using the Ninth Amendment, but the Supreme Court ruled against them, upholding the Hatch Act without changes. The Ninth Amendment’s infrequent use in judicial trials suggests that if it were more refined and specific, it could play a more significant role in cases involving the protection of civil liberties and similar unalienable rights.
