Freedom Circle logo
Freedom Circle

Where Can You Find Freedom Today?

Rights not explicitly listed in the Bill of Rights

The Ninth Amendment (Amendment IX) to the United States Constitution addresses rights, retained by the people, that are not specifically enumerated in the Constitution. It is part of the Bill of Rights.

Reference

Amendment IX to the U.S. Constitution
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Articles

The Bill of Rights: Unenumerated Rights, by Jacob Hornberger, Future of Freedom, Apr 2005
Examines the rationale and history behind the Ninth Amendment to the U.S. Constitution, citing both James Madison and Griswold v. Connecticut (1965)
Opponents of the Bill of Rights ... argued, it would be better not to list any rights whatsoever. Since the original document didn't empower the government to abridge such rights anyway, no one needed to be concerned ... Thank goodness for the wisdom and foresight of those who ... insisted on the passage of the Bill of Rights. What about the argument of those who said that by listing certain rights, the inference would be that unlisted rights would lack protection? ... the fact that the right to privacy is not expressly mentioned in the Bill of Rights is irrelevant, especially given the language of the Ninth Amendment.
Do Our Rights Come from the Constitution?, by Jacob Hornberger, Future of Freedom, Jun 1999
Dispels the myth that rights are granted to the people by the Constitution or the Bill of Rights
Some people argued that a Bill of Rights was unnecessary because government's powers were already limited to those enumerated in the Constitution itself. Since the government has not been given the power to regulate speech, for example, there was no reason to have an express prohibition against the regulation of speech. Fearful, however, of the propensity of government to move toward dominance and control, the people felt safer with express restrictions on the power to interfere with rights that they believed were of the utmost importance. Playing it safe, they included the Ninth Amendment ...
Kennedy's Libertarian Revolution: Lawrence's reach, by Randy Barnett, National Review Online, 10 Jul 2003
Comments on the Supreme Court decision in Lawrence v. Texas invalidating sodomy laws and in particular on Justice Anthony Kennedy's majority opinion
"Liberty" is obviously deeply rooted in our history and traditions. A right to use contraceptives is not ... Whenever a particular liberty is specified, therefore, it is always subject to the easy rejoinder: "Just where in the Constitution does it say that?" even though the Ninth Amendment specifies that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Law as 'Reason' or as 'Violence'?, by Butler Shaffer, 17 Nov 2001
Compares modern "law" to ancient "law merchant" and describes various rationalizations used to justify the violence in the modern system, highlighting the USA PATRIOT Act and similar legislation
Perhaps the best evidence for the incessant restriction of liberties under the Constitution is to be found in the 9th Amendment, a supposed 'catch-all' for all other liberties not enumerated within the Bill of Rights. Only a small handful of cases have ever found such additional 'rights' that were subject to 9th Amendment protections.
On the Origins of the Modern Libertarian Legal Movement [PDF], by Roger Pilon, Chapman Law Review, 2013
Historical survey of libertarian influences on constitutional and other areas of law, from the mid-1970s to recent decisions
[C]ountless rights, only a few of which could have been enumerated in the [Constitution], are nevertheless recognized by and hence "in" the Constitution because, as it plainly says, they are "retained by the people"—and you cannot "retain" what you do not first have to be retained. Thus the fundamental importance of understanding the theory of rights that has stood behind the Constitution from before the time the Bill of Rights made explicit what was always implicit in the doctrine of enumerated powers—that where there is no power there is a right, belonging either to the states (as powers) or to the people.
What Is the Constitution?, by Sheldon Richman, Future of Freedom, Jun 2002
Discusses constitutional interpretation of allowed governmental powers and restrictions on such powers, in particular the ninth and tenth amendments, in light of comments from Justice Antonin Scalia about a national ID card
It is worth noting that both sides strain to ignore the Ninth Amendment, which says that people have rights in addition to those enumerated in the Constitution. That amendment was adopted to satisfy those who warned that any necessarily finite list of rights is actually dangerous because it will be construed as exhaustive. The Ninth Amendment is virtually missing from constitutional jurisprudence. Robert Bork once called it the equivalent of an inkblot covering up the words: we don't know what it says. Thus even with the Ninth Amendment, the Bill of Rights has been construed as exhaustive.

Books

The Rights Retained by the People: The History and Meaning of the Ninth Amendment
    by Randy Barnett (editor), 1989
Partial contents: "Higher law" Background of American Constitutional Law - Forgotten Ninth Amendment - Are There "Certain rights ... retained by the people"? - Natural Rights and the Ninth Amendment - History and Meaning of the Ninth Amendment
The Rights Retained by the People: The Ninth Amendment and Constitutional Interpretation, Volume II
    by Randy Barnett (editor), 1993
Partial contents: Ninth Amendment: Inkblot or Another Hard Nut to Crack? - Reasons, Rhetoric, and the Ninth Amendment - The Problems of Constitutional Interpretation - Righting an Unwritten Constitution - The Natural Rights Basis of the Ninth Amendment

The introductory paragraph uses material from the Wikipedia article "Ninth Amendment to the United States Constitution" as of 7 Nov 2018, which is released under the Creative Commons Attribution-Share-Alike License 3.0.