The Ninth Amendment says that listing some rights in the Constitution does not deny the existence of others “retained by the people.” For more than 170 years, courts barely touched it. Since 1947, a small line of Ninth Amendment court cases has tested what that sentence actually protects, and a clear pattern has emerged: the amendment supplies the idea that unlisted rights exist, but the Fourteenth Amendment’s Due Process Clause is what courts use to enforce them.1Congress.gov. U.S. Constitution – Ninth Amendment
Below are the decisions that have shaped how the amendment is read today, from the case that revived it to the 2022 ruling that narrowed the framework for recognizing any unenumerated right.
United Public Workers v. Mitchell (1947)
Federal employees challenged the Hatch Act, which barred them from actively participating in political campaigns, arguing the restriction violated rights protected by the Ninth and Tenth Amendments. The Supreme Court accepted that “political rights reserved to the people by the Ninth and Tenth Amendments” were involved, but held the argument still failed: “If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.”2Library of Congress. United Public Workers of America v. Mitchell
The Court upheld the Hatch Act and added that “the fundamental human rights guaranteed by the First, Fifth, Ninth and Tenth Amendments are not absolutes.” Read together, the reasoning treated the Ninth Amendment as real but subordinate: any enumerated federal power could override it. Critics have argued that framing left the amendment with little independent force.
Griswold v. Connecticut (1965)
No case did more to bring the Ninth Amendment back into constitutional argument. Connecticut made it a crime to use contraceptives or to counsel their use. Estelle Griswold and Dr. C. Lee Buxton opened a birth control clinic in New Haven, were convicted as accessories, and each fined $100. The Supreme Court struck down the law as a violation of marital privacy.3Justia U.S. Supreme Court Center. Griswold v. Connecticut
Justice William O. Douglas, writing for the majority, found the right of privacy in “penumbras, formed by emanations” from the First, Third, Fourth, Fifth, and Ninth Amendments. The Ninth, he said, showed that the people retain rights beyond those the Constitution lists.
The stronger Ninth Amendment argument came from Justice Arthur Goldberg’s concurrence. Goldberg wrote that the amendment’s “language and history reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.” To decide whether a right qualifies as fundamental, he said, courts should look to the “traditions and collective conscience of our people.” He concluded that “the right of privacy in the marital relation is fundamental and basic — a personal right ‘retained by the people’ within the meaning of the Ninth Amendment.”
That concurrence gave litigants a live argument they have used ever since when claiming rights the Constitution does not spell out.
United States v. Vuitch (1971)
The District of Columbia allowed abortions only when necessary to preserve the mother’s “life or health.” Dr. Milan Vuitch, indicted for performing abortions, challenged the law as unconstitutionally vague. A district court dismissed the charges; the Supreme Court reversed.4Justia. United States v. Vuitch, 402 U.S. 62 (1971)
The Court read “health” broadly to include psychological and emotional well-being, not just physical conditions, which gave physicians room to exercise professional judgment. The decision turned on statutory interpretation and vagueness doctrine rather than the Ninth Amendment itself, but it was an early judicial acknowledgment that reproductive medical decisions implicated fundamental personal liberties.5Legal Information Institute. United States v. Vuitch
Roe v. Wade (1973)
Roe is probably the most famous case linked to the Ninth Amendment, though the Supreme Court did not rest its holding there. The federal district court that first heard the case struck down Texas’s abortion ban specifically on Ninth Amendment grounds, ruling that the statute violated a right to privacy retained by the people.
When the case reached the Supreme Court, Justice Harry Blackmun’s majority opinion drew on the First, Fourth, Ninth, and Fourteenth Amendments as sources of privacy protection, but anchored the right in the Due Process Clause of the Fourteenth Amendment. The Court found that clause’s concept of personal liberty “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”6Congress.gov. Overview of Ninth Amendment, Unenumerated Rights
Roe set a pattern that would repeat: lawyers raise the Ninth Amendment, lower courts sometimes rely on it, but the Supreme Court resolves the case through the Fourteenth.
Richmond Newspapers Inc. v. Virginia (1980)
A Virginia trial judge closed a murder trial to everyone outside the case. Journalists challenged the closure, and the Supreme Court ruled that criminal trials must be open to the public unless an overriding interest, specifically stated in the court’s findings, justifies closing them.7Justia. Richmond Newspapers, Inc. v. Virginia
Chief Justice Warren Burger’s plurality opinion grounded the right of access in the First and Fourteenth Amendments, calling it “implicit in the guarantees of the First Amendment.” His opinion also acknowledged that “various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights” — reasoning that tracks the Ninth Amendment’s logic even though the holding did not rely on it.8Supreme Court of the United States. Richmond Newspapers, Inc. v. Virginia The Ninth Amendment appeared directly through a footnote in Burger’s opinion and in Justice William Rehnquist’s dissent, where Rehnquist rejected the idea that it gave the Court power to review state trial judges’ closure orders.
Troxel v. Granville (2000)
Washington State allowed any person to petition for visitation with someone else’s child, at any time, if a judge believed the visits served the child’s best interest. Grandparents used the statute to seek visits over a mother’s objection.9Justia. Troxel v. Granville, 530 U.S. 57 (2000)
Justice Sandra Day O’Connor’s plurality struck down the statute as too broad, holding that “the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”10Legal Information Institute. Troxel v. Granville Fit parents are presumed to act in their children’s best interest, and a judge cannot substitute a personal view of what would be better.
The right to direct a child’s upbringing appears nowhere in the Constitution’s text. It is exactly the kind of right the Ninth Amendment was written to preserve. The Court simply chose to protect it through the Fourteenth Amendment’s liberty guarantee, with the Ninth in the background.
Why the Fourteenth Amendment Does the Work
Across every one of these decisions, when the Court actually strikes down a law to protect an unenumerated right, the Fourteenth Amendment’s Due Process Clause is the provision doing it. The Ninth Amendment tells us that unlisted rights exist. The Fourteenth is how courts enforce them against state governments.
Part of the reason is the incorporation doctrine — the process by which most of the Bill of Rights has been applied to the states through the Fourteenth Amendment. The Ninth Amendment has never been incorporated, and courts treat it as unlikely that it ever will be.11Legal Information Institute. Incorporation Doctrine In practice, that leaves the Ninth Amendment functioning more as a philosophical statement than a standalone legal tool. Justice Goldberg used it in Griswold to argue the Bill of Rights is not exhaustive. Mitchell acknowledged it protects political rights. But the striking-down work goes to the Fourteenth.
Dobbs v. Jackson Women’s Health Organization (2022)
The Court’s most recent framing of unenumerated rights came in Dobbs, 597 U.S. 215, which overruled Roe v. Wade and held that the Constitution does not confer a right to abortion. The majority applied a strict test: an unenumerated right must be “deeply rooted in this Nation’s history and tradition” to count as a component of the liberty protected by the Due Process Clause.12Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
The majority distinguished Griswold, Lawrence v. Texas, and Obergefell v. Hodges by noting that none of those involved what Roe had called “potential life,” and it said it was not casting doubt on those precedents. Even so, the emphasis on historical pedigree alarmed many legal scholars, because the Ninth Amendment was written to prevent exactly that kind of reasoning: the idea that a right must have a documented tradition to receive constitutional protection.
That tension is the unresolved question in this area of law. The amendment says the people retain rights beyond those listed. The Court says those rights must be deeply rooted in history to be protected. Whether those two principles can coexist, or whether the “deeply rooted” test effectively drains the Ninth Amendment of independent meaning, is what the next generation of cases will decide.