A Critical Guide to the Ninth Amendment

Since the Supreme Court's decision in Griswold v. Connecticut, thousands of law students each year have confronted a confusing debate over the meaning of the Ninth Amendment. Writing for the majority in Griswold, Justice Douglas included the Ninth Amendment among the sources for deriving the “penumbral” right of privacy. More central to this article, in a separate concurrence Justice Goldberg contended that the Amendment provided a basis for the discovery of fundamental human rights beyond those included in the text of the Constitution and the Bill of Rights. In response, the dissenting Justices, Stewart and Black, argued that Goldberg's reliance on the Ninth Amendment was misplaced, and that, in expanding the reach of federal power, it actually turned the meaning and significance of the provision upside down. According to their reading, the Ninth Amendment was designed to preserve the federal structure of the Constitution, including the scheme of limited federal powers, to the end of securing the people's rights. For non-specialists, this debate can only be confusing, because none of the opinions provides enough evidence or reasoning for even the most educated reader to determine who has the better argument. Consequently, law students typically fall back to their own presuppositions about the practice of judicial review when it comes time to assess this debate. Students who are sympathetic to an activist judiciary discovering rights beyond the ones specified in the text of the Constitution prefer Justice Goldberg's reading. Students opposed to such a judicial role are sympathetic to the thesis set forth by Justices Stewart and Black. Each group seems convinced that their own view “must” have been the view adopted by the Framers of the Constitution. While there exists fairly extensive literature expanding on this debate from Griswold, much of the literature is lengthy and involved, and virtually none of it is written with the uninitiated in mind. In this article, the author attempts to explain the debate so that non-specialists, including law students, might understand it, especially since the Ninth Amendment plays a central role in the ongoing debate over fundamental rights decision-making by the modern Supreme Court.