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Amendment IX – Non-Enumerated Rights (1791)

The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  This means that the rights citizens are not limited by those listed in the Constitution.  The purpose of the Ninth Amendment was to dismiss the notion that the rights not explicitly named in the Constitution did not exist.  The Ninth Amendment rights or Non-enumerated rights are additional fundamental rights protected from governmental infringement.  These additional rights exists side-by-side with the fundamental rights specifically mentioned in the first eight amendments.     

The non-enumerated rights are considered to arise from natural law.  Courts have also found that these non-enumerated rights can be derived from express constitutional provisions.  For example, although the first amendment guarantees freedom of speech, it is silent about the nature of the speech protected.  In this regard, the Supreme Court has held that a freedom of speech protects both verbal and non-verbal expressions and communicative conduct at the same time[i]. 
Some of the non-enumerated rights recognized by Supreme Court are as follows:

  • right to an abortion based on right to privacy[ii].
  • right to choose and follow a profession[iii];
  • right to attend and report on criminal trials[iv];
  • right to receive equal protection not only from the states but also from the federal government[v];
  • right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime[vi];
  • right to associate with others[vii];
  • right to privacy[viii];
  • right to travel within the United States[ix];
  • right to marry or not to marry[x];
  • right to make one’s own choice about having children/ right to reproductive autonomy/right to be free from compulsory sterilization[xi]
  • right to educate one’s children as long as one meets certain minimum standards set by the state[xii];
  • right to vote, subject only to reasonable restrictions to prevent fraud, and to cast a ballot equal in weight to those of other citizens[xiii];
  • right to use the federal courts and other governmental institutions and to urge others to use these processes to protect their interests[xiv];
  • right to retain American citizenship, despite even criminal activities, until explicitly and voluntarily renouncing it[xv];

The Supreme Court has also used this power not to recognize certain rights asserted by people.  In Wash. v. Glucksberg, 521 U.S. 702 (U.S. 1997), the Supreme Court ruled that the right to die is not a non-enumerated constitutional right. 

Critics pose the argument that this power of the Courts imposes the personal values of Judges on the law.  But this role of Judiciary has helped recognize various rights of the people which are not expressly enumerated in the Constitution.  The term ‘due process of law’ as used in the Fifth and Fourteenth amendment is nowhere defined in those amendments.  However, the Supreme Court has interpreted this term to require procedural fairness in the litigation process.  The procedural rights recognized under this term are non-enumerated because the due process clause does not describe the procedures that it covers.   

[i] Tex. v. Johnson, 491 U.S. 397 (U.S. 1989)

[ii] Roe v. Wade, 410 U.S. 113 (U.S. 1973)

[iii] Gibson v. Berryhill, 411 U.S. 564 (1973); Meyer v. Nebraska, 262 U.S. 390 (1923); Allgeyer v. Louisiana, 165 U.S. 578 (1897).

[iv]Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)

[v] Bolling v. Sharpe, 347 U.S. 497 (1954).

[vi] Sandstrom v. Montana, 442 U.S. 510 (1979); Jackson v. Virginia, 443 U.S. 307 (1979); Estelle v. Williams, 425 U.S. 501 (1976); In re Winship, 397 U.S. 358 (1970).

[vii]NAACP v. Alabama, 357 U.S. 449 (1958); De Jonge v. Oregon, 299 U.S. 353 (1937).

[viii] Griswold v. Connecticut, 381 U.S. 479 (1965)

[ix] Shapiro v. Thompson, 394 U.S. 618 (1969); Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868).

[x] Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967)

[xi] Carey v. Population Servs., 431 U.S. 678 (1977); Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965).

[xii] Pierce v. Society of Sisters, 268 U.S. 510 (1925).

[xiii] Reynolds v. Sims, 377 U.S. 533 (1964); Baker v. Carr, 369 U.S. 186 (1962).

[xiv] NAACP v. Button, 371 U.S. 415 (1963); Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).

[xv]Afroyim v. Rusk, 387 U.S. 253 (1967)

Inside Amendment IX – Non-Enumerated Rights (1791)