Rights Retained by the People

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

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.

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 ...

The more specifically you define the liberty at issue, however, the more difficult a burden this is to meet—and the more easily the rights claim can be ridiculed. "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."

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.

[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.

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.