Ninth Amendment
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
— U.S. Constitution, Amendment IX (1791)
Understanding the Ninth Amendment
The Ninth Amendment addresses a concern raised during the ratification debates: that enumerating specific rights might imply that the people had no other rights. James Madison and others feared that a Bill of Rights could be read as exhaustive—that if a right wasn't listed, it didn't exist.
The Ninth Amendment resolves this by making clear that the people retain all rights not specifically granted to government, whether or not those rights appear in the Constitution. The Bill of Rights is a floor, not a ceiling.
The Original Understanding
For the Founders, rights were natural—they existed before government and were not created by the Constitution. The Bill of Rights didn't grant rights; it recognized pre-existing rights and prohibited government from infringing them. The Ninth Amendment ensures this understanding extends to rights not specifically mentioned.
Rights that have been recognized under Ninth Amendment principles include:
Key Precedent: Griswold v. Connecticut (1965)
381 U.S. 479
Justice Goldberg's concurrence relied heavily on the Ninth Amendment: "The Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments."
The Presumption of Liberty
The Ninth Amendment embodies what some scholars call the "presumption of liberty"—the idea that in a free society, individuals are presumed to have the right to act unless government can justify restricting that action. This reverses the default assumption of many regulatory regimes, which presume government authority unless individuals can point to an explicit right.
Natural Rights Philosophy
The Founders believed rights existed before government. The Constitution limits government power; it doesn't grant rights to the people.
Rule of Construction
The Ninth Amendment is a rule of interpretation: the listing of some rights cannot be used to deny the existence of others.
Popular Sovereignty
Ultimate authority rests with the people. Government exercises only those powers delegated to it; the people retain everything else.
State Protection
While federal courts have been reluctant to robustly enforce the Ninth Amendment, states can protect unenumerated rights through state constitutions and statutes.
"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government... This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against."— James Madison, Speech to Congress, June 8, 1789
State Bills to Protect Unenumerated Rights
While federal courts have been reluctant to robustly enforce the Ninth Amendment, states can protect unenumerated rights through state constitutions and statutes. Many state constitutions have their own "retained rights" clauses, and states can enact legislation that protects liberty beyond federal minimums.
Individual Liberty Preservation Act
Presumption of LibertyEstablishes a presumption of liberty for activities that do not harm others. Requires government to demonstrate a legitimate interest, substantial relation, and least restrictive means before restricting individual conduct. Recognizes specific protected activities.
Key Provisions:
- Establishes presumption of liberty for peaceful, non-harmful conduct
- Requires heightened scrutiny for restrictions on liberty
- Recognizes protected activities: bodily autonomy, earning a living, travel, privacy, contract, child-rearing
- Creates private right of action for liberty violations
- Provides for judicial review of regulatory burdens
Economic Liberty Act
Right to Earn a LivingDeclares the right to earn a living in a lawful occupation a fundamental right. Limits occupational licensing to cases where there is substantial risk to public health and safety and no less restrictive means. Requires periodic review of all occupational licenses.
Key Provisions:
- Declares right to earn a living a fundamental right
- Limits occupational licensing to genuine public health and safety needs
- Requires five-year review of all occupational licenses
- Prohibits using criminal history to bar licensure unless directly related and recent
- Creates expedited judicial review of licensing denials
Considerations for State Legislators
State Constitution Review
Review your state constitution for existing retained rights provisions that may support this legislation. Many state constitutions contain language even broader than the federal Ninth Amendment.
Licensing Board Reform
The Economic Liberty Act will require review of existing occupational licensing regimes. Prepare for pushback from existing licensees who benefit from barriers to entry.
Judicial Standards
Define clear standards for courts to apply when reviewing government restrictions on liberty. Ambiguous standards invite inconsistent application.
Balance
The bills are designed to protect liberty while still allowing reasonable regulation for genuine public health and safety. Emphasize this balance when building coalitions.
Defend Unenumerated Rights in Your State
Download our model legislation and share it with your state legislators. The Ninth Amendment reminds us that our rights are not limited to those listed—and states can protect the full scope of liberty.