The Ninth Amendment

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

Among the most tedious and boring Supreme Court justices, legend goes, was Arthur Goldberg. One columnist summed him up by writing, "I spent a month with Arthur Goldberg last weekend." President Lyndon Johnson actually conned him into quitting the Court to become UN Ambassador. And yet, had the country listened to this short-serving justice just once back in 1965, the course of American constitutional law might have run infinitely smoother. Once upon a simpler time, Goldberg actually invoked the Ninth Amendment.


Like Goldberg, the Ninth is mostly forgotten and ignored. But unlike the others, the Ninth is absolutely clear. There are no dangling modifiers ("A well regulated militia. . . "), interpretative adjectives ("unreasonable" searches), or impossible guarantees (a "speedy" trial). The Ninth is plainspoken and the founders' intent unnervingly transparent: We may have left some rights out, and if we have, they belong to the people — not to the government.

A keystone principle, you might think, but you'd be hard-pressed to fill a Volkswagen with Ninth Amendment scholars. So, why include it? Goldberg had an answer. The case was Griswold v. Connecticut. At issue was whether a married couple could procure birth control from a clinic, which the state disallowed by declaring that such dispensation might encourage adultery. Obviously the statute was "silly," a word Justice Potter Stewart used to describe it even as he upheld the law. For liberals, the question was, What solid thinking could undergird overturning it? Justice William O. Douglas, who wrote the majority opinion, argued that a right to privacy could be found in the Constitution. The word itself didn't appear, but, you know, you had that "no quartering troops" stuff, a prohibition of unreasonable searches and seizures, plus freedom of association. Thus, concluded Douglas, one can find a right to privacy in the "penumbra" of the Bill of Rights. But a penumbra — defined in the dictionary as "an indistinct area, especially a state in which something is unclear or uncertain" — might not have been the best place to locate a new constitutional right. Liberal constitutional thinking was already under attack for sneaking rights into the Constitution — the whole Bill of Rights had been pressed onto the states by poking a hole in the Fourteenth Amendment's due-process clause, and the Warren Court's embrace of the "penumbra" argument exacerbated an "Impeach Earl Warren" campaign. Meanwhile, in the same opinion, Goldberg suggested that privacy fit with the other rights. Ever since Jefferson penned the phrase "pursuit of happiness," there's been an understanding that the American project was about keeping government out of the way of each individual discovering his or her divine gifts. Happiness wasn't about whooping it up, but about being liberated from the confinements of class and custom. In keeping with this goal, Goldberg sought to use Griswold — and the Ninth Amendment — to declare that modern circumstances had carved out a need for a new right: privacy. But, instead of accepting Goldberg's invitation to a public debate about the extent of this new right, the High Court pressed on, expanding this hidden right to privacy in 1973 to include abortion — igniting a cultural storm in which our politics are still trapped.

Today, as then, the Ninth almost doesn't feel like it belongs in the Bill of Rights. It's not a right so much as a post-amble, a beautiful ending, more literary than legal — an attempt to make the final lines sing. It's a coda to an improvisational form of government that asks us to continue the work of the founding generation. Arthur Goldberg recognized this when he tried to convert the Court to his view. He failed, but think about how much of our lives — nearly 40 years after Griswold — are consumed by privacy issues (identity theft, John Poindexter, DNA testing, public surveillance cameras, the Patriot Act). Maybe now that there is profound anxiety across the spectrum, the country will finally read the Ninth the way Goldberg did — as a reminder to some future generation (possibly ours) shouted out during the ratification battles in 1791, that the hard work of creating true American liberty has been left undone