Largely ignored throughout most of our history, the Ninth Amendment has emerged in the past twenty years as a possible source for the protection of individual rights not specifically enumerated in the Constitution's text. Although no Supreme Court decision has yet been based squarely on an interpretation of the Ninth Amendment, it has been mentioned in several leading cases in which the Court enlarged the scope of individual rights. Lawyers, scholars, and judges are understandably intrigued by a provision that, on the basis of language, seems ideally suited to provide a constitutional home for newly found rights: "The enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained by the people."
The historical origins of the Ninth Amendment lay in JAMES MADISON'S concern that the inclusion of specified rights in the BILL OF RIGHTS might leave other rights unprotected. He recognized, moreover, that the inherent limitations of language could thwart the intent of the authors of the Bill of Rights to provide a permanent charter of personal freedom. These concerns, which led Madison originally to question the wisdom of a Bill of Rights, caused him to propose, in the First Congress, a resolution incorporating the present language of the Ninth Amendment. It was adopted with little debate.
It is not surprising that the Ninth Amendment lay dormant throughout most of our history. The holding in BARRON V. BALTIMORE (1833) that the Fifth Amendment was not applicable to the states limited the scope of the Ninth Amendment also: all provisions of the Bill of Rights restricted the United States only. Moreover, the federal government, being one of limited powers, did not move into those areas of activity that would trigger claims of infringement of rights not specified in the Constitution. Challenges to federal actions were more likely to take the form that the President or Congress lacked power under the Constitution rather than that the actions abridged an individual right. Even the specific guarantees of the Bill of Rights spawned only a trickle of litigation until well into the twentieth century.
The states, of course, had broad POLICE POWERS to legislate in the areas of welfare, health, education, morality, and business. Until the latter part of the nineteenth century, however, the Supreme Court's review of state legislation served primarily to assure that states did not unduly burden or tax interstate businesses. Court decisions in these areas were not based on individual rights but rather on a judicially created doctrine that Congress's power to regulate INTERSTATE COMMERCE carried with it a prohibition against state laws that were viewed by the Court as unreasonably burdensome or discriminatory as applied to interstate businesses. The post-Civil War Amendments provided the textual basis for challenges to state law as violating individual rights.
The Supreme Court, however, moved quickly to limit the scope of the THIRTEENTH AMENDMENT and FOURTEENTH AMENDMENT. In the famous SLAUGHTERHOUSE CASES (1873) the Court virtually eliminated the PRIVILEGES AND IMMUNITIES clause of the Fourteenth Amendment as a protection for individual rights by limiting the clause to such rights as interstate travel, petitioning the federal government for redress of grievances, protection while abroad, or the privilege of HABEAS CORPUS. The EQUAL PROTECTION and DUE PROCESS clauses were also narrowly interpreted so as to preclude broad challenges to state regulatory statutes, as was the Thirteenth Amendment in Slaughterhouse and the CIVIL RIGHTS CASES (1883).
Despite the Slaughterhouse Cases, those seeking constitutional support for the protection of property rights against ECONOMIC REGULATION looked elsewhere in the Fourteenth Amendment, and ultimately found a home in the due process clause. Toward the end of the nineteenth century the Court expanded the meaning of "liberty" and "property" to include the right to enter into business relationships. Hundreds of state laws were invalidated under this expanded concept of SUBSTANTIVE DUE PROCESS. This view of the Fourteenth Amendment, together with narrow interpretations of Congress's power under the COMMERCE CLAUSE and the TAXING AND SPENDING POWER, led to the NEW DEAL constitutional crisis of the 1930s. In the spring of 1937 a narrow Court majority shifted ground, broadening Congress's enumerated powers and limiting the due process clause to its present scope, namely, that state regulatory laws should bear a reasonable relationship to a valid legislative purpose. Throughout this long constitutional
journey the Ninth Amendment was an unused instrument, because those who challenged state laws relied primarily on the Fourteenth Amendment's due process clause whose scope had been so broadened that there was no need to develop a theory of unenumerated rights.
As the Court in the 1930s and 1940s finally rejected the claim that the Constitution contained rights that protected business against government regulation, the enumerated rights in the Bill of Rights were gradually being incorporated into the meaning of the words "liberty" and "property" of the Fourteenth Amendment's due process clause. By the end of the 1960s, substantive rights guaranteed by the FIRST AMENDMENT, and most of the...