The Ninth Amendment

The Ninth Amendment matters:

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

Justice Arthur Goldberg says it well in his historic Griswold v. Connecticut opinion:

''The language and history of the Ninth Amendment reveal that the Framers of the
Constitution believed that there are additional fundamental rights, protected
from governmental infringement, which exist alongside those fundamental rights
specifically mentioned in the first eight constitutional amendments. . . . To
hold that a right so basic and fundamental and so deep-rooted in our society as
the right of privacy in marriage may be infringed because that right is not
guaranteed in so many words by the first eight amendments to the Constitution is
to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a
judicial construction that this fundamental right is not protected by the
Constitution because it is not mentioned in explicit terms by one of the first
eight amendments or elsewhere in the Constitution would violate the Ninth
Amendment. . . . Nor do I mean to state that the Ninth Amendment constitutes an
independent source of right protected from infringement by either the States or
the Federal Government. Rather, 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 and an intent that the list of rights
included there not be deemed exhaustive.''

Justice Joseph Story said it better:

"In regard to . . . [a] suggestion, that the affirmance of certain rights might disparage others, or might lead to argumentative implications in favor of other powers, it might be sufficient to say that such a course of reasoning could never be sustained upon any solid basis . . . . But a conclusive answer is, that such an attempt may be interdicted (as it has been) by a positive declaration in such a bill of rights that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people."

James Madison said it best in expressing his original intent regarding the Ninth Amendment:

"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, and were consequently insecure. This is one
of the most plausible arguments I have ever heard urged against the admission of
a bill of rights into this system; but, I conceive, that it may be guarded
against. I have attempted it, as gentlemen may see by turning to the last
clause of the fourth resolution [the Ninth Amendment]."