The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.— Ninth Amendment
With these simple words, the Framers hoped to preserve rights that we retain as inheritors of the common law of Great Britain. Ours was among the first written constitutions, so it plunged the young nation into unknown waters where we depend explicitly on laws written by people.
Since the signing of the Magna Carta, English-speaking people had compiled a constitution built on precedent.
Initially, we relied on the Articles of Confederation. The disparate responsibilities made clear the need for a stronger central government, which led to the Constitutional Convention and resulting Constitution.
Almost immediately, the Framers worried whether some of the rights established in the British Constitution would be encroached upon.
Alexander Hamilton argued forcefully in Federalist Paper 84 that none of our rights were endangered. But others, including coauthor James Madison, saw the peril.
The risk of federal encroachment on the rights of states and individuals became central to the conditions of passage of the Constitution. The Bill of Rights was created about two years after ratification of the Constitution.
Most of those rights are familiar to us, including the freedom of religion and the right to gun ownership.
The protection of our rights from state government is delineated in the 14th Amendment. In each case the role of government is carefully monitored by the courts.
The responsibility of the courts to ensure the constitutionality of our rights emerged from Marbury v. Madison in 1803.
The obligation of the court to assume the monitoring of the law was not previously explicit in the text of the Constitution.
Before this decision, the Constitution did not necessarily have the force of law, but was merely a statement of guidelines, principles and ideals.
To summarize, we have a government of explicit and implicit rights. The former is identified in the Constitution and the latter is protected by both precedent and the Ninth Amendment.
But the Ninth Amendment is among the least known of the Bill of Rights. Among the more recent citations was by Justice Arthur Goldberg in the concurring opinion for Griswold v. Connecticut, which protected the right of married couples to buy and use contraceptives.
Similarly, the district court that initially decided Roe v. Wade cited the Ninth as assuring the right to choose abortion.
The Supreme Court affirmed the right to abortion, but relied on the federally enforceable right to privacy, again a right implicit in the constitution.
To summarize, we have a written constitution with amendments. We also have courts that use both its text and precedent to apply the meaning of the Constitution. Just because something is not in the Constitution does not mean it is not a right the Constitution may well protect.
Even the right of the court to evaluate laws is not in the Constitution.
It follows that just as the right of free association is protected, so is a woman’s right to an abortion.