Griswold v. Connecticut, 381 U.S. 479 (1965), was a formative case for the Supreme Court jurisprudence regarding the Fourteenth Amendment. But it’s the discussion regarding the Ninth Amendment among several of the opinions that is irresistibly intriguing, spurring the imagination as to what the Amendment could do. Six justices felt moved to speak on the Due Process Clause. Of the six, four commented on the role of the Ninth Amendment, and the other two were likely influenced by it.
Justice Douglas suggested that the Due Process Clause incorporates the Bill of Rights, and he argued that several of these rights have penumbras whose emanations establish an undefined zone of privacy for the United States citizen. Douglas included the Ninth Amendment among his emanating Amendments. Justice Goldberg would not incorporate all of the first eight Amendments into the Due Process Clause, but he did argue that the Ninth Amendment evidently through text and history provided unenumerated individual rights, some of which can be identified by their fundamentality. Justice Harlan did not make use of the Ninth Amendment but found that the Due Process Clause alone protects basic values, “implicit in the concept of ordered liberty.” Justice White came to the same conclusion but focused more on his repulsion to and assessment of the law in question. Justices Black and Stewart disparaged the Ninth Amendment argument as “shocking doctrine” and a concept that “turn[s] somersaults with history.”
The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Douglas’s majority and Goldberg’s concurrence rely on this text for their arguments. Douglas’s emanating Amendments (his “penumbras”) could not be understood from the Bill of Rights unless there were greater reasons to read the rights broadly. A narrow reading of the Bill of Rights would be a regular interpretive assumption, but the Ninth Amendment provides for the possibility of more rights outside of the enumerated ones in the Constitution. Because justices often purport to adhere closely to the narrow text, these unenumerated rights could really only be cognized in close relationship to the enumerated rights. But the Ninth Amendment allows cognizability so that emanations appear around the enumerated rights, and form the zone of privacy that Douglas expounds. This zone of privacy might be considered an area of rights created by the overlapping emanations of the First, Third, Fourth, Fifth, and Ninth Amendments. But another analysis might reveal that while Amendments 1, 3, 4, and 5 create a zone of privacy on a two-dimensional plane, the Ninth Amendment provides the third dimension that allows jurists to see the zone of privacy in full.
The Ninth Amendment is central to Goldberg’s argument for a right of privacy, but he is more easily able to pull the right of privacy directly out of the opening that the Ninth Amendment creates. Less adherent to the text, Goldberg’s inclination to cognize rights, and his liberality, earned the ire of the dissenting justices.
Stewart and Black recognized the slippery slope of Goldberg’s and Douglas’s analyses. If the Ninth Amendment opened up jurisprudence to rights and zones of rights, such as the zone of privacy, jurists would find themselves wielding “broad” decision-making power. They understood the majority’s exercise, similar to that of the spurned Lochner v. New York, 198 U.S. 45 (1908), to give judges power to invalidate any legislation they found “irrational, unreasonable, or offensive.”
These dissenting justices recognized a tyranny of the judiciary to which the other justices were exposing the Court under the banner of the Ninth Amendment. Black and Stewart opposed it vehemently. The current efforts of political parties to pack the federal judiciary with partisan judges is evidence that political parties recognize a “tyranny” at their disposal. So perhaps Black and Stewart were correct, and the Ninth Amendment is a slippery slope to tyranny of the judiciary. On the other hand, Douglas’s zone of privacy has allowed the court to defend individuals from states’ infiltration into matters that citizens have found essential to their privacy. So, perhaps the Ninth Amendment is instead a saving grace from the tyranny of the state. Perhaps it is both. But while Griswold has become the foundation for many landmark cases, the Ninth Amendment has remained relatively dormant. So perhaps we have yet to know.
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