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[Cite as Griswold v. Connecticut, 381 U.S. 479, 488, 490-493 (1965). Note: This decision regards a Connecticut law criminalizing contraceptive devices and information. Justice Harlan's dissenting opinion in Poe v. Ullman, 367 U.S. 497, 542-543 (1961) four years earlier gains ascendency. Justice Harlan had enumerated the right to bear arms among other rights in the first eight amendments. (Poe at 542-543) A concurring opinion by Justice Goldberg (joined by The Chief Justice Warren and Justice Brennan), while noting the fourteenth amendment had not been applied to the entire Bill of Rights (continued to be applied over the following years), repeatedly refers to the first eight amendments in terms of "fundamental rights" (Pp. 488 (This page), 490, 491, 492) or "fundamental personal liberties" (P. 493). This is similar to Patton v. United States, 281 U.S. 276 (1929) where the majority opinion noted "the first ten amendments should be construed in pari materia." (Patton at 298) The Court has made similar observations in Dred Scott v. Sandford, 60 U.S. 393, 417, 450-451 (1857); Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897), and United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).]
[Griswold v. Connecticut continued
Return to pages 479-487.
Currently at pages 488-493.
Proceed to pages 494-531]
And, in Meyer v. Nebraska, 262 U.S. 390, 399, the Court, referring to the Fourteenth Amendment, stated:
"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also [for example,] the right ... to marry, establish a home and bring up children ...."
This Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and applies to the States those specifics of the first eight amendments which express fundamental personal rights.[488.2] 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.
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." The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights[488.3] could not be sufficiently broad to cover all essential (p.489)rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.[489.4]
In presenting the proposed Amendment, Madison said:
"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 (p.490)last clause of the fourth resolution [the Ninth Amendment]." I Annals of Congress 439 (Gales and Seaton ed. 1834).
Mr. Justice Story wrote of this argument against a bill of rights and the meaning of the Ninth Amendment:
"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." II Story, Commentaries on the Constitution of the United States 626-627 (5th ed. 1891).
He further stated, referring to the Ninth Amendment:
"This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmation in particular cases implies a negation in all others; and, e converso, that a negation in particular cases implies an affirmation in all others." Id., at 651.
These statements of Madison and Story make clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people.[490.5]
While this Court has had little occasion to interpret the Ninth Amendment,[490.6] "[i]t cannot be presumed that any (p.491)clause in the constitution is intended to be without effect." Marbury v. Madison, 1 Cranch 137, 174. In interpreting the Constitution, "real effect should be given to all the words it uses." Myers v. United States, 272 U.S. 52, 151. The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. 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, which specifically states that (p.492)"[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (Emphasis added.)
A dissenting opinion suggests that my interpretation of the Ninth Amendment somehow "broaden[s] the powers of this Court." Post, at 520. With all due respect, I believe that it misses the import of what I am saying. I do not take the position of my Brother Black in his dissent in Adamson v. California, 332 U.S. 46, 68, that the entire Bill of Rights is incorporated in the Fourteenth Amendment, and I do not mean to imply that the Ninth Amendment is applied against the States by the Fourteenth. Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights 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. As any student of this Court's opinions knows, this Court has held, often unanimously, that the Fifth and Fourteenth Amendments protect certain fundamental personal liberties from abridgment by the Federal Government or the States. See, e.g., Bolling v. Sharpe, 347 U.S. 497; Aptheker v. Secretary of State, 378 U.S. 500; Kent v. Dulles, 357 U.S. 116; Cantwell v. Connecticut, 310 U.S. 296; NAACP v. Alabama, 357 U.S. 449; Gideon v. Wainwright, 372 U.S. 335; New York Times Co. v. Sullivan, 376 U.S. 254. The Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority (p.493)of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights.
Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a case dealing with a State's infringement of a fundamental right. While the Ninth Amendment--and indeed the entire Bill of Rights--originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U.S. 75, 94-95.
In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the "traditions and [collective] conscience of our people" to determine whether a principle is "so rooted [there] ... as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105. The inquiry is whether a right involved "is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' ...." Powell v. Alabama, 287 U.S. 45, 67. "Liberty" also "gains content from the emanations of ... specific [constitutional] guarantees" and "from experience with the requirements of a free society." [paragraph continues next page]
[Return to pages 479-487.
Currently at pages 488-493.
Proceed to pages 494-531]
[488.2] See, e.g., Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226; Gitlow v. New York, supra; Cantwell v. Connecticut, 310 U.S. 296; Wolf v. Colorado, 338 U.S. 25; Robinson v. California, 370 U.S. 660; Gideon v. Wainwright, 372 U.S. 335; Malloy v. Hogan, 378 U.S. 1; Pointer v. Texas, supra; Griffin v. California, 380 U.S. 609.
[488.3] Madison himself had previously pointed out the dangers of inaccuracy resulting from the fact that "no language is so copious as to supply words and phrases for every complex idea." The Federalist, No. 37 (Cooke ed. 1961), at 236.
[489.4] Alexander Hamilton was opposed to a bill of rights on the ground that it was unnecessary because the Federal Government was a government of delegated powers and it was not granted the power to intrude upon fundamental personal rights. The Federalist, No. 84 (Cooke ed. 1961), at 578-579. He also argued,
"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power." Id., at 579.
The Ninth Amendment and the Tenth Amendment, which provides, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," were apparently also designed in part to meet the above-quoted argument of Hamilton.
[490.5] The Tenth Amendment similarly made clear that the States and the people retained all those powers not expressly delegated to the Federal Government.
[490.6] This Amendment has been referred to as "The Forgotten Ninth Amendment," in a book with that title by Bennett B. Patterson (1955). Other commentary on the Ninth Amendment includes Redlich, Are There "Certain Rights ... Retained by the People"? 37 N.Y.U. L.Rev. 787 (1962), and Kelsey, The Ninth Amendment of the Federal Constitution, 11 Ind. L.J. 309 (1936). As far as I am aware, until today this Court has referred to the Ninth Amendment only in United Public Workers v. Mitchell, 330 U.S. 75, 94-95; Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 143-144; and Ashwander v. TVA, 297 U.S. 288, 330-331. See also Calder v. Bull, 3 Dall. 386, 388; Loan Assn. v. Topeka, 20 Wall. 655, 662-663.
In United Public Workers v. Mitchell, supra, at 94-95, the Court stated: "We accept appellants' contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments [is] involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. Thus we have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth and Tenth Amendments. And, if we look upon due process as a guarantee of freedom in those fields, there is a corresponding impairment of that right under the Fifth Amendment."