The Risk of Rights audits the Bill of Rights one amendment at a time. Terms per Black’s Law Dictionary. Reporting on documents, not legal advice — and, on the most politically charged terrain in the series, no position on any specific contested right, only on the doctrine’s direction.
The amendment
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” — U.S. Const. amend. IX (ratified 1791)
What it protects
An idea, more than a specific right: that the list of rights in the Constitution is not exhaustive, and that the people retain liberties the document never names. The Founders worried that writing some rights down would imply the government could trample any right left off the page. The Ninth Amendment is their explicit answer — a rule that the silence of the text is not permission.
The terms, per Black’s
- Unenumerated rights — Black’s Law Dictionary (12th ed. 2024): rights not expressly listed in the Constitution but recognized as retained by the people, often protected through the Due Process Clause.
- Substantive due process — per Black’s, the doctrine that the Due Process Clauses protect certain fundamental rights from government interference regardless of the procedures used — the main vehicle through which unenumerated rights are enforced.
- Rule of construction — a principle directing how a legal text should be interpreted, as opposed to a source of enforceable rights itself.
The record today
The Ninth Amendment is the right that courts won’t quite enforce alone. In practice, judges almost never strike down a law on Ninth Amendment grounds by itself; the amendment is treated mainly as a rule of construction — a reminder not to read the enumerated list as complete. The actual protection of unnamed rights runs instead through substantive due process under the Fourteenth Amendment. It surfaced in Griswold v. Connecticut, 381 U.S. 479 (1965), where a concurrence leaned on the Ninth to help recognize a right to marital privacy. But the Ninth has never become a freestanding engine of rights; it points at a category that other doctrines actually enforce.
And in 2026, that category is contracting. The method for recognizing unenumerated rights was reshaped by Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), which — whatever one thinks of its specific subject — announced that substantive due process protects only those rights “deeply rooted in this Nation’s history and tradition.” That test, by design, makes it harder to recognize new unenumerated rights and casts doubt on some already recognized. The Founders’ warning that the list isn’t everything runs, in 2026, against a doctrine increasingly inclined to treat the historically rooted list as close to everything.
Why this is the hardest entry to score. The Ninth Amendment protects a category, not a clause, and reasonable people fundamentally disagree about whether narrowing that category is a loss of liberty or a return of contested moral questions to the democratic process where they can be decided by voters. This series takes no side in that argument. It records only the structural fact: the doctrinal space for rights beyond the written list is smaller than it was, and the Ninth Amendment — the text meant to guard exactly that space — is not the tool courts use to defend it.
By the numbers
- Rarely — the frequency with which courts strike a law on Ninth Amendment grounds standing alone; it functions mainly as a rule of construction
- 1965 — Griswold, where the Ninth was invoked to help recognize an unenumerated privacy right (concurrence)
- 2022 — Dobbs limits substantive due process to rights “deeply rooted in history and tradition,” narrowing the category of enforceable unenumerated rights
- Contested — whether that narrowing subtracts liberty or restores democratic self-government; the audit takes no side
The counterweight
State the strongest opposing case, which here is genuinely principled. Unenumerated-rights doctrine has always troubled people across the spectrum: it asks unelected judges to identify “fundamental” rights the Constitution never wrote down, which can look less like enforcing law than imposing values. The “history and tradition” test, its defenders argue, disciplines that discretion — it ties judges to something outside their own preferences and returns contested moral questions to legislatures, where majorities can decide them. On this view, a narrower substantive due process is not the erosion of a right but the restoration of democracy: fewer liberties settled by five judges, more decided by the people. That is a serious constitutional philosophy, not a dodge.
And the counter to it is equally serious: the Ninth Amendment exists precisely because the Founders feared that unlisted rights would be treated as nonexistent, and a doctrine that recognizes only the historically rooted is a doctrine that freezes liberty to the comfort level of the past. The audit does not resolve this. It notes only that the Ninth Amendment’s core promise — that your rights exceed the list — is, as an enforceable matter, at its lowest ebb in decades.
The audit
The 1791 promise was that the enumerated rights are a floor, not a ceiling — that the people keep liberties the document never names. The 2026 record is an amendment courts decline to enforce on its own, protecting a category of rights that a controlling doctrine is actively narrowing to those “deeply rooted in history and tradition.” Whether that is discipline or diminishment is the great argument of the age. What is not in dispute is that the space the Ninth Amendment was written to protect has rarely been smaller.
Quod non vetat lex, hoc permittit — what the law does not forbid, it permits. The Ninth Amendment is the constitutional form of that maxim. Its modern risk is a doctrine that increasingly reads the unwritten as unprotected.
Next in The Risk of Rights: the Tenth Amendment.
Sources:
- U.S. Const. amend. IX — text of the Ninth Amendment
- Griswold v. Connecticut, 381 U.S. 479 (1965) — unenumerated privacy right; Ninth Amendment concurrence
- Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) — “history and tradition” test for substantive due process
- Constitution Annotated — the Ninth Amendment — its function as a rule of construction
- Black’s Law Dictionary (12th ed. 2024) — definitions: unenumerated rights; substantive due process; rule of construction