Robert Bork once referred to the Ninth Amendment as an indecipherable “inkblot.” First, as we know from the Rorschach Test, inkblots can have a lot of meaning. The Founders’ perception of this inkblot could tell us a good deal about their inner thoughts. Second, the Ninth Amendment IS NOT AN INKBLOT. Not even close. 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.”
It is arguably the clearest amendment. Just because a right is not listed in the Constitution (or the Bill of Rights) does not mean that it does not exist. A deeper understanding of the Founders’ philosophical background indicates that the Framers were using natural rights philosophy to argue that there are certain rights that individuals are born with that they retain. These rights are not granted by the government and cannot be divested (or, if you prefer, disparaged: “How dare you insult my rights!”) simply due to their omission from the Constitution.
Why I rank the Ninth so high is that it provides judges with an important clue on how to interpret the Constitution. Georgetown Law Professor Randy Barnett has famously argued in Restoring the Lost Constitution, that the Ninth Amendment creates a presumption of liberty, a presumption in favor of natural rights that the government cannot violate. He claims that based on the wording and historical record behind the Ninth Amendment certain rights that are unenumerated (these are natural, not positive rights) deserve the same protection as the rights that are explicitly enumerated in the Bill of Rights. These rights are negative in the sense that they prevent others (including the government) from restricting your behavior or actions as opposed to requiring action (Read this for a fuller discussion of the history and intention of the Ninth Amendment).
This makes sense given the debate over whether there should even be a Bill of Rights to accompany the Constitution. A concern about including a Bill of Rights was that it would be misleading and make people think that only those rights explicitly listed are protected by the national government. When discussing the freedom of the press in Federalist 84, Alexander Hamilton asked: “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?” In other words, the government needs to be granted power by the Constitution in order to wield it; the Ninth Amendment makes this crucial presumption clear.
If I love the Ninth Amendment so much, why didn’t it make the top three? It simply hasn’t been that effective. Bork’s view of the Ninth is not uncommon and the Ninth generally is only cited in conjunction with other amendments (in fact, it is part of the most famous penumbra in history). And, it is relatively rare that this occurs. Nonetheless, this supporting role is important in those rare instances. The Court may not have framed it right, but in the case of Roe, the Ninth Amendment was crucial in establishing that a woman’s right to terminate her pregnancy before viability despite it not being explicitly mentioned in the Constitution.
So, despite it’s relative ineffectiveness, the Ninth Amendment finishes fourth.