The Amendment They Pretend Is Not There

By Tony Pentimalli

 

The Ninth Amendment was written to stop the government from claiming every freedom the Constitution did not name. In an authoritarian age, progressives should use it to defend every part of human life the powerful are trying to seize.

The men who wrote the Bill of Rights understood that naming some freedoms could become a trap. They feared that a future government would point to the written list and claim the people had surrendered everything left off it. The Ninth Amendment was their answer. The people kept rights beyond those the Constitution specifically named. More than two centuries later, the abuse they feared has become a governing strategy. Women are crossing state lines because politicians have taken control of their medical decisions. Marriage equality is under attack again. Government can track our phones, scan our faces, collect our genetic information, and buy intimate details about our lives from private companies. These are not separate fights. They are one enormous fight over whether Americans own any part of their lives that the government and the Supreme Court have not chosen to recognize. Authoritarian politics reverses the burden of freedom. The government no longer explains why it may enter your body, bedroom, family, movements, or private life. You are forced to explain why it should stay out.

The Bill of Rights answers that power grab in the amendment politicians, judges, and conservative legal activists almost never mention. The Ninth Amendment says that listing certain rights must not be used to “deny or disparage others retained by the people.” The decisive word is retained. The people did not receive those other freedoms from the government. They already had them, and they kept them. James Madison understood what was at stake. Critics warned that future rulers would use the written list to claim ownership of everything the Constitution did not mention, so the Ninth Amendment was added to stop them. It is not decoration. It is a direct command that constitutional silence cannot be turned into government property.

The powerful suddenly become flexible constitutional scholars whenever flexibility gives them more power. Corporations receive broad speech rights that let them pour enormous sums into politics. Presidents receive implied privileges the Constitution never names. Police officers receive qualified immunity from many civil lawsuits unless a court had already declared the exact misconduct illegal in a nearly identical case. Yet when an ordinary person claims control over her body, marriage, family, movement, or private information, these same people demand an exact sentence written more than two hundred years ago. Corporations find rights between the lines. Presidents find privileges between the lines. Police find immunities between the lines. Ordinary people are told their freedom does not exist unless someone powerful remembered to write it down in 1791. That is why the politicians, judges, corporations, and legal activists feeding on this double standard need the Ninth Amendment buried and forgotten.

The Ninth Amendment does not settle every constitutional case by itself, and pretending otherwise would hand its enemies an easy argument. Its legal purpose is to establish that the written list of rights is incomplete. Other parts of the Constitution give courts the tools to protect liberty, equality, conscience, association, and privacy from state and federal power. Even the basic freedom to travel from one state to another has survived without one neat constitutional address. The Ninth Amendment does not replace those protections or guarantee an automatic victory. It tells courts they cannot pretend Americans surrendered every freedom the Constitution’s authors failed to name.

That broader understanding of freedom mattered in Griswold v. Connecticut, when the Supreme Court struck down a law banning married couples from using contraception. The majority cited the Ninth Amendment while finding marital privacy within several constitutional protections. Justice Arthur Goldberg stated the issue plainly. Refusing to protect a fundamental freedom merely because the Constitution did not list it would gut the Ninth Amendment, although the amendment did not give judges unlimited power to invent anything they wanted. The Constitution did not need to contain the word “contraception” before the government could be thrown out of a married couple’s bedroom. A family does not become government property because the founders failed to list every private decision its members might someday face.

The Supreme Court turned that principle upside down in Dobbs v. Jackson Women’s Health Organization. The majority demanded proof that abortion was deeply rooted in American history and tradition, forcing women to hunt for their freedom in centuries when women had little political power and almost no control over the laws governing their bodies. Justice Clarence Thomas then called for reconsidering the decisions protecting contraception, private consensual same sex relationships, and marriage equality. The danger is far bigger than the destruction of Roe or the possibility that Griswold and Obergefell could fall next. The authoritarian Right is attacking the entire modern idea that liberty protects intimate human decisions even when the founders did not list them one by one. It asks whether the people who excluded you also protected you, then uses their failure as proof that you never had the freedom at all. They are turning the oppression of the past into legal authority over the living. They want a Constitution where no unlisted freedom belongs to the people until the government or the Court decides to hand it over.

That project becomes even more dangerous as technology gives the state powers the founders could never have imagined. They knew nothing about cell phone location histories, facial recognition, genetic databases, artificial intelligence profiling, license plate readers, reproductive data, or government agencies buying personal information from data brokers. Their inability to name those technologies cannot mean modern machinery transfers our private lives to the government. In Carpenter v. United States, the Supreme Court ruled that government acquisition of extensive historical cell phone location records was a Fourth Amendment search because it exposed the whole pattern of a person’s movements. The Ninth Amendment reinforces the principle beneath that ruling. A new machine does not erase an old human freedom merely because eighteenth century language could not name the device threatening it. A Constitution that protects only the freedoms eighteenth century men could imagine will leave twenty first century Americans defenseless against powers those men could not imagine.

The strongest objection is that unelected judges cannot turn every policy they like into an unwritten constitutional right. That objection is legitimate. The answer is not to give judges unlimited power, but it is not to give the government unlimited territory either. Constitutional protection should be strongest when the state invades choices central to a person’s control over their own body, conscience, family, intimate relationships, movement, association, or deeply private information. That is nothing like giving corporations, landlords, or employers a constitutional license to control other people. A corporation has no fundamental human right to poison workers, crush unions, discriminate against families, buy political control, or gut communities for profit. Freedom protects people from domination. It does not protect the powerful while they dominate everyone else.

Progressives should use the Ninth Amendment every time the government claims ownership of a freedom simply because the Constitution did not name it. Every one of those fights should force the same question: Why does constitutional silence give the government ownership of that freedom? Courts should reject that theft. States should write endangered liberties directly into their constitutions. Citizens should understand the size of what is happening. This is not a fight over a few controversial rights. It is an attempt to rebuild the Constitution so the oppression of the past controls the freedom of the present, new forms of power face no limits unless the founders predicted them, and every unnamed part of human life belongs to the government until the government decides to give it back.

The Ninth Amendment is not a magic wand. It is one of the Constitution’s clearest warnings against that total claim of ownership. The government does not own everything the Constitution did not specifically name. The people retained it.

*Tony Pentimalli is a political analyst and commentator fighting for democracy, economic justice, and social equity. Follow him for sharp analysis and hard-hitting critiques on Facebook and BlueSky @tonywriteshere.bsky.social

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