November 16, 2017 | Supreme Court Decides Kernan v Cuero
|Another Source of Implied Rights||Important Cases|
|The text of the Ninth Amendment may at first appear to be quite broadly protective of rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Meaning, there are rights that exist apart from the ones explicitly mentioned in the Constitution. We know, conceptually, that this statement is accurate. There are, indeed, rights guaranteed by the Constitution that are not expressly laid out in the text of the document itself. There are implied rights, as it were. However, perhaps quizzically, the Ninth Amendment is not the source of those rights. Instead, implied fundamental rights, as they have been called, are actually found within the first section of the 14th Amendment, or in the Due Process Clause to be specific (and it is also noteworthy that the Ninth Amendment is not the only somewhat more obvious place to ‘house’ implied rights: see Privileges or Immunities Clause).|
As such, as the Supreme Court’s interpretation of the Constitution has developed, it is the Due Process Clause that has become fatter and fatter, while the Ninth Amendment has become little more than a eloquent truism.
However, though this may be the overwhelming majority approach to implied rights, that is not to say that some Justices (and other scholars) have not voiced the opinion that the Ninth Amendment is the rightful place from which to imply fundamental rights. For example, in Griswold v. Connecticut (1965), Justice Arthur Goldberg wrote a concurrence (an opinion where a Justice or Justices agree in the result of the majority but not its reasoning) expressing his opinion that the right to privacy, and other rights implied by the word “liberty” found in the 5th Amendment and the 14th Amendment (Section 1) is not limited to guaranteeing only the Constitution’s express rights – because of the Ninth Amendment.
|Griswold v. Connecticut (1965)|