Unwritten Liberties: How Courts Protect What The Constitution Doesn’t Say

The Constitution’s text forms the bedrock of American rights—but some of the most transformative liberties arise from what it “doesn’t” explicitly say. From privacy to marriage equality, courts have long recognized “unenumerated rights” that shape societal progress, often invoking the Ninth Amendment’s acknowledgment of rights “retained by the people.” Yet this approach clashes with textualism, a legal philosophy binding judges strictly to the document’s original words. Here’s how these tensions unfold.

Inferred Rights: Beyond the Text

1. Privacy in Marriage (Griswold v. Connecticut, 1965):

The Supreme Court struck down a ban on contraceptives for married couples, ruling that privacy within marriage was a fundamental right. Though absent from the Constitution’s text, the Court located this right in the “penumbras” of the First, Third, Fourth, and Fifth Amendments. Justices Goldberg and Harlan further anchored it in the Ninth and Fourteenth Amendments, arguing unenumerated rights deserve equal protection.

2. Equal Voting Access (Baker v. Carr, 1962):

Tennessee’s failure to update legislative districts created stark population disparities, diluting urban voters’ influence. The Court ruled such inequities violated the Fourteenth Amendment’s Equal Protection Clause, asserting federal courts could intervene in redistricting—a “political question” once deemed off-limits. This decision expanded voting rights without explicit constitutional language.

3. Marriage Equality (Obergefell v. Hodges, 2015):

The Court legalized same-sex marriage nationwide, framing marriage as a “fundamental right” under substantive due process. Justice Kennedy emphasized liberty and equality’s interdependence, blending the Fourteenth Amendment with the Ninth’s spirit to protect evolving societal norms. Critics argued this overstepped textual bounds, while proponents saw it as fulfilling the Ninth Amendment’s purpose.

The Ninth Amendment’s Paradox

The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Designed to prevent a narrow reading of the Bill of Rights, it acknowledges that listing some rights shouldn’t negate others. Yet its vagueness sparks debate: Is it a rule of construction, or does it affirmatively protect unenumerated rights?

• Judicial Enforcement: In Griswold, concurring justices treated the Ninth as a mandate to safeguard privacy. Some scholarshave argued that it demands “equal protection” for enumerated and unenumerated rights alike.

• Textualist Skepticism: Critics like Justice Hugo Black argued the Ninth offers no substantive guidance, insisting rights must stem directly from the text. Textualists often sideline it, fearing judicial overreach.

Textualism vs. the Founders’ Intent

Ironically, the Ninth Amendment itself complicates textualism. The Founders added it precisely to avoid a rigid, exhaustive reading of rights. James Madison warned that omitting it would imply unlisted rights were “assigned into the hands of the General Government.” Yet textualists like Justice Scalia have dismissed unenumerated rights, creating a paradox: the amendment meant to guard against strict construction is itself narrowly construed.

Why It Matters

Unenumerated rights reflect democracy’s adaptability. Without them, transformative rulings on privacy, voting, and marriage might never emerge. But balancing flexibility with textual fidelity remains contentious. As Justice William Brennan noted, constitutional interpretation must harmonize “liberty and equality”—a task requiring both respect for the Founders’ framework and acknowledgment of society’s evolving values.

The Ninth Amendment, often overlooked, embodies this tension: a textual nod to the unwritten, urging courts to protect liberties the Founders couldn’t foresee.