Why does the ninth amendment carry so much less weight than the other bill of rights amendments?

Question

Amongst the bill of rights, the ninth amendment seems like somewhat of a black sheep-- the consequences of basically all the other bill of rights amendments are regularly discussed in the context of the modern day, with the possible exception of the third amendment. But even the third amendment is mentioned several times in history classes and it seems the lack of contemporary relevance has more to do with the simple fact that relevant situations have not popped up in quite a long time. Meanwhile, the ninth amendment seems to have very broad potential for application in a wide variety of legal situations. Just for reference, the text of the amendment is

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

This to me seems like a very strong statement that could easily be used to support certain rulings that expand the rights of certain classes of people (Brown v Board of Education, Loving v Virginia, Obergefell v Hodges, Lawrence v Texas, etc). I'm far from a legal scholar, but it seems like most of these rulings tend to avoid using the 9th amendment and instead use other amendments (most often the 14th).

One exception I've noticed was Roe v Wade which does refer to the ninth amendment as justification for the right to privacy, which it then uses the 14th to enforce equal protection of. But even that ruling refers to the 9th amendment much less than the 14th, almost as if it is reticent to use it-- it mentions the 9th amendment 5 times as compared to the 14th 38 times despite the fact that the entire argument of right to privacy seems to hinge on the ninth amendment since it is not explicitly listed in the constitution. I have a couple potential explanations I could imagine might be responsible:

1. It is some sort of legal "mutually assured destruction" situation where justices are afraid to use it because of how broad it is and the fact that it could potentially be used to justify a large number of other rulings.
2. The ninth amendment seems to be somewhat in opposition to a textualist interpretation of the constitution as it explicitly says that not everything can be gleaned from the text itself. The influence of textualists on more recent courts could thus help explain this, although a lot of the above opinions were not authored by the textualist justices so that likely doesn't explain it all.

Addressing these theories or providing alternate explanations would be appreciated. Thanks!

Answer 1

One textual canon of construction is expressio unius est exclusio alterius (also known as the "negative-implication canon"): that by expressly listing certain rights, other rights are necessarily excluded from protection.

This was a concern among the drafters. James Madison said (Debates of Congress, June 8, 1789, 1 Annals of Congress, p. 456):

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and consequently insecure.

The text of what would become the Ninth Amendment was to guard against that limiting interpretation.

It is an interpretive clause, not one that is an express source of rights that would be litigated. Correspondingly, it arises infrequently in the case law.

For one example, see Griswold v. Connecticut 381 US 479 (1965), especially the concurrence by Justice Goldberg. He recounts this history of the amendment, saying that it "was proferred to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that specific mention of certain rights would be interpreted as a denial that others were protected." He relied on the Ninth Amendment to reject the argument that just because a right to privacy was not enumerated in the first eight amendments or elsewhere in the constitution, that privacy was not protected. The majority was less clear about this, locating the right to privacy in the penumbra of of the other enumerated rights, while only mentioning in passing the existence of the Ninth Amendment.

Justice Black, in dissent, expresses both of the concerns you list.

1. The judicial role. In his view, resort to the Ninth Amendment accumulates a power to the Court to "invalidate any legislative act which the judges find irrational, unreasonable or offensive."
2. Textualism. He emphasizes that a "right of privacy" does not emanate from any of the constitutional provisions; he was concerned about "substitut[ing] for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning"; he would "stick to the simple language of the First Amendment... instead of invoking multitudes of words substituted for those the Framers used."

Those concerns may explain the limited recourse to the Ninth Amendment.

There is certainly argument that the Ninth Amendment does much more:

• Daniel Farber, Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have (2007), reviewed by Lawrence Solum on June 30, 2007.
• Jorge M. Farinacci-Fernós, "The Ninth Amendment: The 'Hard Problem' of U.S. Constitutional Law", 84 U. Pitt. L. Rev. 900 (2023): concluding that the Ninth Amendment is a "textual command" to go beyond the text to determine the rights of the people.
• Randy E. Barnett, "The Ninth Amendment: It Means What It Says", 85 Tex. L. Rev. 1 (2006): concluding that originalist evidence supports an argument there are other unenumerated, individual, pre-existing rights that the Ninth Amendment requires to be protected.

Answer 2

While Jen's wonderful answer in-depth analyses the legal aspect, I feel like the legalese of it isn't really the cause of your observation. Since your question was a bit ambiguous, here is my interpretation (aka what exactly I am responding to)

Why does nobody care / is nobody talking about the 9th amendment

Because - as you already established - it does carry a lot of weight and is quite powerful, affecting how every single other (rights-granting) amendment is to be interpreted. That is massive. And yet, you barely ever hear about it. (Which is probably what caused your question).

I came up with a few, probably not exhaustive reasons for the general public disinterest:

1. It's not really up for interpretation because for once it's very clearly worded (looking at you 2nd Amendment)

2. It doesn't have any "content" on its own. This means: no "attack surface" for interpretation, debate or political opposition. It doesn't say anything in its own. All it does is say: "this line of argumentation/interpretation is invalid". It's not something you can really argue about (without fundamentally changing the entirety of the constitution).

3. By prescribing how to "think" (i.e. read the constitution) this line of thought gets deeply engrained into scholars of the field, meaning it's taken as granted eventually (especially 200+ years later). It has become the background assumption of Constitutional analysis.

4. It's just preventatively restating what everyone thought was already (or wanted to be) the case (just so that in the future nobody could claim that it wasn't). The "re" is the essential part here. It didn't say anything new (even back then), it just repeated an uncontroversial assumption. Reading through the Wikipedia page, it seems like this was the one point where federalists and anti-federalists agreed because all it did was clarify (and set in stone) how the result of their actual disagreements would be meant.

5. Like scientific papers giving definitions for words, it doesn't matter if it's "wrong", it is how the paper uses that word (in this case how the constitution's "granting rights"-provisions work): even if that definition is wrong somehow, this does not matter for the interpretation of the paper/constitution. It only matters if you were to relate out-of-scope things (where the definition may or may not be valid) to in-scope statements. Then you'd have to do work to figure out how the definitions interact. However, the constitution is never related to anything (on an even level). It is treated as superior to regular laws, state constitutions etc. aka its definition dominates any conflicting ones.

Tl;dr: There's no reason to talk about it because it has become the background assumption of the US legal system