The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” There is no question that this Amendment was designed as a savings clause, to ensure that the specification of particular rights would not raise an inference that the Bill of Rights exhausted the rights which the people held as against the newly-created national government. But there is an ongoing debate as to nature of these additional rights retained by the people and as to the sort of claim they might support against the exercise of government power.
Despite reliance on the Ninth Amendment to help justify an expansive human rights jurisprudence at least since 1936, for many the Amendment has remained a seemingly unsolvable mystery. Even so, it has become popular to rely upon the Ninth Amendment as itself a key piece of evidence that the founders embraced a natural law jurisprudence that included the idea that republican constitutions presuppose (and thus implicitly contain) limitations on government resting on the inherent rights of people. In a previous article on the Ninth Amendment, the author attempted to call into question the claim that the Ninth Amendment lent support to the project of defending an unwritten Constitution. But it seems worthwhile to also look at these questions through the other end of telescope: In this article, the author addresses the question as to whether evidence we have as to the founders’ views about the relationship between natural law and constitutional law might strengthen or weaken the modern claims for the Natural Law reading of the Ninth Amendment.
16 S. Ill. U. L.J. 617 (1992).
McAffee, Thomas B., "The Bill Of Rights, Social Contract Theory, and the Rights “Retained” by the People" (1992). Scholarly Works. Paper 533.