The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Rights retained by the People
Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those.
The Ninth Amendment had been mentioned infrequently in decisions of the Supreme Court
"The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. . . . Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive."
While, therefore, neither opinion sought to make of the Ninth Amendment a substantive source of constitutional guarantees, both did read it as indicating a function of the courts to interpose a veto over legislative and executive efforts to abridge other fundamental rights. In this case, both opinions seemed to concur that the fundamental right claimed and upheld was derivative of several express rights and in this case, really, the Ninth Amendment added almost nothing to the argument. But if there is a claim of a fundamental right which cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from abridgment?
Notice the recurrence to the Ninth Amendment as a "constitutional 'saving clause"' in Chief Justice Burger's plurality opinion in Richmond Newspapers v. Virginia, 448 U.S. 555, 579-80 & n.15 (1980). Scholarly efforts to establish the clause as a substantive protection of rights include J. ELY, DEMOCRACY AND DISTRUST- A THEORY OF JUDICIAL REVIEW 34-41 (1980); and C. BLACK, DECISION ACCORDING TO LAW (1981), critically reviewed in W. Van Alstyne, Slouching Toward Bethlehem with the Ninth Amendment, 91 YALE L. J. 207 (1981). For a collection of articles on the Ninth Amendment, see THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT (Randy E. Barnett ed., 1989).