David Adler Likely the most mysterious provision of the Bill of Rights, the question of the meaning of the Ninth Amendment has generated numerous interpretations and theories. Though not invoked by the Supreme Court until 1965, it has come to play an important role in advancing the rights and liberties of Americans everywhere. The right to privacy, intimate relations, same-sex marriage and raising children in a manner consistent with parental values are but a few of the many rights asserted. The Ninth Amendment was brought center stage in 1965, in Griswold v. Connecticut, when the Court, in an opinion written by Justice William O. Douglas, declared unconstitutional a state statute that made criminal the use of contraceptives, even by married couples. Justice Douglas famously coupled the Ninth Amendment with “penumbral” rights drawn from the First, Third, Fourth and Fifth Amendments, to produce a “right of privacy older than the Bill of Rights” itself, particularly as it pertained to “the sacred precincts of the marital bedroom.” Critics of the concept of a constitutional right to privacy have accused the Court of creating rights not grounded in the Constitution. In the roughly 2,000 cases filed across the country since Griswold that […]
