In the current confirmation hearings for Judge John Roberts, there is
allegedly a memo from his past where he questions the right to
privacy.  Like many other people, Judge Roberts apparently had trouble
with the Supreme Court discovering a "right" to privacy in the
penumbra of various amendments to the constitution such as the First,
Fourth, etc.  I believe the dubious "penumbra" holding comes from
Griswold vs. Connecticut.  As I understand it, the argument against
the right to privacy is that if the right to privacy is not mentioned
in the constitution, then it's not there, period.  However, the ninth
amendment to the constitution specifically allows for unenumerated
rights.  My question is:  Why didn't/hasn't the Supreme Court found a right to
privacy within the ninth amendment, rather than relying on the
strained logic of penumbras to other amendments?

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Request for Question Clarification by justaskscott-ga on 14 Sep 2005 21:20 PDT

Would a discussion of the Griswold court's interpretation of the Ninth
Amendment in relation to its holding concerning penumbras be a
sufficient answer?

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Request for Question Clarification by justaskscott-ga on 14 Sep 2005 21:23 PDT

I could include Roe v. Wade's interpretation of the Ninth Amendment as
well, if you would be interested.

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Clarification of Question by halejrb-ga on 15 Sep 2005 08:46 PDT

Yes a discussion of the Ninth Amendment in both those cases would be
sufficient.  I get the impression the Court thought the Ninth
Amendment was a little too vague to base a major opinion on so they
went with the penumbra agrument.  Is this more or less correct?

Hello halejrb,

(As stated in the disclaimer at the bottom of the page, answers and
comments provided on Google Answers are general information, and are
not intended to substitute for informed professional legal advice.)

I believe that you are essentially correct that the Court thought the Ninth
Amendment was a little too vague.  The concurrence in Griswold v.
Connecticut and the majority in Roe v. Wade suggest that the Ninth
Amendment does not form the basis for particular rights, but rather
indicates that the Fifth and Fourteenth Amendments protect rights
other than those listed in specific amendments.  The majority in
Griswold emphasized that some unlisted rights are protected as part of
the penumbras of amendments.

In Griswold, Justice Douglas's majority opinion states:

"The foregoing cases suggest that specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those guarantees that
help give them life and substance.  See Poe v. Ullman, 367 U.S. 497,
516-522 (dissenting opinion).  Various guarantees create zones of
privacy.  The right of association contained in the penumbra of the
First Amendment is one, as we have seen.  The Third Amendment, in its
prohibition against the quartering of soldiers 'in any house' in time
of peace without the consent of the owner, is another facet of that
privacy.  The Fourth Amendment explicitly affirms the 'right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.'  The Fifth Amendment, in
its Self-Incrimination Clause, enables the citizen to create a zone of
privacy which government may not force him to surrender to his
detriment.  The Ninth Amendment provides: 'The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.'"

"Griswold v. Connecticut -- Douglas, J., Opinion of the Court" (1965)
Legal Information Institute (LII) -- Supreme Court Collection
http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZO.html

My understanding of this passage is that while none of these
amendments explicitly refer to "privacy," the rights they protect
include aspects of privacy.  For example, the First Amendment protects
the right of association.

Unlike the First Amendment or other amendments mentioned in this
passage, the Ninth Amendment does not mention a specific category of
rights.  So, what role does it play in the definition or protection of
privacy rights?

Justice Goldberg's concurrence in Griswold, representing the opinion
of three Justices from the majority, states:

"[T]he 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."

* * *

"[The Ninth Amendment simply lends strong support to the view that the 'liberty'
protected by the Fifth and Fourteenth Amendments from infringement by
the Federal Government or the States is not restricted to rights
specifically mentioned in the first eight amendments."

According to this opinion, a "fundamental" right, such as privacy or
at least marital privacy, is "'retained by the people' within the
meaning of the Ninth Amendment" and "protected by the Fourteenth
Amendment from infringement by the States."

"Griswold v. Connecticut -- Goldberg, J., Concurring Opinion" (1965)
LII -- Supreme Court Collection
http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZC.html

In Roe v. Wade, Justice Blackmun's majority opinion states that the
Supreme Court had recognized "a right of personal privacy, or a
guarantee of certain areas or zones of privacy."  It notes that
Griswold's majority and Justice Goldberg's concurrence had found the
roots of that right in "the penumbras of the Bill of Rights" and "the
Ninth Amendment" respectively.

The Roe majority appears to leave open the door to an argument that
the Ninth Amendment is the basis for the right of privacy, but does
not take that view:

"This right of privacy, whether it be founded in the Fourteenth
Amendment's concept of personal liberty and restrictions upon state
action, as we feel it is, or, as the District Court determined, in the
Ninth Amendment's reservation of rights to the people, is broad enough
to encompass a woman's decision whether or not to terminate her
pregnancy."

"Roe v. Wade -- Blackmun, J., Opinion of the Court" (1973)
LII -- Supreme Court Collection
http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZO.html

The Roe majority and the Griswold concurrence suggest that protection
of "liberty" by the Fifth and Fourteenth Amendments is a more solid
basis for the right to privacy than the Ninth Amendment.  Under this
view, the Ninth Amendment is indicative that fundamental rights such
as privacy exist in addition to the rights listed in the first eight
amendments.  However, the mentions of "liberty" in the Fifth and
Fourteenth Amendments -- and, according to the Griswold majority, the
penumbras of amendments such as the First Amendment, at least for some
privacy rights -- are the constitutional basis for protecting those
fundamental rights.

- justaskscott

Excellent answer.