U.S. Constitution Enumeration vs Unenumeration
"Enumeration" means the act of listing or mentioning things one by one.
In Everyday Language:
- It simply refers to making a list or counting items individually.
- Example: “The enumeration of the groceries in the cart took a few minutes” = listing each item.
In the U.S. Constitution (Especially the 9th Amendment):
The word appears in the 9th Amendment:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Meaning in this context:
- “Enumeration” refers to the specific listing of certain rights in the Constitution and the Bill of Rights (freedom of speech, right to bear arms, protection against unreasonable searches, etc.).
- The 9th Amendment says: Just because we listed (enumerated) some rights, does not mean those are the only rights people have. There are many other rights retained by the people that were not written down.
This amendment was included to address Anti-Federalist fears that listing specific rights might imply the government could limit or deny any rights that weren’t explicitly mentioned.
Simple Summary:
Enumeration = Making an official list.
In constitutional law, it emphasizes that the Bill of Rights is not an exhaustive list of all human rights, it’s just the ones the Founders chose to highlight for protection at that time.
The 9th Amendment does not provide a specific list of “many other rights retained by the people.” That is intentional.
Why No List Exists
The whole purpose of the 9th Amendment is to say:
“Just because we wrote down (enumerated) these specific rights in the Bill of Rights doesn’t mean these are the only rights you have.”
It prevents the dangerous assumption that the government could deny or limit any right that wasn’t explicitly mentioned. The Founders believed people possess many fundamental (often called “natural”) rights that pre-exist government and are retained by individuals. Listing every possible right would be impossible and risky.
In the context of the Constitution, particularly Article the Eleventh (the proposed amendment you asked about), the phrase:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Just because some rights are listed in the Constitution does not mean those are the only rights people have.
Here, enumeration means the listing or naming of rights.
For example, the Constitution specifically lists rights such as:
- Freedom of speech
- Freedom of religion
- Freedom of the press
- Right to bear arms
- Right to a jury trial
The amendment says that people also possess other rights even if those rights are not enumerated (not listed) in the Constitution.
Plain English Version
The government cannot claim:
"If a right isn't written down in the Constitution, then you don't have it."
Instead, the amendment recognizes that people have many natural and fundamental rights beyond those specifically listed.
Legal Dictionary Definition
Enumeration = "A detailed listing, counting, or specification of individual items."
Example
If a parent tells a child:
"You may have apples, oranges, and bananas."
The child cannot automatically assume those are the only fruits that exist.
Likewise, the Constitution's list of rights is not necessarily a complete list of all rights retained by the people.
This idea was included because many founders worried that listing some rights might cause future governments to argue that unlisted rights did not exist. The amendment was intended to prevent that interpretation.
Unenumerated Rights
the heart of what unenumerated rights are, and what they are not.
The Ninth Amendment (original Article the Eleventh) does not automatically create any right a person claims to have. Instead, it says that the rights listed in the Constitution are not the only rights people possess. Courts still have to determine whether an asserted right is a legitimate constitutional right.
Let's look at your examples:
1. "Do I have a right to choose not to continue living if I have cancer or a terminal illness?"
This is highly debated. The Supreme Court has recognized a person's right to refuse unwanted medical treatment in some circumstances, but it has not recognized a broad constitutional right to physician-assisted suicide. States have different laws regarding end-of-life decisions.
So some aspects of bodily autonomy have been recognized, but not an unlimited constitutional right to end one's life.
2. "Can I travel without a driver's license because traveling is an unenumerated right?"
Courts have generally recognized a right to interstate travel (traveling from state to state).
However, courts have also consistently held that states may require driver's licenses for operating a motor vehicle on public roads.
The usual legal distinction is:
- The right to travel may exist.
- Driving a motor vehicle on public highways can be regulated for safety purposes.
Many "right to travel" arguments challenging driver's license requirements have been rejected by courts.
3. "Can I keep my child out of school and teach my child at home?"
Parents have significant rights regarding the upbringing and education of their children.
The Supreme Court has recognized parental rights in cases such as Pierce v. Society of Sisters and Meyer v. Nebraska.
However, states may require that children receive an education. Homeschooling is legal in many states, but parents must generally comply with state homeschooling laws.
So:
- You may often homeschool.
- You generally cannot simply provide no education at all.
4. "Do I have to identify myself to police if there is no probable cause?"
This depends on the circumstances and state law.
Under Hiibel v. Sixth Judicial District Court of Nevada, states may require a person to identify themselves during a lawful investigative stop under certain circumstances.
If police have no lawful basis for detaining you, different rules may apply.
The key legal question is usually whether the officer has lawful authority to stop or detain you.
5. "Can I refuse to pay attorney fees if I win a civil case?"
Generally, no.
Under the American Rule, each side usually pays its own attorney fees unless:
- A statute authorizes fee-shifting,
- A contract requires fee payment,
- A court imposes sanctions, or
- Another recognized exception applies.
Whether you won or lost is not, by itself, what determines who pays attorney fees.
So if:
- You sue the Newark defendants and win, you generally pay your own attorney unless a law, contract, or court order says otherwise.
- The Newark defendants generally pay their own attorneys.
- If you lose, you generally do not automatically have to pay the defendants' attorney fees.
However, there are important exceptions.
A court can sometimes order one side to pay the other side's attorney fees if:
- A statute specifically authorizes fee-shifting.
- A contract requires it.
- The lawsuit is found to be frivolous, malicious, or brought in bad faith.
- A court rule authorizes sanctions.
So if the Newark defendants are asking for attorney fees in their summary judgment motion, they usually need a legal basis for that request. Merely winning a summary judgment motion does not automatically entitle them to attorney fees.
As for your Ninth Amendment question:
Can you invoke the Ninth Amendment?
Yes, anyone can raise a Ninth Amendment argument, but the Ninth Amendment is one of the most difficult constitutional provisions to win under by itself.
Think of the Ninth Amendment like this:
"The Constitution lists some rights, but people may have other rights that are not specifically listed."
The Ninth Amendment tells courts:
"Don't assume that because a right isn't written down, it doesn't exist."
But it does not tell courts exactly what those additional rights are.
That is why courts often rely on other constitutional provisions, especially the Due Process Clause of the Fourteenth Amendment, when recognizing unenumerated rights.
Example
Suppose you say:
"I have a right to raise my child."
The Constitution never literally says:
"Parents have a right to raise their children."
Yet courts have recognized parental rights as fundamental.
That is an example of an unenumerated right.
How would it work in your case?
You cannot simply say:
"The Ninth Amendment gives me the right to win."
Instead, you would need to identify a specific liberty or right that you believe the government violated.
For example:
- Access to the courts.
- Parental rights.
- Bodily autonomy.
- Privacy.
- Travel.
- Due process.
- Equal protection.
Then you would argue that the right exists even if it is not specifically listed in the Constitution.
A practical point for your lawsuit
If your case involves police conduct, due process, civil rights, disability discrimination, retaliation, unlawful seizure, denial of access to courts, or similar claims, courts are usually more likely to analyze those issues under the Fourth Amendment, Fourteenth Amendment, ADA, Section 1983, state law, or other specific legal provisions than under the Ninth Amendment standing alone.
The Ninth Amendment is often used as a supporting principle rather than the primary basis for relief.
The Important Principle
An unenumerated right is not simply:
"Anything I believe I should be allowed to do."
Instead, courts typically examine:
- History and tradition,
- Natural rights principles,
- Constitutional structure,
- Prior court decisions,
- The relationship between the claimed right and liberty.
Examples of rights that courts have sometimes treated as unenumerated include:
- Parental rights,
- Certain privacy interests,
- The right to marry,
- Interstate travel not intrastate,
- Refusing some medical treatment.
The Ninth Amendment recognizes that people may possess rights beyond those expressly listed, but it does not automatically invalidate every law that limits personal conduct.
These questions touch on several areas, parental rights, police encounters, travel rights, and bodily autonomy, that constitutional scholars and courts have debated for decades.
Recognized Examples of Unenumerated Rights
The Supreme Court and legal scholars have identified several unenumerated rights through interpretation, often linking the 9th Amendment with the 14th Amendment’s Due Process and Equal Protection Clauses. Here are prominent examples:
- Right to Privacy: Especially marital privacy (recognized in Griswold v. Connecticut, 1965, which struck down bans on contraception for married couples). This “penumbral” right draws from multiple amendments including the 9th.
- Right to Bodily Autonomy / Make Personal Decisions About One’s Body and Health: Includes decisions about medical treatment, contraception, and historically abortion (pre-Dobbs v. Jackson, 2022).
- Right to Travel: The right to move freely between states and within the country.
- Parental Rights: The right to direct the upbringing, education, and care of one’s children (e.g., Troxel v. Granville, 2000).
- Right to Marry: Including the choice of spouse (supported in cases like Loving v. Virginia and Obergefell v. Hodges).
- Right to Vote: Expansions beyond the explicit amendments, protecting broader voting access.
- Right to Pursue a Livelihood / Earn a Living: The right to work in a lawful occupation.
- Right to Acquire, Possess, and Use Property: Fundamental economic liberties rooted in founding-era thought.
- Rights of Conscience and Religious Liberty: Broader protections for personal beliefs beyond the 1st Amendment’s text.
- Right to Refuse Medical Treatment: In certain end-of-life and autonomy contexts.
- Other Everyday Liberties: Scholars and state courts (via “Baby Ninth Amendments” in state constitutions) sometimes include things like the right to raise a family as one sees fit, garden on one’s property, cook for one’s family, or engage in private consensual activities that don’t harm others.
Historical Context from the Founding Era
James Madison and others referred to natural rights such as:
- Rights of conscience in religion
- Acquiring and possessing property
- Pursuing happiness and safety
- Speaking, writing, and publishing sentiments freely
These ideas drew from Enlightenment thinkers like John Locke and the broader Anglo-American legal tradition.
Important Notes
- The Supreme Court has used the 9th Amendment sparingly as a direct source of rights. It more often serves as a rule of construction (a guide for interpreting the Constitution) and supports rights found through the 14th Amendment.
- Many of these rights are not unlimited, they can be regulated when there is a strong government interest (public safety, preventing harm to others, etc.).
- Interpretation evolves through court decisions and societal consensus. What counts as a “retained right” can be debated.
The 9th Amendment is a powerful reminder that your rights are not granted by the government, they are retained by you, and the Constitution only lists some of the most important ones for protection.
Unenumerated rights under the 9th Amendment do not automatically protect the specific claims is described in the ways that are outlined.
The 9th Amendment recognizes that people retain many rights not explicitly listed in the Constitution, but courts interpret and balance these against legitimate government interests (public safety, child welfare, etc.). Unenumerated rights are not unlimited. Here is another clear breakdown based on established U.S. law and Supreme Court precedents:
1. Right to Die / Assisted Suicide for Terminal Illness (e.g., Cancer)
- No broad constitutional right. The Supreme Court in Washington v. Glucksberg (1997) and Vacco v. Quill (1997) unanimously held there is no fundamental right to physician-assisted suicide under the Due Process Clause (often linked with 9th Amendment arguments).
- States may ban or regulate it. Some states have passed "Death with Dignity" laws allowing it under strict conditions, but this is state law, not a federal constitutional right.
- Related: Competent adults generally have a right to refuse medical treatment (even life-sustaining), but actively seeking assistance to end life is treated differently.
2. Right to Travel Intrastate Without a Driver’s License
- The constitutional "right to travel" protects interstate movement and freedom from undue burdens on migration between states. However, operating a motor vehicle on public roads is subject to reasonable state regulation.
- Courts consistently uphold driver's license, registration, and insurance requirements as valid exercises of state police power for public safety. The distinction between "personal pleasure" and "commercial" travel does not exempt you from licensing laws. The FBI and courts label people who feel they do have to follow statutes, traffic violation, ordinance as Sovereign citizen. Let me be clear their is no such thing as sovereign citizens. The Constitution or no where in the world you can find a Sovereign citizen. You are a Sovereign or a citizen. It is an oxymoron to say both.
- However, judges consider Sovereign citizen-style arguments claiming otherwise have been repeatedly rejected in court.
3. Right Not to Send a Child to School / Homeschooling
- Parents have a protected right to direct their child's education, including homeschooling, rooted in parental rights (often tied to unenumerated rights and the 14th Amendment). Key cases: Pierce v. Society of Sisters (1925) and Wisconsin v. Yoder (1972).
- However, this is not absolute. States can require compulsory education and set reasonable standards for homeschooling (curriculum approval, testing, teacher qualifications, etc.) to ensure children receive an adequate education. Complete exemption from any education is generally not allowed.
4. Right to Refuse to Give Police Your License or ID (No Probable Cause)
- Generally yes in many situations, but with limits. In most states, during a casual encounter (no detention or arrest), you are not required to identify yourself or show ID.
- If lawfully detained (reasonable suspicion) or arrested, many states have "stop and identify" laws requiring you to provide your name (and sometimes more). Refusing can lead to additional charges.
- When driving, you must produce your driver's license upon request during a valid traffic stop.
- The 9th/4th Amendments protect against unreasonable seizures, but they do not grant a blanket right to anonymity in all police interactions.
5. Right Not to Pay Attorney Fees Even If You Win a Civil Case
- This is the default under the "American Rule." Each party generally pays their own attorney’s fees, regardless of who wins (unless a statute, contract, or narrow exception like bad faith applies). If you win the case (as plaintiff): You still normally pay your own attorney fees. The defendants (Newark police) do not automatically have to pay your lawyer.
- Winning a case does not automatically entitle you to have the loser pay your fees. This is standard U.S. practice and not something unenumerated rights override. If you lose the case: You pay your own attorney fees, and you might also be ordered to pay some or all of the defendants’ attorney fees in rare cases (e.g., if the court decides your lawsuit was frivolous, unreasonable, or brought in bad faith).
There are exceptions, especially in civil rights cases against police (often filed under 42 U.S.C. §1983). A law called §1988 allows a prevailing plaintiff (you, if you win) to ask the court to order the defendants to pay your reasonable attorney fees. This is meant to encourage people to bring valid civil rights claims. However, prevailing defendants (the police) can only get their fees from you in very limited situations, basically if your case was clearly without merit.
On summary judgment (where the judge decides there’s no real dispute of facts and rules without a full trial), the same principles apply. If the defendants win summary judgment, they may try to get you to pay some of their costs.
The 9th Amendment says that just because the Constitution lists some rights doesn’t mean the people don’t have other rights that weren’t written down. Courts have used it (along with the 14th Amendment) to recognize things like privacy rights or parental rights.
However:
- There is no recognized unenumerated right to avoid paying attorney fees in a lawsuit you brought.
- Courts do not interpret the 9th Amendment as overriding the American Rule on fees or allowing a party to escape normal litigation costs.
- Judges view fee requests as a procedural/legal issue, not a fundamental natural right protected by the 9th Amendment.
Trying to argue this in court is very unlikely to work and could even hurt your credibility if the judge sees it as a frivolous legal theory.
Key Takeaway on Unenumerated Rights
Unenumerated rights exist and have been used to protect important liberties (e.g., privacy in marriage, contraception, parental decisions, travel). However, they are not a wildcard to ignore valid laws. Courts balance individual rights against compelling government interests using tests like strict scrutiny or rational basis review.
Important Disclaimer: This is general information based on U.S. constitutional law, and educational purpose not legal advice. Laws vary by state, and outcomes depend on specific facts. Consult a qualified attorney for your situation.
