EK 3.9.A.1

Over time, the Supreme Court has recognized constitutionally protected rights that are not explicitly listed in the Bill of Rights. These unenumerated rights include the right to privacy. Justices and scholars have drawn on several arguments to defend the existence of unenumerated rights. Some argue that an unenumerated right is implied by certain amendments that assume the existence of such rights. Others argue that the Ninth Amendment, which states that individuals have protected rights beyond those listed in the first eight amendments, provides support for the existence of unenumerated rights. In a range of cases, the Supreme Court has used substantive due process to examine whether government laws and actions are arbitrary infringements of individual rights.