Does the Ninth Amendment to the United States Constitution itself protect individuals from State infringement of unenumerated rights?
I don’t think it does. The Tenth Amendment ensures that the federal government is limited to enumerated powers. I do not think the Ninth Amendment grants the federal government any power to protect unenumerated rights, therefore I do not think the Ninth Amendment itself protects individuals from State infringement of unenumerated rights.
Current jurisprudence suggests that the due process and enforcement clauses of the Fourteenth Amendment give Congress the power to protect individuals against State infringement of fundamental liberties, including unenumerated rights. I don’t agree with that interpretation but I do agree that, once interpreted that way, the Fourteenth Amendment allows the federal government to protect individuals from State infringement of unenumerated rights.
The courts do not need a separate enforcement clause to invalidate State laws which violate the Fourteenth Amendment’s due process clause. Current jurisprudence suggests that the federal government is bound by substantive due process via the Fifth Amendment. Given that assumption, the courts do not require a separate grant of power to invalidate federal laws from abridging fundamental but unenumerated rights.
Authorities, mostly lifted from previous topics.
The Ninth Amendment to the United States Constitution reads,
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Tenth Amendment to the United States Constitution reads,
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
James Madison, when proposing what would become the Ninth Amendment, spoke to Congress on June 8, 1789,
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.
The Fifth Amendment to the United States Constitution reads, in part,
No person shall be […] deprived of life, liberty, or property, without due process of law;
The Fourteenth Amendment to the United States Constitution reads, in part,
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. […] The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Justice Douglas wrote for the Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1965),
The Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights… I do not mean to imply that the … Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government…While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement.
The Judicial Power of the United States
Article III of the United States Constitution reads, in part,
The judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The Eleventh Amendment to the United States Constitution reads,
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Publius (Alexander Hamilton) writes in Federalist No. 78, to persuade New Yorkers to ratify the Constitution,
But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of.