What is a “right” according to the U.S. Constitution?

Question

The United States Declaration of Independence is based upon the "self-evident" truth that "all men are… endowed by their Creator with certain unalienable Rights".

The Ninth Amendment of the U.S. Constitution says:

”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

What are these “rights...retained by the people” that are not included in the Bill of Rights?

Answer 1

They have rarely used the concept of natural rights to invalidate a state or federal law. Three examples that come to mind:

• Lochner v. New York invalidated a state law limiting overtime for bakers on the basis that a freedom to contract was a natural right. Other cases did the same thing, but no one has relied on this precedent since the 1930s. While never explicitly overturned, these decisions are generally viewed as incorrect.
• Griswold v. Connecticut invalidated a state law against contraception invoking a natural right to privacy as being in the penumbra of other rights explicitly mentioned in the constitution.
• Roe v. Wade used Griswold as a precedent to assert that laws against abortion be limited.

Roe is particularly relevant in that the original court used the ninth amendment directly. However, at the Supreme Court, they instead based the decision on the fourteenth amendment. Lochner and Griswold did not reference the ninth amendment.

The general belief is that the point of the ninth amendment was not to assert that anything was a natural right. Instead, the ninth amendment was asserting that the first eight amendments were not an exhaustive list of protected rights. So people couldn't say something like farming is not listed in the first eight amendments, so obviously any law on farming must be within the government's powers to enact. The government had to establish the power based on the limited list of powers that were enumerated.

Some argued that enumerating some rights but not others would eliminate the protections of circumscribed government. So the ninth and tenth amendments were written to clarify that. Together they say that if a power is not explicitly given to the federal government, then it does not exist.

Under this interpretation, the dissent in Gonzales v. Raich relied not on the ninth amendment (nor the tenth) but on the limitations of the interstate commerce clause to argue that a plant grown for local use was not something that the federal government could regulate.

Answer 2

The original Constitution made no reference to self evident "rights". That was the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,...

The constitution, unamended, makes little reference to "rights", in fact the only reference to rights is the power of Congress to pass bills

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The original constitution did not spell out other "rights". It was assumed that these were "endowed by the creator" and so a document written by man couldn't limit what the rights were.

It was felt later that an enumeration of some of the rights would be useful. But still the notion was that "rights" are from God, and that is a higher authority even than the constitution.

The rights retained are "everything else". But the writers of the constitution thought that these were defined by God, and not by man and deliberately chose not to list them. You have the right do anything, except that which is forbidden.