The current U.S. Supreme Court majority purports to be bound by the specific language of the Constitution. Indeed, this is the crux of Justice Samuel Alito’s leaked draft that would overrule Roe v. Wade (1973). But the Constitution explicitly says something different.

The entire Ninth Amendment states: “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”

This text could hardly be clearer; textually-identified rights do not describe the full range of constitutional rights.

Roe v. Wade was hardly the first decision to rely on an individual’s private right to choose. Nearly a century ago, for example, the court protected “the power of parents to control the education of their own” and “to direct the upbringing and upbringing and education of children under their control.” Surely important, but nowhere mentioned in the Constitution. Alito is disingenuous at best when he claims that the absence of a particular word in the Constitution should be decisive.

In Marbury v. Madison (1803), for instance, the unanimous court established the court’s power to declare government actions unconstitutional. This vital power cannot be found within the constitutional text. In fact, Chief Justice Thurgood Marshall further proclaimed — without any textual anchor — Marbury had a vested right to his judicial commission.

Similarly, no constitutional text applies equal protection to the federal government. When Brown v. Board of Education (1954) unanimously held that state public schools segregated by race were unconstitutional, the justices immediately applied Brown to the federal District of Columbia schools as well. Chief Justice Earl Warren declared it “unthinkable” not to do so. Even Alito might concede that this important unanimous decision was not grounded in any specific constitutional language.

Creative judicial interpolation has hardly been the bailiwick only of liberal justices. The 11th Amendment protects states from lawsuits brought “against one of the United States by citizens of another State.” Yet the court long ago ignored this text to shield railroads — and the towns that sold bonds to attract them — from suits brought by citizens of their own states. Further, state governments and their officials enjoy a judicially-created defensive shield; the judge-made doctrine of “qualified immunity” continues to expand to protect local police officers from federal civil rights claims.

There is also increasing receptivity to claims that states “take” owners’ property without compensation. In the 1890s, the court found a 14th Amendment basis for takings claims by railroads against the states. This overcame a major textual problem: the court long before had held that the Fifth Amendment applied only to federal takings. Further, the 14th Amendment omitted “takings” language entirely when it otherwise directly quoted the Fifth Amendment’s due process language. The court plugged this textual hole by embracing the vagaries of “due protection” and “natural equity.”

With luck, Alito’s purported textualism may not finally command five voters. It is entirely unworthy of a majority for many reasons. It ignores the impact that jettisoning Roe will have on women’s lives, for example, yet also bizarrely assumes that — because of progress since 1973 — a woman’s right to choose is no longer salient.

Alito’s selective textualism does make it realistic to fear that Loving v. Virginia (1967) — which struck down state laws criminalizing interracial marriage — could be on the chopping block, as would same-sex marriage and birth control choices. The Constitution does not mention “marriage,” “privacy,” or “individual autonomy.” Nor does it mention “campaign financing.”

The recognition of implicit constitutional rights should matter much more than any narrow word search that seeks a desired result. There is great wisdom in the saying that the text has a vote, but it does not have a veto.

Aviam Soifer is a law professor and former dean of the William S. Richardson School of Law at the University of Hawaii.