Abstract: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. -U.S. CONST., amend. IX Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: the state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This Article examines thirteen crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strongly support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say: the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwards, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights. In short, the Amendment is what it appears to be: a meaningful check on federal power and a significant guarantee of individual liberty. I. Introduction The first time one reads the Ninth Amendment, its text is a revelation. Here is a sentence that seems explicitly to affirm that persons have other constitutional rights beyond those enumerated in the first eight Amendments. Given the fierce debates over the legitimacy of enforcing unenumerated constitutional rights, one immediately wonders why one has not heard of the Ninth before. If this first encounter is as a law student in a course on constitutional law, however, one soon learns why: the Supreme Court has long dismissed the Ninth Amendment as a constitutional irrelevance. As Justice Reed wrote in 1947: The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.1 Not only does Justice Reed's construction render the Ninth Amendment functionless in constitutional adjudication, it rather carelessly runs it together with the Tenth Amendment.2 But this passage is not only cavalier about the text, it is also historically incorrect. The evidence of original meaning that has been uncovered in the past twenty years confirms the first impression of untutored readers of the Ninth Amendment and undercuts the purportedly more sophisticated reading that renders it meaningless. The purpose of the Ninth Amendment was to ensure that all individual natural rights had the same stature and force after some of them were enumerated as they had before; and its existence argued against a latitudinarian interpretation of federal powers. The growth in our understanding of the Ninth Amendment has resulted from the interest in the original meaning of the Constitution that began in the 1980s.3 As originalism grew in popularity, some originalists became understandably curious about the history and original meaning of the Ninth Amendment.4 And critics of originalism used the original meaning of the Ninth Amendment to challenge those early originalists who were then advocating a narrow view of constitutional rights. …
Publication Year: 2006
Publication Date: 2006-01-01
Language: en
Type: article
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Cited By Count: 3
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