A textual-historical theory of the Ninth Amendment.

AuthorLash, Kurt T.

INTRODUCTION I. THE PARAMETERS AND POSSIBILITIES OF THE TEXT A. "The enumeration, in the Constitution, of certain rights B. "... shall not be construed ..." C. "The enumeration ... of certain rights, shall not be construed to deny or disparage other rights" D. The Ninth Amendment and Enumerated Rights E. The Other Rights Retained by the People F. "[O]thers retained by the people" 1. The dual nature of retained rights II. THE TEXT AND THE HISTORICAL RECORD A. Contemporary References to the Retained Collective Rights of the People B. The Collective People of the Ninth Amendment C. Summing Up the Semantic Meaning of the Text III. INTRATEXTUALISM: THE TEXT OF THE NINTH AMENDMENT IN THE CONTEXT OF THE CONSTITUTION A. The Ninth and Tenth Amendments B. The Ninth and Fourteenth Amendments 1. The Ninth Amendment and incorporation doctrine 2. Reconciling the Ninth and Fourteenth Amendments IV. THE NINTH AMENDMENT AND JUDICIAL REVIEW A. Towards a Theory of Judicial Enforcement B. Summary CONCLUSION: A MODEST PROPOSAL INTRODUCTION

This Article addresses the textual mysteries of the Ninth Amendment. The overall effort is to construct a text-based theory of the Ninth that both explains its historical application and reconciles the Amendment with other texts in the Constitution, particularly the Tenth and Fourteenth Amendments.

Once dismissed as an indecipherable inkblot, (1) the Ninth Amendment (2) has experienced something of a renaissance. A number of recent articles and books have enriched a previously moribund debate and significantly illuminated the original understanding of the Clause. (3) For example, we now know that the Amendment played a critical role in the debate over the original Bill of Rights and almost every major constitutional dispute of the nineteenth and early twentieth centuries. (4) This should finally bury the oft-repeated canard that the Ninth Amendment languished in obscurity from the time of its drafting. (5) Second, despite earlier academic (and Supreme Court) pronouncements to the contrary, there exists a rich corpus of federal and state court opinions referring to the Ninth Amendment that stretches over the last two hundred years. (6) Although earlier research looked back no further than the time of the New Deal, we now know that judicial citation to the Ninth Amendment ended at the time of the New Deal. (7) The relative obscurity of the Amendment at the end of the twentieth century thus is a recent phenomenon, and not a characteristic of the Amendment from its inception.

The historical application of the Ninth, however, seems to be unrelated to, or even in tension with, the actual text of the Ninth Amendment. For more than one hundred years after its adoption, courts and commentators understood and applied the Ninth as a rule of construction preserving the autonomy of the states. Almost invariably paired with the Tenth Amendment, the Ninth was pressed into service in a wide variety of cases involving the need to limit federal power in order to preserve the right to local self government. States' rights, of course, is an issue traditionally associated with the Tenth Amendment--the only amendment in the original Bill of Rights to expressly mention the states. The Ninth, on the other hand, speaks of the retained rights of the people. Reading the Ninth as preserving states' rights appears to follow the approach of the Confederate Constitution which adopted a clause exactly like the Ninth--except it altered the language to protect the retained rights of "the people of the several states." (8) Such a reading also appears to ignore the obvious textual differences between the Ninth and Tenth Amendments, with the Tenth speaking of reserved powers and the Ninth speaking of retained rights. Powers seems the proper term when referring to prerogatives of governments (state or federal), whereas the word rights seems intuitively to refer to the immunities of individuals (not states).

On the other hand, despite the fact that the text of the Ninth appears to lend itself to the protection of individual rights, advocates of the individual rights theory of the Ninth have yet to produce a textual theory of the Ninth capable of judicial enforcement. Supreme Court references to the Ninth Amendment in early privacy cases such as Griswold v. Connecticut (9) and Roe v. Wade (10) supported an application of the Fourteenth Amendment, not the Ninth. Advocates of a libertarian reading of the Ninth focus on the issue of nonenumerated rights--a subject that only partially involves the Ninth Amendment--and have yet to produce a comprehensive theory of the text itself. (11) Opponents of the libertarian reading of the Ninth, on the other hand, generally deny that the Clause has any judicially enforceable meaning and claim that it merely echoes the general federalist declaration of the Tenth Amendment. (12) Thus, the contemporary debate regarding the Ninth has proceeded without either side feeling obligated to construct a judicially enforceable theory of the entire text.

In fact, taking the entire text of the Ninth Amendment seriously leads to some surprising results. For example, the Ninth Amendment is often cited as indirect support for a broad interpretation of liberty provisions such as the Due Process Clause. One cannot reject a due process liberty claim, the argument goes, on the grounds that no such liberty is listed in the Constitution. Doing so violates the Ninth Amendment's declaration that there are "other rights" retained by the people. (13) When one consults the full text of the Ninth Amendment, however, this argument is revealed as a non sequitur. The Ninth declares that, no matter the interpreted scope of enumerated rights, there remains the possible existence of other unenumerated rights. One can have as narrow a reading of due process rights as one wishes without necessarily denying or disparaging the existence of "other rights." Thus, the most common contemporary use of the Ninth cannot be viewed as a command of the text. (14)

When one attempts to read the Ninth's text alongside of similar texts in the Constitution--an approach Professor Akhil Amar refers to as intratextualism (15)--the mystery deepens. The Ninth closes with a reference to "the people." This same term closes the text of the Tenth Amendment. However, despite the fact that these two amendments were placed side by side and ratified at the same time, contemporary scholarship treats the exact same language in opposite ways. Courts and commentators have long treated the closing phrase of the Tenth as a reference to the people in the several states. Thus, all powers not delegated away from or prohibited to the states are reserved to the control of the people in the several states. Modern commentary on the Ninth Amendment, on the other hand, generally views "the people" of the Ninth as an undifferentiated national body. (16) But if the people hold reserved powers on a state-by-state basis, why do they not hold retained rights in the same manner? Or, more bluntly, how likely is it that the same term can have radically different meanings in side-by-side sentences added to the Constitution at the same time?

This Article addresses such textual and historical conundrums. Unlike other contemporary accounts that tend to focus on the issue of unenumerated rights, I will address the entire text of the Ninth Amendment and consider what it means to retain a right and how constructions of the Constitution might threaten to "deny or disparage" the retained rights of the Ninth. Once we see the Amendment in its entirety, it becomes apparent why courts applied the Ninth Amendment in a manner preserving the right to local self government for more than one hundred years: this is the unavoidable operative effect of the text as a whole.


    The enumeration, in the Constitution, of certain fights, shall not be construed to deny or disparage others retained by the people. (17) This first Part focuses on the text of the Ninth Amendment and attempts to identify the textual parameters to which any account of the Ninth Amendment must conform. When appropriate, I will consider the historical record and attempt to identify which of the possible textual meanings are more or less plausible, given historical evidence of original public understanding. In this way, I hope to provide an account of the Ninth Amendment satisfactory in terms of both originalism (18) and textualism. (19)

    All interpretive theories begin with the text; the words of the Constitution determine the parameters of possible meaning. Although not self-defining, the very idea of a written, enforceable constitution presupposes a sufficient degree of agreement regarding language and grammar as to allow judicial enforcement over time. (20) From the perspective of popular sovereignty, the text is how the people speak from one generation to the next. Some scholars suggest that interpreting a written text, by its very nature, requires a form of originalist analysis. (21) Whether this is true, analysis of the text sets the ground rules for any viable theory of constitutional meaning.

    As the Article proceeds, I will distinguish primary textual (or semantic) meanings of the Ninth from secondary implied meanings arising from the text. (22) For example, as far as the primary meaning of the Ninth is concerned, the amendment comes into play only when the existence of certain enumerated rights is construed in a manner that denies or disparages other unenumerated retained rights. The text does not declare that unenumerated rights actually exist or that they be affirmatively protected, only that they not be denied or disparaged due to the existence of certain enumerated rights. On the other hand, the text does seem to imply that other retained rights exist and ought to be respected to the same degree as enumerated rights. This implied meaning is a secondary meaning arising...

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