Rights Retained by the People

Arguing that, rather than providing a category of unenumerated rights that ought to receive protection on par with enumerated rights, the Amendment “state[s] a narrow and precise rule of construction targeted at a specific form of constitutional argument.”

Reviewing sources including Founding-Era English jurisprudence and Madison’s statements during the First Congress to argue that the Ninth Amendment means that “natural rights control in the absence of sufficiently explicit positive law to the contrary.”

Refuting Kurt Lash’s arguments that the Ninth Amendment protects collective rights by reviewing evidence like James Madison’s views, public meaning of the Amendment “as it was received during its ratification,” and the words of St. George Tucker. Instead arguing that “the collectivist interpretation” of the Amendment is “a projection of contemporary majoritarianism onto a text that is and was most naturally read as referring to the natural rights retained by all individuals, and to these rights alone.”

Arguing that the Ninth Amendment protects all rights–not just some–and that the Ninth Amendment protects individual rather than majoritarian liberties. 

Providing a careful phrase-by-phrase review of the text of the Ninth Amendment to ultimately propose that the Rehnquist Court’s Tenth Amendment jurisprudence would be better grounded in the Ninth Amendment.

Discussing the distinction between the federalist and libertarian models of the Ninth Amendment and concluding that the Amendment is federalist in nature.

Refuting the ideas that (1) the Ninth Amendment is only about individual rights, (2) the Ninth Amendment has nothing to do with the Tenth Amendment and is instead at odds with it, and (3) the Ninth Amendment “was forgotten soon after its enactment.”

Arguing that the more historical evidence that comes to light regarding the Ninth Amendment, the more Judge Bork’s claim that the Amendment amounts to an indiscernible inkblot has “been vindicated.” Concluding that in the face of such ambiguity, originalism requires humility and restraint.

Evaluating five models of Ninth Amendment interpretation and examining historical evidence to conclude 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.

Arguing that Ninth Amendment’s meaning “as a rule of construction preserving the retained right of local self-government” was correctly maintained from the time of the Founding until the time of the New Deal, when it and the Tenth Amendment “both were rendered mere ‘truisms’ in the face of expansive constructions of federal power.” Reviewing that early pre-New Deal Jurisprudential history.

Arguing that “the historical roots of the Ninth Amendment can be found in the states ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power” by pointing to the text of Madison’s initial draft of the Amendment, Virginia Governor Edmund Randolph’s concerns about the altered language in the final draft, and a speech delivered by Madison in the House of Representatives.

Responding to Randy Barnett’s view of the Ninth Amendment by arguing that Barnett’s “presumption of liberty” view of the Amendment “turns basic presuppositions of the Constitution upside down” by “exalt[ing] the individual over the state, contrary to the Founders’ design.”

Pointing to Founding Era sources like Chief Justice Marshall, James Wilson, and Edmund Randolph to argue that the Framers did in fact distinguish between “the written, judicially enforceable Constitution and the unwritten natural law.”

Reviewing the Ninth Amendment’s text, the “Constitution’s emphasis on majoritarian rights of the people against an abusive federal government,” and the “developments in constitutional thought after the framing of the Bill of Rights” to argue that the Amendment “is perhaps the most dynamic and op-ended of the Constitution’s provisions” and that its meaning should “look at 1791 as the beginning of historical analysis . . . not as the end point.”

Developing a theory that the Ninth Amendment helps provide for a “presumption of liberty” in the United States Constitution and applying that theory to examples.

Offering a defense of “the traditional reading” of the Amendment as “a general reservation of rights embodied in the system of enumerated powers made explicit in the Tenth Amendment.” Supporting this view by reviewing the Amendment’s history and text, as well as early state debates about the idea, with a particular overarching focus on how the Ninth Amendment was the answer to Federalist objections to the Bill of Rights.

Criticizing the Court’s “rights-powers conception” of the Ninth Amendment and conceptualizing the operationalization of a “power-constraint conception” by arguing that the latter is more consistent with the structure of the Constitution.

Juxtaposing the recent history of the Ninth Amendment in both legal scholarship and Supreme Court jurisprudence with both the history of Founding-Era debates on the Amendment and the jurisprudence regarding slavery to argue that we still do not have a full understanding of the theory but that this lack of understanding does not mean the Amendment should be ignored.

Arguing that the Amendment is designed to protect rights and constrain federal power and that efforts to revive the Amendment are in fact arguing for the federal judiciary to have more control over our everyday lives.

Reviewing the Amendment’s text, history, and original purpose to argue as a matter of Reagan Administration policy that the Amendment “is a rule of construction that creates no rights, but makes clear that those rights of the people not surrendered by the delegation of limited powers to the federal government are retained by the people” as well as that the Amendment does not apply to the states.

Arguing that the Amendment’s purpose is to maintain rights guaranteed by state law, which at the time of the Founding included “entitlements derived from both natural law theory and the hereditary rights of Englishmen.” Also arguing that the Amendment did not give these rights federal protection but simply maintained the status quo until they were modified by state law, federal preemption, or judicial determination of unconstitutionality. 

Arguing, based largely on the statements of James Madison during the drafting of the Amendment, that the Ninth Amendment does not provide enforceable protections for unenumerated rights and does not apply to the states.

Reviewing the history of the Ninth Amendment and its position within the Constitution to argue that it provides the judiciary with an ability to protect retained rights from invasion and pointing to some specific retained rights recognized by the First Congress as examples.