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07/29/2017

Lochlan Shelfer: How The Constitution Shall Not Be Construed
Michael Ramsey

Lochlan Shelfer (Independent) has posted How the Constitution Shall Not Be Construed (Brigham Young University Law Review, Vol. 2017, No. 2, 2017) to SSRN. Here is the abstract:

The dominant historical narrative of the Ninth Amendment views the Clause as an exclusively “Federalist” provision with one purpose: to protect against the fear among Federalists that the very enumeration of any rights in a Constitution would imply that the universe of unenumerated natural rights was left unprotected, or that federal power would be expanded by implication.

This narrative of the Ninth Amendment, however, is incomplete in that it ignores the Clause’s Anti-Federalist side. This Article argues that the Ninth Amendment was proposed and ratified partly in response to the Anti-Federalist fear that particular rights-guaranteeing provisions of the Constitution could be used, by means of negative implication, to deny the existence of analogous or functionally similar rights. Thus, the Ninth Amendment instructs readers not to interpret particular words or clauses in the Constitution to imply that similarly situated, analogous, or functionally similar rights are therefore left unprotected. This history suggests that, contrary to the arguments of a number of Ninth Amendment scholars, the Ninth Amendment applies to procedural and positive rights, in addition to natural rights, and the Ninth Amendment instructs readers how to interpret particular words of the Constitution, and not just the fact of the enumeration of rights.