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07/08/2018

Mitchell Gordon: Continuity, Discontinuity, and the Rights Retained by the People
Michael Ramsey

Mitchell Gordon (University of St. Thomas School of Law) has posted Getting to the Bottom of the Ninth: Continuity, Discontinuity, and the Rights Retained by the People (50 Indiana Law Review 421 (2017)) on SSRN.  Here is the abstract:

The Constitution’s first eight amendments expressly safeguard certain enumerated rights, and the Ninth Amendment instructs that the listing of some rights “shall not be construed to deny or disparage others retained by the people.” But the constitutional text says nothing about how such unenumerated rights are to be identified, evaluated, or enforced. Naturally this has made the Ninth Amendment difficult to apply, and the prevailing approach among courts and commentators has been to trivialize the amendment or ignore it completely. As a result, we have lost sight of its true subject and forgotten the question it was intended to answer.

Part I of this essay observes that most aspects of a new constitution can be classified as either continuous with the old order (maintaining something that already existed) or discontinuous (in the sense of ending a pre-existing institution or initiating something genuinely new). Whether the Ninth Amendment represents continuity or discontinuity, however, is not entirely clear – and this gets to the heart of what the Amendment was intended to do. We know that its author, James Madison, was responding to fears that a partial listing of rights might endanger other rights that were not listed; in the First Congress he proposed an amendment designed simply to clarify what enumeration did and did not do. Congress adopted the idea, but eliminated much of Madison’s proposed language, obscuring both the point of the amendment and the legal effect of enumeration.

Part II sorts the competing views, not according to how they define retained rights, but according to how they answer that question: Does enumeration actually change anything? Does it make any difference whether a right is enumerated? Those who think enumeration might make some difference I call differentialists; those who think it makes no difference at all I call non-differentialists. I subdivide differentialists into strict differentialists, who think enumeration makes ALL the difference (i.e., that rights not enumerated are not judicially enforceable), and moderate differentialists, who think enumeration matters to an extent but that enforceability should not turn entirely on enumeration per se. In Part III, I add a fourth group – I call them exoconstructionists –who interpret the Ninth Amendment not as an invitation to inquire into retained rights but as an instruction about how to construe other parts of the Constitution.

Part IV uses these concepts to examine an idea first suggested by Michael McConnell: that the Ninth Amendment is best understood from the standpoint of Lockean social compact theory. Under this reading, the “rights retained by the people” are simply the individual natural rights that the people did not relinquish as part of the original social compact. McConnell interprets the Ninth Amendment to mean that the enumeration of some rights in the written Constitution does not abrogate other rights that are not enumerated; those rights remain in force, but can be superseded by sufficiently explicit positive law. Finally, Part V observes that judicial discretion is at its lowest ebb when we are at one of the two extreme “poles” (i.e., non-differentialism and strict differentialism). The further we get from both poles, the more discretion the courts enjoy – not only to determine which unenumerated rights are judicially enforceable, but to draw conclusions about which narrative accounts of those rights are most plausible as a matter of historical fact.

(Via Larry Solum at Legal Theory Blog).