A Response to Mike Rappaport on the Ninth Amendment
Andrew Hyman
Professor Rappaport recently wrote on this blog: “The [Ninth] Amendment does not say ‘the rights retained by the people should be protected as constitutional rights.’ Instead, it merely says that they should not be ‘denied or disparaged.’” But does it even say that? I respectfully disagree that the Ninth Amendment means (or says) that the rights retained by the people should not be denied or disparaged. Rather, that Amendment means the Constitution’s enumeration of powers —- and not its enumeration of rights —- may be construed to deny or disparage unenumerated retained rights to the same extent as under the original unamended Constitution.
Why, you might ask, would the framers have suggested that the enumeration of powers can be construed to deny unenumerated retained rights? It is not a mystery. As James Madison wrote to George Washington on December 5, 1789: “If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.”
All they wanted to accomplish with the Ninth Amendment was to dispel the notion that the listing of rights elsewhere in the Constitution was exhaustive. In other words, they viewed the original Constitution as a “bill of powers,” the great residuum being (or including) the unenumerated legal rights retained by the people. This understanding seems amply confirmed by Madison’s 1789 speech introducing the Bill of Rights in Congress, and by George Washington’s 1787 cover letter transmitting the Constitution to the states for ratification, and also by other documents from that era (that I won’t enumerate!).