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Joe Biden and the Ninth Amendment
Andrew Hyman

During the February 7 debate among Democratic presidential candidates, former Vice President Joe Biden said this:

We are not going to appoint anyone who did not have a view that unenumerated rights existed in the Constitution. That's not a specific test. That's a generic test. The only reason women have the right to choose is because it's determined that there are unenumerated rights coming from the Ninth Amendment in the Constitution….If you read the Constitution very very narrowly and say there are no unenumerated rights, if it doesn’t say it in the Constitution it doesn’t exist, you cannot have any of the things I care about as a progressive….

Biden is more incorrect than correct here.  Almost no one disputes that there are unenumerated rights in the original unamended Constitution; instead, it is their scope and character that is at issue.  Liberal scholars, Libertarian scholars, and almost everyone else agrees that the Ninth Amendment merely protects those pre-existing unenumerated rights from denial or disparagement that otherwise could have resulted from explicitly enumerating a whole bunch of rights in the first eight amendments.

Of course, the Ninth Amendment says, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”  This is a rule of construction, which is a big hint that it is not itself a font of any rights.  But it is only a hint.  The Ninth Amendment could have instead said, “Nothing in the entire Constitution shall be construed to deny or disparage unenumerated natural rights,” and then it would have clearly been a font of judicially-enforceable natural rights even though phrased as a rule of construction.  In my view, the thing that most convincingly proves the Ninth Amendment is not a font of rights is that it tells us how to construe the newly enumerated rights, while carefully avoiding any instruction about how to construe the enumerated powers in the old unamended Constitution. 

In any event, almost all scholars accept that the Ninth Amendment merely preserved the status quo.  For example, Professor Lawrence Tribe (a liberal) has written that, "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution."  Professor Randy Barnett (a libertarian) has written that, "The purpose of the Ninth Amendment was to ensure that all individual natural rights had the same stature and force after some of them were enumerated as they had before."  And, the U.S. Supreme Court has said that, "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."  The framers of the Bill of Rights were worried that enumerating certain rights might jeopardize the unenumerated rights that were already enshrined in the original unamended Constitution, thereby expanding federal power, and so the Ninth Amendment was added to guard against this danger. So, Biden is wrong to suggest that the Ninth Amendment did anything more than preserve the status quo. 

The real issue of controversy is what that status quo was.  That is, what were the unenumerated rights that were protected by the original, unamended Constitution?  Answering this question has virtually nothing to do with the wording of the Amendment ratified in 1791, and instead depends upon the wording of the original Constitution ratified in 1788.  There are two main schools of thought: a Madisonian school and a libertarian school; the former is correct in my view, whereas the latter is Bidenesque and misguided.  So let’s briefly consider what these two schools say. 

The Madisonian school follows James Madison's explanation in 1788: “the rights in question are reserved by the manner in which the federal powers are granted.”  For example, the unamended Constitution gave Congress virtually no power to prevent people in the individual states from wearing hats, or burying the dead, and therefore these were residual unenumerated rights protected by the unamended Constitution from federal interference in the states.

In contrast, libertarian scholars say that the unamended Constitution includes unenumerated natural rights that carve out exceptions from the enumerated powers.  However, the text of the unamended Constitution rebuts that libertarian view.  Consider, for example, the clause in the unamended Constitution giving Congress “power…to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may…become the Seat of the Government of the United States.” Libertarian scholars say that courts may nevertheless strike down federal laws in the District of Columbia whenever the courts decide that their judicial conscience is fundamentally better than the joint conscience of Congress and the D.C. City Council (to which Congress has delegated considerable power).  That libertarian interpretation is misguided, because the framers were careful not to demand that laws in the District of Columbia must pass muster as to their necessity and propriety.  There is a clause in the Constitution empowering Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” but, as Chief Justice John Marshall later explained, that clause "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted."  It would be bizarre if the framers in Philadelphia gave virtually complete power to Congress over the District, and carefully exempted that power from a requirement of necessity and propriety, all the while wanting to impose that very same requirement by vague implication.

The opponents of the Madisonian version of the Ninth Amendment have some other strange ideas too.  They claim that this Amendment protects only rights that people “retain” by natural law.  But that would imperil other federal constitutional rights that were protected by the original unamended Constitution, such as the right of defendants to stop federal prosecution of misbehavior that is outside federal jurisdiction (e.g. the right to stop federal prosecution of littering, stealing, or committing arson within the borders of a state).  The federal government would be free to argue that the first eight amendments do not discuss any right to litter, steal, or burn down houses and therefore Congress can criminalize such offenses throughout the United States (not just in places like the District of Columbia).

I hasten to add that none of the unenumerated rights in the original unamended Constitution is applicable in places like the District of Columbia, where the federal government has plenary power.  Therefore, they are not rights of U.S. citizenship, and are not applicable against the states via the Fourteenth Amendment.  After all, it would be absurd to apply those unenumerated rights against the states, because then neither the federal government nor the states could prosecute things like littering, stealing, and arson.

I hope we stick with the original Madisonian meaning of the Ninth Amendment, or at least change it by a legitimate amendment process.  If Biden and the other Democratic nominees are going to impose a litmus test on their judicial nominees, they need to study up on what the Constitution really means.  Better yet, just pick nominees of good character who are smart, wise, and committed to applying the law as written, regardless of what they "care about as a progressive."