The Ninth Amendment Contains a Huge Clue About What the Unamended Constitution Meant
Andrew Hyman
The Ninth Amendment is back in the news. Senator John Cornyn brought it up this week, and asked Supreme Court nominee Judge Ketanji Jackson, “What other unenumerated rights are out there?” She replied, “It’s a hypothetical that I’m not in a position to comment on.” It was a good question.
Ed Whelan is correct that the Ninth Amendment is not a source of judicially enforceable rights. Ed is a conservative, but his view should not be controversial; it is also common even among liberal and libertarian law professors. For example, Professor Tribe (a liberal) has said, “The Ninth Amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.” Professor Barnett (a libertarian) has likewise said: “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.” Even so, the Ninth Amendment can tell us a lot about what the original unamended Constitution was understood to have meant.
According to most conservative scholars, the original unamended Constitution meant that the enumerated powers *could* be used (or misused) to deny or disparage unenumerated fundamental rights within the scope of those enumerated powers. Most libertarian scholars disagree, and argue that the original unamended Constitution meant the enumerated powers *could not* be used (or misused) to deny or disparage unenumerated fundamental rights within the scope of those enumerated powers.
This debate between the conservative and libertarian views has been going on for a long time. Isn’t it peculiar that the Ninth Amendment chose to safeguard various unenumerated rights from misinterpretation of the enumerated *rights*, but not from misinterpretation of the enumerated *powers*? Doesn’t the founders’ zeal to accomplish the former imply that they also would have done the latter if they really meant for the unamended Constitution to carve out unenumerated exceptions to the enumerated powers?
It was a common view in the eighteenth century that legislators had a key role to play in protecting the people’s fundamental natural rights. Even today, courts very rarely think themselves constitutionally empowered to protect unenumerated fundamental natural rights from violation by private citizens, without legislative authority. Indeed, William Blackstone wrote in his famous Commentaries that every law declares rights to be observed and wrongs to be eschewed, and "this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator.” In every instance where the U.S. Constitution meant to supplant the wisdom and will of legislators with the wisdom of judges, it did so while providing some intelligible constraint. Certainly the Ninth Amendment is an intelligible constraint, but there is no corresponding intelligible constraint in the Constitution as to unenumerated rights that purportedly limit how the enumerated powers are construed.
Incidentally, the Ninth Amendment is not itself part of the Constitution’s enumeration of certain rights. Rather, it is a rule of construction. Thus, it is permitted to construe it in a way that ends up denying or disparaging (or limiting) other rights retained by the people. Not just permitted, but required. Thus, throughout the 50 states, the unenumerated constitutional rights applicable against the federal government are limited to ones that are outside the subject matter of the enumerated powers, but they are not trivial and include countless natural rights applicable outside federal enclaves and the nation’s capital.