Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism
41 Pages Posted: 9 Mar 2010
The Ninth Amendment - our resident anarchic and sarcastic "constitutional jester" - mocks the effort of scholars and judges alike to tame and normalize constitutional law. It is not as if the stern disciplinarians haven't tried. We now have two generations worth of painstaking, erudite, and occasionally brilliant scholarship that attempts to rein it in. Yet the amendment stubbornly resists control. It stands as a paradoxical, textual monument to the impossibility of textualism, an entrenched, settled instantiation of the inevitability of unsettlement. If it did not exist, constitutional skeptics would have had to invent it.
This essay has two parts. In Part I, I present a new and, I hope, persuasive, originalist account of the Ninth Amendment. My claim is that the Amendment deliberately leaves unsettled the status of unenumerated rights. Because of the Ninth Amendment, the Constitution does not "deny" or "disparage" these rights, but neither does it embrace or imply them. The amendment puts off to another day a final reckoning of the extent to which we are bound by constitutional text.
Although I use originalist methodology in Part I, I do not want to be understood as embracing originalism. Instead, this Part is an exercise in internal critique. As Part II explains, the Ninth Amendment states a truth that we would have to deal with whether or not it was part of the original text: No matter how comprehensive, no text can control the force of ideas and commitments that lie outside the text. This simple truth leaves the status of liberal constitutionalism permanently and inevitably unsettled. The day of final reckoning will never arrive.
Keywords: Ninth Amendment, Unenumerated Rights, Textualism
JEL Classification: K00, K30, N41, N42
Suggested Citation: Suggested Citation