The Ninth Amendment as a Rule of Construction
76 Pages Posted: 14 Sep 2010 Last revised: 16 Aug 2012
Date Written: September 13, 2010
The past two decades have seen a wealth of scholarship addressed to recovering the original meaning of the Ninth Amendment. This scholarship has focused almost exclusively upon identifying the original meaning of the Amendment’s reference to “other [rights] retained by the people.” Scholars who have addressed this question have tended to proceed on the assumption that such “other” rights, once properly identified, are entitled to the same level of protection that is accorded to enumerated constitutional rights. This assumption is wrong. This article contends that regardless of the original meaning of the Amendment’s reference to rights “retained by the people,” the Amendment itself does not compel treating such rights as if they were constitutional rights. Rather, the original meaning of the Ninth Amendment does nothing more than state a narrow and precise rule of construction targeted at a specific form of constitutional argument.
Recovering the Ninth Amendment’s limited role as a rule of construction serves two important functions. First, renewed attention to the Ninth Amendment as a rule of construction may allow interpreters to more clearly identify constitutional arguments that should be ruled out-of-bounds by the Ninth Amendment’s interpretive command. Second, recognizing the Ninth Amendment’s limited domain may refocus the debate over the constitutional status of “unenumerated” rights on other textual or extra-textual sources. Though the Ninth Amendment’s reference to “other” rights might provide evidentiary support to arguments seeking to ground such rights in some alternative source, the Ninth Amendment itself neither implies the existence of extratextual rights nor provides a sufficient basis for judicial invalidation of duly enacted federal or state law.
Keywords: Ninth Amendment, retained rights, linguistic philosophy, Grice, implicature, presupposition, New Textualism, unenumerated rights, capital punishment, hate speech, sovereign immunity
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