The Ninth Amendment in Light of Text and History

16 Pages Posted: 18 Sep 2010  

Michael W. McConnell

Stanford Law School

Abstract

The Ninth Amendment may seem a strange subject for a lecture at a conference on the recent decisions of the Supreme Court. After all, the Court has never squarely based a holding on the Ninth Amendment and has scarcely even discussed its meaning. Some scholars regard the amendment as an ‘‘inkblot’’ or as nothing more than a warning not to read the enumeration of powers too liberally or the enumerated rights too narrowly. It plays virtually no role in modern constitutional litigation. And yet the Ninth Amendment is the subject of two recent books and many articles, and rightly so: the amendment, properly understood in light of its text and history, helps us understand the constitutional structure of powers granted and rights reserved, the relation of the Bill of Rights to the original Constitution of 1787, and the role of natural rights in American constitutionalism.

Keywords: Ninth Amendment, Natural Rights, Equitable Interpretation, Federalist and Anti-Federalists, Social Compact Theory, Locke

Suggested Citation

McConnell, Michael W., The Ninth Amendment in Light of Text and History. Stanford Public Law Working Paper No. 1678203. Available at SSRN: https://ssrn.com/abstract=1678203 or http://dx.doi.org/10.2139/ssrn.1678203

Michael W. McConnell (Contact Author)

Stanford Law School ( email )

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