Blackstone's Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights
Oklahoma Law Review, Vol. 62, p. 167, 2010
56 Pages Posted: 20 Oct 2010
Date Written: October 19, 2010
The Ninth Amendment clearly indicates that there are fundamental constitutional rights other than those in text of the Constitution and the Bill of Rights. The United States Supreme Court has recognized a number of these rights in its jurisprudence. However, the Court's decisions have lacked a consistent historical baseline for rights, and as a result, the Court's use of history has tended to devolve into cherry-picking from a variety of historical sources without regard to how much they would have influenced the Framing generation.
Legal scholars have also posited several theories regarding a baseline for rights. Some of the more popular theories focus on a baseline taken from natural law, either derived from the writings of specific natural law theorists such as John Locke, from a combination of different natural law theorists, or from some shared natural law idea of individual freedom. However, these theories generally overstate the influence of natural law theorists on the Framing generation's concepts of rights, and understate the influence of English constitutionalism and common law. Although the Framing generation often spoke of rights in natural law terms, the rights they identified and talked about were all English rights.
This article examines the common understanding of rights at the time of the Framing of the Constitution and the Bill of Rights, and argues that the common understanding of rights at the time were not grounded in the high-minded abstractions of the natural law theorists, but rather derived from the rights the Framing generation assumed to be inherited from the English constitutional and common law, tempered by experience as American colonists. Further, for most Americans by the time of the Framing, their conception of these rights was formed by the readily accessible summary of the common law provided by Sir William Blackstone. It goes on to posit a theory for unenumerated rights based on custom and practice, using Blackstone's Commentaries as a common law baseline from which to start, and then relying on the common law concepts of custom and practice to update rights from the "common law rights of Englishmen" to the "rights of Americans."
Keywords: Blackstone, Ninth Amendment, unenumerated rights, substantive due process, common law
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