83 Pages Posted: 25 Aug 2005
Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: the state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This Article examines thirteen crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strongly support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say: the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwards, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights. In short, the Amendment is what it appears to be: a meaningful check on federal power and a significant guarantee of individual liberty.
Keywords: Ninth Amendment, Constitution, Constitutional Law, originalism, originalist models of the Ninth Amendment, individual natural rights model, federalism model, state law rights model, collective rights model
JEL Classification: K40, K49
Suggested Citation: Suggested Citation
Barnett, Randy E., The Ninth Amendment: It Means What It Says. Texas Law Review, Vol. 85, No. 1, 2006; Boston Univ. School of Law Working Paper No. 05-14. Available at SSRN: https://ssrn.com/abstract=789384
By Orin Kerr