The Modalities of the Ninth Amendment: Ways of Thinking about Unenumerated Rights Inspired by Philip Bobbitt's Constitutional Fate

Abstract

Although the Ninth Amendment to the United States Constitution suggests the existence of certain unenumerated constitutional rights beyond those mentioned in the text of the Constitution and Bill of Rights, it has been all but ignored by the United States Supreme Court. Instead, courts have tended to treat the Ninth Amendment as simply a truism that is no longer relevant to the interpretation of the Constitution. As a result, there is a real danger that many important rights which were part of the original vision of the Constitution will be lost.

Some of the reluctance to acknowledge the Ninth Amendment may stem from the expansiveness of its text. Although it seems to refer to rights outside those already provided for in the Constitution, it gives no guidance as to how these rights are to be discerned or applied. Absent this guidance, the use and application of the Ninth Amendment is a daunting task.

This article examines the ways in which we might think about identifying, interpreting, and applying unenumerated rights under various types of constitutional arguments, using as tools the six constitutional modalities identified by Philip Bobbitt in his book, Constitutional Fate. By examining possibilities and limitations that each modality provides and places on the existence, identification, interpretation, and application of unenumerated rights, the article argues that, no matter what modality or mix of modalities is favored by the user, there are ways in which the Ninth Amendment can be effectuated.

Keywords: Ninth Amendment, unenumerated rights, Bobbitt, modalities, historical, textual, doctrinal, structural, prudential, ethical