Ranking the Amendments, Number 4: The Ninth Amendment

bill of rights

Robert Bork once referred to the Ninth Amendment as an indecipherable “inkblot.” First, as we know from the Rorschach Test, inkblots can have a lot of meaning. The Founders’ perception of this inkblot could tell us a good deal about their inner thoughts. Second, the Ninth Amendment IS NOT AN INKBLOT. Not even close. The Ninth Amendment reads:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

It is arguably the clearest amendment. Just because a right is not listed in the Constitution (or the Bill of Rights) does not mean that it does not exist. A deeper understanding of the Founders’ philosophical background indicates that the Framers were using natural rights philosophy to argue that there are certain rights that individuals are born with that they retain. These rights are not granted by the government and cannot be divested (or, if you prefer, disparaged: “How dare you insult my rights!”) simply due to their omission from the Constitution.

Why I rank the Ninth so high is that it provides judges with an important clue on how to interpret the Constitution. Georgetown Law Professor Randy Barnett has famously argued in Restoring the Lost Constitution, that the Ninth Amendment creates a presumption of liberty, a presumption in favor of natural rights that the government cannot violate. He claims that based on the wording and historical record behind the Ninth Amendment certain rights that are unenumerated (these are natural, not positive rights) deserve the same protection as the rights that are explicitly enumerated in the Bill of Rights. These rights are negative in the sense that they prevent others (including the government) from restricting your behavior or actions as opposed to requiring action (Read this for a fuller discussion of the history and intention of the Ninth Amendment).

This makes sense given the debate over whether there should even be a Bill of Rights to accompany the Constitution. A concern about including a Bill of Rights was that it would be misleading and make people think that only those rights explicitly listed are protected by the national government. When discussing the freedom of the press in Federalist 84, Alexander Hamilton asked: “Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?” In other words, the government needs to be granted power by the Constitution in order to wield it; the Ninth Amendment makes this crucial presumption clear.

If I love the Ninth Amendment so much, why didn’t it make the top three? It simply hasn’t been that effective. Bork’s view of the Ninth is not uncommon and the Ninth generally is only cited in conjunction with other amendments (in fact, it is part of the most famous penumbra in history). And, it is relatively rare that this occurs. Nonetheless, this supporting role is important in those rare instances. The Court may not have framed it right, but in the case of Roe, the Ninth Amendment was crucial in establishing that a woman’s right to terminate her pregnancy before viability despite it not being explicitly mentioned in the Constitution.

So, despite it’s relative ineffectiveness, the Ninth Amendment finishes fourth.

15 responses to this post.

  1. Posted by Dan on August 29, 2009 at 3:57 PM

    +100 points for penumbra reference

    Reply

  2. Posted by Alex on September 7, 2009 at 3:42 PM

    Josh, in ranking these amendments are you using some combination of the text of the amendment itself (what it actually means) and how effective it has been (what the Court has said it means)?

    If your methodology were purely based on the text, the Ninth should be #1. Hands down.

    I find it interesting that you take the somewhat moderate Randy Barnett/Goldberg in Griswold “interpretative guide” view of the Ninth, but think that the Tenth Amendment is totally redundant and meaningless. I agree that the Tenth does not do as much as the Ninth, but I think the Tenth is an interpretative reminder while the Ninth is an actual FOUNT OF RIGHTS and MANDATE TO APPLY PHILOSOPHY IN INTERPRETING THE CONSTITUTION. Whoa. Let me explain.

    The Ninth Amendment, as you argue, says that people have rights which they do not give up, but “retain[]” when they enter into a government. Not all of those rights were elsewhere enumerated in the Constitution, the Ninth Amendment tells us, but they are there. If a right is not alienated when forming government, but “retained,” then the government cannot violate it. Wow.

    So, the question is what rights do people retain when they enter into government? This is a normative question of political philosophy. Philosophers disagree about the answer, but there is a right answer. The Court’s job is to get that answer right. Not only has the Court not succeeded, it hasn’t even tried. In fact, it crafts doctrines of interpretation to AVOID trying. The Court believes it would be dangerous for it to try. Too bad the Constitution mandates it.

    Reply

  3. Posted by John S on September 8, 2009 at 6:01 AM

    I totally disagree with Alex. The more I think about it, the more I think the wording of this amendment is terrible. I agree with the guiding philosophy of the Ninth Amendment, but to say that the enumeration of certain rights doesn’t disparage other rights should effectively either A) neutralize the preceding amendments or B) make all feasible rights Constitutional. The Ninth Amendment doesn’t even suggest that the enumerated rights should get precedence (though they obviously do in practice).

    And you can’t say that the Constitution should leave something to “a normative question of political philosophy”….the whole reason we have a constitution is to answer normative questions of political philosophy. The Ninth Amendment is like passing a law that says “some things ought to be illegal.” It’s probably for the best that the Courts essentially ignore the Ninth Amendment: How are they supposed to interpret it? The Founders may as well have written, “You guys figure it out.”

    Reply

  4. Posted by Alex on September 8, 2009 at 10:21 AM

    John,

    I don’t think we disagree about what the amendment says – that it “make[s] all feasible rights Constitutional.” You’re just unwilling to accept its conclusions. Regardless of WHY the Framers wrote the Constitution or what they were thinking when they did, the Ninth Amendment is what they wrote. They may have “screwed up” in the sense that they didn’t want it to do what it does, but too bad for them.

    Reply

  5. Posted by John S on September 8, 2009 at 3:27 PM

    Fair enough, but why is it a good thing for them to have essentially opened the floodgates for all feasible rights?

    Reply

  6. Posted by Alex on September 8, 2009 at 3:58 PM

    So, there are two questions here: the positive question “What does the Ninth Amendment REALLY mean?” and the normative question “Is it good that it means what it does?” We actually seem to agree on the positive question. The normative question, however, is subject to multiple interpretations. We could ask:
    (1) Would it be good if the Court and the rest of the government obeyed what the Ninth Amendment really says, namely that the government cannot violate the rights that people retain when they formed government?
    (2) Would it be good if judges were told that they need to figure out the philosophically correct answer what rights people retain when they form a government and to use those to overturn laws that violate them?
    (3) Is it better that the Ninth Amendment exists, given how it has been interpreted, than if it didn’t?

    I think that Josh has been using some mix of all three in his rankings. (1) is about whether the correct interpretation is good or bad. The other two are about the effects of INCORRECT interpretations. (3) asks us how judges have read the amendment and how they’d read the Constitution without it. (2) asks us how judges would read the amendment if we told them it mandated they be guardians of rights but we DON’T assume they use the correct rights – just whatever they think are the correct rights.

    The answer to (1) is unambiguously hugely positive. If the Court protected our rights, they would no longer be violated. That is a good thing. Whatever rights you think are the correct ones, it is clearly positive for the Court to protect those. If you, like me, are a Nozickian and think libertarian rights are the correct ones, then you think it would be much better if a branch of government kept the rest of the government from violating those rights. If you are instead a Rawlsian and think liberal-egalitarian rights are the correct ones, then you think that the Court should protect those rights you think are correct – the liberal-egalitarian ones. Indeed, the Court’s ENTIRE CONSTITUTIONAL JOB is to protect rights. Many of the other amendments are just trying to get at what the Ninth Amendment does by itself.

    The answer to (3) is only slightly positive. It’s a help, something for promoters of strong rights-based limitations on what the government can do can hang our hat on. It has been cited, at least. It does almost nothing today, but at least it’s rhetorically powerful that there’s this big sweeping provision out there that the Court ignores. Like the Contracts Clause.

    The answer to (2) is much less clear. (2) effectively asks whether the Court will get rights correct and, if not, how far off it will be – and whether protecting the wrong “rights” will in fact be a negative. I can see this going both ways. The Court may still be conservative, but just a little less so, which would be a positive change. It may stick to using history, assuming that philosophers cited by the founding generation got stuff correct. Of course, they didn’t, but they lucked into getting decently close – so that would be positive. The real risk is that the Court will start applying liberal-egalitarian rights or even vaguer positive “rights to” crap, as espoused now in several other countries’ and international organizations’ constitutions and declarations of rights. That would be bad, but it may be balanced by the Court enforcing other rights (e.g. gay marriage) more stringently. Hard to say.

    So, the solution? Though this will never happen, we need to convince judges of what the Ninth Amendment means AND of what rights people actually have. A little textual analysis and a lot of Nozick.

    Reply

  7. Posted by John S on September 9, 2009 at 12:08 AM

    I don’t think you can separate the answers to questions 1 and 2. I don’t think you can say whether or not it would be good if government couldn’t deny the rights retained by the people unless you know what those rights are. (This is another criticism of the 9th Amendment: It’s kind of a nonstatement. Obviously government cannot deny rights retained by the people since the definition of a “right,” as far as I can tell, is a claim retained by the people in forming a government.)

    The purpose (and effect) of a Constitution is to tell us which rights are retained by the people and which aren’t (either explicitly or implicitly). The 9th Amendment, however, gives leeway to any and all philosophies to claim things as rights. The Rawlsians you despise can claim that they retain a “right” to redistribution, your libertarian friends can claim a “right” own battleships, and I can insist on a “right” to free candy for everyone.

    I think our disagreement hinges on the fact that I disagree with your claim that there is a philosophically correct standard to what a “right” is; I don’t even agree with the concept of a “right” in general. As such, I think leaving the question of “rights” undefined and unspecified would lead to largely negative consequences.

    Reply

  8. Posted by Alex on September 9, 2009 at 12:24 AM

    So, John, you just deny that one can make any normatively true statement of the form: A has a right that the government not do X/do X. I’m a political philosophy guy. And yes, we can make normatively true rights claims. The libertarians are correct and everyone else is wrong. If you want to know why, check out my thesis:

    Reply

  9. Posted by John S on September 9, 2009 at 12:37 AM

    Ok, check back with me in like a year, when I’ve had a chance to read this behemoth.

    Reply

  10. Wow, I totally have to pay out to whoever had THAT thesis as the first one referenced on the blog.

    Reply

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