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... D. The Ninth Amendment and Enumerated Rights E. The Other Rights Retained by the People F. "[O]thers retained by the people" 1. The dual nature of retained rights II. THE TEXT AND THE HISTORICAL RECORD A. Contemporary References to the Retained Collective Rights of the People B. The Collective People of the Ninth Amendment C. Summing Up the Semantic Meaning of the Text III. INTRATEXTUALISM: THE TEXT OF THE NINTH AMENDMENT IN THE CONTEXT OF THE CONSTITUTION A. The Ninth and Tenth Amendments B. The Ninth and Fourteenth Amendments 1. The Ninth Amendment and incorporation doctrine 2. Reconciling the Ninth and Fourteenth Amendments IV. THE NINTH AMENDMENT AND JUDICIAL REVIEW A. Towards Theory of Judicial Enforcement B. Summary CONCLUSION: A MODEST PROPOSAL
INTRODUCTION
This Article addresses the textual mysteries of the Ninth Amendment. The overall effort is to construct a text-based theory of the Ninth that both explains its historical application and reconciles the Amendment with other texts in the Constitution, particularly the Tenth and Fourteenth Amendments.
Once dismissed as an indecipherable inkblot, (1) the Ninth Amendment (2) has experienced something of a renaissance. A number of recent articles and books have enriched a previously moribund debate and significantly illuminated the original understanding of the Clause. (3) For example, we now know that the Amendment played a critical role in the debate over the original Bill of Rights and almost every major constitutional dispute of the nineteenth and early twentieth centuries. (4) This should finally bury the oft-repeated canard that the Ninth Amendment languished in obscurity from the time of its drafting. (5) Second, despite earlier academic (and Supreme Court) pronouncements to the contrary, there exists a rich corpus of federal and state court opinions referring to the Ninth Amendment that stretches over the last two hundred years. (6) Although earlier research looked back no further than the time of the New Deal, we now know that judicial citation to the Ninth Amendment ended at the time of the New Deal. (7) The relative obscurity of the Amendment at the end of the twentieth century thus is a recent phenomenon, and not a characteristic of the Amendment from its inception.
The historical application of the Ninth, however, seems to be unrelated to, or even in tension with, the actual text of the Ninth Amendment. For more than one hundred years after its adoption, courts and commentators understood and applied the Ninth as a rule of construction preserving the autonomy of the states. Almost invariably paired with the Tenth Amendment, the Ninth was pressed into service in a wide variety of cases involving the need to limit federal power in order to preserve the right to local self government. States' rights, of course, is an issue traditionally associated with the Tenth Amendment--the only amendment in the original Bill of Rights to expressly mention the states. The Ninth, on the other hand, speaks of the retained rights of the people. Reading the Ninth as preserving states' rights appears to follow the approach of the Confederate Constitution which adopted a clause exactly like the Ninth--except it altered the language to protect the retained rights of "the people of the several states." (8) Such a reading also appears to ignore the obvious textual differences between the Ninth and Tenth Amendments, with the Tenth speaking of reserved powers and the Ninth speaking of retained rights. Powers seems the proper term when referring to prerogatives of governments (state or federal), whereas the word rights seems intuitively to refer to the immunities of individuals (not states).
On the other hand, despite the fact that the text of the Ninth appears to lend itself to the protection of individual rights, advocates of the individual rights theory of the Ninth have yet to produce a textual theory of the Ninth capable of judicial enforcement. Supreme Court references to the Ninth Amendment in early privacy cases such as Griswold v. Connecticut (9) and Roe v. Wade (10) supported an application of the Fourteenth Amendment, not the Ninth. Advocates of a libertarian reading of the Ninth focus on the issue of nonenumerated rights--a subject that only partially involves the Ninth Amendment--and have yet to produce a comprehensive theory of the text itself. (11) Opponents of the libertarian reading of the Ninth, on the other hand, generally deny that the Clause has any judicially enforceable meaning and claim that it merely echoes the general federalist declaration of the Tenth Amendment. (12) Thus, the contemporary debate regarding the Ninth has proceeded without either side feeling obligated to construct a judicially enforceable theory of the entire text.
In fact, taking the entire text of the Ninth Amendment seriously leads to some surprising results. For example, the Ninth Amendment is often cited as indirect support for a broad interpretation of liberty provisions such as the Due Process Clause. One cannot reject a due process liberty claim, the argument goes, on the grounds that no such liberty is listed in the Constitution. Doing so violates the Ninth Amendment's declaration that there are "other rights" retained by the people. (13) When one consults the full text of the Ninth Amendment, however, this argument is revealed as a non sequitur. The Ninth declares that, no matter the interpreted scope of enumerated rights, there remains the possible existence of other unenumerated rights. One can have as narrow a reading of due process rights as one wishes without necessarily denying or disparaging the existence of "other rights." Thus, the most common contemporary use of the Ninth cannot be viewed as a command of the text. (14)
When one attempts to read the Ninth's text alongside of similar texts in the Constitution--an approach Professor Akhil Amar refers to as intratextualism (15)--the mystery deepens. The Ninth closes with a reference to "the people." This same term closes the text of the Tenth Amendment. However, despite the fact that these two amendments were placed side by side and ratified at the same time, contemporary scholarship treats the exact same language in opposite ways. Courts and commentators have long treated the closing phrase of the Tenth as a reference to the people in the several states. Thus, all powers not delegated away from or prohibited to the states are reserved to the control of the people in the several states. Modern commentary on the Ninth Amendment, on the other hand, generally views "the people" of the Ninth as an undifferentiated national body. (16) But if the people hold reserved powers on a state-by-state basis, why do they not hold retained rights in the same manner? Or, more bluntly, how likely is it that the same term can have radically different meanings in side-by-side sentences added to the Constitution at the same time?
This Article addresses such textual and historical conundrums. Unlike other contemporary accounts that tend to focus on the issue of unenumerated rights, I will address the entire text of the Ninth Amendment and consider what it means to retain a right and how constructions of the Constitution might threaten to "deny or disparage" the retained rights of the Ninth. Once we see the Amendment in its entirety, it becomes apparent why courts applied the Ninth Amendment in a manner preserving the right to local self government for more than one hundred years: this is the unavoidable operative effect of the text as a whole.
I. THE PARAMETERS AND POSSIBILITIES OF THE TEXT
The enumeration, in the Constitution, of certain fights, shall not be construed to deny or disparage others retained by the people. (17)
This first Part focuses on the text of the Ninth Amendment and attempts to identify the textual parameters to which any account of the Ninth Amendment must conform. When appropriate, I will consider the historical record and attempt to identify which of the possible textual meanings are more or less plausible, given historical evidence of original public understanding. In this way, I hope to provide an account of the Ninth Amendment satisfactory in terms of both originalism (18) and textualism. (19)
All interpretive theories begin with the text; the words of the Constitution determine the parameters of possible meaning. Although not self-defining, the very idea of a written, enforceable constitution presupposes a sufficient degree of agreement regarding language and grammar as to allow judicial enforcement over time. (20) From the perspective of popular sovereignty, the text is how the people speak from one generation to the next. Some scholars suggest that interpreting a written text, by its very nature, requires a form of originalist analysis. (21) Whether this is true, analysis of the text sets the ground rules for any viable theory of constitutional meaning.
As the Article proceeds, I will distinguish primary textual (or semantic) meanings of the Ninth from secondary implied meanings arising from the text. (22) For example, as far as the primary meaning of the Ninth is concerned, the amendment comes into play only when the existence of certain enumerated rights is construed in a manner that denies or disparages other unenumerated retained rights. The text does not declare that unenumerated rights actually exist or that they be affirmatively protected, only that they not be denied or disparaged due to the existence of certain enumerated rights. On the other hand, the text does seem to imply that other retained rights exist and ought to be respected to the same degree as enumerated rights. This implied meaning is a secondary meaning arising from the text, but not actually required by the text. As we shall see, the content and scope of implied secondary meanings depends on what we identify as the primary meaning of the text.
We begin, however, at the beginning: the opening lines of the Ninth Amendment.
A. "The enumeration, in the Constitution, of certain rights...."
According to contemporary dictionaries, the meaning of "enumeration" was no different than that commonly understood today: to enumerate meant "to number" and an enumeration was simply "a numbering or count." (23) The opening phrases, "the enumeration, in the Constitution, of certain rights" thus seems clear enough. The "certain rights" enumerated in the Constitution includes, at the very least, the rights "numbered" or listed in the first eight amendments to the Constitution. It also seems likely that the reference includes the rights numbered in Article I, Section 9 (habeas corpus, ex post facto laws, etc). To the extent that additional support is necessary, this reading is supported by the history surrounding the adoption of the Ninth. Federalists like James Madison initially resisted adding a Bill of Rights on the grounds that enumerating (or listing) certain rights might be read to imply that all nonenumerated (unlisted) rights were assigned into the hands of the government. (24) Anti-Federalists responded that such a list of enumerated rights already existed in Article I, Section 9--thus making the need for some kind of explanatory amendment even more necessary. (25) In his speech to the House of Representatives, Madison explained that the Ninth Amendment was meant in part to address such concerns about the implied relinquishment of rights due to the enumeration of other rights in the Constitution. (26) The general language of the Ninth tracks this concern by prohibiting erroneous inferences from the enumeration of any right in the Constitution, including those added after the adoption of the Ninth itself. (27)
But what of those rights enumerated in the original Constitution, such as those listed in Article I, Section 10? Those rights constrain the states and include the Impairment of Contracts Clause as well as immunity from ex post facto laws and bills of attainder. Because these rights are among those rights "enumerate[ed] ... in the Constitution," they fall within the literal meaning of the Ninth Amendment. If these rights are part of the "enumeration of certain rights," then one way to read the full text of the Ninth would be as follows: "The enumeration of certain rights (including those enumerated against the states in Article I, Section 10) shall not be construed to deny or disparage others retained (against the states) by the people." Although textually possible, historically such a reading is highly implausible. First, we know that Madison's attempt to add an amendment expressly binding the states failed. (28) It seems unlikely that an express restraint on state action would fail but a text of unlimited restraint in the form of unenumerated rights against the states would receive supermajoritarian support. As Chief Justice John Marshall concluded in Barron v. Baltimore, the overall structure of the Constitution suggests that general language binds only the federal government, not the states. (29) When one adds the fact that no one in the history of the Constitution has ever suggested such a reading of the Ninth, the odds that the "other rights" of the Ninth refers to unenumerated rights against the states becomes vanishingly small. Put another way, conventional wisdom is correct in at least this regard: the Ninth does not involve rights enforceable against the states.
There is, however, a way to read "the enumeration ... of certain rights" in a manner that includes the rights listed against the states in Article I, Section 10 without embracing the historically implausible interpretation described above. For example, one could read the text as follows: "The enumeration of certain rights (including those enumerated against the states in Section 10) shall not be construed to deny or disparage others retained by the people (in the several states)." According to this reading, the fact that some rights are enumerated against the states shall not be construed to disparage or deny other rights left under local (state) control. As we shall see, this reading tracks how courts and commentators read the Ninth in the early years following its adoption and for decades afterwards. For now, it is enough to conclude that the reference to certain enumerated rights can include all rights enumerated in the Constitution, whether against the states or federal government, without doing violence to either the text or the history surrounding its adoption.
B. "... shall not be construed ..."
This phrase forms the core of the Ninth Amendment; it is the hub around which the rest of the text turns. As a matter of semantic meaning, all the Ninth demands is that the enumeration of rights not be construed in a particular way.
The Ninth Amendment was the first provision added to the Constitution that solely addressed the issue of interpretation. (30) All constitutional provisions, of course, can be understood as rules of interpretation to some degree. For example, the Necessary and Proper Clause can be understood both as a concession of power (literally, for the Clause reads, "Congress shall have power ... [t]o make all Laws which shall be necessary and proper...."), (31) and as a rule of construction (this Clause is properly interpreted to allow only those laws which are, in fact, "necessary and proper"). Similarly, the Free Speech Clause can be understood both as a right and as a rule of construction forbidding any interpretation of congressional power which "abridg[es] freedom of speech." (32) The Ninth Amendment, however, is neither a grant of power nor a source of rights. (33) All that the Ninth Amendment does is forbid interpreting particular provisions in a particular way. This is what makes the Ninth Amendment unique: its sole textual function is to control the interpretation of other provisions. (34)
As do a number of provisions in the Bill of Rights, the Ninth Amendment uses the passive voice ("shall not be construed"), leaving it unclear who shall not construe the Constitution in the forbidden manner. Here, we might be tempted to follow John Marshall's reasoning in Barron v. Baltimore (35) and conclude that the Ninth's rule of construction applies only against the federal government. But this is required neither by the text of the Ninth nor Marshall's decision in Barron. According to Marshall, had the framers intended the Bill of Rights to serve as "limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention." (36) The rule of the Ninth Amendment, however, does not limit the powers of the state governments--quite the opposite, as we shall see. Like the rest of the Bill of Rights, the Ninth's rule of construction serves to limit the powers of the federal government. State officials would be as bound to follow this rule as any federal official. For example, suppose that a state judge is faced with a claimed federal constitutional right nowhere enumerated in the Constitution. The Ninth Amendment would prevent the state judge from concluding that because the right was not enumerated in the Federal Constitution therefore it was not retained by the people. In fact, all officials, whether state or federal, are bound by their oaths to support the Constitution and this includes respecting the rule of construction announced by the Ninth Amendment.
C. "The enumeration ... of certain rights, shall not be construed to deny or disparage other rights"
It is generally accepted that one of the central purposes (37) of the Ninth Amendment was to avoid the implication that the Bill of Rights was an exhaustive list of rights. (38) Just because a right was not specifically enumerated did not mean the right did not exist. Put another way, the fact that some rights are enumerated must not be construed to suggest that rights must be enumerated: the fact of enumeration shall not imply the necessity of enumeration.
But the text addresses more than the denial of other rights. It also forbids construing the fact of enumeration in a manner that disparages other rights. As distinguished from outright denial, disparagement suggests a lessening or diminishment of retained rights. (39) The Disparagement Clause thus prevents an unwarranted diminishment of retained rights because of their lack of enumeration. Theoretically, such disparagement might occur in at least two different ways. For example, the fact of enumeration might be read to suggest a hierarchy of rights, with enumerated rights occupying a higher status than nonenumerated rights. The Disparagement Clause prevents this by declaring that the fact of enumeration shall not imply the superiority of enumeration. Additionally, disparagement might refer to treating nonenumerated rights as having a narrower scope than enumerated rights. To prevent this, the Ninth declares that the fact of enumeration shall not be construed to imply that nonenumerated rights have a lesser scope than enumerated rights.
These two methods of disparagement (hierarchy and limited scope) are but different ways of expressing the same idea. For example, courts strongly disfavor content-based laws that restrict the enumerated freedom of speech in a public...
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