Boston University School of Law

The Ninth Amendment: It Means What It Says

Randy E. Barnett

Boston University School of Law Working Paper 05-14

Abstract

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 twelve crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strong 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.

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Suggested Citation:

Randy E. Barnett, "The Ninth Amendment: It Means What It Says," Texas Law Review, Volume 85, Number 1 (November 2006)

 

Randy E. Barnett Contact Information

Georgetown University Law Center

600 New Jersey Avenue, NW

Washington, DC 2001

United States

202-662-9936 (Phone)

Email: rbarnett@gmail.com

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