RECONCEIVING
THE NINTH AMENDMENT
Copyright (c) 1988 Cornell Law Review
Cornell Law Review - November, 1988 - 74 Cornell L. Rev. 1
I. Clearing a Path for the Ninth
Amendment
II. Two Competing Conceptions of Constitutional
Rights
A. The
Rights-Powers Conception of Constitutional Rights
B. Recasting The Original
Debate Over Constitutional Rights
C. The "Power-Constraint"
Conception of Constitutional Rights
III. Judicial Review of Unenumerated Rights
A. The Equal Protection of Enumerated and Unenumerated Rights
B. The Rights-Preserving Function of Unenumerated Rights
C. What Justifies Judicial Negation of Legislation?
IV. Interpreting Unenumerated Rights
A. What if the Ninth Amendment was a Philosophical Mistake?
B. Three Methods of Interpreting Unenumerated Rights
1. The Originalist Method
2. The Constructive Method
3. The Presumptive Method
4. Choosing Between the
Constructive and Presumptive Methods
C. The Limits of the Ninth Amendment
1. Formal Constraints and
the Choice of Interpretive Method
2. Structural Constraints
Conclusion: Reconceiving the Ninth Amendment
It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it1.
I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says "Congress shall make no" and then there is an inkblot, and you cannot read the rest of it, and that is the only copy you have, I do not think the court can make up what might be under the inkblot2.
Clearing
a Path for the Ninth Amendment
The courts long have protected constitutional rights that are not listed explicitly in the Constitution3, but are they warranted in doing so? As scholars and commentators vigorously debate this and other questions about the appropriate role of judges in interpreting the Constitution, the Ninth Amendment has assumed increasing importance. Its declaration that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"4 has suggested to many that the set of rights protected by the Constitution is not closed and that judges may be authorized to protect these "unenumerated" rights on occasion.
While much is controversial about the Ninth Amendment, the events that led to its adoption generally are agreed upon5. The Ninth Amendment was originally conceived by James Madison. A committee of the House of Representatives, on which Madison served, revised it. The House and the Senate debated and approved it and, along with the rest of the Bill of Rights, the several states ratified it. Any provision that survives this process must be presumed by interpreters of the Constitution to have some legitimate constitutional function, whether actual or only potential. Despite this long respected presumption, the Supreme Court has generally interpreted the Ninth Amendment in a manner that denies it any role in the constitutional structure6. The Ninth Amendment's most important appearance in a Supreme Court case to date has been in a supporting role7. In his now-famous concurring opinion in Griswold v. Connecticut8, Justice Goldberg stated: "In interpreting the Constitution, 'real effect should be given to all the words it uses,'. . . . The Ninth Amendment to the Constitution may be regarded by some as a recent discovery, . . . but since 1791 it has been a basic part of the Constitution which we are sworn to uphold."9
In this article, I hope to clear a path for a more fruitful and faithful interpretation of the Ninth Amendment by removing certain doctrinal and theoretical impediments to such an interpretation. This requires a critical appraisal of what I call the "rights-powers" conception of constitutional rights -- a conception that the Court has applied exclusively to the Ninth Amendment, rendering it functionless. I shall then contrast this view with the very different "power-constraint" conception that the Court has used to interpret most other constitutional rights. If I accomplish nothing else in this article, I intend to show that the traditional rights-powers interpretation of the Ninth Amendment is untenable.
The rights-powers conception is, however, more a symptom than the real cause of the Ninth Amendment's past and current neglect. The principal obstacles in the path of a functional Ninth Amendment are certain views of constitutional structure and a deep-seated fear of letting judges base their decisions on unenumerated rights -- a fear that stems in large part from a modern philosophical skepticism about rights. In this article, after laying the rights-powers conception to rest, I shall present the outlines of a power-constraint conception of the Ninth Amendment. In doing so, I shall discuss how the judicial protection of unenumerated rights is consistent with the structural features of the Constitution and why philosophical skepticism about the idea of "retained" rights should not operate as a bar to their recognition. Finally, I shall suggest a practical method of interpreting the rights retained by the people referred to in the Ninth Amendment.
My analysis will rely heavily on the explanation of constitutional rights provided by James Madison in his speech before the House of Representatives10. I do this for two reasons. First, such a focus responds to the concern of some that giving the Ninth Amendment a genuine role to play in constitutional adjudication somehow conflicts with the intent of the framers. As the Framer who first conceived of the Ninth amendment, Madison's conception of constitutional rights is the most pertinent to an understanding of the Ninth Amendment's intended function. Whether or not the views Madison expressed to the House reflected a clear consensus of his contemporaries, if a robust theory of the unenumerated rights retained by the people is consistent with his vision, then it will be quite difficult to sustain an objection to such a theory on the ground that it violates original intent.
Second, I have great respect for Madison as a political theorist. For this reason, in deciding upon the best theory of the Ninth Amendment, I think it is useful to consult the opinion of the insightful person who conceived it and who also conceived a good deal of the Constitution's other important features. I view the Framers as teachers, not wardens, and consider their writings to be the best place to begin looking for a theoretical understanding of the text they wrote.
The theoretical issues raised by the Ninth Amendment are, in my view, extremely fundamental and this article is in no way intended to be the last word on the subject11. A complete defense of allowing the Ninth Amendment a real constitutional function would require a much more extensive presentation than I shall attempt here. Indeed, a complete analysis of the rights "retained by the people" would require nothing short of a comprehensive theory of the Constitution.
Two
Competing Conceptions of Constitutional Rights
A. The Rights-Powers Conception of Constitutional Rights
Although the longstanding neglect of the Ninth Amendment is a product of basic concerns about grounding judicial review on unenumerated rights, this neglect would not have been possible without an interpretation that purports to give the amendment a meaning while denying it any functional role in constitutional disputes. Such an interpretation employs a rights-powers conception of constitutional rights, a view that can be traced to a Federalist argument against the addition of any bill of rights. Federalists originally argued that a bill of rights was unnecessary because the Constitution granted the national government only enumerated powers. Any power that was not enumerated could not be exercised by the national government. A bill of rights, they argued, would be redundant and therefore unnecessary. Any rights enumerated in a bill of rights would be outside the powers of the national government and would need no further protection. As Alexander Hamilton wrote, "why declare that things shall not be done which there is no power to do? 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?"12 James Wilson made the same argument:
[E]very
thing which is not given, is reserved. . . .
[I]t would have been superfluous and absurd, to have stipulated with a
federal body of our own creation, that we should enjoy those privileges, of
which we are not divested either by the intention or the act that has brought
that body into existence13.
In United Public Workers v. Mitchell14, Justice Reed used this rights-powers conception of constitutional rights to interpret the Ninth Amendment. Writing for the Court, he stated:
The
powers granted by the Constitution to the Federal Government are subtracted
from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the
exercise of a federal power infringes upon rights reserved by the Ninth and
Tenth Amendments, the inquiry must be directed toward the granted power under
which the action of the Union was taken.
If granted power is found, necessarily the objection of invasion of
those rights, reserved by the Ninth and Tenth Amendments, must fail15.
The rights-powers conception of the Ninth Amendment views delegated powers and constitutional rights as logically complementary. This approach has two important advantages. First, when rights are viewed as the logical obverse of powers, content can be given to unenumerated rights by exclusively focusing on the expressed provisions delegating powers. By avoiding the need to directly address the substance of unenumerated rights, the rights-powers conception appears to provide judges a practical way of interpreting the otherwise open-ended Ninth Amendment. Second, the view that rights and powers are logically complementary seems to avoid any internal conflict or logical contradiction between constitutional rights and powers. In this way, the rights-powers conception has the apparent virtue of treating the Constitution as internally coherent. For these reasons, the rights-powers conception continues to attract proponents16. Nonetheless, it is a dubious interpretation of the Ninth Amendment for at least three reasons.
First, this interpretation erroneously construes the Ninth Amendment to mean nothing more than what is stated in the Tenth. The Tenth Amendment reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people."17 The idea that animates the rights-powers conception -- that powers not delegated are reserved -- is expressed clearly here. There was absolutely no need for another amendment, confusingly written in terms of "rights" that are "retained by the people," to express exactly the same idea18. Justice Reed's reference to "those rights, reserved by the Ninth and Tenth Amendments . . ."19 illustrates the confusion the rights-powers conception can cause. The Tenth Amendment does not speak of rights, of course, but of reserved "powers." By contrast, the Ninth Amendment speaks only of rights, not of powers. Yet Charles Cooper states that: "The ninth amendment does not specify what rights it protects other than by its reference to the enumerated powers of the federal government."20
The second objection to the rights-powers conception follows from the first: This conception renders the Ninth Amendment effectively inapplicable to any conceivable case or controversy. On the assumption that rights and powers are logically complementary, rights begin at precisely the point where powers end. Thus, in principle, at least, there can never be a conflict between a right and a power. But because the focus of the rights-powers approach is entirely on the powers side, any claim that the national government had exceeded its enumerated powers would rely entirely upon the provisions enumerating the powers of the national government (to show the absence of a power) and the language of the Tenth Amendment (to show that those powers not delegated are reserved). The Ninth Amendment has absolutely no role to play in the analysis.
The problem is not that there would never be occasion to use the Ninth Amendment. After all, there has been no occasion to enforce the rule requiring the President to be at least thirty-five years old either. Rather, the problem is that a rights-powers conception deprives the Ninth Amendment of any potential application. It does not allow for even a hypothetical case that would require an independent Ninth Amendment analysis. Moreover, the rights-powers conception does not simply render the Ninth Amendment unenforceable by the judiciary. The Ninth Amendment is rendered irrelevant to any conceivable constitutional decision, regardless of which branch of government is the decision maker.
Of course, it is possible that the Congress approved and the states ratified an amendment that was meant to be inapplicable to any conceivable circumstance. However, we cannot prefer such an interpretation of a constitutional enactment if one that contemplates a potential role is also available21. Such an alternative interpretation, based on a power-constraint conception of constitutional rights, will be suggested below22. In sum, absent compelling evidence, we cannot presume any provision of the Constitution to be as superfluous as the rights-powers conception would render the Ninth Amendment.
The third objection to the rights-powers conception is that it cannot be limited to the Ninth Amendment. If it is correct, it must apply to the rights enumerated in the Constitution in the same manner as it does to the unenumerated rights referred to in the Ninth Amendment. Assuming that the rights of the people are the logical converse of the powers delegated to the government, the very enumeration of a particular power in the Constitution automatically ceded to the general government any potentially conflicting rights that might have existed prior to the adoption of the Constitution. If this conception is correct, however, then even an enumerated right should never constrain an enumerated power. In the words of Raoul Berger: "Thus viewed, the Bill of Rights added nothing, but was merely declaratory."23 Of course, as noted below, this is not at all how courts have interpreted enumerated constitutional rights24. Legislative acts that fall within an enumerated power can violate an enumerated right25.
It is not surprising that a rights-powers conception denying the effect of unenumerated rights denies effect to enumerated rights as well. For the Federalists originally launched the rights-powers conception against the enumeration of any constitutional rights to defuse Antifederalist opposition to the Constitution. James Madison would have had no reason to devise a means of protecting unenumerated rights placed in jeopardy by an enumeration that, at that time, he still opposed. The problem that the Ninth Amendment was devised to solve simply had yet to arise.
The rights-powers conception reflects a losing argument against enumerating any constitutional rights. Notwithstanding the ultimate victory of the Federalists at the Constitutional Convention, their attempt to defend the absence of a bill of rights on the grounds that it would be redundant was controversial when made26 and ultimately was rejected during the ratification process. No one denies that ratification of the Constitution depended upon the promise of a forthcoming bill of rights. It is odd indeed to insist that the best interpretation of the Bill of Rights is based on the theory used by its most vociferous opponents.
The rights-powers conception of constitutional rights is attractive both because it promises a practical way of interpreting unenumerated rights and because it appears to interpret the rights and powers provisions of the text in a logically consistent manner. Unfortunately, it achieves these objectives at the price of rendering the Ninth Amendment completely functionless and superfluous. Still, any alternative account of constitutional rights that contemplates unenumerated rights doing any serious work in constitutional analysis must show both the practicality of its method and the internal coherence of such a constitutional scheme.
In the balance of this article, I shall describe and defend another way to conceive of constitutional rights, including those rights retained by the people: the power-constraint conception. In Part IV, I shall examine the practicality of three methods of interpreting these power-constraining unenumerated rights. In the next two sections, I shall explain why conceiving constitutional rights as constraining the exercise of delegated powers is not a contradictory approach to rights and powers. Instead of viewing rights and powers as logically complementary, a power-constraint conception views rights and powers as functionally complementary. Moreover, this approach is truer than the rights-powers conception to the concerns expressed by some Federalists about the dangers of enumerating any rights.
B. Recasting The Original Debate Over Constitutional Rights
The idea that constitutional rights are simply what is left over after the people have delegated powers to the government flies in the face of the amendments themselves. For example, it is impossible to find a "right to a speedy and public trial, by an impartial jury,"27 a right against double jeopardy or self-incrimination28, or a right to be free from "unreasonable searches and seizures"29 by closely examining the limits of the enumerated powers of the national government. The pivotal mistake of Justice Reed and those commentators who would neuter the Ninth Amendment is their exclusive concentration on only one of two Federalist arguments. Consequently, they fail to discern the distinct functions played by the Ninth and Tenth Amendments30.
The Federalists' argument that the enumeration of powers rendered a declaration of rights unnecessary is best viewed as a response to the criticism made by opponents of ratification that the Constitution was dangerous because it lacked a bill of rights. This response employed the theory that the federal government is one of limited and enumerated powers, a theory that eventually was incorporated in the Tenth Amendment. However, the Federalists not only responded to this criticism of the proposed Constitution, they also advanced a criticism of their own against the idea of a bill of rights. They attempted to turn the tables on the Federalists by arguing that a declaration of rights would be dangerous. In Hamilton's words: "I . . . affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous."31
Enumerating rights in the Constitution was seen as presenting two potential sources of danger. The first was that such an enumeration could be used to justify an unwarranted expansion of federal powers. As Hamilton explained: "They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted."32 The second source of danger was that any right excluded from an enumeration would be jeopardized. In his speech to the House explaining his proposed amendments, James Madison stressed this danger of enumerated rights:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against33.
Madison's initial device for doing so was a provision that ran together both of these concerns:
The
exceptions here or elsewhere in the constitution, made in favor of particular
rights, shall not be so construed as to diminish the just importance of other
rights retained by the people, or as to enlarge the powers delegated by the
constitution; but either as actual limitations of such powers, or as inserted
merely for greater caution34.
Eventually the two ideas were unpacked. The danger of interpreting federal powers too expansively was handled by the Tenth Amendment, while the danger of jeopardizing unenumerated rights was addressed by the Ninth Amendment.
Thus, the Federalist position does not disparage as superfluous the rights retained by the people. Nor does it deny that retained rights operate as a genuine and enforceable constraint on government. On the contrary, the Federalists disparaged the idea of using a written declaration of rights in the Constitution precisely to protect the rights retained by the people. They expressed fear that an incomplete or inaccurate written declaration may well undermine the status of the unwritten retained rights. In sum, this Federalist objection to a bill of rights assumes the preeminent importance of the unwritten rights retained by the people35.
There is no reason to suppose that these Federalists did not share the then-prevailing beliefs in rights antecedent to government36. For example, the same James Wilson who used a rights-powers argument in his vocal opposition to a bill of rights was an ardent adherent to natural rights. In his lectures on jurisprudence he explicitly rejects the views of both Edmund Burke and William Blackstone and contends that: "Government, in my humble opinion, should be formed to secure and to enlarge the exercise of the natural rights of its members; and every government, which has not this in view, as its principal object, is not a government of the legitimate kind."37 Nor were these mere "theoretical" or "philosophical" rights with no real bite:
I
go father; and now proceed to show, that in peculiar instances, in which those
rights can receive neither protection nor reparation from civil government,
they are, notwithstanding its institution, entitled still to that defence, and
to those methods of recovery, which are justified and demanded in a state of
nature.
The
defence of one's self, justly called the primary law of nature, is not, nor can
it be abrogated by any regulation of municipal law38.
C. The "Power-Constraint" Conception of Constitutional Rights
A rights-powers conception of constitutional rights is untenable if a better account of constitutional rights is available. In fact, courts do not use a rights-powers conception to interpret enumerated or written constitutional rights. Enumerated rights need not be the logical mirror image of enumerated powers. Rather, enumerated rights can potentially limit in some manner the exercise of powers delegated by other provisions of the Constitution. A principal reason for this was voiced by Eldridge Gerry during the House debate concerning the proposed amendments: "This declaration of rights, I take it, is intended to secure the people against the maladministration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed."39
Constitutional rights can be conceived as "power-constraints" that regulate the exercise of power by Congress and the executive branch by constraining either their choice of means or their choice of ends. First, constitutional rights are means constraints40. Although the enumeration of powers restricts Congress to pursuing only certain ends, constitutional rights further restrict the means by which these ends may be pursued. In this way, in contrast with the rights-powers conception, the power-constraint conception contemplates a potential conflict between constitutional rights and enumerated powers.
Under this conception, it is possible that means chosen to pursue a constitutionally permissible end might infringe a constitutional right41. Suppose, for example, that in pursuit of its enumerated power to "lay and collect Taxes" or to "raise and support Armies," Congress infringed on the enumerated rights of free speech and assembly. If so, Congress would not have violated the Tenth Amendment for it was acting within its delegated powers, but may have violated the First Amendment because it exercised its power in a rights-violating manner.
The Supreme Court appears to have adopted a means-constraints approach when enumerated rights are at issue. As the Court stated in Dennis v. United States42: "The question with which we are concerned here is not whether Congress has such a power, but whether the means which it has employed conflict with the First and Fifth Amendments to the Constitution."43 On the floor of Congress, Madison made a very similar argument: "[T]he great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode."44 He then offered a similar example:
The General
Government has a right to pass all laws which shall be necessary to collect its
revenue; the means for enforcing the collection are within the direction of the
Legislature: may not general warrants be considered necessary for the purpose .
. .? If there was reason for
restraining the State Governments from exercising this power, there is like
reason for restraining the Federal Government45.
Perhaps, then, John Ely judged Madison a bit too harshly when he attributed to him and others "a failure to recognize that rights and powers are not simply the absence of one another but that rights can cut across or 'trump' powers."46 By the same token, Raoul Berger's response to Ely that "whether the Founders were mistaken in logic is of no moment if they acted on that mistaken view"47 was premature, for at least one of the Framers was not mistaken in this regard.
Moreover, as Madison's example suggests, the Necessary and Proper clause exacerbates the means-end problem within a scheme of delegated powers. After enumerating specific powers of Congress, the Constitution authorizes the Congress, "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."48 This open-ended language heightens the prospect that Congress or some department or officer of the general government may pursue a delegated end by means that infringe upon the rights of the people. Therefore, some regulation of the means employed to achieve enumerated governmental ends must supplement the device of enumerating powers. This is one way that constitutional rights may functionally complement a scheme of delegated powers.
Even Madison, a strong proponent of the Necessary and Proper clause, acknowledged that it was susceptible to abuse and consequently that there was a need for constitutional rights to constrain the means chosen by the general government:
It is true, the
powers of the General Government are circumscribed, they are directed to
particular objects; but even if Government keeps within those limits, it has
certain discretionary powers with respect to the means, which may admit of
abuse to a certain extent, . . . because in the constitution of the United
States, there is a clause granting to Congress the power to make all laws which
shall be necessary and proper for carrying into execution the powers vested in
the Government of the United States, or in any department or officer thereof49. . . .
The second power-constraining function of constitutional rights is to limit the permissible ends of governmental activity. Constitutional rights were adopted, in Madison's words, "as actual limitations of such powers, or . . . merely for greater caution."50 This last phrase suggests that, in addition to placing actual or additional limits on the means by which government can accomplish its legitimate ends, constitutional rights provide a "redundant" or cautionary safeguard in the event that the acts of government exceed its proper ends. This function is also reflected in Madison's earlier quoted remark that "the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which Government ought not to act, or to act only in a particular mode."51 In other words, the Bill of Rights was meant to constrain the powers of government in two ways: by reinforcing the limitations on the delegated powers or ends of government and by placing additional restrictions on the means by which government may pursue its delegated ends.
The combination of two different strategies for limiting the powers of government -- constitutional rights and expressed limitations on powers -- creates an interesting dynamic. When government acts within a narrow construction of its powers, constitutional rights play only a minor role in constraining its activity. As the enumerated powers are given an increasingly expanded interpretation, however, constitutional rights assume a greater importance within the constitutional scheme. Even if no logical conflict initially existed between delegated powers and constitutional rights (whether enumerated or not) previously nonexistent conflicts between rights and powers might well emerge as the scope of governmental powers expands. As Justice Brennan has observed, "the possibilities for collision between government activity and individual rights will increase as the power and authority of government itself expands."52
If one concedes that the rights enumerated in the constitution were intended as "actual limitations of such [delegated] powers,"53 then the rights-powers conception becomes a dubious interpretation of the Ninth Amendment. For such an interpretation implies that a fundamentally different conception of constitutional rights applies to the "retained" rights of the Ninth Amendment than applies to the enumerated rights. This implication appears to conflict with Madison's claim that the enumerated rights also included "retained" rights:
In some instances
they [the enumerated rights] assert those rights which are exercised by the
people in forming and establishing a plan of Government. In other instances, they specify those
rights which are retained when particular powers are given up to be exercised
by the Legislature. In other instances they specify positive rights, which
may seem to result from the nature of the compact54.
The wording of the Ninth Amendment itself argues against such differential treatment. For the Ninth Amendment declares that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."55
Supporters of a rights-powers interpretation of the Ninth Amendment rely heavily on a passage of a letter written by Madison to George Washington in 187956 in which Madison employs a rights-powers distinction as part of a defense of the Ninth Amendment:
If a line can be
drawn between the powers granted and the rights retained, it would seem to be
the same thing, whether the latter to be secured by declaring that they shall
not be abridged, or that the former shall not be extended. If no line can be drawn, a declaration in
either form would amount to nothing57.
Madison's use of a rights-powers distinction to explain the Ninth Amendment, however, is not logically inconsistent with a robust power-constraining view of the Ninth Amendment. Indeed, it supports such a view.
Madison was distinguishing two conceptual strategies for accomplishing a single objective. An expressed declaration of "rights retained . . . that . . . shall not be abridged" has the same object in view as an expression that "powers granted . . . shall not be extended." The object of both strategies is that "the rights retained . . . be secure." Given this object, if one provision has teeth, so must the other. In stark contrast, the rights-powers conception specifies that the rights retained by the people automatically diminish as the powers of government expand -- a construction that contradicts the stated purpose for declaring the existence of individual rights58 and the very point Madison was making in his letter. Far from supporting a rights-powers conception of the Ninth Amendment, then, this quotation reveals a fundamental flaw in any interpretation that acknowledges the power-constraining function of enumerated powers while denying this same function to unenumerated rights.
The rights-powers conception gains its plausibility, in part, from the claim that the powers delegated by the Constitution provide sufficiently clear limitations on the scope of governmental activity. This claim was controversial when made and did not assuage proponents of a bill of rights. The ever expanding scope of governmental power over the past two hundred years has confirmed their suspicions that more than delegated powers provisions were needed to constrain the powers of government. We must now consider whether the safeguard provided by judicial review on the basis of enumerated constitutional rights alone is sufficient to this power-constraining task or whether unenumerated rights may also provide a basis for judicial review.
Judicial
Review for Unenumerated Rights
Should a power-constraint conception of unenumerated rights be enforced by judges or must the protection of unenumerated rights be left to the political realm? To answer this question I shall examine the principal dangers that Madison hoped a bill of rights would help avoid and one way he thought such a device would accomplish this objective. Considering both the contemplated end and the means envisioned for accomplishing this end, I shall suggest that it is highly unlikely that the unenumerated rights were to be left entirely to the political process.
Before doing so, it is useful to note that there is no logical contradiction between the Federalist criticisms of a bill of rights and judicial review on the basis of unenumerated rights. True, one could argue that, although the Framers attached great importance to protecting the rights retained by the people, they also believed judicial review to be an inefficacious means of accomplishing this end. There is nothing in the Federalist argument, however, to suggest that judicial review could be based only on enumerated rights. On the contrary, insofar as they believed in the judicial protection of rights, the Federalists' fear that enumerating rights would diminish other, unenumerated rights suggests only that they wanted these unenumerated rights protected every bit as much as the enumerated rights. In other words, in the absence of a bill of rights, a Federalist who believed in the judicial protection of rights would have had to envision enforcing only the unenumerated rights retained by the people59.
A. The Equal Protection of Enumerated and Unenumerated Rights
The theory that the unenumerated rights retained by the people were to be protected exclusively by recourse to the political process or, perhaps, by recourse to popular insurrection seems unlikely in light of the reasons given by Madison for needing a bill of rights. Madison, for one, believed that, of the three branches of the national government, the greatest threat to liberty and to rights came from the legislature. In his speech to the House, he states that "the legislative [branch] . . . is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper."60
Although he viewed the legislature as the most dangerous branch of government, Madison saw the political power possessed by "the majority" of the people to be the ultimate source of the governmental threat to the rights and liberties of the people. In his speech explaining the need for a bill of rights he said:
[I]n a Government
modified like this of the United States, the great danger lies rather in the
abuse of the community than in the legislative body. The prescriptions in favor of liberty ought to be levelled
against that quarter where the greatest danger lies, namely, that which
possesses the highest prerogative of power.
But this is not found in either the executive or legislative departments
of Government, but in the body of the people, operating by the majority against
the minority61.
This was hardly an argument made in passing. Madison had repeatedly expressed this view elsewhere in ways that amplify his conception of rights. In The Federalist No. 1062, he wrote:
By a faction I
understand a number of citizens, whether amounting to a majority or minority of
the whole, who are united and actuated by some common impulse of passion, or of
interest, adverse to the rights of other citizens, or to the permanent and
aggregate interests of the community63.
Later, in a letter to Thomas Jefferson he wrote:
Wherever the real
power in a Government lies, there is the danger of oppression. In our Governments the real power lies in
the majority of the Community, and the invasion of private rights is chiefly to
be apprehended, not from acts of Government contrary to the sense of its
constituents, but from acts in which the Government is the mere instrument of
the major number of the Constituents64.
These passages not only reiterate the danger Madison saw in the political power of factious majorities, they also show that Madison did not view rights as a product of majoritarian will. Nor did he equate majority will with the common good. In the passage above from The Federalist, he allowed the possibility that the interest of a majority can be averse both to the "rights of other citizens" and to the "permanent and aggregate interests of the community."65 In Madison's letter to Jefferson, he said that the impetus for "invasion of private rights" is most likely to come from the "major number of the Constituents."66
Given that the most dangerous branch of the national government was the legislature, it is unlikely that Madison would have envisioned the protection of the rights retained by the people being consigned exclusively to the legislature. Given that the governmental threat to the rights and liberties of the people was likely to be promoted by the majority seeking to operate against the minority, it is equally unlikely that Madison would have envisioned the protection of the rights retained by the people being consigned exclusively to the device of popular insurrection. How then was a bill of rights to help ameliorate this danger?
In his letter to Jefferson, Madison suggested several ways that a bill of rights might prove useful, but he also expressed skepticism about the effectiveness of written bills of rights in addressing the bane of majoritarian abuses. "Repeated violations of these parchment barriers," he wrote, "have been committed by overbearing majorities in every State."67 Jefferson replied that:
In the arguments
in favor of a declaration of rights, you omit one which has great weight with
me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent,
and kept strictly to their own department merits great confidence for their
learning and integrity68.
After this correspondence, Madison used essentially the same argument on the floor of the House69. Immediately after stressing to the House the danger posed by "the abuse of the community," Madison stressed that "paper barriers" will favorably influence "public opinion in their favor, and rouse the attention of the whole community. . . ."70 This was not, however, the only way a bill of rights could protect the rights and liberties of the people. Moments later he added, in an often quoted passage:
If they are incorporated
into the constitution, independent tribunals of justice will consider
themselves in a peculiar manner the guardians of those rights; they will be an
impenetrable bulwark against every assumption of power in the legislative or
executive; they will naturally be led
to resist every encroachment upon rights expressly stipulated for in the
constitution by the declaration of rights71.
In sum, Madison viewed a bill of rights as a means of constraining legislative and executive abuses, whether intended to benefit the officials or the majority of the community. The Bill of Rights accomplished this end, in part, by putting enforcement of these rights in the hands of independent tribunals of justice. In light of this purpose, it seems unlikely that Madison anticipated that the unenumerated rights retained by the people were to be left entirely to the will of the legislature or a majority of the community and that only enumerated rights would receive judicial protection.
The principal support for such a claim is Madison's use of the phrase "rights expressly stipulated" in the passage of his speech just quoted72. Seizing upon this phrase, Raoul Berger argued that judicial review was originally intended to be confined to the enumerated rights73. Although this passage is consistent with such an interpretation, it hardly compels it. The proposal under consideration at the time included an enumeration of expressly stipulated rights, so it is natural that Madison would dwell on the advantages of such a strategy. This in no way requires, however, that expressly stipulated rights were to be the only rights receiving judicial protection.
Moreover, such an interpretation is implausible insofar as the quoted passage immediately follows Madison's explanation of the need for an express provision to deny any implication "that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure."74 Without judicial review of government interference with the unenumerated rights retained by the people, the legislature would be the judge in its own case -- something that is not permitted when enumerated rights are violated75. Madison saw the problem of legislative partiality quite clearly:
No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine76?
In sum, Madison viewed a written bill of rights as a means of constraining abuses by the legislature attempting to agrandize their own interest or that of the majority. Crucial to the success of such a strategy was the fact that such rights would be enforced by independent tribunals of justice. In light of this purpose and this strategy, it seems highly unlikely that Madison anticipated that only the enumerated rights would receive protection from independent tribunals of justice and that any right retained by the people that was otherwise omitted from the declaration would be protected from legislative and majoritarian abuse solely by means of legislative or majoritarian will.
An analysis that supports judicial review of legislative interference with enumerated rights while denying equal judicial protection to unenumerated rights is inherently suspect77. The words of the Ninth Amendment argue strongly against such a construction. As Charles Black has noted:
[A]ffirmative settlement of the question (if, as I doubt, it was a real question in 1790) of the rightness of judicial review, on the basis of any right "enumerated" in the Constitution, would settle the rightness of judicial review on the basis of those rights not enumerated, though "retained by the people," because anything else would "deny or disparage" these latter, in a quite efficacious way78.
To concede that enumerated rights are judicially enforceable power-constraints, but unenumerated rights are not, is to "diminish" their "just importance" and surely to "disparage" them, if not to "deny" them altogether. Denying judicial protection to the unenumerated rights effectively surrenders them up to the general government. As Calvin Massey concludes: "By assuming that the ninth amendment can be invaded by congressional action and that the first eight amendments cannot, Justice Reed made a distinction fatally disparaging to ninth amendment rights. Unless its text be ignored, the ninth amendment forbids the distinction."79
B. The Rights-Preserving Function of Unenumerated Rights
There is an understandable reluctance to open the pandora's box of judicial review of such an open-ended provision as the Ninth Amendment. Some fear that giving any real effect to the Ninth Amendment would provide "a bottomless well in which the judiciary can dip for the formation of undreamed of 'rights' in their limitless discretion"80; that it would permit judges to impose their purely subjective preferences on the people; that judicial review would quickly become judicial supremacy and tyranny. How, then, does a power-constraining conception of the Ninth Amendment square with the separation of powers and the enforcement of enumerated rights?
The first line of the constitutional defense of individual rights and liberties was not the judicial protection of constitutional rights -- rights that needed to be added by amendment81. Rather, the governmental structure and procedures established by the Constitution were the first line of defense. The preservation of state governments, popular elections of representatives, election of senators by states, the electoral college, local control of suffrage, the presidential veto, the power of the purse, and the impeachment powers are just a sample of structural and procedural, rather than substantive, restraints on government powers. Moreover, the unamended Constitution, at least implicitly, limited the government of the United States to its delegated powers.
Some, however, were not satisfied with these elaborate structural protections alone. They wanted and demanded more. In urging a reluctant House to take up the question of a bill of rights, Madison observed:
It cannot be a
secret to the gentlemen of this House, that, notwithstanding the ratification
of this system of Government by eleven of the thirteen United States, . . . yet
still there is a great number of our constituents who are dissatisfied with it.
. . . We ought not to disregard their
inclination, but, on principles of amity and moderation, conform to their
wishes, and expressly declare the great rights of mankind secured under this constitution82.
The critics wanted a safeguard. "I believe," Madison said, "that the great mass of the people who opposed . . . [the Constitution], disliked it because it did not contain effectual provisions against encroachments on particular rights. . . ."83
The Constitution as amended, therefore, was a product of conflicting, but ultimately reconcilable, intents. On the one hand, if the constitutional structure worked as its Framers hoped and intended, there would be little, if any, need to protect constitutional rights by judicial review. On the other hand, if government exceeded its proper boundaries and threatened the liberty and rights of the people as its critics feared, then a declaration of constitutional rights might provide an invaluable second line of defense.
Accordingly, even if the designers of the original constitutional structure did not contemplate aggressive judicial protection of individual rights from legislative acts -- even if they "would have rejected [it] out of hand"84 -- it does not follow that such judicial review is not a legitimate constitutional device from the perspective of the original scheme. For these Framers also did not contemplate that the structure they designed would fail to constrain the power of government as they hoped it would. If time has proved them wrong and their critics right on this count, then we must thank the critics for insisting on a fall-back scheme of constitutional rights and James Madison for insisting that a reluctant House take up the issue.
Consider the following analogy. A group of ship designers devise a structure intended to ensure that the ship will stay afloat forever. Suppose they still add lifeboats and life-preservers to the ship. As far as they are concerned, this is an entirely redundant exercise. They have absolutely no intention that passengers should ever use the lifeboats or life-preservers. In fact, they fervently hope and believe that these devices will never be used. Years after the designers have died, as passengers board the ship, they too do not intend to use the lifeboats or life-preservers. Without instruction by a knowledgeable crew, future generations may not even know that these devices are on board or how to use them. After a long enough period, however, even the crew may become complacent and forgetful.
Suppose now that the unintended event occurs and the ship begins to sink. Would it make any sense to argue that passengers should refuse the lifeboats or life preservers because it was "never intended" that they use them? Would the "evidence" of this "lack of intent" provided by the designers' vigorous pre-voyage statements that the ship is seaworthy or even "unsinkable" support such an argument" Would such an argument be supported by the fact that the designers had spent virtually all of their time trying to perfect the ship's structure and hardly any time worrying about the lifeboats? Would it be supported by the fact that many or all of the ship's designers actually opposed having lifeboats and life-preservers on board?
No, such an argument would be a non sequitur. Although the designers spent little time fussing with the life preservers and never intended that passengers ever use them, although they were provided "merely for greater caution," although the designers continually insisted they were entirely unnecessary, and although the life preservers might even have been an afterthought imposed upon the designers by an overly cautious shipowner to assuage the "unreasonable" fears of prospective passengers and induce their patronage, those who insisted they be on board certainly intended that the passengers use them if, God forbid, it should become necessary.
In addition to the light it casts on arguments purporting to rest on the intent of the Framers, this analogy teaches a number of other lessons about the relationship of constitutional rights and the Ninth Amendment to the rest of the constitutional structure. First, it casts judicial review of legislation in the role of a "rights preserver." The fact that the Framers of the Constitution unquestionably preferred structural constraints to "paper barriers"85 enforced by judges does not mean that they would have us ignore judicial review of these paper barriers if their structural constraints were found wanting in practice. Second, this analogy puts into proper perspective the early disuse of the Ninth Amendment (and the other amendments as well)86. Just as life preservers are not the preferred means of keeping passengers afloat, judicial review was not the preferred means of protecting the liberties of the people. Both are fallback devices.
Third, just as lifeboats are preferred to life preservers, many have thought that it is safer to protect liberty by abstract interpretations of enumerated rights than by speculating about unenumerated rights. This technique, however, has its limits. Enumerated rights cannot always be interpreted to protect some very fundamental liberties without straining them beyond their reasonable capacity. But straining the text by pushing enumerated rights too far can undermine the perceived legitimacy of any judicial review based on textual analysis.
Fourth, after a long period in which the Ninth Amendment and other rights-preserving passages of the text were neither needed nor used, it is understandable why they would be almost forgotten. Yet this does not mean that the impetus for the Ninth Amendment was a momentary and passing sentiment. Seventy years after the adoption of the Ninth Amendment, the framers of another American constitution included virtually identical language: "The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people of the several States."87
C. What Justifies Judicial Negation of Legislation?
The power-constraint conception described above suggests two developments that would justify reliance on judicial negation of legislation or executive acts on the basis of either enumerated or unenumerated rights: first, when the legislative or executive branch abuses its delegated powers by using improper means that violate the rights of the people; and second, when the legislative or executive branch exceeds its rightful powers to pursue unconstitutional ends that violate the rights of the people.
These developments are likely to result from a gradual but persistent erosion of both structural constraints and the paper barriers of delegated powers. Over the past fifty years, for example, we have witnessed an enormous expansion in the scope of federal powers -- especially the implied powers found in the Necessary and Proper Clause -- and a corresponding inattention to structural constraints. This development, coupled with the failure to acknowledge an expanded scope to the implied rights referred to in the Ninth Amendment, has resulted in a constitutional structure that is ever more lopsided in the direction of increased government power.
Two different strategies may be used alone or together to restore some semblance of balance. Courts could cleave more rigorously than they have in recent decades to the original structural constraints of the Constitution -- for example, the courts could more strictly enforce principles of separation of powers, federalism, and enumerated powers. This would reestablish a regime of limited government and greatly reduce (though not entirely eliminate) the need for judicial review based on constitutional rights -- especially unenumerated rights.
On the other hand, if the expanded scope of governmental powers is maintained, courts must correspondingly expand the protection of both enumerated and unenumerated constitutional rights. This would entail, for example, a vigorous interpretation of the First Amendment, the Takings Clause, and the procedural rights established by the Fourth and Fifth Amendments. In the comparatively few remaining cases in which an honest interpretation of these provisions does not authorize serious scrutiny of governmental intrusion on individual liberties, the Ninth Amendment stands ready as a supplement.
Presumably, those who wrote the Constitution would consider the latter approach to be a second-best departure from the original structure. The structure they devised, however, has been permanently altered by such later developments as the Civil War Amendments, universal suffrage, the direct election of senators, and the creation of a national income tax. Even if those original structural restraints that have survived on paper were given new life, we cannot -- and, in some significant respects, we would not want to -- return to the original scheme. Moreover, the Constitution would not have been ratified without this second-best means of coping with expanded governmental powers because of those who withheld their consent until promised that rights-preserving amendments were forthcoming. And it was James Madison, the man who was converted to their cause, who kept that promise.
Interprating
Unenumerated Rights
Assuming that we wish to apply a power-constraint conception to the rights retained by the people, is there a practical way to do so? In this Part, I shall describe three possible methods of identifying unenumerated rights: the originalist method, the constructive method, and the presumptive method. These interpretive methods are not mutually exclusive. Although they may be used alone, they may also be used to complement each other. Before describing these methods, however, let me first turn to a philosophical concern that some may think impedes any effort to identify unenumerated rights.
A. What if the Ninth Amendment was a Philosophical Mistake?
The Ninth Amendment refers to unspecified rights "retained by the people"; rights that the people had before forming a government88. One of the sources of intellectual resistance to a justiciable interpretation of the Ninth Amendment today is not constitutional, but philosophical. Until quite recently, many, if not most, modern philosophers insisted that there were no such things as natural rights; that in fact, government is the ultimate source of all rights.
Given a philosophical skepticism about rights, the reference in the Ninth Amendment to unspecified retained rights is no different from a constitutional prohibition of discrimination against ghosts. "Suppose," argues John Ely, "there were in the Constitution one or more provisions providing for the protection of ghosts. Can there be any doubt, now that we no longer believe there is any such thing, that we would be behaving properly in ignoring the provisions?"89 For one who denies the existence of rights antecedent to government, a reference to unspecified retained rights is no different from "an amendment that says 'Congress shall make no' and then there is an inkblot, and you cannot read the rest of it, and that is the only copy you have. . . ."90 This philosophical objection lurks behind many of the objections to judicial review of the rights retained by the people91.
According to this view, the Ninth Amendment is simply a mistake92 and the nature of this mistake prevents any nonarbitrary interpretation of the rights retained by the people. If rights antecedent to government are mere illusions or ghosts, then judicial enforcement of these alleged "rights" can only be wholly subjective and arbitrary. Courts would be, in effect, "mak[ing] up what might be under the inkblot."93 Decisions that are unavoidably based on subjective preferences, the argument continues, ought to be made by the representative branch of government so as to reflect the preferences of the majority.
I reject the premises of this argument, but let us assume that the skeptics are correct and that rights independent of government are mere phantoms. Even so, because the Framers believed in the existence of "other" rights "retained by the people,"94 the structure they created would take on an entirely different and unintended cast if the reality and acceptance of Ninth Amendment rights were not assumed. This fact should matter to those who allow a role for Framers' intent and to those who view the Constitution as a kind of contract entered into at the time of ratification, two views of the Constitution that are often hard to separate. Of course, many constitutional theorists take neither approach, but I would wager that those theorists who are also moral skeptics are disproportionately in one or both of these camps. Because they deny the possibility of discerning genuine rights independent of government, they require some other more palpable touchstone for finding constitutional values, be it original intent or some notion of consent or both.
The relevance of the Framers' beliefs in natural rights to interpretations based on original intent is obvious. If the Framers intended that unenumerated rights be protected by the judiciary, then to honor that intent requires that we make some effort to discern and protect at least the kinds of rights the Framers had in mind when they ratified the Ninth Amendment. The obviousness of this position may explain the lengths to which some adherents to original intent have gone to defend the rights-powers theory95.
A similar analysis applies if one interprets the text of the Constitution as one would a contract. Determining the consensual terms or original meaning of any agreement requires that one take into account the background assumptions of the parties. Given the widespread belief in individual rights that prevailed at the time of the drafting of the Constitution, it is reasonable to assume that, if those who vehemently insisted on a bill of rights to protect the liberties of the people had shared the philosophical skepticism of modern philosophy (or anticipated its coming), they would not have rested content with the abbreviated list of rights they received. They surely would have insisted on a greatly expanded list of enumerated rights. Only a handful of the many rights proposed by state ratification conventions were eventually incorporated in the Bill of Rights96. The Ninth Amendment was offered precisely to "compensate" these critics for the absence of an extended list of rights. Putting this in contract terms, the Ninth Amendment "clause" served as the "consideration" for not insisting on a more elaborate statement of rights97.
The adoption of the Ninth Amendment forces those who reject the reality of such rights, but who seek to interpret the Constitution according to either original intent or original meaning, to hypothesize on the content of this expanded list. Without such an attempt, the scheme of delegated powers and reserved rights becomes fundamentally different from the one that the Framers promised and the people involved in the ratification process agreed on. Modern philosophical skepticism about rights is simply beside the point. Just as contract law seeks to enforce the "benefit of the bargain" as agreed to, enforcing the Constitution as enacted would seem to require protection of the retained rights and liberties of the people assumed by the Ninth Amendment in the same manner as we would if we believed these rights and liberties to be "real." From the perspective of either original intent or original meaning, ignoring the Ninth Amendment because it does not comport with modern moral philosophy is, to shift the metaphor, constitutional bait and switch.
B. Three Methods of Interpreting Unenumerated Rights
Few will abandon the safe harbor of the rights-powers conception of the Ninth Amendment unless they are convinced that some practical method exists for determining the unenumerated rights retained by the people. In this section, I shall consider three methods for discerning the content of the unenumerated rights. One method suggested by the previous section we may call the originalist method of interpreting unenumerated rights. A second method, which begins where the originalist method leaves off, is the constructive method. The third and, perhaps, most practical approach is the presumptive method. Although none of these methods is entirely without difficulty, any problems they pose are not unique to interpreting unenumerated rights. As Charles Black has observed:
Maybe we ought to give up, and let the Ninth Amendment -- and the priceless rights it refers to -- keep gathering dust for a third century.
But there is one thing to note about the very real troubles that face us when we turn to the search that the Ninth Amendment seems to command. These are the troubles not of the Ninth Amendment itself, but of law98.
1. The Originalist Method
If moral skeptics are correct and unenumerated rights are non-existent, then it would seem that determining the content of such rights would be truly impossible. However, according to the methodology of those seeking either the original intent or the original meaning of the Ninth Amendment, they no more need to discern the content of actual or real rights, than they need to discern searches that are "really" unreasonable or activity that is "really" commerce. Instead, they seek the Framers' understanding of the text. However difficult it may be, the task of interpreting the Ninth Amendment in this way is no different from the task of interpreting many other provisions of the Constitution.
Just as those concerned with original intent consult such materials as Madison's notes on the Federal Constitutional Convention, we may also consult the lengthy lists of proposed amendments sent to Congress by several state ratification conventions99. Virginia, for example, proposed twenty provisions for "a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people."100 Only a handful of the many proposed rights were incorporated into the Bill of Rights. In addition, the rights expressly stipulated by state constitutions at the time of the Constitution's ratification are potentially significant101. Some of these rights were conceived of as retained by the people against state government. Certainly rights retained against state governments were not surrendered to the general government102.
These various lists are not, of course, definitive. After all, most of these rights were left out of the Bill of Rights and it is nearly impossible to know why a decision was made to exclude a particular right. Nonetheless, the Ninth Amendment was intended to remove the need to enumerate every right retained by the people103. Thus, the mere fact that a right was excluded from the enumeration does not support a strong negative implication.
Moreover, just as those concerned with original intent consult such theoretical writings as The Federalist to interpret passages of the text, we may also consult the Framers' theoretical writings on natural rights that were contemporaneous with the Ninth Amendment, such as those by James Wilson quoted earlier104. Some of these writings are quite comprehensive and specific. Wilson, for example, summarized his analysis as follows:
In his unrelated
state, man has a natural right to his property, to his character, to liberty,
and to safety. From his peculiar
relations, as a husband, as a father, as a son, he is entitled to the enjoyment
of peculiar rights, and obliged to the performance of peculiar duties. These will be specified in their due
course. From his general relations, he
is entitled to other rights, simple in their principle, but, in their
operation, fruitful and extensive. . . .
In these general relations, his rights are, to be free from injury, and
to receive the fulfillment [sic] of the engagements, which are made to him; his
duties are, to do no injury, and to fulfill [sic] the engagements, which he has
made. On these two pillars principally
and respectively rest the criminal and the civil codes of the municipal
law. These are the pillars of justice105.
Of course, some may argue that any discussion of rights based on this sort of historical inquiry would simply be too open-ended to provide judges with adequate guidance in interpreting the Ninth Amendment. However, adherents to original intent are hardpressed to make such an argument. Their position requires that we engage in just such an enterprise to interpret the rest of the Constitution -- including the open-ended Necessary and Proper Clause.
There is, then, no shortage of textual materials contemporaneous with ratification of the Ninth Amendment that would permit an elaboration of the rights retained by the people. These materials are comparable in every respect to those traditionally used to interpret the original intent of other provisions and there is no inkblot preventing us from reading them. Abandoning the originalist method only when considering the Ninth Amendment may reach the desired result of greatly limiting the scope of constitutional rights but only at the price of a consistent originalist methodology.
2. The Constructive Method