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Thursday, October 1, 1992

The Rights Retained by the People: The History and Meaning of the Ninth Amendment

This book should open the door to a serious, intellectually sound approach to the Constitutional protection of human rights—including property rights. The book contains historical background and analysis by legal scholars concerning the Ninth Amendment to the Constitution.

The advancement of human rights in the legal arena has been inconsistent under the U.S. Constitution. Political rights fare well. Other rights listed—or enumerated—in the Constitution also are relatively well protected. With the notable exception of the right to privacy, however, courts have proven less interested in unenumerated human rights. These include economic rights such as the right to work for a wage less than the statutory minimum, the right to work if younger than a certain minimum age, and property rights.

The Rights Retained by the People helps us better understand why and how this disparity in the protection of human rights has occurred. It also provides an underpinning to reform Constitutional interpretation and better protect all human rights by giving proper emphasis to the Constitution’s Ninth Amendment.

The Ninth Amendment states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” During the first 175 years of its history, this Amendment was cited in a total of nine court cases. Some Constitutional scholars began to call it the “Forgotten Amendment.”

Then in 1965 the U.S. Supreme Court decided Griswold v. Connecticut. This case declared unconstitutional a Connecticut statute which made it a crime both for a married couple to use contraceptives and a physician to counsel their use. The concurring opinion of Justice Goldberg in Griswold cited the Ninth Amendment as support to declare the statute unconstitutional. Since 1965, the Ninth Amendment has been cited in over a thousand cases.

The Amendment’s origin is fascinating history. James Madison proposed the Amendment to counter the Federalist arguments that a bill of rights was unnecessary or even unwise. The Federalists argued that the government created by the Constitution was permitted to exercise only those powers specifically granted to it in the Constitution. The governmental structure itself with its checks and balances would be the best protection for individual rights. Besides, the Federalist argument continued, a bill of rights might even be dangerous because a list of some protected rights might be interpreted to mean that all unlisted—or unenumerated—rights were unprotected.

Despite the Federalists’ arguments, several state ratifying conventions were so distrustful of centralized power that they made their ratification of the Constitution contingent on the approval of a bill of rights. As one of its earliest achievements, the first Congress approved twelve amendments to satisfy the contingencies set up by the state conventions. Only ten of the twelve survived the ratification process. (An eleventh, pertaining to the ability of Congress to give itself raises, just recently received the necessary number of state ratifications and has become our Twenty-Seventh Amendment.)

The Ninth Amendment is an open-ended provision. The Constitution contains other open-ended provisions such as the “necessary and proper” clause in Article 1, Section 8, and the “due process” clauses in the Fifth and Fourteenth Amendments. Typically, courts have been skittish when called upon to use open-ended provisions to overturn the acts of the Federal and state legislatures.

Because interpretation of the Ninth Amendment proved very difficult, it was largely ignored. Courts were generally concerned that using the Ninth Amendment to strike down statutes would be tantamount to usurpation of the legislature’s role.

Professor Randy Barnett has brought together in this volume the most important literature on the Ninth Amendment and in the process added significantly to the interpretive theories with his own well-reasoned contribution. The collection is a valuable primer on the Ninth Amendment that should be essential reading for lawyers, constitutional history buffs, and students of liberty.

Barnett’s introduction begins by exploring two legal philosophies of Constitutional rights: the rights-powers conception—the currently dominant approach—and the power-constraint conception. Using the rights-powers conception, rights are found to exist only where the appropriate powers of government leave off. The power-constraint conception, on the other hand, views rights as one of the two methods used in the Constitution to limit the powers of government, the other method being the document’s structural safeguards.

After explaining the error in the rights-powers conception, Professor Barnett explores three practical approaches to the Ninth Amendment and rights theory to fulfill the role they were given by the Founding Fathers.

The crucial question faced by each of the authors in this volume is: Precisely which rights are retained by the people and merit protection by the Federal courts? The answers vary. Bennett Patterson would allow Ninth Amendment interpretation to be an extremely dynamic force in protecting individual rights. Patterson believes our perception of rights to be constantly evolving. Accordingly, the rights retained by the people are forever being refined and distilled. The Ninth Amendment is necessary protection for these newly evolved rights. The Founders had no way to describe rights which they were incapable of recognizing but which they somehow instinctively knew existed.

Berger is greatly concerned with the effect of a dynamic Ninth Amendment on the separation of powers. As a result, his analysis is largely pragmatic. If courts could use the Ninth Amendment to enforce anything that suited their current whim, they would be usurping the role of the legislature and violate the Constitutional separation of powers.

Several other authors would answer this argument by formalizing in some fashion the process of judicial interpretation. If the courts stayed within the formalized interpretative framework, they would be constrained from usurping the proper role of the legislature.

Russell Caplan would impose a severe restraint on courts interpreting the Amendment. Caplan would allow the courts to use the Ninth Amendment to protect only those rights which were recognized by the various states at the time of ratification. This interpretation would keep the Amendment from being a dynamic element of constitutional interpretation such as the other open-ended provisions included in the Constitution. Caplan’s argument is based on his historical study of the Amendment.

Mindful of Berger’s concerns, Calvin Massey would impose a four-part test on the courts before a right could be enforced to overturn legislation. First, the court must find some textual foundation in the Constitution “however implicit or attenuated.” Second, the right should have some historical roots in the laws of the nation, the states, colonies, or the common law. Third, the right should be consistent with theories of natural law. Finally, the right should be broadly recognized by contemporary society as “inextricably connected with the inherent dignity of the individual.” Massey’s four-part interpretative analysis would result in a dynamic Ninth Amendment.

The Rights Retained by the People is in certain parts not an easy book to read. It is, however, a fascinating read for the history it contains, the lively debate it charts, and the important conclusions some of its authors reach.

Mr. Woehlke graduated cum laude from Grove City College and received his J.D. and M.B.A. degrees from Drake University. He is a manager with a national professional association of accountants.