Bench Memos

Ninth Amendment Conflict

The Ninth Amendment appears to divide adherents of originalist jurisprudence into two camps, which for sake of convenience I will refer to (neutrally, I hope) as the libertarian camp and the judicial-restraint camp.  Matt Franck (here) and I (here, as modified here) have previously offered our critiques of Randy Barnett’s libertarian reading in a recent Wall Street Journal op-ed, and that paper published my letter to the editor responding to Barnett. 


Yesterday’s Wall Street Journal includes a letter to the editor from the redoubtable Roger Pilon of the Cato Institute criticizing my views.  On the premise that the Wall Street Journal is unlikely to be interested in continuing the dialogue, I will respond briefly to Pilon here:

Pilon contends that I “ignore the plain text” of the Ninth Amendment, but my reading of it as a rule of construction comports perfectly with its text:  “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”  It is Pilon who apparently would rewrite the Ninth Amendment to say something like:  “Notwithstanding the enumeration in the Constitution of certain rights, there are other undefined rights of the people that shall not be infringed.”  This would be a fine (if wholly indeterminate) aspirational principle, but it would be very strange constitutional text, at least in a Constitution that establishes within broad bounds a system of representative government.  In any event, that is not what the Ninth Amendment says.

Pilon also contends that the “Framers feared that their inability to enumerate all of our rights would imply that those not enumerated were not meant to be protected” and that the Ninth Amendment was meant to “make it clear that unenumerated rights were to be protected too.”  If that was their odd goal, they sure did a poor job of pursuing it.  But (to repeat my point 2 from my original posting) the actual purpose of the Ninth Amendment was far more limited:  Defenders of the original Constitution had argued against a bill of rights on the ground that such a listing would imply that the national government’s powers were far greater than they were.  When the bill of rights was added, the Ninth Amendment was crafted to guard against this implication. 


Most Popular

PC Culture

Hate-Crime Hoaxes Reflect America’s Sickness

On January 29, tabloid news site TMZ broke the shocking story that Jussie Smollett, a gay black entertainer and progressive activist, had been viciously attacked in Chicago. Two racist white men had fractured his rib, poured bleach on him, and tied a noose around his neck. As they were leaving, they shouted ... Read More

Ilhan Omar’s Big Lie

In a viral exchange at a congressional hearing last week, the new congresswoman from Minnesota, Ilhan Omar, who is quickly establishing herself as the most reprehensible member of the House Democratic freshman class despite stiff competition, launched into Elliott Abrams. She accused the former Reagan official ... Read More
PC Culture

Fake Newspeople

This week, the story of the Jussie Smollett hoax gripped the national media. The story, for those who missed it, went something like this: The Empire actor, who is both black and gay, stated that on a freezing January night in Chicago, in the middle of the polar vortex, he went to a local Subway store to buy a ... Read More

Questions for Those Who Believed Jussie Smollett

The “we reported the Jussie Smollett case responsibly” contention has been blasted to smithereens. Twitter accounts and headlines in the Washington Post, the New York Times, and the Los Angeles Times reported as fact Jussie Smollett’s wildly implausible allegations, and many other journalists did so as ... Read More

White Progressives Are Polarizing America

To understand how far left (and how quickly) the Democratic party has moved, let’s cycle back a very short 20 years. If 1998 Bill Clinton ran in the Democratic primary today, he’d be instantaneously labeled a far-right bigot. His support for the Religious Freedom Restoration Act, the Defense of Marriage Act, ... Read More

One Last Grift for Bernie Sanders

Bernie Sanders, the antique Brooklyn socialist who represents Vermont in the Senate, is not quite ready to retire to his lakeside dacha and so once again is running for the presidential nomination of a party to which he does not belong with an agenda about which he cannot be quite entirely ... Read More