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. 

 

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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