The Ninth Amendment: It Means What It Says
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 thirteen crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strongly 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: the unenumerated rights that people possessed prior to the formation of government and which they retain should be accorded the same protection as those natural rights that ended up being included in the enumeration.
Date of this Version
Randy E. Barnett, "The Ninth Amendment: It Means What It Says" (February 27, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1003.