A Textual-Historical Theory of the Ninth Amendment
Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The standard use of the Ninth, in other words, has nothing to do with the text of the Ninth Amendment. The standard theory of the Ninth also places the text in considerable tension with that of the Tenth Amendment. Although both the Ninth and Tenth Amendments close with the same reference to “the people,” most contemporary scholars and courts treat the same term in the two amendments as having opposite meanings, with the Ninth referring to a single national people and Tenth referring to the people in the several states. Finally, the text of the Ninth Amendment appears to be in considerable tension with its historical application. Newly uncovered historical evidence reveals that for more than one hundred years after its enactment, courts applied the Ninth Amendment in a manner that preserved the autonomous rights of the states. The text of the Ninth, however, speaks only of the retained rights of the people, not the states.
This article addresses these and other textual mysteries of the Ninth Amendment. The over-all effort is to construct a text-based theory of the Ninth that both explains its historical application and reconciles the Amendment with other texts in the Constitution, particularly the Tenth and Fourteenth Amendments.
Constitutional Law | Jurisprudence | Law | Legal History | Public Law and Legal Theory
Date of this Version
Kurt T. Lash, "A Textual-Historical Theory of the Ninth Amendment" (February 12, 2007). bepress Legal Series. bepress Legal Series.Working Paper 2005.