Michael McConnell on the Ninth Amendment

One of the puzzles in constitutional law has been the original meaning of the Ninth Amendment. Some years ago, during his unsuccessful confirmation hearings, Judge Robert Bork analogized our lack of understanding of the Amendment to the situation where the language of a constitutional provision was obscured by an inkblot. He argued that since we don’t understand the provision, we are in no better position to enforce it than if an ink blot covered it.

Over the years, various explanations have been offered for the amendment. Some have argued that it protects enumerated natural rights to the same extent as the enumerated constitutional rights.  Others have interpreted it to have a much less significant role.

In my view, the best interpretation of the Amendment is supplied by Michael McConnell in a relatively recent law review article. At the beginning of my scholarly career, I had come upon the same idea, but was persuaded not to write it up. My mistake, although I don’t think I would have done as good a job as McConnell does.

The Ninth Amendment provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” McConnell argues that this provision operates to protect certain natural rights, but not by conferring constitutional status on those rights. Instead, it  protects those rights as natural rights were protected prior to the Constitution’s enactment. Such rights were protected through equitable interpretation. That is, if a congressional statute were to appear to infringe on such a natural right, it should not be interpreted to have that effect unless the statute’s language was clear on the matter. Otherwise, it should be assumed that Congress did not intend to infringe on a natural right. This is both a natural interpretive rule and the way that natural rights were protected prior to the Constitution.

Why was the Ninth Amendment needed? The thought was that by enumerating certain rights in the Bill of Rights, that might be taken to indicate that all other rights that the people enjoyed prior to entering civil society would be eliminated. When a list of rights, especially a long list was compiled, it is a reasonable inference to assume that only those rights should be protected. After all, if other rights were intended to be protected, why were they not added to the list? So the Ninth Amendment was added to prevent anyone from inferring from the addition of the Bill that other retained natural rights were eliminated or given up.

What is the evidence for this interpretation? First, it flows from the text of the Amendment.  That the Amendment is referring to natural rights is supported by the reference to “rights retained by the people.” Under Lockean natural rights theory, retained rights were those natural rights that the people had not given up when they formed the political society by establishing the Constitution.

This interpretation also provides a strong reading of the terms “deny or disparage.” Under the interpretation, these natural rights would not be denied nor disparaged. That is, those natural rights would continue to exist in the same way that they had existed prior to the Constitution. Significantly, the alternative interpretation of the Amendment—which would enforce the natural rights as constitutional rights—has problems here. Not denying or disparaging a natural right is not the same thing as constitutionalizing such a right. Giving that right its traditional protection would not disparage it.  Constitutionalizing it elevates it.

I would add two other complementary functions of the Ninth Amendment which are implicit in McConnell’s argument. First, natural rights were also often protected as a matter of common law. If the Bill of Rights was taken to eliminate the natural rights, then they might be thought to be repealed as common law rights. The Ninth Amendment eliminates this inference. Second, the violation of natural rights was also thought to justify revolution under a Lockean theory. Thus, it was important that those rights not be taken to be repealed. In both of these cases—common law and justifying revolution—the Ninth Amendment protects the pre-constitutional role of natural rights, without constitutionalizing those natural rights.

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on May 16, 2016 at 13:49:19 pm


Yep! and nicely stated. similar discussions may be found amongst the anti-Federalists.

I would also add this: How many times have we heard or read about a judicial interpretation wherein the jurist argues that (paraphrasing here) "if the Congress or the Framers had intended to *protect* or limit, or delegate X, Y, or Z then they would have done so. Following that judicial logic, it would be easy to see a jurist arguing that if the Framers had intended to *protect* these natural rights, they would have done so explicitly.

Recall also Madison's arguments against the Bill of Rights. One of which was akin to the position offered by both you and McConnell. If we list them, then these are the only ones protected.

Of course, that may no longer be true as nowadays we seem to invent new natural rights out of whole cloth - even rights to be *unnatural.*

Then again, what the hell do I know, I am just one of those Nixon supporting "undereducated white people" about which some have spoken on this blog!!!

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on May 17, 2016 at 14:45:07 pm

I think the preamble to the Bill of Rights clarifies its meaning a bit. It's worth considering the preamble considered when interpreting any of the articles. It was part of the writing of the bill after all, so it sets the context of the articles.

"The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution."

Since it was part of the writing and since it set the context of the agreement--the meeting of the minds of the Conventions--it seems to me that this is just as much a part of the Constitution as the preamble of the main body of the Constitution is part of the Constitution.

The preamble of the BoR characterizes the agreement as "declaratory and restrictive." In other words, the articles do not amend the structure or operation of the federal government.

By stating that the articles are declaratory, the preamble calls out the fact that the rights already exist outside of government, and the purpose of the articles is to restrict government from infringing on a critical group of pre-existing rights for the purposes of "extending the ground of public confidence in the Government."

By making the articles declaratory the BoR cannot be creating rights by writ. The Ninth Amendment extends that idea. To me at least it seems to be saying that any right enumerated in the Constitution is only to be understood in a similar declaratory sense, not in a sense that causes it to fall under the legislative or executive control of the federal government.

The Ninth Amendment declared that a declaratory wall stands between the federal government and the natural rights of the people.

At least, that's my take on it.

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Scott Amorian
on May 17, 2016 at 16:14:38 pm

This is very intriguing. I need to read the full McConnell article because he might address my criticism. But I am interested in your take on how this argument fits together with Randy Barnett's argument (also made by many others) that a law that was seen as violating a natural right was not seen as actually "law" but invalid/void. The idea that a legislature could, if it were really really clear about doing so, infringe upon a natural right seems troubling. What would give the state the power to infringe upon a natural right if it made it crystal clear that it wanted to?

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Daniel Ortner
on May 17, 2016 at 20:02:19 pm

What does it matter anyway? The Constitution has been a dead letter for decades. It was killed by the 14th,16th and 17th Amendments,weird "interpretations" and the twisting of it's Founders original intent. We don't live in a nation of laws but a nation of men. State sovereignty has been castrated and the Central Government is all powerful. What the founders feared most has come to fruition. If anybody thinks that going to "court" will change anything when it comes to the real power of the Federal Government such as taxation,money creation,control of the States,control of the economy and jamming Federal edicts down our throats,forget it. The deck is stacked against you. All the other fringe arguments about same sex marriage,abortion,religion,etc. are just distractions. The bottom line is that all your important Rights have been away taken from you and all you have now is privileges. If you don't believe me try doing anything without a Social Security number.

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libertarian jerry

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