Originalism is a theory of constitutional interpretation, it is not—nor can it be—a constitutional theory in itself.
Andrew Hyman writes a response to my post that the Ninth Amendment refers to natural rights, although it does not protect them as constitutional rights. Hyman offers a different interpretation of the Ninth Amendment, one I call the Federalist interpretation (which I referred to in my earlier post).
Hyman argues that the:
Amendment means the Constitution’s enumeration of powers – and not its enumeration of rights – may be construed to deny or disparage unenumerated retained rights to the same extent as under the original unamended Constitution.
Why, you might ask, would the framers have suggested that the enumeration of powers can be construed to deny unenumerated retained rights? It is not a mystery. As James Madison wrote to George Washington on December 5, 1789: “If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.”
Hyman’s post is a bit brief. But it is worthwhile explaining his view in a bit more detail, since it is a significant one. Under this view, there was a concern that the Bill of Rights might be dangerous and lead to interpretations that would expand the powers of the federal government. How could that happen?
Consider the following example. The Federalists had argued that an amendment protecting freedom of the press was unnecessary because Congress did not have authority under the enumerated powers to regulate the press. But if a freedom of the press amendment was passed, that could be dangerous. People might argue that the passage of the freedom of the press amendment showed that Congress’s powers were broad enough to regulate the press. The reason is that a freedom of the press amendment might have seemed unnecessary if the enumerated powers did not extend to regulations of the press. The amendment would have been superfluous. To avoid that superfluousness, one should interpret the enumerated powers to allow regulation of the press. Therefore, a Bill of Rights might expand the interpretation of the enumerated powers. According to this argument, the Ninth Amendment was needed to eliminate this inference.
I used to prefer this interpretation of the Ninth Amendment and still think there is much to it. But ultimately I concluded that it did not fit the original meaning of the text as well as the interpretation I defended in my previous post.
Let me explain why. Madison’s original proposal for the Ninth Amendment was the following:
The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution. [Emphasis added.]
Thus, Madison’s original proposal was concerned with two inferences: that the enumeration in the Bill of Rights would enlarge Congress’s enumerated powers (the italicized portion) and that the enumeration would disparage the rights retained by the people.
But Madison’s proposal was changed into the Ninth Amendment, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Clearly, the italicized language has been taken out. Instead, it is only the language about the retained rights that remains.
Thus, it is hard to argue that the Ninth Amendment merely protects against the expansion of Congress’s powers. Given that the language about rights retained by the people typically referred to natural rights, I believe the best public meaning of the language here is a reference to those natural rights. Now, it might be possible that the Ninth Amendment is also referring to the expansion of enumerated powers. If so, then the Ninth Amendment will have a meaning that protects against the freedom of press inference described above. But I do not believe that the best meaning can deny that natural rights are at least part of what is being referred to here in the Ninth Amendment.