# Why the Ninth Amendment? **URL:** **By** Randy E. Barnett **Published:** January 1, 1988 --- “Consistent with their experience, the framers saw the judiciary as the institution that would mediate conflicting claims about constitutional powers and rights.” It is a sad commentary on our constitutional history that any discussion of the Ninth Amendment must begin by quoting it: > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Here is an entire amendment asserting the existence and importance of “other” rights “retained by the people.” Yet it is largely unknown and has never been used by the Supreme Court to decide a case.¹ In this essay I will offer two reasons why this has occurred and will suggest that now is a particularly good time to give the Ninth Amendment the serious attention it deserves. ## The Origin of the Ninth Amendment The Ninth Amendment was drafted by James Madison in response to those who criticized any effort to enumerate rights in the Constitution. Some critics of a bill of rights argued that it would be impossible to include a suitably comprehensive list of rights in any constitution. As James Wilson, a principal framer of the Constitution and an ardent natural-rights theorist, stated: > I consider that there are very few who understand the whole of these rights. All the political writers, from Grotius and Puffendorf down to Vattel, have treated this subject; but in no one of these books, nor in the aggregate of them all, can you find a complete enumeration of rights appertaining to the people as men and as citizens.... Enumerate all the rights of men! I am sure, sirs, that no gentleman in the late Convention would have attempted such a thing.² Because any enumerated list of rights would have to be incomplete, people might later argue that a partial list was exhaustive of individual rights. Madison referred to this as “one of the most plausible arguments I have ever heard urged against admission of a bill of rights into this system; but, I conceive, that it may be guarded against.”³ Madison’s method of preventing this construction was the precursor to the Ninth Amendment he introduced in the first Congress as part of what became the first ten amendments: > 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.⁴ ## Moral Skepticism and the “Other” Rights Madison’s solution presupposes a belief in the independent stature of “other” individual rights, rights that are antecedent to government. Modern interpreters who share Jeremy Bentham’s view that natural and imprescriptible rights are “nonsense on stilts” would find this passage, if not entirely meaningless, then utterly useless as a constitutional constraint. It would be as though the framers had mandated due process for ghosts. The Ninth Amendment is of no practical value to someone who, like Judge Bork (Robert H. Bork, “Neutral Principles and Some First Amendment Problems,” _Indiana Law Journal_ 1, 8 \[1971\], p. 47), believes that nontextual rights claims are as unreal as ghosts: > Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other. The Ninth Amendment does not “clearly specify” the rights it refers to. To the contrary, its purpose was to escape the limitations of textual specificity. What does adherence to a constitutional text require when the text does not conform to the philosophical presuppositions of its interpreters? Most constitutional analysts appear to deal with this conflict by ignoring such inconvenient passages. In the case of the Ninth Amendment, this tactic is not faithful to the written text. It is an effort to cut and paste those passages that meet the interpreter’s preferences for textual certainty. If it is true that the framers assumed the existence and knowledge of background rights,⁷ then interpreting the Constitution without taking their conception of rights into account fundamentally changes the nature of the government they established, without resort to the amendment process. For example, had the framers believed that all individual rights had to be expressed in a text to be valid, they would likely have insisted on many more rights being expressed and would never have been satisfied with reliance on the Ninth Amendment. Faithful adherence to the original scheme, then, requires interpreters to posit the background rights that were assumed by the framers and work from there. Interpreters of the Constitution must assume (at least _prima facie_) the legitimacy of these rights. In contrast, a normative evaluation of the Constitution would inquire into the validity of these rights. ## The Uncertainty of Ninth Amendment Rights One need not be a philosophical skeptic about rights, however, to be concerned about giving judges a blank check to invent whatever rights they may prefer. Indeed, one of the distinguishing features of the Rule of Law is that ascertainable rules are supposed to provide individuals with guidance about the permissibility of their conduct in advance of their acting.⁸ Vague “reasonableness” standards that require the exercise of judicial discretion cannot effectively serve to avoid disputes.⁹ The imperative of certainty is not limited to the constitutional sphere. Yet in the private law we see such general concepts as “property” and “contract” dominating legal thought. How are such general terms reduced to a set of rules and principles that can effectively guide conduct? To decide a controversy between two conflicting claimants, judges require a source of moral knowledge. At the time of the framing of the Constitution this was done by a judicial “common law” process. The twin sources of knowledge available to common-law judges were _tradition_ in the form of commercial custom and legal precedent and _reason_ in the form of both leading commentaries on the law and their own critical faculties.¹⁰ For centuries judges and legal commentators have developed rules—such as the requirement of “consideration” in contract law—whose purpose was to make abstract principles of justice concrete. The success or failure of their rules can only be measured by comparing them with proposed alternatives to see which set better harmonizes with and facilitates these general principles. > Consistent with their experience, the framers saw the judiciary as the institution that would mediate conflicting claims about constitutional powers and rights. True, legislation—such as the _Statute of Frauds_—occasionally modified the judge-made structure. These legislatively devised rules served many functions. For example, they might establish needed uniformity or they might help to overcome (often at the invitation of judges) a particularly long-held precedent that was impeding progress. Until the codification movement of the Nineteenth and Twentieth centuries, however, legislatures did not purport to provide a systematic body of doctrine. This was the legal backdrop against which the Constitution was written. (For further discussion, see Grey, “Origins of the Unwritten Constitution: Fundamental Law in American Thought,” _Stanford Law Review_ 30 (1978), p. 843.) Consistent with their experience, the framers saw the judiciary as the institution that would mediate conflicting claims about constitutional powers and rights. As James Madison remarked, > If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of these rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will naturally be led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.” In the Anglo-American legal system, rights were protected by judicial scrutiny guided by judicially developed rules and principles. The American innovation was to supplement the “unwritten” English constitution with the greater certainty of a written document. The Ninth Amendment, however, is testimony to the fact that they did not intend to rely exclusively on a written text. > Just as it is impossible to completely specify in advance a system of private rights in contract and tort law, the framers recognized that it is impossible to specify in advance every right that a government might transgress. The charge that the unenumerated rights referred to by the Ninth Amendment are too uncertain to support judicial review is not so obvious as is often assumed. Considering the long history of judicial success in such efforts, we cannot simply assume that judges are incapable of developing a body of sufficiently certain Ninth Amendment doctrine. What is needed is an elaboration of general theory that would guide this process, much as the general theory of private property and freedom of contract has guided common-law judges for centuries. ¹² ## The Timeliness of the Ninth Amendment Every dog must have its day. Though the Ninth Amendment’s day has yet to arrive, it may be drawing near. For more than five decades, social “reformers” have refused to let the Constitution get in their way. Crucial passages that would impede the implementation of “enlightened” and “pragmatic” social-welfare schemes have been systematically interpreted into functional oblivion. ¹³ Others, like the “commerce clause,” have been expanded to the point of meaninglessness.¹⁴ Recently, however, we have witnessed a revival of interest in how the Constitutional text can serve as a constraint on the size and scope of government. Many recently appointed federal judges profess their concern for respecting the “original intent” of the framers. One should expect a great deal of discomfort with ignoring whole amendments solely because their content is inconvenient. Moreover, belief in the validity and efficacy of the kinds of “negative” rights on which the framers grounded the Constitution has experienced an intellectual revival in recent years. The coupling of renewed interest in the political theory of the framers with renewed respect for both the natural-rights philosophy of the framers and the market system such rights ground creates a hospitable environment for a well-conceived and well-defended theory of the Ninth Amendment. ## The Need for the Ninth Amendment Even some who would accept revitalized contracts and takings clauses may balk at a vitalized Ninth Amendment. What does the Ninth Amendment add to the Constitution? Without the Ninth Amendment we would enjoy protection of only those rights that the framers expressly mentioned, precisely what is urged by judicial conservatives who might otherwise welcome a meaningful application of more “exact” clauses. But just as it is impossible to completely specify in advance a system of private rights in contract and tort law, the framers recognized that it is impossible to specify in advance every right that a government might transgress. Perhaps a scheme exclusively limited to enumerated rights would have been adequate had the government been strictly limited to enumerated powers. Article I, Section 8 of the U.S. Constitution, however, contains a clause that permits the Congress: > To make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other Powers vested in this Constitution in the Government of the United States, or in any Department or Officer thereof. Sooner or later, statutes that intrude on unenumerated rights will be (and have been) passed as the “means” of executing Constitutionally permissible “ends.” The unenumerated rights of the Ninth Amendment are the Constitutionally provided counterweight to the unenumerated powers of the “necessary and proper” clause. Closing the set of “negative” rights that serve as “side-constraints” on governmental actions, while leaving open the set of potential governmental actions is a recipe for a gradual constriction of individual liberty. And this is precisely what has occurred in the absence of a robust Ninth Amendment. ## What A Ninth Amendment Theory Requires Any effort to give effect to the Ninth Amendment must begin by debunking what I call the “rights-powers” theory. This view is exemplified by Justice Reed’s opinion in _United Pub. Workers v. Mitchell_ (330 U.S. 75 \[1947\]): > The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights reserved by the Ninth and Tenth Amendment must fail. There are, very briefly, three potent difficulties with this theory. 16 First, it renders the Ninth Amendment superfluous in light of the Tenth Amendment, which expressly addresses the rights-powers theory. (The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”) If the rights-powers theory were correct, why have a Ninth Amendment? Second, the rights-powers theory renders the Ninth Amendment inapplicable to any conceivable case or controversy. Rights begin at precisely the point that powers end, so even a hypothetical conflict cannot arise. We cannot presume that the framers engaged in a purposeless enterprise if a more functional interpretation is available. Finally, the rights-powers theory would apply to enumerated as well as unenumerated rights. Yet both the framers (see Madison’s remarks above) and the Supreme Court (see, e.g., _Dennis v. United States_, 341 U.S. 494, 501 \[1951\], “The question with which we are concerned here is not whether Congress has such a power, but whether the means which it has employed conflict with the First and Fifth Amendments to the Constitution.”) acknowledged the potential conflict between constitutional rights and powers. The actual treatment of enumerated rights as “side-constraints” on the means by which government may pursue ends that are authorized by the enumerated powers suggests a more productive interpretation of the unenumerated rights of the Ninth Amendment. According to a side-constraints theory, governmental actions must be scrutinized to see if the means chosen to accomplish constitutionally permitted ends conflict with the fundamental background rights of persons to “life, liberty or property.” Such a theory would, of course, require extended elaboration, and the conception of rights used would have to be connected with the moral presuppositions of the framers. 17 Recent developments in jurisprudence and moral philosophy bode well for such an endeavor. Only if this intellectual task can be completed will we fully realize the promise of the Constitution as a protection for individual liberty. ## Notes ¹See, however, _Griswold v. Connecticut_, 381 U.S. 470, 491, J. Goldberg, concurring, “The Ninth Amendment to the Constitution may be regarded by some as a recent discovery, but since 1791 it has been a basic part of the Constitution we are sworn to uphold.” ²Jonathan Elliot, ed., _The Debates in the Several State Conventions on the Adoption of the Federal Constitution_ (2d. ed., Philadelphia: Lippincott, 1836) (remarks of J. Wilson), p. 2. 3_Annals of Congress. The Debates and Proceedings in the Congress of the United States_ (Washington, D.C.: Gales \& Seaton, 1834\), p. 456. 4_Annals of Congress_, _op. cit._, p. 452. 5See Richard Ely, _Democracy and Distrust_, (Cambridge, Mass.: Harvard University Press, 1980), p. 39. (“Suppose there were in the Constitution one or more provisions providing for the protection of ghosts. Can there be any doubt, now that we no longer believe there is any such thing, that we would be behaving properly in ignoring the provisions?”) 6For a recent description of the philosophical skepticism of some constitutional analysts and how it conflicts with the attitudes of the framers, see Stephen Macedo, _The New Right v. the Constitution_ (Washington, D. C.: Cato Institute, 1986). 7For an elaborate discussion of the framers’ beliefs in this regard, see Edward Corwin, “The Higher Law Background of American Constitutional Law,” _Harvard Law Review_ (1\&2) (1928). 8See e.g. Lon L. Fuller, _The Morality of Law_ (rev. ed., New Haven: Yale University Press, 1969), p. 64. 9I discuss the value of rights theory as a dispute-resolution device in Randy E. Barnett, “Pursuing Justice in a Free Society,” Part I: “Power v. Liberty,” _Criminal Justice Ethics_, vol. 4 (Summer/Fall 1985\). 10See Randy E. Barnett, “Judicial Conservatism v. a Principled Judicial Activism,” _Harvard Journal of Law and Public Policy_ 10 (Spring 1987) esp. pp. 281-289, discussing the two sources of moral knowledge and the “electorate of law” that results from the common-law process. 11_Annals of Congress_, _op. cit._, p. 454. Some have used this passage of Madison’s speech to argue that he contemplated judicial protection of only those rights that were “expressly stipulated.” See e.g. Raoul Berger, “The Ninth Amendment,” _Cornell Law Review_ 66 (1980), pp. 8-9. Such an interpretation would surely disparage, if not deny, the other rights retained by the people. It is, in fact, the very construction that, only moments before, Madison had said he had sought to avoid by writing the Ninth Amendment. 12For a promising recent effort at providing such a theory see Calvin Massy, “Federalism and Fundamental Rights: The Ninth Amendment,” _Hastings Law Review_ 38 (1987). 13See, e.g., Richard A. Epstein, _Takings: Private Property and the Power of Eminent Domain_ (Cambridge, Mass.: Harvard University Press, 1985); Epstein, “Toward a Revitalization of the Contract Clause,” _University of Chicago Law Review_ 51 (1984). 14See, e.g., _Wickard v. Filburn_, 317 U.S. 111 (1942), according to which a farmer growing crops to feed his own livestock is engaged in “interstate commerce.” 15I discuss one example of such “unforeseen” legislation (at the state level) in Barnett, “Are Enumerated Constitutional Rights the Only Rights We Have? The Case of Associational Freedom,” _Harvard Journal of Law and Public Policy_ 10 (1987). 16I will elaborate this analysis in the introduction to _The Rights Retained by the People: The History and Philosophy of the Ninth Amendment_, a forthcoming anthology of Ninth Amendment scholarship. I will also address these issues in the foreword to a “Symposium on Interpreting the Ninth Amendment,” forthcoming in the _IIT Chicago-Kent Law Review_. 17It is possible that a robust theory of rights would ultimately be incompatible with the “coercive monopoly of power” that the Constitution contemplates. See Barnett, note 9, pp. 50-56 (discussing the “power principle” and its deficiencies). However, an interpretation of the Constitution that did not seek to change it surreptitiously would have to square as best as possible the framers’ conception of rights with the framework they actually established. One such effort is Richard Epstein, _Takings: Private Property and Eminent Domain_, _op. cit._ As suggested above, such an interpretive endeavor must be distinguished from a normative evaluation of the Constitution’s legitimacy; such an evaluation would require a normative appraisal of the framer’s conception of background rights. _Randy Barnett teaches law at the Chicago-Kent School of Law._