Two Conceptions of the Ninth Amendment

The Ninth Amendment has been largely ignored by the Supreme Court of the United States. Because the Ninth Amendment is unquestionably a part of our written Constitution, ignoring it would not have been possible without some theory that renders it without any function. This paper will first examine this theory, which is based on what the author calls the rights-powers conception of constitutional rights, a conception of constitutional rights that is applied only to the Ninth Amendment. Then he describes an alternative to this view of the Ninth Amendment, one that is based on what I call the power-constraint conception of constitutional rights, the conception that we normally use with constitutional rights., Lastly the author briefly addresses the topic of this part of the Symposium: The Ninth Amendment and its Relationship to Natural Rights

Kurt Lash\u27s Majoritarian Difficulty: A Response to a Textual-Historical Theory of the Ninth Amendment

Kurt Lash believes that, in addition to individual natural rights, the Ninth Amendment protects collective or majoritarian rights as well. In this essay the author explains why Lash’s majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, and those who wrote the Constitution. Not coincidentally, it is contrary to the individualism of the other amendments constituting the Bill of Rights, and the public meaning of the Ninth Amendment as it was received during its ratification. It is also contrary to the individualist conception of popular sovereignty adopted in the text of the Constitution as interpreted by a 4 to 1 majority of the Supreme Court in its first major constitutional decision. And it is contrary to the individualist interpretation of the Ninth Amendments by the one source Lash cites who actually uses the word collective: St. George Tucker. In sum, the collectivist interpretation of the phrase others retained by the people is anachronistic—a projection of contemporary majoritarianism onto a text which is and was most naturally read as referring to the natural rights retained by all individuals, and to these rights alone

The Golden Mean Between Kurt & Dan: A Moderate Reading of the Ninth Amendment

In these remarks given at the Drake Constitutional Law Center Symposium, Professor Randy Barnett addresses his disagreement with Dan Farber\u27s view of the Ninth Amendment in his new book and with Kurt Lash\u27s view of the Ninth Amendment in his recent articles, and he asks why the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment have been overlooked. The author explains that his view is closer to Farber\u27s; however, he asserts that the Ninth Amendment protects all fundamental liberties—not just some. He asserts that Lash incorrectly views the Ninth Amendment as protecting state majoritarianism rather than individual liberties. His argument relies on historically significant writings by Philadelphia Constitutional Convention delegate Representative Roger Sherman. The author responds to critics who worry that his broad view of liberty could permit courts to impede the workings of government by saying that rights do not receive absolute protection. Instead, his approach sensibly places the burden on the government to justify its restrictions on individual rights. Professor Barnett provided a detailed explanation of his theory in a significant recent book

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

Is Including Under God in The Pledge of Allegiance Lawful?: An Impeccably Correct Ruling

On June 26, 2002, in Newdow v. U.S. Congress, a divided panel of the United States Court of Appeals for the Ninth Circuit held that the 1954 Congressional amendment adding the words “under God” to the Pledge of Allegiance violated the First Amendment’s proscription that, “Congress shall make not law respecting an establishment of religion.” Because the First Amendment’s Establishment Clause applies to the States via the due process clause of the Fourteenth Amendment, the Ninth Circuit likewise found unlawful a California school district’s policy encouraging public school students to utter the words “under God” as part of teacher-led daily recitals of the Pledge. Eight months later, the still divided Ninth Circuit panel issued an amended opinion reaffirming its ruling that the school district’s policy coerces students to perform a “religious act” in contravention of the Establishment Clause. However, holding that it had exceeded the legal analysis necessary to review the lawfulness of the policy, the Newdow Court vacated its determination that the words “under God” in the Pledge are per se unconstitutional. This article urges that the original Newdow decision rightly understood that adding the words “under God” to the Pledge violates the Constitution’s anti-establishment principles. Accordingly, government policy encouraging public school students to avow via the Pledge that ours is a nation dependent on or ruled by God, likewise contravenes the First Amendment

The Ninth Amendment and Constitutional Legitimacy: Foreword to the Symposium on Interpreting the Ninth Amendment

Does the Constitution of the United States of America impart legitimacy on legislation enacted under its auspices? If so, how? Is a citizen bound in conscience to obey such legislation? If so, why? Does legislation create a duty of obedience simply because it was enacted by a group of persons calling themselves a legislature, or is there some other reason? Would any constitution impart such legitimacy or is there something special about the character of those that do? If the latter, does the United States Constitution have the requisite character? While I shall not definitively answer these questions in this Foreword, I hope to flesh them out enough to show that they belong in the ongoing debate concerning the proper contours of judicial review. For, while the proper method of interpreting the Constitution and the appropriate role of judicial review are hotly debated, few discuss whether and why a citizen has a moral obligation to adhere to legislation that results from constitutional processes. There is an unspoken assumption that legislation resulting from constitutional processes creates at least a prima facie duty of obedience in a citizen

Reconceiving the Ninth Amendment

The courts long have protected constitutional rights that are not listed explicitly in the Constitution, but are they warranted in doing so? As scholars and commentators vigorously debate this and other questions about the appropriate role of judges in interpreting the Constitution, the Ninth Amendment has assumed increasing importance. Its declaration that [t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people has suggested to many that the set of rights protected by the Constitution is not dosed and that judges may be authorized to protect these unenumerated rights on occasion

Exhuming the “Diversity Explanation” of the Eleventh Amendment

This essay, in a symposium honoring the scholarship of Ninth Circuit Judge William A. Fletcher, explores the “diversity explanation” of the Eleventh Amendment that he had advanced in articles while he was a UC-Berkeley law professor. That explanation, contrary to existing Supreme Court doctrine that heavily constitutionalizes state sovereign immunity from suits by private parties and foreign countries, would view the Eleventh Amendment as having solely to do with federal courts’ constitutional jurisdiction and nothing to do with states’ sovereign immunity. The essay notes the cleanness of interpretation provided by the diversity explanation, in contrast with the convoluted nature of current doctrine, and concludes that overruling of that doctrine would be warranted

Cultural Values and Government

Mr. Dellinger Mr. Dellinger originally delivered these remarks for the panel entitled The Role of Government in Defining Our Culture, at the Federalist Society’s 2006 National Lawyers Convention, on Saturday, November 18, 2006, in Washington, D.C. commenting on the Ninth Circuit decision Finley v. National Endowment for the Arts. The case involved the constitutionality of the Helms Amendment which required that the National Endowment for the Arts take decency into account in choosing who should be awarded artistic grants

The People or the State?: Chisholm v. Georgia and Popular Sovereignty

Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this essay, I offer several reasons: Constitutional law is taught by doctrine rather than chronologically; law professors have reason to privilege the Marshall Court; and the Court\u27s individualist view of popular sovereignty is thought to have been repudiated by the adoption of the Eleventh Amendment. I explain why the Eleventh Amendment did not repudiate the view of sovereignty expressed in Chisholm by comparing the wording of the Eleventh with that of the Ninth Amendment, and conclude by suggesting another reason why Chisholm is not in the canon: Law professors follow the lead of the Supreme Court and, like the Ninth Amendment, the Supreme Court has deemed its first great decision too radical in its implications