In his article, Barnett reviews the historical evidence for the meaning of the Ninth Amendment and concludes that the amendment uniquely provides explicit guidance on how to interpret the Constitution. The inclusion of an amendment dictating constitutional interpretation is a result of serious worries among the founding generation that a Bill of Rights would actually lead to less liberty, not more. Because it would be impossible to list all the rights that a person holds, it was better not to have a Bill of Rights at all.
Instead, he argued, the Constitution protected liberty by carefully limiting the powers held by the government. The Ninth Amendment was the compromise measure. By clarifying that listing certain rights did not mean that other rights were less protected, the drafters thought that they had covered all of their bases. The rights listed in the first ten amendments would be protected, but so would those that were not listed. That was important, because the rights listed in the Constitution and the Bill of Rights amendments are hardly comprehensive.
This tendency is unfortunate because we need to answer these questions for ourselves rather than rely on people who are long dead to answer them for us. The broad and sweeping language of the Constitution is best treated as raising questions rather than providing answers.
The Ninth Amendment provides a case in point. Many scholars have looked to the Amendment to answer the vexed question of what rights Americans have. In fact, though, the Amendment leaves that question for us to answer in our own time.
To understand why this is so, we must begin by recognizing that James Madison faced a serious problem as he spoke to his colleagues in the House of Representatives about his proposed bill of rights. On the one hand, he had to satisfy colleagues who worried that the enumeration of specific rights might by implication deny the existence of other rights.
On the other hand, Madison faced a second argument that looked in the opposite direction. Many of his colleagues worried about additions to the Constitution that were vague and open ended.
Madison had to take both sets of objections seriously. At the time the House debated his proposals, two states remained outside the Union and other states plausibly threatened to convene a new constitutional convention if no action were taken.
It was urgent that Congress act quickly and that congressional opposition be minimized. It was therefore crucial that Madison satisfy both sides of the argument about unenumerated rights. He accomplished this goal with a brilliant compromise. The Ninth Amendment clearly rebutted the possible presumption that enumeration of some rights precluded the recognition of others.
But the Amendment does not establish these rights or say what they are. Thus, opponents of vague or underspecified rights could also be satisfied that the Constitution did not entrench the kind of rights that they opposed. Proponents of nontextual rights could still argue that they should be enforced, and opponents of such rights could still argue that they did not exist. Neither side need oppose the rest of the Bill of Rights on the ground that its position on nontextual rights was jeopardized.
This interpretation is strongly supported not just by what the Ninth Amendment says, but also by what it does not say. When states submitted proposed amendments to the new Constitution, some of them suggested changes that would have expressly protected natural and unenumerated rights.
Similarly, Madison and Sherman each proposed natural rights amendments, and a similar provision was proposed in the Senate. Congress adopted none of the state provisions, and the Madison, Sherman, and Senate proposals were all defeated. To summarize, then, on five separate occasions, Congress was presented with provisions that would have expressly protected unenumerated rights, but it failed to adopt any of them.
Of course, sometimes when language is left out of a document, it is omitted because it is redundant. If the Ninth Amendment clearly mandated the protection of natural rights, this might provide an explanation for the rejection of other natural rights language. Unfortunately, a select committee removed the key portion of the proposed amendment—which would have prohibited the power of the federal government from being enlarged through interpretation—before the amendment was enacted.
Thus, the entire purpose of the amendment and its future applicability was rendered moot. The 9th Amendment was intended to provide a mode of interpretation for the Constitution , guaranteeing that federal courts would have been expressly forbidden from creating new governmental powers through clever interpretation. A lot of subsequent and continuing constitutional mischief could have been avoided. Not only will the constitution justify the courts in inclining to this mode of explaining it, but they will be interested in using this latitude of interpretation.
We must have such amendments as will secure the liberties and happiness of the people on a plain, simple construction, not on a doubtful ground. No Related Cases.
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