The Ninth Amendment and the Unwritten Constitution: The Problems of Constitutional Interpretation

This article is about two things; one general, the other specific. The general point is about the nature of interpretation and of the constraints that the text places on interpretation. The specific is about the ninth amendment. My general claim about interpretation is that no textual provision by itself seriously constrains how it is going to be interpreted. This, I argue, is true not just about the open-ended provisions like the ninth amendment, but quite generally, about all textual provisions. The fact that no text by itself constrains interpretation, however, does not mean that interpretation is unconstrained; only that constraints operate within a particular context in which the text is interpreted. In this context, there is always a number of easy interpretive questions which, under particular circumstances, are answered exactly as if the text by itself controlled the process of interpretation. But easy questions are easy, I argue, only because others are not, and there is no way of either avoiding complex questions or reducing them to the simple ones. Hence, the open-ended provisions (and, in the struggle about interpretation, all controversial provisions are bound to become open-ended, even if they did not start as such), will never be decisive for resolving controversial issues of interpretation. The ninth amendment is no exception here, and I begin by arguing that for every interpretation that sees it as support for judicial activism there is another, respectable one, that does not. Much of the recent theory of constitutional interpretation has been focused on the problem of interpretivism versus noninterpretivism, and the ninth amendment is sometimes thought to legitimize the latter. I argue at some length that the dispute is dominated by what I view as mistaken assumptions about the role of the text in constitutional interpretation and that expansive judicial review need neither devalue the role of the text nor go beyond its interpretation. Good interpretations of open-ended constitutional provisions do not rely on dictionary-like reading of words, but rather on overall theories concerning the nature and functions of the institutions set up by the document and the values the political system is designed to implement. Placing too much reliance on the mere words of a single constitutional provision can in fact only confuse the task of constitutional interpretation. Similarly, a number of very important constitutional provisions could be absent from the text altogether, and yet the norms they state would be enforced anyway by any fair-minded reading of the text. While many provisions of the Bill of Rights have this character (and the founding fathers initially thought they were unnecessary), some have it to a greater degree than others, and none equals the ninth amendment. The ninth amendment is void of any substantive content; instead, it states a rule of construction which, even if assumed to entitle a court to engage in expansive judicial review, not only does not add anything to what we would know without it, but is also incapable of doing any real work in the process of actual interpretation. If an unenumerated right is capable of being derived from the overall scheme endorsed by the Constitution, the whole weight of that derivation (its legitimacy) will rest on its own argument, rather than the ninth amendment. If, on the other hand, the right cannot be otherwise convincingly derived, the ninth amendment will not help us either. The only (if any) thing the ninth amendment can do, I conclude, is to lead us astray by changing the discourse of constitutional law from the one shaped by political theory to one dominated by morality and ultimately religion