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\u27s 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. The Ninth merely demands that such enumerated rights not be construed to deny or disparage other nonenumerated rights retained by the people. The standard use of the Ninth Amendment, in other words, has nothing to do with its text. 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 the Tenth referring to the people in the several states. This Article addresses these and other textual mysteries of the Ninth Amendment and constructs 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