The Ninth Amendment in Congress

The Ninth Amendment declares that “[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Scholars have developed a rich literature on the Ninth Amendment, but they have focused nearly exclusively on how courts should treat the amendment’s mysterious unenumerated rights. Other scholars have generated an even richer body of work on constitutional interpretation outside the courts. These scholars have written persuasively about the role of Congress as an important participant in constitutional debate and development. However, this work has largely ignored the Ninth Amendment. This article brings these two lines of inquiry together and finds that there are exciting possibilities at their intersection. Part I briefly discusses current thinking about the Ninth Amendment and about constitutional interpretation outside the courts. Part II explores some of the opportunities that the Ninth Amendment opens up for Congress. The simplest is to expand traditional “negative rights,” but the Ninth Amendment can promote other forms of rights as well. Indeed, Congress already creates rights legislatively; the Ninth Amendment can make that process more conscious in ways that better serve the rights in question. Part III refutes three likely criticisms: that these “rights” are really no more than politically popular ideas; that Congress is not really capable of serious deliberation; and that the Ninth Amendment provides inadequate protection for these rights