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