The "Ink Blot" of the Bill of Rights

The Ninth Amendment provides:"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

What does this enigmatic amendment mean? In Griswold, Justice Goldberg's concurring opinion asserted that it is a guarantee of "fundamental personal rights...protected from abridgment by the Government though not specifically mentioned in the Constitution." He reads the 9th Amendment as though it said: "The federal courts are empowered to declare any national, state or local law or policy unconstitutional if the judges believe such laws or policies violate any fundamental liberty the judges choose to recognize." Do you believe this is what the People believed they were ratifying in 1791?

How do the judges know which liberties are in and which are out? Do they look to the natural law for guidance? Whose version of the natural law?

Robert Bork said this reading of the 9th Amendment substitutes rule of man (judges) for rule of law. Here is what he said:

"I do not think that you can use the ninth amendment unless you know something of what it means. For example, if you had an amendment that says "Congress shall make no" and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot."

What do you think he means by this statement? Bork explains: "The judge who cannot make out the meaning of a provision is in exactly the same circumstance as a judge who has no Constitution to work with."

Although no one knows with certainty the precise meaning of the Ninth Amendment, history suggests that it was designed--along with the 10th Amendment--to make clear that the national government is a government of strictly limited powers and that the ratification of the first eight amendments should not be read as implying that the national government is granted any additional powers. For example, here is Madison's explanation:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power [to the national government], it would disparage those rights which were not placed in the enumeration; and it might follow by implication, that those rights that were not placed in that enumeration, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure." (1 Annals of Cong. 439 (1789)).

If Madison's views are to be believed, then the Ninth and Tenth Amendments are federalism provisions designed to make clear that the Federal Government was a government of strictly limited powers and to protect state-created rights against federal interference. Prof. Caplan puts it this way:

"Both Hamilton and Madison are clear that unenumerated rights refer to the laws of the several states, not to anterior, transcendant federal norms. Ninth Amendment rights, therefore, because they are state rather than federal in character, cannot form a basis for holding acts of Congress unconstitutional. Nor is it logically possible to 'incorporate' the ninth amendment through the fourteenth to apply as a prohibition against the states, because the ninth amendment was designed not to circumscribe but to protect the enactments of the states.."

Under this view, the real source of our liberties in an ever-changing world is democratic self-government at the state and local level. Our true Ninth Amendmnt rights are those found in our state constitutions and in laws enacted by our democratically-elected state and local officials.

For example, if the Court in Griswold had declined to recognize a Constitutional right for a married couple to use birth control, what do you suppose would the law of Connecticut be today? Think about this for a minute! In a world in which public schools are handing out condoms, as though they were candy, to young boys and girls, do you really think birth control would still be denied to married couples! As values and circumstances change, laws change.

Do the people of Connecticut need the federal courts to legislate new rights on their behalf? Or as a free and self-governing people are they perfectly capable of enacting laws they believe are good, and repealing laws they believe are unwise?

Although Justice Goldberg toyed with the idea of using the 9th Amendment as an empty vessel for the creation of judge-made constitutional law, the 9th Amendment has never been incorporated or employed by a Supreme Court majority to strike down any law. It remains an enigma, but one that an activist Court could use as a useful tool to strike down any law the Court doesn't like at any particular time.

Some commentators argue that the federalist view of the Ninth Amendment is questionable because "it renders the Ninth Amendment synonymous with the Tenth and thus redundant." See Ides & May at 76.

My response is to point out that the Ninth and Tenth Amendments, although complementary, serve very different functions and thus are neither synonymous nor redundant. The Ninth Amendment is designed to specifically deny implied powers to the National Government (i.e.to make clear that the National Government is a government of strictly limited powers and that the ratification of the first eight amendments should not be read as implying that the National Government is granted any additional powers over unenumerated subjects). The Tenth Amendment does not limit any implied powers of the National Government; it simply makes clear that powers not granted to the feds are reserved to the states. In other words, the Ninth Amendment limits certain federal powers (by explicitly denying implied power) and the Tenth Amendment makes clear that whatever is not granted to the feds is reserved to the states. Here is how Prof. Amar explains this point in his seminal book, The Bill of Rights (at p.123-124):

"To be sure, on a federalism-based reading, the Ninth and Tenth fit together snugly, as their words and their legislative history make clear; but each amendment complements the other without duplicating it. The Tenth says that Congress must point to some explicit enumerated power before it can act; and the Ninth addresses the closely related but distinct question of whether such express or implied enumerated power in fact exists."

See also Michael McConnell's recent article on the Ninth Amendment (link).