I am very appreciative of the comments I have received so far on my paper, “The Ninth Amendment: It Means What it Says,” especially by my co-blogger Jim Lindgren. While I do not intend to respond to these comments as they appear, Clayton Cramer has published his lengthy reactions to my paper in the comment section, as well as on his blog, that I suspect might confuse those who had not read the paper. Without going point-by-point, perhaps a few comments can clear up three potential misunderstandings.
First and foremost, Cramer appears to miss the place in my paper (p. 14) where I deny that the original meaning of the Ninth Amendment–the exclusive subject of this paper–says anything about the scope of state powers:
Lastly, it would be mistaken to characterize the individual natural rights model as entailing federal restrictions on the powers of states. The Ninth Amendment, like the rest of the Bill of Rights, originally applied only to the federal government. True, natural rights could also limit the just powers of state governments, but this would be because of their independent force rather than the textual existence of the Ninth Amendment, which would not by itself justify federal protection against the violation of natural rights of individuals by their state governments. It was only with the passage of the Fourteenth Amendment—in particular the Privileges or Immunities Clause—-that the federal government obtained any jurisdiction to protect the unenumerated retained natural rights of the people from infringement by state governments.
The meaning of the Fourteenth Amendment is beyond the scope of this particular paper.
Second, the “Presumption of Liberty” I have proposed is a constitutional construction–like the opposing “presumption of constitutionality”–that is a way of putting into effect (as regard to federal restrictions on liberty) the meaning of the Ninth Amendment’s injunction against denying or disparaging the rights retained by the people. That these rights were individual rights, rather than either “collective rights” or the the rights of states, is a conclusion warranted by the evidence I examine in the paper, and cannot repeat here.
Third, I do not claim that all the Founders were “libertarians,” but (as I discuss in my book but not in this paper) neither were they democratic majoritarians. The evidence does show, I think, that the rights “retained by the people” was a reference to individual natural rights (and that these rights were best understood as “liberty rights”). Perhaps here is a way to formulate the individual natural rights model of the Ninth Amendment that will clarify it for Clayton: The Ninth Amendment extended the same protection against federal abuses of other liberties as the Second Amendment extended to the individual right to keep and bear arms. (Those who want extensive evidence that the Second Amendment protected an individual right can click here.)
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