The Ninth Amendment reads:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
While many in the blogosphere have debated the original meaning of this amendment, in the end it is evidence that should settle the question. But this requires the more traditional forms of scholarship rather than blogging. For some months, I have been promising a major new treatment of the evidence concerning the Ninth Amendment’s original meaning. Finishing it occuppied most of my summer, but now it is available for downloading on SSRN. It is entitled, The Ninth Amendment: It Means What it Says. Here is the abstract:
Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: The state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This article examines twelve crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strong support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say.
I am activating comments for anyone who reads the paper and has comments or suggestions for its improvement. These can also be sent to me by email. (If you spot any typos, please send tell me about them by email rather than in comments.)
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