The Volokh Conspiracy - Supreme Court Adopts Individual Rights Interpretation of the Ninth Amendment:!

Buried in Justice Scalia's exegesis on the Second Amendment is a wonderful gift to those of us who study and care about the Ninth Amendment:

The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.

In other words, the Supreme Court has now rejected the "collective rights" reading of the Ninth Amendment that has been put forth by Akhil Amar and Kurt Lash. Justice Scalia adds the following footnote that deals with an example used by both to justify a collective rights model of the Bill of Rights:

JUSTICE STEVENS is of course correct . . . that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And JUSTICE STEVENS is dead wrong to think that the right to petition is “primarily collective in nature.”

Given how rarely the Supreme Court ever mentions the Ninth Amendment, this is big!

	[Randy Barnett, June 27, 2008 at 10:36am] Trackbacks Supreme Court Adopts Individual Rights Interpretation of the Ninth Amendment:! Buried in Justice Scalia's exegesis on the Second Amendment is a wonderful gift to those of us who study and care about the Ninth Amendment: The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body. Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. In other words, the Supreme Court has now rejected the "collective rights" reading of the Ninth Amendment that has been put forth by Akhil Amar and Kurt Lash. Justice Scalia adds the following footnote that deals with an example used by both to justify a collective rights model of the Bill of Rights: JUSTICE STEVENS is of course correct . . . that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And JUSTICE STEVENS is dead wrong to think that the right to petition is “primarily collective in nature.” Given how rarely the Supreme Court ever mentions the Ninth Amendment, this is big!