The Ninth Amendment Means What it Says: 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.)

Clayton Cramer on the Ninth Amendment: 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.)