I would miss this debate by a week…
I consider myself a textualist. As such here is the text:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Ninth Amendment doesn’t provide any substantial protection. It is a rule of construction, literally containing the words "shall not be construed". It doesn’t expand federal jurisdiction to strike down a state law. It merely counters the argument that the federal Constitution, by virtue of listing some rights, denies or downgrades others.
“The enumeration in the Constitution, of certain rights”
The subject in this sentence is “the enumeration”, as modified by the prepositional phrases “in the Constitution” and “of certain rights”. Therefore the predicate applies only to ‘the enumeration of certain rights in the Constitution’. All three components are critical to any alleged violation. There must be an enumeration, the enumeration must be of rights, and this enumeration of rights must be the enumeration of rights found in the Constitution.
“in the Constitution”
For example, acts of Congress are not “in the Constitution”. If an act of Congress is construed to deny or disparage any individual right, Amendment IX simply does not apply. Same with a state law.
Executive orders and regulations are not “in the Constitution”. If an executive order or regulation is construed to deny or disparage any individual right, Amendment IX does not apply.
Judicial opinions are also not “in the Constitution”. If a precedent is construed to deny or disparage any individual right, Amendment IX does not apply.
If any of the above rely on an enumeration of certain rights in the Constitution, that reliance is fair game and the act/order/opinion is tainted.
“of certain rights”
The word “certain” only means that the rights enumerated in the Constitution are non-exhaustive. “certain rights” means all of the ones enumerated. We don’t have to guess which rights are or are not included in the phrase “certain rights”. It is a misinterpretation of the text to assume the enumeration of some rights may be construed to deny or disparage others, by virtue of the word “certain”.
It follows that unenumerated rights exist. It does not follow that any unenumerated right is protected from denial or disparagement due to construction of any enumeration in the Constitution. Amendment IX only covers construction of the fact that the Constitution explicitly lists some rights.
Certain powers are enumerated in the Constitution, such as the power of Congress to regulate the militia, or the judicial power of the Supreme Court and inferior federal courts to adjudicate cases. If the enumeration of certain powers in the Constitution is construed to deny or disparage an individual right, Amendment IX does not apply. Even the text of the Constitution itself contrasts between “powers” of an office or institution and “rights” of individuals 1. Amendment X deals with the enumeration of powers, not Amendment IX.
I do in fact use the enumeration of certain powers in the Constitution to justify throwing out cases where an individual asks the federal judiciary to protect some unenumerated right.
Consider a citizen who brings tort action against his municipal government in state court. He alleges some ordinance infringes his right to bring his non-service dog into a public building. The state courts reject the suit, so the citizen files a claim in federal court. Now he claims that the state infringed his right to bring his dog into a public building by ruling against him. A student of law should review Article III of the federal Constitution, section 1, and conclude that the federal judicial power only extends to certain “cases and controversies”. This is not a case between citizens of different States, and it is not a case brought by a State or by the United States. Is the alleged infringement of the right to bring a dog into a public building a case or controversy arising under the Constitution or federal laws or treaties? If so, under which provisions? The judge should ask the petitioner’s lawyer to point to the provisions which empower him to hear the suit. I can think of a few creative possibilities.
Supposing the dog was a service dog, reference could be made to the Americans with Disabilities Act. That is a federal law and Article III extends the judicial power to cases and controversies arising under federal law.
Supposing the ordinance generally allows for individuals to bring dogs into public buildings, but prohibited this particular citizen or a class of citizens (for example all Black citizens) from enjoying that right. The lawyer would point to Amendment XIV’s equal protection clause, and title 42 of the United States Code which enforces it.
Reference could be made to Amendment XIV’s due process clause, and title 42 of the United States Code which enforces it. However, I believe it would be difficult to argue that “life, liberty, or property” includes the “liberty” to bring your dog inside a public building, and that enforcing the ordinance prohibiting such behavior violates “due process of law”.
Finally suppose the lawyer points to Amendment IX. I don’t believe a reference to federal law is necessary 2. The judge should ask how the State construed the enumeration of certain rights in the federal Constitution to deny or disparage the plaintiff’s right to bring his dog into a public building. When no sufficient response is given, the case should be dismissed as the judge lacks the power to adjudicate the issue.
1 The “legislative powers”, such as “power of impeachment” or “power to coin money”, Article 1. The “executive power”, vested in a President and described as “powers […] of said office”, Article II. The “judicial power”, vested in one Supreme Court and such inferior courts as Congress may create, Article III. Contrast with the “rights” of members of Congress, Article I section 6. The “right of the people”, Amendments I, II, and IV. The “right of trial by jury”, Amendment VII.
2 I don’t believe a reference to federal law should be necessary to file suit against one’s own State for an alleged violation of Amendment IX. Although the Supreme Court disagrees with me, I do not read Amendment XI so as to preclude federal suits by a citizen against his own state. Amendment XIV however expressly gives Congress “the power” to enforce its provisions by enacting laws, which by the nature of the definitive article implies that federal law is necessary to enforce that Amendment. This makes sense given the severe penalties of section 2 - you don’t want a federal judge reducing a state’s representation in Congress!
“the enumeration”
This brings me to the last component of the subject, which is the noun “enumeration”. Not just any enumeration either, the enumeration. “The enumeration” can refer to either the process of writing rights into the text of the Constitution, or it can refer to all of the rights written in that document. It doesn’t matter which way you look at it. Amendment IX only applies when someone construes the fact that individual rights are enumerated in the Constitution to deny or disparage an unenumerated right.
Imagine a new medium of communication based on odor, then consider this argument: “The Ninth Amendment prohibits a judge from construing the First Amendment’s right to freedom of speech so as to disparage the right to freedom of pheromone-encoded speech.” Crafty, is it not? The First Amendment is in the Constitution. It’s freedom of speech is an individual right. The fatal flaw in this example is that the judge is not alleged to have construed the enumeration of rights in the Constitution. Sure, the freedom of speech is enumerated, but it is not the enumeration. If the district judge had opined that the mere fact that certain rights are enumerated in the Constitution means the right to freedom of speech does not extend to the right of pheromone-encoded speech, he would have a case on appeal. But the example as written does not violate the Amendment.
The Ninth Amendment only counters the assumption that the mere listing of rights in the Constitution makes that list presumptively exhaustive - an assumption commonly made about bills of rights in the early modern era. This should grok well with originalists who’ve read up on the federalists who debated anti-federalists in the late eighteenth century.
“shall not be construed to deny or disparage others retained by the people”
The predicate is just as important to a sentence as the subject. Any alleged violation of Amendment IX must demonstrate (legal) construction which denies or disparages an unenumerated right retained by the people. There are four critical elements: it must be a legal construction (a determination on the legal meaning), the construction must deny or disparage a right, the right denied or disparaged must be one not enumerated, and this right must be one retained by the people.
“shall not be construed”
The word “construed” here refers to a determination of legal meaning. It could be a determination from a federal judge, magistrate, officer, or legislative body. All take oaths to uphold the Constitution, all may be given authority to interpret the Constitution with force of law. Therefore all are bound to the Ninth Amendment, but only when they construe the fact that rights are enumerated in the Constitution.
A private citizen, for example, is not prohibited from construing the enumeration of rights in the Constitution so as to disparage some other right. On a purely textual basis a private citizen’s opinion does not carry force of law; he cannot properly construe law. There are other reasons as well, for example the theory behind the Bill of Rights only applying to the federal government. If you find that argument convincing, States and their officers would also be exempt. Under no circumstance do I think the Ninth Amendment could be found not to operate directly upon States, but simultaneously incorporated against them indirectly.
“to deny or disparage”
What does it mean to deny or disparage a right? To deny someone their right to do something could mean preventing them from exercising their right, but with the predicate verb in mind (“construed to deny”) I think it means to deprive them of something they are entitled to by virtue of right. The most obvious example is a judge who deprives a citizen’s request for an injunction, or potentially damages.
Disparagement as used here appears to be archaic, meaning to compare with something lesser, such as marriages without disparagement (marriages without inequality). Imagine a judge who is balancing a citizen’s right to control her child’s apparel against the power of the State to force children to wear masks. The judge who construes the enumeration of rights in the Constitution so as to create a divide between fundamental and non-fundamental rights might conclude, in violation of the Ninth Amendment, therefore under the Constitution the right to control your child’s clothes carries as little weight as your right to control your neighbor’s wardrobe.
“others”
Context makes clear that the object, “others”, refers to rights not enumerated in the Constitution. It is implied that rights do exist despite not being enumerated in the Constitution. No right is implied to be protected by this admission, which is a conclusion I have seen but never understood on a textual basis.
A small side note on philosophy. It was argued to me once that all rights are protected, by definition. Using this definition it can be argued that the Constitution protects all unenumerated rights. This struck me as circular and therefore flawed. Furthermore you may have rights under state law - such as a right of action - which are not justiciable by the federal judiciary due to its different rules of federal jurisdiction and standing.
This is one of two philosophical stances I am familiar with, the other being that all potential liberties are rights, but only the ones that matter are those protected at law. I get the general feeling that this is mainstream among judges, and I recall reading opinions where Justices of the Supreme Court admit that some unenumerated right “trivially” exists, and distinguishing existence from protection under the federal constitution. The theory is that all rights emanate from the people, and that the power to protect or deny individual rights is sovereignty, which except for express allocations to the federal government, is deposited in the States.
“retained by the people”
Hamlet broke down the two prevailing schools in post #16.
The keyword to me is “retained”. Remember that the entire bill of rights was proposed together (on a single broadsheet if I recall). The word “retained” implies prior existence. The word “other” (discussed above) implies that the right is not enumerated in the Constitution. What rights could exist without being enumerated in the Constitution, which existed before the bill of rights?
In my read, “retained” simply means existing independent of the Constitution and not relinquished due to Constitutional grants of power.
“By the people” could be individual rights, or it could be collective rights. I say it means the public in both senses. They could be rights secured by a state constitution or they could be rights a government has never deigned to interfere with. If you read my analysis of the subject of the Ninth Amendment, it should be apparent that it doesn’t particularly matter to me which unenumerated right is involved, or even which kind. The important thing is that we’re not talking about rights exclusive to members of Congress, which are covered in Article I.
IMO,
~Max
