How do Textualists deal with the 9th Amendment?

Forgive me if some of my terminology is not accurate, but I think I’ve got it right.

It is my understanding that some of the more conservative members of the Supreme Court (and presumably other courts) take a textualist approach to interpreting the Constitution; namely that the plain meaning of the text should be used, and that the intent of the writers should not be taken into account. Am I correct in thinking that this is one of the objections to cases like Roe v. Wade, namely that the Constitution does not delineate a right to privacy, therefore one should not be read into the Constitution?

Assuming I am correct in this understanding (and please correct me if I am wrong; I am honestly looking for some education here), how does the 9th Amendment play into this philosophy?

As I read this, it’s pretty clear that there are plenty of other rights enjoyed by the citizenry, and just because we haven’t spelled them out here doesn’t mean they don’t exist.

Admittedly this is a pretty vague bit of wording (at least to a non-lawyer), but it would appear to put a pretty big hole in any arguments that, in effect, try to say, “it’s not a right spelled out in the Constitution, therefore it doesn’t exist.” The 9th doesn’t seem to get a lot of press, but it strikes this lay person as a pretty broad, potentially powerful piece of the Constitution. What has been its history and role in some of the more contentious concepts like the right to privacy?

Yes, you are quite correct. Just because a right is not enumerated in the Constitution does not mean that it doesn’t exist.

The Constitution, however, exists to delineate the powers and duties of the federal government. And the Tenth Amendment goes on to state clearly that any and all rights not assigned to the federal government by the Constitution belong properly to the states, or the people.

Nowhere in the Constitution does it assign the power to recognize new rights to the federal government, nor to any of its branches (including the judiciary). Therefore, that power belongs to the states, or the people.

You are, as I said, quite correct in saying that, just because a right isn’t in the Constitution, one cannot conclude that it doesn’t exist. It is, however, equally correct to conclude that just because it isn’t in the Constitution doesn’t mean that it does exist. The power of determining if it does or not lies with the states, or the people.


That’s a pretty emphatic statement. Do you have precedent to back it up?

Because I could just as easily look at it and say, the Judiciary is given explicit Constitutional power to settle disputes between Federal/State/People (per Article III, Section 2) and that the right to X (to privacy, to have abortions, to carry machine guns, to raise llamas) is not a new right, but an existing right that was not explicitly enumerated. Thus, the Judiciary is not recognizing a new right, as you say, but simply settling a dispute.

I know we’ve danced this dance many times before, but perhaps you can explain to dear carlb how the judicial power granted in the Constitution allowing the courts to protect enumerated rights, but not unenumerated rights, isn’t disparaging those unenumerated rights in violation of the 9th Amendment.

And carlb. If you’d like to peruse some prior threads involving Shodan’s… interesting… take on the 9th Amendment, I would suggest this one, and this one. My advice, don’t waste your time with him.

I just read Shodan’s contributions to those threads. I did not find them a waste of time at all.

On the contrary, given that I, like the OP, would like to understand how a textualist and/or conservative reconciles their views on unenumerated rights with the 9th amendment. I understand now that it hinges on the meaning of the states, or the people. I also understand that the counter argument hinges on who gets to decide what that means. (Did I get that right? I am neither a lawyer nor American)

I feel much wiser for reading the arguments - so thanks for that, Shodan - even if I don’t completely agree with them.

But I can’t help wishing that the authors had been more explicit about their expectations about who should interpret these matters. To my foreign eyes, it looks like they sacrificed clarity for literary flourish.

Some follow up questions (from a foreigner, so go easy on me) if I may?

Does Marbury v Madison have any bearing on the courts ability to decide what the amendments mean? (I assume not)

Did the 14th (or the 11th?) change everything?

Those words are nowhere to be found in the 9th Amendment, though. They are in the 10th Amendment. Since the power to protect rights from governmental intrusion is part of the judicial power granted in the Constitution, there is no need whatsoever to use the language of the 10th Amendment.

Now, if you really wanted to go to the 10th Amendment, and do it honestly, you would have to believe that the judicial power does not include the power to protect ANY rights from infringement. To ascribe to the theory that the judicial power ONLY includes the protection of enumerated rights, you have to ignore the clear language of the 9th Amendment which says you cannot “deny or disparage” rights simply because they are not enumerated.

The intent of the 9th Amendment is pretty clear. Many of the founders were concerned that people would think that, by listing specific rights in the Constitution, rights NOT listed (unenumerated rights) were left unprotected. With that in mind, they wrote the 9th to say that the enumeration of some rights should not be a basis for denying or disparaging other rights. The very purpose of the 9th is directly thwarted by the belief that the judiciary is only empowered to protect enumerated rights.

I’m not sure what you are asking. Marbury was the first Supreme Court case to nullify a legislative act as violating the Constitution.

Again, I’m not sure what you are asking. To my mind, the 14th had a large effect on the 10th Amendment, but not the 9th.

Yes. Basically, Marbury v. Madison holds that the Constitution means what the Supreme Court says it means. That would obviously include amendments, and the articles as well.

I understand that both you and Shodan claim it is pretty clear and that you have different interpretations.

I understood Shodan to be claiming that the 10th says that the federal courts have no standing to decide which of the unenumerated rights in the 9th are retained by the people. (Did I get that right? My follow-up questions probably make no sense if I got that wrong.)

I am asking whether Marbury has any bearing on whether the supreme court is allowed to interpret what the constitution means. I am asking because I don’t know.

I am asking whether the 14th had any effect on the Supreme Court’s authority to decide which of the unenumerated rights mentioned in the 9th should be retained by the people. Again, I am asking because I don’t know.

Thanks. I learned something. I consider it a successful debate if I learned something:)

Is that generally agreed? And is it still the case?

Would Shodan, for example, agree that the Supreme Court gets to decide what the amendments mean?

ETA: Would a textualist?

First, the Tenth Amendment does not address rights at all – any more than you buy “electric rights” from the public utilities company. The Ninth Amendment addresses unenumerated rights; the Tenth, unenumerated powers.

Now, on the Natural Rights theory prevalent among the Founding Fathers, rights exist. The government recognizes and guarantees them; it does not create them. The Ninth Amendment simply states that the listing of enumerated rights should not be construed to suggest that other rights don’t exist, or can be infringed upon.

And if the United States Constitution guarantees a right to citizens or people of the United states, then it’s the height of states-irghts folderol to suggest that whether or not that right is recognized is a matter for the states to decide. (Although certainly the states have concurrent power to recognize rights – that much, Shodan has right.) But if a case arising under the Constitution is brought before the courts, it is up to the courts to decide it on the basis of the law of the land, the supreme law of the land being the U.S. Constitution. So the judicial power does extend to recognizing whether some claimed right is in fact a Ninth Amendment unenumerated right or not.

I think so. In that case the Supreme Court gave themselves the power of judicial review, which wasn’t necessarily the case before then.

Today, it’s a fact that the SC decides what the parts of the Constitution mean. I’m pretty sure that’s well understood (I can’t speak for other people on here), but where people do disagree is on how the Supreme Court should go about deciding what the Constitution means. One method is going by the text/background purpose (a textualist) as you mentioned in the OP. The opposite way would be interpreting/reading rights into the Constitution to “fix” social problems that are going on today (judicial activism). There are other methods in between those two that Justices also use.

I don’t know if I’d put it that way, exactly, but even so, it doesn’t solve the underlying problem of how the court should recognize which claimed rights exist and which don’t.

Justice James Iredell, in Calder v Bull, 1798

Well, Marbury versus Madison is incredibly well-established precedent. It is emphatically good law, and it is little exaggeration to say that if it is invalid, almost every constitutional case decided since is also invalid.

I will let Shodan speak for himself; if you are speaking about textualist judges as the term is used today, they are by definition arguing they get to interpret the constitution–because being a textualist means that they advocate that the constitution be interpreted in a certain way, and that they as judges should decide cases so as to further that interpretation of the constitution and its amendments.

They may argue that the proper way to perform such interpretation is to look to the text of the amendment, or in the case of an originalist, to its original understanding. But each of those arguments are, implicitly, an argument about the way of deciding what the constitution and its amendments mean.

Well, realize that the fact that a case is a hard case doesn’t necessarily have any bearing on whether it is a proper case for the supreme court.

Shodan, as I understand his arguments, generally contends that the supreme court is not empowered to decide whether an unenumerated right exists or not. That argument doesn’t care if the case is easy or hard to decide.

Lots of enumerated rights may lead to difficult cases. This may be because the case is close on the facts (was that policeman’s search reasonable, given that his claimed probable cause came from a very questionable informant), it may be becuase the enumerated right in the constitution is unclear, or doesn’t define a term (are Nunchucks, or M-60 machine guns, or nuclear bombs “arms” as the Second Amendment defines them?). The courts shouldn’t be able to get out of deciding those cases because they are difficult. The right is enumerated, one side says it covers what they want to do, and the other does not–even Shodan ought to agree that it is emphatically the role of the federal courts to decide those cases.

Similarly, unenumerated rights may seem very easy to decide. As a hypothetical, imagine if every framer of the constitution wrote a letter saying they intended the Ninth Amendment to protect the right of jurors to be given jelly donuts, and that for all of american history, people generally believed they had the right to jelly donuts, and were given jelly donuts when serving on a jury, but it had never gone to court.

Suddenly, you get summoned for jury duty, and are denied your jelly donut. You sue. Now, that seems like an easy case.

If the supreme court is empowered to determine what rights the ninth amendment protects, it seems clear that there is original intent, longstanding history, a whole bunch of reasons to conclude it protects a juror’s right to his jelly donut.

But if the supreme court is not empowered to decide that case, it’s not empowered to decicde that case. If, as Shodan argues,

and NOT the supreme court, then that is true even if there is overwhelming evidence to conclude that a reasonable decision-maker would find that the right exists.

Take a real example: straight marriage. Longstanding history? Yup. Often thought of as a fundamental right? Sure. Enumerated in the constitution? Nope. According to Shodan, that’s it. The Supreme court doesn’t have the power to decide that a man has a right to marry a woman under the ninth amendment.

This is true even if the Iowa Supreme Court suddenly decides that it will ONLY recognize same-sex marriage, and you are suing to force its court to reverse that decision because you want to get married to your girlfriend, and you argue you have a ninth amendment right to marriage.

The difficulty of the decision has nothing to do with the argument Shodan seems to be making. That argument seems to be problematic when we move from looking at difficult cases to cases that are VERY EASY.

And I’m right and Shodan is wrong.

“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.” James Madison, Speech in Congress Proposing Constitutional Amendments (June 8, 1789).

“Standing” isn’t a good word (it has another, different meaning, in legal circles). I think “lacks the power” should replace “have no standing” in your sentence. He’s still wrong, but I think you understand it.

I think others in the thread answered this well enough.

Interesting question. To my mind, I think the Supreme Court has, over the last century or so, used the language of the 14th Amendment to protect unenumerated rights (even if they didn’t admit it). The effect of many of these kinds of cases is that unenumerated rights are being protected, just not using the 9th Amendment. Again, to my mind, the Supreme Court has developed a whole area of jurisprudence to do what they could have easily done by paying attention to the clear meaning of the 9th Amendment.

Thanks for being so patient with me. I think I get it now. This lawyering business is not so hard after all.

I hate to make conclusions about what Shodan thinks without his input and I hope he’ll correct me if I got it wrong…

…so the whole thing hinges on whether SCOTUS has the authority to recognize the unenumerated rights mentioned in the 9th? (is that right?)

Can anyone cite an authority on this question?

I am about 10 pages in to the Federalist Papers. At the risk of spoiling the ending for me…do they cover this?

Again I ponder the fact that the all of this would have been so much more straightforward if the constitution had said “We did our best, but if any of this is not clear, ask SCOTUS” (maybe it does??).

I always understood part of the 14th to mean “You know those restrictions we placed on the federal government. We are putting them on state governments too.” (is that right?)

I then made the leap to - “…and SCOTUS gets to decide what those restrictions are.”

Is that leap justified? Would a textualist agree? (or, on what grounds would he disagree?)

Never mind my post; I just realized that Shodan answered exactly what the OP wanted: what would a Textualist think of that issue, not what is the truth about that issue.

I think you’ll find this to be helpful:

I could have sworn that legal eagles around here have previously said the 9th Amendment is almost completely ignored by the courts. Personally I am hard pressed to come up with a decision that cites the 9th (doubtless someone will because I wrote that…never say “never”).

My impression was anything deemed an un-enumerated “right” the court has to see as a right that is implied by what is already written (albeit not explicitly stated).

For instance the court recently found a “right” to self defense in the 2nd Amendment (District of Columbia v. Heller).

A right to privacy is implied by the 1st, 3rd, 4th and 5th Amendments (and thus applied in Roe v. Wade…let’s not start on that one here though).

I think the court is reluctant to assert the 9th because where do you stop? Do you have a right to a home? Food? Water? Things could get weird real fast on a wide open, everything is a right under the 9th, interpretation.