NINTH AMENDMENT (Update)

The Supreme Court's reliance on the Ninth Amendment to justify a constitutional right of privacy in the landmark cases of griswold v. connecticut (1965) and roe v. wade (1973) ignited great interest in the long-ignored amendment. Scholars wrote a flurry of articles about it, and lower federal courts began accepting Ninth Amendment challenges to a variety of statutes. After Roe, however, the Supreme Court consistently abstained from any further use of the Ninth Amendment. Its most notable rejection came in bowers v. hardwick (1986). In Bowers, the federal court of appeals had held a statute criminalizing sodomy unconstitutional because it violated the right of privacy protected by, among other provisions, the Ninth Amendment. The Court, in a 5–4 decision, reversed. Though the Court noted that "[r]espondent does not defend the judgment below based on the Ninth Amendment, the Equal Protection Clause, or the Eighth Amendment," its refusal to extend the right of privacy grounded in the due process clause to this type of statute, together with its earlier refusals to rely on the Ninth Amendment, signaled that future legal challenges based on the Ninth Amendment would not likely be successful.

This is where the situation might have remained had President ronald reagan not nominated appellate court judge Robert H. Bork to the Court in 1987. During his famously televised confirmation hearing, Bork was questioned by senate judiciary committee Chairman Joseph Biden, as well as by Senators Strom Thurmond, Ted Kennedy, and Dennis DeConcini, about whether the right of privacy was supported by the Ninth Amendment. Bork initially suggested that the rights "retained by the people" referred solely to rights mentioned in state constitutions. Later he added: "I would be delighted" to use the Ninth Amendment "if anybody showed me historical evidence" as to what the Framers meant. Then Bork offered a provocative analogy that received wide attention: "I do not think you can use the ninth amendment unless you know something of what it means. For example, if you had an amendment that says 'Congress shall make no' and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it." Bork said he knew of no evidence that the Framers of the Ninth Amendment intended it to protect a "dynamic category of rights, that is, under the ninth amendment the court was free to make up more Bill of Rights."

Analogizing any part of the Constitution's text to an "ink blot"—while invoking the absence of historical inquiry—was sure to elicit an academic response. Bork's very public dialogue, followed by the senate's denial of his confirmation, sparked a renewed interest in the Ninth Amendment among constitutional scholars and an explosion of new articles and books on the subject ensued. Most, but not all, academic writers were friendlier to the use of the amendment than was either Bork or the Court. New historical research undercut the state constitutional rights thesis posited by Bork and others and supported the view that the rights "retained by the people" was a reference to inherent or natural rights. What still divides scholars is whether the Ninth Amendment authorizes the judicial protection of the natural rights to which it refers.

Paralleling the academic response to Bork's treatment of the Ninth Amendment was the reaction of subsequent Court nominees when each was asked about the amendment. Justice david h. souter, for example, testified that "the starting point for anyone who reads the Constitution seriously is that there is a concept of limited governmental power which is not simply to be identified with the enumeration of those specific rights or specifically defined rights that were later embodied in the bill. If there were any further evidence needed for this, of course, we can start with the ninth amendment." Souter's denial that he had anything novel to contribute to the jurisprudence of the Ninth Amendment provoked Biden to respond: "It is novel that you acknowledge it, based on our past hearings in this committee. One of the last nominees said it was nothing but a waterblot on the Constitution, which I found fascinating." Souter went on to testify that he had no reason to doubt that the Ninth Amendment "was an acknowledgment that the enumeration was not intended to be in some sense exhaustive and in derogation of other rights retained." In response to the question of whether a majority acting through government can violate inherent rights that precede the state, Souter testified that the job of the Court is "to define and protect this point beyond which government simply cannot go or cannot go without the most strong justification."

Souter's testimony was to prove prophetic. In planned parenthood v. casey (1992), the Court overturned portions of a Pennsylvania abortion law. Speaking for a plurality in a rare jointly authored opinion, Justices anthony m. kennedy, sandra day o'connor, and Souter relied explicitly on the Ninth Amendment: "Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9." It then quoted with approval the statement of the second Justice john marshall harlan that "the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, … and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."

Casey represents the high-water mark, to date, of judicial willingness to use the Ninth Amendment. Following Casey, and throughout the 1990s, the Court did not employ the Ninth Amendment or even refer to it and, unlike the rush of enthusiasm that followed Griswold and Roe, neither did lower courts increase their receptivity to Ninth Amendment arguments. Off the bench, Justice antonin scalia has expressed skepticism about the Ninth Amendment, and its future will undoubtedly depend on the judicial philosophies of future nominees to the Court. It will also depend on whether judges or academics can develop ways to put the Ninth Amendment into effect without seeming to authorize unbridled judicial discretion to strike down statutes. As Biden observed during Justice Kennedy's confirmation hearing, Justices "are reluctant to use it because once you start down that road on the ninth amendment, then it becomes very difficult to figure where to stop; what are those unenumerated rights."

One possibility involves modifying the prevailing "presumption of constitutionality." Under this judicially created doctrine, as explained in the famous Footnote 4 of united states v. carolene products co. (1938), courts will presume a statute to be constitutional unless "it appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments.…" But if the courts shift the presumption only when a statute violates "a specific prohibition," do they not disparage or deny" the "other" rights "retained by the people" in violation of the Ninth Amendment? If courts do not evenhandedly employ heightened scrutiny whenever a statute infringes on any rightful exercise of a citizen's liberty, have they not disparaged those liberties that were unenumerated?

Although distinguishing "rightful exercises of liberty" from mere "license" appears to pose the same problem of indeterminacy that attaches to identifying unenumerated rights directly, the problem may be less serious than first appears. State tort, property, and contract law doctrines routinely distinguish rightful from wrongful exercises of liberty, and federal judges regularly defer to state law in deciding cases between private parties in which there is diversity jurisdiction. Moreover, federal courts frequently identify "liberty interests" that they then balance against governmental interests. Such liberty interests are, however, indistinguishable from rightful exercises of liberty (as opposed to license). In addition, the people, acting through state initiatives or referendums, could directly declare certain liberties to be fundamental.

Perhaps, then, federal courts could protect unenumerated rights by increasing the scrutiny of federal statutes restricting the exercise of individual liberties that constitute legitimate "liberty interests" insofar as they are neither tortious nor violative of the contract or property rights of another person. It would then fall to the federal government to show why such interferences with liberty are truly "necessary and proper," the legal standard supplied by the necessary and proper clause.

Adopting such a "presumption of liberty" would protect the unenumerated rights retained by the people in a manner very similar, if not identical, to the way the enumerated liberties of freedom of speech and freedom of the press are protected under the first amendment. Such a presumption would effectively negate the inference that james madison sought to avoid when he drafted the Ninth Amendment: "that those rights which were not singled out, were intended to be assigned into the hands of the general government." As for protecting unenumerated liberties from infringements by states, the current weight of scholarly opinion is that, contrary to the slaughterhouse cases (1873), this protection is best accomplished by reference to the privileges or immunities clause of the fourteenth amendment—though the existence of the Ninth Amendment argues against rigidly limiting these privileges and immunities solely to "the enumeration in the constitution of certain rights."

Randy E. Barnett
(2000)

(see also: Bork Nomination.)

Bibliography

Barnett, Randy E., ed. 1989, 1993 The Rights Retained by the People: The History and Meaning of the Ninth Amendment, Vols. 1 & 2. Fairfax, Va.: George Mason University Press.

Barnett, Randy E. 1997 Necessary and Proper. UCLA Law Review 44:745–793.

Massey, Calvin R. 1995 Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights. Philadelphia: Temple University Press.

Symposium 1988 Interpreting the Ninth Amendment. Chicago-Kent Law Review 64:37–268.

Yoo, John Choon 1993 Our Declaratory Ninth Amendment Emory Law Journal 42:967–1043.