Ninth Amendment To The United States Constitution - Scholarly Interpretation

Scholarly Interpretation

Professor Laurence Tribe shares the view that this amendment does not confer substantive rights: "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution."

In 2000, Harvard historian Bernard Bailyn gave a speech at the White House on the subject of the Ninth Amendment. He said that the Ninth Amendment refers to "a universe of rights, possessed by the people — latent rights, still to be evoked and enacted into law....a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law." Similarly, journalist Brian Doherty has argued that the Ninth Amendment "specifically roots the Constitution in a natural rights tradition that says we are born with more rights than any constitution could ever list or specify."

Robert Bork, often considered an originalist, stated during his Supreme Court confirmation hearing that a judge should not apply a constitutional provision like this one if he does not know what it means; the example Bork then gave was a clause covered by an inkblot. Upon further study, Bork later ascribed a meaning to the Ninth Amendment in his book The Tempting of America. In that book, Bork subscribed to the interpretation of constitutional historian Russell Caplan, who asserted that this Amendment was meant to ensure that the federal Bill of Rights would not affect provisions in state law that restrain state governments.

A libertarian originalist, Randy Barnett, has argued that the Ninth Amendment requires what he calls a presumption of liberty. Still others, such as Thomas B. McAffee, have argued that the Ninth Amendment protects the unenumerated "residuum" of rights which the federal government was never empowered to violate.

According to lawyer and diplomat Frederic Jesup Stimson, the framers of the Constitution and the Ninth Amendment intended that no rights that they already held would be lost through omission. Law professor Charles Lund Black took a similar position, though Stimson and Black respectively acknowledged that their views differed from the modern view, and differed from the prevalent view in academic writing.

Gun rights activists in recent decades have sometimes argued for a fundamental natural right to keep and bear arms that both predates the U.S. Constitution and is covered by the Constitution's Ninth Amendment; according to this viewpoint, the Second Amendment only enumerates a pre-existing right to keep and bear arms.