Copyright (c) 2010 Oklahoma Law Review
Oklahoma Law Review
ARTICLE: BLACKSTONE'S NINTH AMENDMENT: A HISTORICAL COMMON LAW BASELINE FOR THE INTERPRETATION OF UNENUMERATED RIGHTS
OKLAHOMA LAW REVIEW
62 Okla. L. Rev. 167
Jeffrey D. Jackson*
The Ninth Amendment explicitly states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." 1 This seems to clearly indicate that there are rights other than those in the text of the Constitution that should be recognized as constitutional. Further, the United States Supreme Court has recognized a number of unenumerated rights under a variety of rationales. 2
Nevertheless, the question of how to identify and give form to these rights still continues to pose problems for judges, lawyers, and legal scholars alike. While the Ninth Amendment points to the existence of these other rights, it gives no clue about what these additional rights are or how they might be found and enforced. 3 Recent scholarship based on the history of the Ninth Amendment has sought to fill this void and has identified a number of theories about what the unenumerated rights mentioned in the Ninth Amendment might be. 4 Of these theories, the one most supported by the historical evidence is that the "rights retained" mentioned in the Ninth Amendment are personal rights belonging to the people as individuals, rather than collective rights of "the people" as citizens of the states. 5 As such, the rights retained are of the same character as the others in the Bill of Rights and the fundamental rights recognized by the Supreme Court. 6
If this theory is correct, however, the question how these unenumerated rights might be identified ...
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