Copyright (c) 2006 Texas Law Review
Texas Law Review
Article: The Ninth Amendment: It Means What It Says
85 Tex. L. Rev. 1
Randy E. Barnett*
The first time one reads the Ninth Amendment, its text is a revelation. Here is a sentence that seems explicitly to affirm that persons have other constitutional rights beyond those enumerated in the first eight Amendments. Given the fierce debates over the legitimacy of enforcing unenumerated constitutional rights, one immediately wonders why one has not heard of the Ninth before. If this first encounter is as a law student in a course on constitutional law, however, one soon learns why: the Supreme Court has long dismissed the Ninth Amendment as a constitutional irrelevance. As Justice Reed wrote in 1947:
The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail. 1
Not only does Justice Reed's construction render the Ninth Amendment functionless in constitutional adjudication, it rather carelessly runs it together with the Tenth Amendment. 2
But this passage is not only cavalier about the text, it is also historically incorrect. The evidence of original meaning that has been uncovered in the past twenty years confirms the first impression of untutored readers of ...
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