Document Type
Article
Publication Date
12-21-2023
Rights
This work is licensed under CC BY-NC-ND 4.0
Abstract
Like with the mythical lamp that can grant any three wishes, federal courts in the United States have buried the Ninth Amendment of the U.S. Constitution deep within the sands of American law in order to avoid coming to terms with its potential regarding the protection of unenumerated constitutional rights. Courts have been able to do so, in part, because of the seemingly impossible task of extracting from the text and history of the Ninth Amendment sufficient elements needed to identify which unenumerated rights may be subject to judicial enforcement.
This impossibility is an illusion and is contrary to the text, structure, history, and purpose of the Ninth Amendment. The Ninth Amendment means and does something. It is not superfluous or redundant. But, because of the nature of its object—unenumerated rights—there is an inherent limit to what the text of this constitutional provision can tell us about them. This is not a design flaw on the part of the drafters. It is a necessary characteristic when dealing with unenumerated items. It simply requires more effort on our part.
The Ninth Amendment constitutes a textual command regarding extra-textual things. This generates a normative gap: how do we get from the text to the unenumerated rights it references but does not, and cannot, identify specifically? This challenge represents the ultimate hard problem of U.S. constitutional law. But it is a solvable problem.
This Article analyzes the Ninth Amendment, including its text, structure, history, and purpose, as well as the intent of its drafters and the history of its interpretation by courts and scholars. Furthermore, this Article proposes that the Ninth Amendment is a multi-purpose tool that serves different roles. Its main role is as a residuary or reservations clause that allows for the identification of judicially enforceable unenumerated constitutional rights that can be claimed against both state and federal governments. As a result, the Ninth Amendment represents one of our best current bets with regard to the development of federal constitutional rights at a historical juncture where federal courts are weakening rights protections under the guise of textualism and originalism. The Ninth Amendment stands in the way of that endeavor, since its text and history are meant to broaden rights, not contract them.
Publication Title
University of Pittsburgh Law Review
First Page
958
Last Page
970
Recommended Citation
Jorge M. Farinacci Fernós,
The Ninth Amendment: The "Hard Problem" of U.S. Constitutional Law,
84
U. Pitt. L. Rev.
958
(2023).
Available at:
https://digitalcommons.law.buffalo.edu/journal_articles/1224