By: Ethan Y.C. Yang ‘28
Volume X – Issue II – Spring 2025
I. INTRODUCTION
Fierce courtroom battles have challenged nearly every clause of the Constitution since America’s founding. That is, except for the Ninth Amendment: the “forgotten amendment.” [1] For instance, although the Ninth Amendment seems to directly address unenumerated rights, it is no peer to the Fourteenth in the great battles over civil rights, gay marriage, abortion, and so on. Rather than shaping authoritative judicial decisions, debate over the Ninth Amendment instead occurs mainly in the pages of law reviews and the halls of academia. According to Stanford Law Professor Michael McConnell, “the [Supreme] Court has never squarely based a holding on the Ninth Amendment and has scarcely even discussed its meaning.” [2]
In contrast, legal scholars have paid far more attention to the Ninth Amendment. These scholars have produced a great body of academic literature regarding its meaning, implications, and potential— and for good reason: No part of the Constitution should be treated as an “inkblot,” as Supreme Court appointee Robert Bork once described it. [3] Georgetown Law professor Randy Barnett argues in Restoring the Lost Constitution that the Ninth Amendment establishes a “presumption of liberty” for all unenumerated rights. This fringe opinion in American jurisprudence would upend almost every aspect of rights-related constitutional litigation. As such, this paper will discuss the viability of Barnett’s theory by examining the political, historical, and philosophical origins of the Ninth Amendment within the context of America’s founding. Then, this paper will analyze the current implementation of the Ninth Amendment and competing theories. Finally, it will deliver a “verdict” for Barnett’s theory alongside historical, textual, and jurisprudential considerations.
II. THE NINTH AMENDMENT AND NATURAL RIGHTS
Many of America’s Founding Fathers embraced classical liberal principles. Leading thinkers (and later revolutionaries) in the American Enlightenment regularly drew upon classical liberal thought in their writings; some, like Thomas Paine, became influential classical liberal philosophers in their own right. [4] Classical liberal philosophy broadly views human nature as positive. According to John Locke’s Second Treatise of Government, often considered an establishing text of the classical liberal tradition, humans are rational beings in a state of nature—i.e., when existing outside government. In this condition, humans hold a wide body of rights, derived not from the state but from the simple laws of nature. The natural body of rights include the ability to speak freely, move without restriction, and worship as one chooses. A government should only restrict such natural rights in extraordinary circumstances, such as when subjects consent to a "social contract" to protect the greater good and preserve social order. [5]
Classical liberalism permeated revolutionary thought in colonial America. Paine's sensational and provocative publication Common Sense perhaps best exemplifies this. Common Sense opens by making a clear distinction between society and government: People consent to the rule of government (the social contract) to “restrain our vices.” [6] The government’s ability to restrain certain natural rights (our vices) therefore, according to Paine, constitutes a “necessary evil.” [7] These ideas, drawn directly from the classical liberal tradition, reverberated throughout a young America on the eve of revolution: Around 20% of colonists owned the pamphlet, and likely many more heard it spoken aloud in taverns and town halls. [8]
Thus, classical liberalism guided early American political thought, and especially informed the Constitution’s principles of representative government, checks, balances, and the separation of powers. As such, because the concept of natural rights is a cornerstone of classical liberal thought—and by extension, American political thought—the Bill of Rights seems like an obvious addition to the Constitution. It seems counterintuitive that the Constitution should not explicitly protect important natural rights such as the freedom of speech, assembly and worship, and so on. However, the implicit exclusion of all other rights concerned some Founding Fathers like James Madison
Madison argued that the enumeration of rights would expand rather than limit state power. Rather, he believed the Constitution should be a “bill of powers”—broadly a list of specific rights the government may violate—rather than a limitation on otherwise infinite powers. [9] Madison proposed a simple solution: the Ninth Amendment [10] The Constitution would enumerate especially important rights, but could not deny other rights (i.e., unenumerated natural rights) “retained by the people.” [11] Indeed, the language of the Ninth Amendment tacitly recognizes classical liberal thought: The state does not grant rights. Instead, the people retain them, giving them up only when they consent to a “social contract.” [12]
III. RESTORING A LOST CONSTITUTION?
Barnett’s Restoring the Lost Constitution draws heavily upon Madison’s reasoning, even partly dedicating the book to him. Barnett agrees that the American political tradition stems from classical liberalism. Therefore, the Constitution does not derive its legitimacy solely from “majoritarian consent.” [13] Rather, the Constitution’s legitimacy comes from its ability to provide “adequate procedural assurances” (separation of powers, or church and state, and so on) that laws passed by the majority respect natural rights or prove necessary in some other capacity. [14] The Constitution therefore, serves as America’s social contract. Barnett concludes that, like a contract, people should interpret the document through its original meaning (i.e., how would a typical American have understood it at the time of writing). [15]
Barnett argues that the original meaning and intent of the Ninth Amendment not only protect natural rights (as Madison argued) but also create a presumption of liberty for all rights-related constitutional litigation. For example, the phrase, “others retained by the people,” likely directly references natural rights. [16] Again, the classical liberal tradition establishes that natural rights exist independently of the state: The Ninth Amendment could refer to nothing else (in terms of rights). [17] Therefore, Barnett argues that the Constitution implicitly protects natural rights—enumerated or not—through a plain textual interpretation of the Ninth Amendment. Barnett also argues that the Ninth Amendment was explicitly intended to act as a safeguard for unenumerated rights, drawing upon Madison’s own writings and speeches that advocated for its inclusion in the Constitution.
All considered, Barnett charges the American judicial system with advancing a “presumption of constitutionality” doctrine that entirely ignores the Ninth Amendment. [18] This doctrine, according to Barnett, declares that because “assessing constitutionality is so uncertain, a judgment by a legislature…should be respected unless it is clearly wrong.” [19] The judiciary, rather than protecting Ninth Amendment unenumerated rights, tacitly allows rights-violating majoritarian actions so long as they do not violate enumerated rights. [20] This doctrine culminated in O’Gorman & Young, Inc. v. Hartford Fire Insurance (1931), where the Supreme Court “put the burden of proof on those challenging a statute.” [21] In other words, courts presume that the government is justified in violating unenumerated rights—unless litigants proven otherwise. Instead, Barnett argues that if the Ninth Amendment places unenumerated rights in equal stature with enumerated rights, courts should treat them similarly, placing the burden of proof on the government. Under this framework, courts should begin with the assumption that individuals are free to exercise their natural rights—enumerated or not—unless the government can demonstrate that a law restricting it is “necessary and proper” (the definition of which is another debate entirely). [22] This defines Barnett’s “presumption of liberty.” [23]
IV. THE NINTH AMENDMENT TODAY
Of course, courts have not entirely ignored the Ninth Amendment: the presumption of constitutionality does not apply to all unenumerated rights. Judicial recognition of the Ninth Amendment as a substantive constitutional clause began in 1965 with Griswold v. Connecticut. This case involved a constitutional challenge to Connecticut’s prohibition of “any drug, medicinal article or instrument for the purpose of preventing conception.” [24] The Supreme Court struck down this prohibition on the grounds of an unenumerated right to privacy. However, the majority ruling did not directly invoke the Ninth Amendment. Griswold did not protect the right to privacy ipso facto as an unenumerated right, but placed it under the “penumbra of rights” created by the Bill of Rights. [25] In other words, the Court established that the Constitution only protects unenumerated rights when enumerated rights imply them—a far cry from the unitary recognition of unenumerated rights implied by the Ninth Amendment.
Subsequent cases have gradually replaced the penumbra doctrine with Fourteenth Amendmentderived substantive due process. As early as 1967, Loving v. Virginia exclusively utilized substantive due process to recognize the unenumerated right to marriage, striking down anti-miscegenation laws. [26] Roe v. Wade (1973) reaffirmed the right to privacy (vis-á-vis abortion) using a combination of substantive due process and the Griswold penumbra doctrine. [27] Obergefell v. Hodges (2015) reaffirmed the right to marriage in Loving with exclusive reference to substantive due process. [28] Overall, no judicial recognition of unenumerated rights has invoked anything resembling Barnett’s interpretation of the Ninth Amendment.
However, today’s Supreme Court increasingly renders all precedents moot. In Dobbs v. Jackson Women's Health Organization (2022), the Supreme Court held that recognition of unenumerated rights must meet two qualifications. First, they must be “deeply rooted in this Nation’s history and tradition.” By tying rights directly to the state, the Court ironically rejects the classical liberal principles that historically and traditionally guided America’s founding. Secondly, unenumerated rights must be “implicit in the concept of ordered liberty.” [29] The concept of ordered liberty does not itself contradict classical liberalism: The public gives up some liberties (i.e., natural rights) to the state partly to achieve societal order. It is, however, incredibly difficult to predict the implications of this new doctrine. Either way, if Dobbs is the new precedent, the Ninth Amendment shall once again “play virtually no role in modern constitutional litigation,” its history and meaning ignored by supposed originalists. [30] Thus ends the brief, but flawed, renaissance of the forgotten amendment.
V. THE NINTH AMENDMENT LIMITED
Barnett’s expansive vision for the Ninth Amendment faces valid criticism. Robert Bork, for instance, said the following about the Ninth Amendment:
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 inkblot 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 inkblot if you cannot read it. [31]
According to Barnett, Bork’s apparent dismissal of the Ninth Amendment alarmed constitutional scholars, especially conservative originalists. [32] However, Bork does not necessarily equate the Ninth Amendment to an “inkblot” to dismiss it, but to highlight its lack of clarity. [33] Bork makes a potentially compelling point that the Ninth Amendment is “an ambiguous text with an ambiguous history.” [34] Indeed, the philosophical, political, and historical origins of the Ninth Amendment are perhaps not as straightforward as Barnett argues. Legal scholar Kurt T. Lash finds that Madison “viewed the Ninth as working alongside the Tenth Amendment…[to] preserv[ing] the right to local self-government.” [35] In fact, United Public Workers v. Mitchell (1947), one of the few pre-Griswold judgments concerning the Ninth Amendment, held this interpretation. [36]
Furthermore, modern conservative originalists adopt a similarly dismissive view of the Ninth Amendment: They have “either ignored it or argued it away.”37 Former Supreme Court Justice Antonin Scalia, the “intellectual godfather” of legal conservatism, believed that the Ninth Amendment does not confer any unenumerated rights—however “deeply rooted” they might be in American jurisprudence.38 For example, Scalia’s dissent in Troxel v. Granville (2000) argued that the Ninth Amendment’s limited language (a simple refusal to “deny or disparage” other rights) does not grant courts the ability to define unenumerated rights, or enforce them “against laws duly enacted by the people.”39 Scalia was thus concerned that federal courts’ ability to define unenumerated rights would amount to “ushering in a new regime of judicially prescribed law.”40 As Scalia might have argued, Barnett’s view of the Ninth Amendment would result in immense judicial overreach, violating the separation of intra-federal and federal-state powers.
VI. PHILOSOPHICAL AND HISTORICAL OBJECTIONS
Barnett’s argument for a Ninth Amendment-derived presumption of liberty draws its strength largely from a particular understanding of its original meaning and intent. In regards to original meaning, Barnett asserts that the phrase “others [rights] retained by the people” in the Ninth Amendment must have been widely understood by the American public at the time of writing to refer to unenumerated rights given the influence of classical liberal thought in the early American political tradition. Secondly, Barnett argues that the phrase “shall not be construed to deny or disparage” was understood by the contemporary American public to positively protect these unenumerated rights. Already, Barnett’s argument runs into potential trouble. “Shall not be construed…” rests upon the clausal subject “the enumeration in the Constitution…” Therefore, the Ninth Amendment could act only as a safeguard against expressio unius est exclusio alterius arguments: that the explicit expression of certain rights does not unilaterally exclude all others. As such, the Ninth Amendment neither actively protects unenumerated rights nor places them on the same ground as enumerated rights. Rather, it simply invalidates one form of argument against their existence. This interpretation in no way justifies a presumption of liberty.
According to Barnett, “the Constitution must be interpreted according to its original meaning,” and if and only if that should prove insufficient, its original intent. [41] There thus already exists a valid textual reasoning within Barnett’s own interpretive framework against a presumption of liberty. However, for the sake of argument, it is necessary to examine Barnett’s conceptualization of original intent. To clarify, this is not the author’s original intent, but that of a broader classical liberal society that views constitutional legitimacy as being derived from the protection of natural rights. Barnett writes: “where original meaning is incomplete or vague, the text must be “construed,” as opposed to “interpreted,” in a way that enhances its legitimacy without contradicting the meaning that does exist.”[42] As such, if one holds classical liberal principles as objectively true (and thus “original”), irrespective of the actual views of that society, no real criticism exists on these grounds.
Barnett’s usage of classical liberal principles as an interpretive framework rests upon the assumption that classical liberalism constituted the primary guiding philosophy behind the founding of the United States. However, Yale political scientist Rogers M. Smith argues that “American political culture is better understood as the…product of multiple political traditions, than as the expression of hegemonic liberal[ism].”[43] For instance, the very existence of slavery as an institution protected by a supposedly-classical liberal social contract might dispel notions of a “natural rights Revolution.” If this is true, it becomes reductionist to rely totally on classical liberal thought as an interpretive framework for constitutional legitimacy.
Numerous compromises—some practical, others ideological—shaped the Constitution, often in ways that clashed with classical liberal principles. Perhaps the most notable examples relate to slavery: e.g., compromises between pro- and anti-slavery factions in the Constitutional Convention. Madison (himself a slave owner and no great personal ambassador of classical liberalism) proposed the infamous “3/5ths Compromise.” This decidedly anti-liberal compromise counted enslaved Africans as 3/5ths of a person for purposes of congressional representation and taxation. [44] Thus, if classical liberalism cannot be definitely established as the source of constitutional legitimacy, Barnett’s view of the Ninth Amendment as enshrining natural rights also cannot be definitively true.
VII. VERDICT AND CONCLUSIONS
While Barnett’s justification for a Ninth Amendment-derived presumption of liberty rests on relatively strong historical and philosophical grounds, there clearly exist strong arguments to the contrary. The very basis of Barnett’s argument—of a classical liberal Founding—is anything but definitive. Neither does a textualist (original meaning) reading of the Ninth Amendment reveal a positive protection of unenumerated rights, nor their placement as equals to enumerated rights. These ambiguities seem to demonstrate the importance of respecting judicial precedent—of which Barnett’s interpretation is completely devoid—and judicial restraint. Logical reasoning exists for the judiciary to avoid throwing aside stare decisis and making a sweeping, destabilizing change to established constitutional norms: the unwritten, extra-textual Constitution. [45] Finally, in regards to judicial restraint, granting courts the power to define and enforce unenumerated rights could result in immense judicial overreach: an America ruled by unelected legislators in robes. [46] All considered, the ambiguities of the Ninth Amendment’s text and history—along with the risks of judicial instability and overreach—do not support a constitutional basis for Barnett’s presumption of liberty.
Endnotes
[1] Ruor Heimmson, “The Forgotten Ninth Amendment / Directory of American Judges / Fountain of Justice,” New York Law School Law Review 2 (1956): 132, https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1768&context=nyls_law_review.
[2] Michael W. McConnell, “The Ninth Amendment in Light of Text and History,” Stanford Public Law Working Paper No. 1678203 (Stanford Law School, September 1, 2010), p. 13, https://law.stanford.edu/wp-content/uploads/sites/default/files/publication/259408/doc/slspublic/ssrn-id1678203.pdf.
[3] Glenn Harlan Reynolds, “Judge Bork’s Inkblot,” New York Times, September 12, 2005, https://www.nytimes.com/2005/09/12/opinion/judge-borks-inkblot.html.
[4] “Thomas Paine,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, last modified August 16, 2021, https://plato.stanford.edu/entries/paine/.
[5] John Locke, Second Treatise of Government (Project Gutenberg, 2008), https://www.gutenberg.org/ebooks/7370.
[6] Thomas Paine, Common Sense (Project Gutenberg, 2003), https://www.gutenberg.org/ebooks/147.
[7] Ibid.
[8] NCC Staff, “Thomas Paine: The Original Publishing Viral Superstar,” National Constitution Center, January 10, 2023, https://constitutioncenter.org/blog/thomas-paine-the-original-publishing-viral-superstar-2.
[9] William T. Hutchinson et al., eds., The Papers of James Madison, https://presspubs.uchicago.edu/founders/documents/v1ch14s50.html.
[10] Ibid.
[11] U.S. Const. amend. IX.
[12] Ibid.
[13] Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, NJ: Princeton University Press, 2004), 40.
[14] Ibid., 32.
[15] Ibid., 108.
[16] U.S. Const. amend. IX.
[17] Ibid.
[18] Barnett, Restoring the Lost Constitution, 224.
[19] Ibid., 225.
[20] Ibid., 225.
[21] Ibid., 225.
[22] Ibid., 336.
[23] Ibid., 333.
[24] Griswold v. Connecticut, 381 U.S. 479 (1965).
[25] Ibid.
[26] Loving v. Virginia, 388 U.S. 1 (1967).
[27] Roe v. Wade, 410 U.S. 113 (1973).
[28] Obergefell v. Hodges, 576 U.S. 644 (2015).
[29] Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
[30] McConnell, “The Ninth Amendment in Light of Text and History,” 13.
[31] Kurt T. Lash, “Of Inkblots and Originalism: Historical Ambiguity and the Case of the Ninth Amendment,” Harvard Journal of Law & Public Policy 31 (2008): 469, https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=2463&context=law-faculty-publications.
[32] Barnett, Restoring the Lost Constitution, xii.
[33] Lash, “Of Inkblots and Originalism,” 469.
[34] Ibid., 469.
[35] Ibid., 479.
[36] United Public Workers v. Mitchell, 330 U.S. 75 (1947).
[37] Roger Pilon, “Justice Scalia’s Originalism: Original or Post–New Deal?” Cato Supreme Court Review (2016): x, https://www.cato.org/sites/cato.org/files/serials/files/supreme-court-review/2016/9/2016-supreme-court-review-foreword.pdf.
[38] Ross Douthat, “Antonin Scalia, Conservative Legal Giant,” New York Times, February 13, 2016, https://www.nytimes.com/2016/02/13/opinion/antonin-scalia-conservative-legal-giant.html.
[39] Troxel v. Granville, 530 U.S. 57, 91 (2000) (Scalia, J., dissenting).
[40] Ibid.
[41] Barnett, Restoring the Lost Constitution, 88.
[42] Ibid., 4.
[43] Rogers M. Smith, “Beyond Tocqueville, Myrdal, and Hartz: The Multiple Traditions in America,” The American Political Science Review 87, no. 3 (September 1993): 549, https://www.jstor.org/stable/2938735.
[44] James Madison, “Madison Debates Wednesday July 11, 1787,” in The Avalon Project: Debates in the Federal Convention of 1787, Yale Law School, https://avalon.law.yale.edu/18th_century/debates_711.asp.
[45] Akhil Reed Amar, America’s Unwritten Constitution, https://ylr.law.yale.edu/pdfs/v60-1/W13.Amar_excerpt.pdf.
[46] Troxel v. Granville, 530 U.S. at 91 (Scalia, J., dissenting).