Dean William Treanor critiques constitutional textualism, contending that it pays too much attention to the words, grammar, and placement of clauses in the Constitution, and too little to the history leading to the adoption of the interpreted language. An important illustration is Professor Amar's treatment of the Ninth Amendment in his well-known book on the Bill of Rights. This treatment shares the perspective that history frequently sheds light on the meaning of constitutional text, but contends that the history yielding the Ninth Amendment demonstrates that it was drafted to secure the rights retained by the granting of limited federal powers—and hence the collective right of the people of the states to make decisions about government, including the extent to which rights were to be protected. The modern debate over the original meaning of the Ninth Amendment, moreover, reflects and embodies that the debate concerns the appropriate reading of a positivist Constitution.
William S. Boyd Sch. of Law, Univ. of Nev. Las Vegas, Working Paper No. 09-09, 2009.
McAffee, Thomas B., "Taking History Seriously: Reflections on a Critique of Amar’s Treatment of the Ninth Amendment in His Work on the Bill of Rights" (2009). Scholarly Works. Paper 509.