This Article presents the case for the residual rights reading of the ninth amendment as against the affirmative rights interpretation. The author evaluates the merits of these opposing views to determine whether the proponents of the new orthodoxy have really made the case for discarding the received reading. This analysis of the recent literature also raises questions about the way in which constitutional scholarship is conducted. The author concludes that the original meaning of the ninth amendment lends critical support to the project of originalist jurisprudence in the individual rights area and undercuts modem claims linking the ninth amendment to the general tradition of an unwritten constitution. At the same time, however, the materials discussed in this Article provide no clear verdict as to the historical significance of general theories of constitutionalism that see individual rights as having a legal existence, whether or not embodied in any text.
90 Colum. L. Rev. 1215 (1990).
McAffee, Thomas B., "The Original Meaning of the Ninth Amendment" (1990). Scholarly Works. Paper 520.