Blindness to a basic understanding of the framers' design of our federal structure is largely responsible for the confusion that surrounds our understanding of the Ninth Amendment. The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In Griswold v. Connecticut, Justices Black and Stewart explained in separate dissenting opinions that the Ninth Amendment's reference to the other rights “retained by the people” alluded to the collective and individual rights the people “retained” by virtue of granting limited, enumerated powers to the national government. While the overwhelming evidence supports this interpretation of the amendment, it has been widely rejected. The single largest barrier to this interpretation's acceptance has been that the modern American mind has difficulty accepting the idea that the federal system itself was actually considered a sufficient guarantor of popular rights by those who drafted the Constitution.
Strikingly, however, during the past few years a fascinating countertheme has emerged in the literature advocating a “fundamental rights” reading of the Ninth Amendment. Commentators have increasingly come to acknowledge that the federal system is properly understood as a structure for securing popular rights and that an important purpose of the Ninth Amendment was to preserve the rights that were deemed to be inherent in this structure. One might have hoped that this recognition of the connection between the federal system and the preservation of popular rights would prompt commentators to give the traditional understanding of the Ninth Amendment a new and fairer hearing. But commentators simply read into the concern for popular rights embodied in the federal system the idea of implied affirmative limitations on the powers granted the national government by the Constitution.
The purpose of this article is to show that these attempts to read modern fundamental rights law back into the structure of the Constitution partake of the same fallacious assumptions that caused earlier commentators to improperly reject the idea that the federal structure could be the source of the other rights referred to in the Ninth Amendment. This article will briefly describe and criticize three variations on the common theme that the Ninth Amendment merely reflects a constitutional federal structure that includes unenumerated limitations on the powers granted to Congress in Article I.
1996 BYU L. Rev. 351.
McAffee, Thomas B., "Federalism and the Protection of Rights: The Modern Ninth Amendment’s Spreading Confusion" (1996). Scholarly Works. Paper 523.