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Rights Retained by the People Rights Retained by the People During the much-publicized Senate hearings on his nomination to the U.S. Supreme Court in 1987, Judge Robert Bork famously analogized the Ninth Amendment to a constitutional “inkblot,” arguing that judges could not use the amendment to decide cases “without knowing something of what it means.” Judge Bork’s inkblot analogy provoked a wave of criticism from self-described “noninterpretivists,” who argued that the Ninth Amendment’s recognition of unenumerated “rights retained by the people” demonstrated the Founders’ rejection of Bork’s jurisprudential approach. During the much-publicized Senate hearings on his nomination to the U.S. Supreme Court in 1987, Judge Robert Bork famously analogized the Ninth Amendment to a constitutional “inkblot,” arguing that judges could not use the amendment to decide cases “without knowing something of what it means.” Judge Bork’s inkblot analogy provoked a wave of criticism from self-described “noninterpretivists,” who argued that the Ninth Amendment’s recognition of unenumerated “rights retained by the people” demonstrated the Founders’ rejection of Bork’s jurisprudential approach. This controversy also inspired a number of originalist scholars to undertake their own historical investigations to provide a more satisfactory answer to the question of how originalist judges should go about interpreting and applying the Ninth Amendment. These investigations have uncovered a wealth of information regarding the circumstances that led to the amendment’s inclusion in the Bill of Rights and the specific concerns it was designed to address. But these impressive historical excavations have not led to a consensus view among originalists regarding the amendment’s proper interpretation. Instead, there are presently three very different originalist theories of the Ninth Amendment’s original meaning and modern significance. This controversy also inspired a number of originalist scholars to undertake their own historical investigations to provide a more satisfactory answer to the question of how originalist judges should go about interpreting and applying the Ninth Amendment. These investigations have uncovered a wealth of information regarding the circumstances that led to the amendment’s inclusion in the Bill of Rights and the specific concerns it was designed to address. But these impressive historical excavations have not led to a consensus view among originalists regarding the amendment’s proper interpretation. Instead, there are presently three very different originalist theories of the Ninth Amendment’s original meaning and modern significance. Before discussing the leading originalist theories of the Ninth Amendment, it will be useful to briefly summarize the circumstances that led to its inclusion in the Bill of Rights. The story of the Ninth Amendment’s adoption begins with the decision by the Philadelphia convention to omit a bill of rights from the original Constitution of 1787. The absence of a bill of rights was among the most controversial features of the original constitutional design and provided a rallying point for Anti-Federalist opposition during the state ratification debates. Supporters of ratification quickly converged on a defense of the decision to omit a bill of rights that was first articulated by Philadelphia Framer James Wilson. Wilson defended the Framers’ decision to leave even very popular rights, such as freedom of the press, unprotected because the “very declaration” of such a right in the Constitution “might have been construed to imply that some degree of power was given” to the federal government with respect to the press “since we undertook to define its extent.” Before discussing the leading originalist theories of the Ninth Amendment, it will be useful to briefly summarize the circumstances that led to its inclusion in the Bill of Rights. The story of the Ninth Amendment’s adoption begins with the decision by the Philadelphia convention to omit a bill of rights from the original Constitution of 1787. The absence of a bill of rights was among the most controversial features of the original constitutional design and provided a rallying point for Anti-Federalist opposition during the state ratification debates. Supporters of ratification quickly converged on a defense of the decision to omit a bill of rights that was first articulated by Philadelphia Framer James Wilson. Wilson defended the Framers’ decision to leave even very popular rights, such as freedom of the press, unprotected because the “very declaration” of such a right in the Constitution “might have been construed to imply that some degree of power was given” to the federal government with respect to the press “since we undertook to define its extent.” Wilson’s argument drew upon the interpretive canon inclusio unius est exclusio alterius (the inclusion of one thing necessarily excludes all others), which was widely accepted by courts at the time. Federalists in other states quickly rallied to Wilson’s argument, contending that if a bill of rights had been included in the Constitution, courts might construe the limited enumeration of rights to deny the existence of other rights and to constructively enlarge the scope of federal powers. As Alexander Hamilton warned in The Federalist No. 84, a bill of rights that “contain[ed] various exceptions to powers which are not granted” would “afford a colorable pretext to claim more than were granted.” Instead of relying on a limited and almost certainly incomplete enumeration of particular rights that the people would retain after the Constitution’s adoption, Federalists argued that such rights would be better protected by the limited enumeration of federal powers. Wilson’s argument drew upon the interpretive canon inclusio unius est exclusio alterius (the inclusion of one thing necessarily excludes all others), which was widely accepted by courts at the time. Federalists in other states quickly rallied to Wilson’s argument, contending that if a bill of rights had been included in the Constitution, courts might construe the limited enumeration of rights to deny the existence of other rights and to constructively enlarge the scope of federal powers. As Alexander Hamilton warned in The Federalist No. 84, a bill of rights that “contain[ed] various exceptions to powers which are not granted” would “afford a colorable pretext to claim more than were granted.” Instead of relying on a limited and almost certainly incomplete enumeration of particular rights that the people would retain after the Constitution’s adoption, Federalists argued that such rights would be better protected by the limited enumeration of federal powers. But this defense of the Philadelphia convention’s decision to omit a bill of rights left Federalists open to a devastating rejoinder. Because the Constitution that emerged from Philadelphia already protected a very limited set of rights, including the right of habeas corpus and the right to trial by jury in criminal cases, Anti-Federalists argued that the Constitution already posed the threat of expansive interpretation that Federalists claimed would result from enumerating rights. Federalists never settled on a satisfactory response to this objection. Nonetheless, ratification in the states proceeded apace, though increasingly supported by a tacit understanding that additional rights would be constitutionally protected through the Article V amendment process following ratification. But this defense of the Philadelphia convention’s decision to omit a bill of rights left Federalists open to a devastating rejoinder. Because the Constitution that emerged from Philadelphia already protected a very limited set of rights, including the right of habeas corpus and the right to trial by jury in criminal cases, Anti-Federalists argued that the Constitution already posed the threat of expansive interpretation that Federalists claimed would result from enumerating rights. Federalists never settled on a satisfactory response to this objection. Nonetheless, ratification in the states proceeded apace, though increasingly supported by a tacit understanding that additional rights would be constitutionally protected through the Article V amendment process following ratification. Several state ratifying conventions proposed lists of amendments that they wished to see adopted following ratification. Although none of these proposals perfectly mirrored the language that was ultimately included in the Ninth Amendment, two sets of such proposed amendments have been identified by modern originalists as potentially relevant to the amendment’s original meaning. The first set of proposals called for an amendment that would expressly recognize the existence of “retained” individual natural rights. A characteristic example of such a proposal, suggested by Virginia’s ratifying convention, acknowledged the existence of “certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity,” including “the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” The second set of amendment proposals, which were targeted more directly at the Federalists’ concerns regarding the inclusio unius canon, called for a rule of construction providing that provisions expressly withholding particular powers from Congress should not be read to imply the existence of unenumerated federal powers. Several state ratifying conventions proposed lists of amendments that they wished to see adopted following ratification. Although none of these proposals perfectly mirrored the language that was ultimately included in the Ninth Amendment, two sets of such proposed amendments have been identified by modern originalists as potentially relevant to the amendment’s original meaning. The first set of proposals called for an amendment that would expressly recognize the existence of “retained” individual natural rights. A characteristic example of such a proposal, suggested by Virginia’s ratifying convention, acknowledged the existence of “certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity,” including “the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” The second set of amendment proposals, which were targeted more directly at the Federalists’ concerns regarding the inclusio unius canon, called for a rule of construction providing that provisions expressly withholding particular powers from Congress should not be read to imply the existence of unenumerated federal powers. Following ratification, James Madison became the leading champion of a federal bill of rights as a representative from Virginia in the First Congress. Madison synthesized several of the state ratifying conventions’ proposals into a list of proposed amendments that provided an important template for the first ten amendments to the Constitution. One of Madison’s proposed amendments, which eventually evolved into the current Ninth Amendment, combined aspects of both the “retained” natural rights provisions proposed by various state conventions and the separate set of proposals calling for an interpretive rule prohibiting the constructive enlargement of federal powers. Madison’s proposal declared that “exceptions” of constitutional powers “made in favor of particular rights” should “not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution. . . .” Following ratification, James Madison became the leading champion of a federal bill of rights as a representative from Virginia in the First Congress. Madison synthesized several of the state ratifying conventions’ proposals into a list of proposed amendments that provided an important template for the first ten amendments to the Constitution. One of Madison’s proposed amendments, which eventually evolved into the current Ninth Amendment, combined aspects of both the “retained” natural rights provisions proposed by various state conventions and the separate set of proposals calling for an interpretive rule prohibiting the constructive enlargement of federal powers. Madison’s proposal declared that “exceptions” of constitutional powers “made in favor of particular rights” should “not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution. . . .” In a speech introducing the proposed amendments in the House, Madison explained the significance of this provision in the following terms: In a speech introducing the proposed amendments in the House, Madison explained the significance of this provision in the following terms: It has been objected . . . against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. It has been objected . . . against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.

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