The Ninth Amendment is different because it expressly discredits text. It tells us that the status of putative unenumerated rights should not be determined by reference to text, .... the text of the Amendment provides that text should not be read as settling the controversy over natural rights. ... must therefore look outside the text to decide whether we should recognize natural rights and, if so, what those rights should be. (32)

If these rights exist, then it would surely “disparage” them to deny them judicial enforcement, and whatever else we do, we cannot rely on text to ground such disparagement. (35)

There are no unenumerated rights.
If there are such rights, they are not enforeable under the Constitution.
The actual amendment says only that the enumeration of rights should not be read as denying or disparaging other rights, not that these other rights necessarily exist. At most, the Amendment implies that these rights might exist or that some people might think that they exist, not that they actually exist. (25)


Contra-Federalism: It seems strange, to say the least, that the framers would have deliberately eliminated the “powers” language and included the “rights” language if the amendment was directed at powers rather than rights. (17) [emphasis added]
Contra-Rights: Those who favor the individual [natural] rights model bear the burden of explaining why Congress would pass a measure that, at most, indirectly did precisely what it repeatedly refused to do directly. (23) [emphasis added]

2023-09-18: Seidman Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism 2010

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