Seidman 2010 Our Unsettled Ninth Amendment

Summary

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)

Reasoning

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

• In Part I, I present a new and, I hope, persuasive, originalist account of the Ninth Amendment. The amendment puts off to another day a final reckoning of the extent to which we are bound by constitutional text. (3)
• As Part II explains, the Ninth Amendment states a truth that we would have to deal with whether or not it was part of the original text: No matter how comprehensive, no text can control the force of ideas and commitments that lie outside the text. This simple truth leaves the status of liberal constitutionalism permanently and inevitably unsettled. The day of final reckoning will never arrive. (3)
• I. A Nonoriginalist’s Account of the Ninth Amendment’s Original Meaning
• [Lash] Whereas the Tenth Amendment prohibits the exercise of unenumerated federal powers, the Ninth prohibits broad interpretation of the enumerated powers. (4)
• [Barnett] These rights, too numerous to list or even imagine, amount to a general presumption against government interference with an almost infinite range of private conduct that does not, in turn, interfere with the rights of others. (4)
• Although the enumeration of some rights should not be construed to “disparage” unenumerated rights, it does not follow that these unenumerated rights exist or merit constitutional protection. (5)
• A. A Word about Methodology
• Lash must contend with the familiar problem that the intention of the individual ratifiers of the Ninth Amendment is frequently inconsistent, usually unknowable, and often nonexistent. (5)
• [Barnett problem] cannot establish the public meaning of the Ninth Amendment by consulting eighteenth century dictionaries .... (5)
• [Barnett problem] virtually none of these people left a historical record of their thinking, how could we possibly determine what the majority view was? (7)
• My argument is much more modest – that originalist scholars have overlooked a highly plausible meaning for the amendment and that this account makes at least as much sense as rival accounts. (8)
• ... even if my interpretation of the Ninth Amendment is completely wrongheaded – indeed even if the Ninth Amendment had never been written– my interpretation of the Amendment nonetheless identifies a problem for which standard constitutional theory has no answer.(8)
• B. The Background
• Antifederalists made a particular point of criticizing the draft for lack of a bill of rights. Relatedly, they claimed that the Constitution was open to a reading that gave the federal government unlimited powers. (8)
• Federalist defenders of the draft made three responses. First, they insisted that the Constitution created a federal government of limited, delegated, powers. Second, they claimed that a bill of rights might actually be dangerous because it implied that such power might exist. Finally, they argued that any specification of rights would inevitably be incomplete and that by enumerating some rights, a bill of rights might imply that others were not worthy of protection. (9)
• C. The Federalism View [Lash]
• Kurt Lash and some others [Thomas McAfee, Russell Caplan] interpret this history as establishing that the Ninth Amendment was designed to prevent a broad interpretation of federal power that would deprive state citizens of the right to local self‐government. (13)
• Because the Bill of Rights applied only the federal government, its effect was to leave the areas it covered open to state regulation. In this sense, the entire Bill of Rights amounted to limitations on federal power and, to that extent, guaranteed a right of state self‐governance. (15)
• Only with the experience of secession and reconstruction, with the post Civil War constitutional amendments and the incorporation of the Bill of Rights, did people come to see the federal Constitution as a significant protection against state encroachment on individual rights. (16)
• Although its scope was limited to the federal government, its intent and effect was nonetheless to protect individual rights within that scope. (16)
• ... the [Ninth] Amendment seems to be directed at a narrower evil: the inference of a denial or disparagement of unenumerated rights from the enumeration of constitutional rights. The constitutional rights that the Amendment refers to include, most prominently, the [enumerated] Bill of Rights protections to which the Ninth Amendment was appended. (17) [9th deny, disparage unenumerated rights, not previously enumerated rights].
• 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]
• At most, Lash’s argument establishes that Madison and others thought the Ninth Amendment limited federal powers even when those powers did not run up against individual rights. There is nothing in his argument suggesting that those powers were somehow unlimited when they did run up against rights. (21)
• D. The Individual Rights View [Barnett]
• Barnett’s position, like Lash’s, overlooks the fact that if the framers had wanted to provide constitutional protection for such rights, there was a very direct way to do so. Many state constitutions had express declarations of natural rights. (21)
• ... on five separate occasions, Congress was presented with provisions that would have expressly accomplished what Barnett claims the Ninth Amendment achieved by implication. It failed to adopt any of these measures. (22)
• If the Ninth Amendment clearly mandated protection for natural rights, this might provide an explanation for the rejection of other natural rights language. But at very best, the Ninth Amendment protects natural rights by implication. 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]
• Moreover, a careful examination of the text of the Ninth Amendment makes clear that it does not even protect natural rights indirectly. (23) [emphasis added]
• It is, of course, possible for the Constitution to imply rights, just as it might imply powers. (25)
• 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)
• Thus, one might easily accept the proposition that enumeration of some rights does nothing to change the status of putative unenumerated rights, but still insist that these rights do not exist or should not be constitutionally enforced. (25)
• [argue for interpreting the amendment as supporting the nonexistence by creating another scenario using the same language and asserting the same claim.] (26)
• The belief in natural rights was quite widespread at the time of the framing. But it is one thing to believe that such rights exist, and another to constitutionalize this belief. (26)
• E. The Unsettlement View
• Although he [Madison] himself was unquestionably a proponent of minority rights, the House was at best indifferent to his proposals and at worst completely hostile. (26)
• At the time the House debated his proposals, two states remained outside the Union, and other states plausibly threatened to convene a new constitutional convention if no action were taken. (27)
• Madison faced opposition from two sources. First, some members of Congress thought that a Bill of Rights was unnecessary or unduly constricting. [Second] Some members of Congress, probably including Madison himself, favored constitutional protection for natural rights. But that disappointment might turn into opposition if they thought that the enactment of some rights would actually make matters worse by prejudicing the protection of others. (28, 29)
• Confronted by resistance on both sides, Madison did what great politicians always do: He kicked the can down the road. The Ninth Amendment ... tells proponents of natural rights that a vote for the Bill of Rights would not jeopardize their position. ... opponents of constitutionalizing nebulous rights ... had successfully beaten back efforts to include any express guarantee of the rights. (30)
• II. The Unsettled Ninth Amendment
• The Ninth Amendment means that it is up to us rather than the Framers to decide whether there are unenumerated rights and whether, if there are such rights, they should be judicially enforced. (30)
• Textualists tell us that judges and others should stay within the four corners of the constitutional text when deciding or opining on a constitutional issue. But the text of the Ninth Amendment prohibits us from staying within the four corners of the text. (32)
• 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, whether the meaning of that text is derived from structure, intertextuality, ordinary usage, or original intent. The Ninth Amendment therefore forces textualism to swallow its own tail. Although it neither embraces nor rejects natural rights, the text of the Amendment provides that text should not be read as settling the controversy over natural rights. A faithful textualist must therefore look outside the text to decide whether we should recognize natural rights and, if so, what those rights should be. (32)
• The Ninth Amendment tells us that we must, as a matter of constitutional obligation, consider the validity of rights claims that are not grounded in the Constitution. Because the rights are not grounded in the Constitution, it follows that their validity will necessarily depend on arguments that are also outside the Constitution. In this way, the text denies its own authority. (34)
• The actual Ninth Amendment, in contrast, deprives the text of authority by telling us not to consult the text when deciding on the legal status of extratextual norms [unenumerated rights]. For just this reason, the conventional view that rights standing outside the Constitution have no legal status does not hold in the Ninth Amendment context. (34)
• 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)
• Although the [Ninth] Amendment means that we must come to grips with natural rights arguments, it does not follow that we must accept them. On the contrary, the Ninth Amendment leaves it up to us to decide whether the case for nontextual, natural rights has been made out. ... the Ninth Amendment leaves the status of these rights unsettled. (37)
• On all accounts, including Barnett’s and Lash’s, the Ninth Amendment was written because its authors recognized that no text can capture all the concerns that we need to consider when we try to do justice. But this limitation on text also applies to the Ninth Amendment itself and would be there, and we would have to respond to it, no matter what the Ninth Amendment said. (39)
• The Eleventh Amendment ... provides a useful analogy. (39)
• Despite this language, however, the Supreme Court has held that federal suits between states and their own citizens [Hans v. Louisiana, 134 U.S. 1 (1890)] and federally mandated suits in against states in state courts [Alden v. Maine, 527 U.S. 706 (1999)] are also barred. (40)
• The Court has conceded that this sovereign immunity “neither derives from, nor is limited by, the terms of the Eleventh Amendment” [Alden]. Instead, the reason for the bar is a set of background assumptions about the nature of federal judicial power – assumptions that would exist whether or not there were an Eleventh Amendment. (40)
• III. Conclusion
• A true understanding of the Ninth Amendment provides an entry point into the deconstruction of constitutional obligation. (40)