The exclusion from consideration that some right or set of rights are enumerated denies the existence of unenumerated rights and/or disparages the priority of unenumerated rights relative to enumerated rights requires that there be unenumerated rights.
Rights without remedies are no rights at all.
Remedies are determined by adjudication and implemented by enforcement.
Enforceable unenumerated rights are the result.

Implicature errors are immaterial:

  • "Mary regretted breaking the vase" -> possible that "someone else broke the vase"; "Mary mistakenly believed that it was her fault"; "the vase was not actually broken" but Mary believe otherwise; (538) [original intent and hearer/reader understanding unaffected by these possibilities that are contra the assumed facts.]

    Williams cites examples of single individuals or small groups expressing opposition and extrapolates to the whole...Congress and the state legislatures that ratified the amendments. [Exmaple: Smith, Livermore, Benson 558]


    The historical and textual evidence bearing on the Ninth Amendment's original meaning strongly suggests that the Amendment was targeted at addressing a very specific form of interpretive argument--i.e., the danger that enumerating particular rights in the Constitution might give rise to an inference that the rights omitted from the enumeration had been either repealed by implication or surrendered to the federal government's control. (530)

    Retained rights of the Ninth Amendment "could thus plausibly have been seen by many Americans as a right[s] to which they were entitled as English subjects and which they "retained" to themselves both in forming their own respective state governments and in adopting the Federal Constitution." (559) [referent and emphasis added]

    This Article contests that assumption by demonstrating that regardless of the original meaning of the Amendment's reference to rights "retained by the people," the Amendment itself does not compel treating such rights as if they were constitutional rights. Rather, the original meaning of the Ninth Amendment does nothing more than state a narrow and precise rule of construction targeted at a specific form of constitutional argument. Based upon inserting into the text a cancellable presupposition if any and then maintaining that its uncontestable that the conditional is satisfied. (see page 548)

    See Barnett: The Misconceived Assumption About Constitutional Assumptions

    2023-09-18: Williams The Ninth Amendment as a Rule of Construction 2011

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