Congress and the Ninth Amendment

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10 Responses

  1. I don’t see the point of the statement in terms of doing much – wouldn’t most of them just be “Commerce Clause”? Don’t they pretty much do that now, in terms of actual drafting that uses commerce boilerplate definitions?

  2. Brian Kalt says:

    I think that it really matters most–both for powers and for what I’m talking about here (rights)–in cases at the margins. Most of what Congress does doesn’t test the margins, because the Court has given Congress so much power it is easy to fit almost anything they do inside it. But sometimes a case is at the margins and really requires some careful debate. By teeing up that debate, requiring the statement could help.

  3. tom beebe st louis says:

    I like these words. To me we’re not to say what our rights are, but rather to spell out through debate, then legislation, what limits are to exist on those rights. In short, “don’t tell me I can’t do such-and-such, I’ll do it until you can show me a (constitutional) law that says I can’t.” I think Brian’s making the point that it must be a law on the books that specifically limits our rights as individuals, not just some SCOTUS decision on what existing laws mean. Enumerating limits is, to me, far preferable than enumerating rights.

  4. birtelcom says:

    If one understands Constitutional rules (including the of individual rights established expressly or impliedly by the Constitution) to generally be about the limits of Presidential and/or Congressional authority (and, by extension, of the parallel bodies at the state level), then doesn’t asking Congress and/or the President to weigh in on the scope of their own authority seem largely tantamount to asking the foxes to opine about the desirable opening hours of the chicken coop? Or comparable to (using the “umpire” analogy that ocassionally arises in disccussions of judicial authority) asking the batter and pitcher to opine as to whether the pitch was a ball or a strike? It doesn’t seem as if such opinions would really add much light to the relevant debates.

  5. I find this Ninth Amendment interpretation to be inconsistent with Founding Era constitutionalism. Indeed, the First Amendment’s purpose was to ensure an open political discourse on the Constitution to both the majority and minority, but the Ninth Amendment was never supposed to be a vehicle to carve out further rights through congressional debate or popular constitutionalism. Instead, the Ninth Amendment ensured the Constitution would not be interpretated as a restrictive document. I discuss this in detail here ( in my forthcoming article.

  6. Brian Kalt says:

    birtelcom, I think that some of this already gets discussed now. The thing different that I am suggesting is just how it is framed. But look at the legislative debates on gun control pre-Heller; or on abortion or federal marriage legislation; and I think you’ll agree that there are two sides to the debates and plenty of fodder for “rights” talk.

    Patrick, I freely admit that originalists will not find much to like in my argument.

  7. Ryan says:

    Professor Kalt,

    Your response to Patrick probably renders this moot but I wanted to pass along my own take on the originalism/Ninth Amendment issue — available here: and here:

    More generally, I’m curious what you think would be gained if legislators framed their arguments about individual rights in Ninth Amendment terms rather than simply arguing that such rights should be respected as a matter of political morality? If the argument isn’t that legislators are obligated to respect such rights because doing so is required by the Constitution (as a matter of either original meaning or judicial doctrine) what, exactly would talking about the Ninth Amendment add to the debate?

  8. Brian Kalt says:


    I saw your Columbia article the other day on SSRN, downloaded and printed it, and am looking forward to reading it.

    I don’t think that they would be framing their arguments in Ninth Amendment terms, or talking about the Ninth Amendment.

    This is also not an argument about what the unenumerated rights in question are–political enforcement would mean that the situation would be very fluid.

    I think that 9A requires them not to use the Bill of Rights as a checklist. It eliminates an argument from the legislative debate: “this law doesn’t violate anything in the Bill of Rights as currently construed in court, so we can pass it.” It encourages them to think broadly about rights, rather than to limit themselves to whatever is written there, and whatever the Courts have done with it.

    Once they do that, they would likely come up with rights based on political morality, as you put it. To a large extent, I am just calling for “simply arguing that such rights should be respected as a matter of political morality.” 9A reminds them and us that these other things can rise to the level of a “right,” if enough people agree that it is one.

  9. Professor Kalt,

    Yes, as a matter of historical originalism, I don’t see much agreement. However, I do believe it is good that Congress discuss laws in the constraints of the Constitution. Naturally, most of this debate will be political posturing, with very little insight as to the true scope of constitutional rights, but it will allow for a more fruitful public discourse on government. Perhaps the founders belief in the “public good” will return to fruition with said debates.

    Ryan, I too look forward to reading more of this article than the introduction. If you read my blog post, we agree that the Ninth Amendment is not a complicated amendment. In fact, none of the amendments were complicated as a matter of political thought in the eighteenth century. Unfortunately, as we evolve as a society, so too does our understanding of the Constitution’s text.

    Patrick J. Charles

  10. Gary Boatwright says:

    At the risk of over simplifying, I vaguely recall that the 9th Amendment was included to aleviate the concerns of the Anti-federalists who were adamantly opposed to a Bill of Rights on the grounds that they were too explicit and therefore limited rather than expanded the realm of individual freedom and liberty our founders were attempting to carve out. They must have been concerned about their contemporary Sean Hannities who were already saying, “Oh yeah? Show me where it says that in the Constitution!”
    Their foresight was incredibly remarkable. I suspect they were also dealing with Galtians and Tea Baggers.