Larry Solum of the Legal Theory Blog has written the 9th amendment post to end all 9th amendment posts (okay, that’s not really true – you know we’ll all be blathering on about this forever anyway). Larry is a neoformalist on matters of constitutional interpretation and he does a masterful job of breaking down the text here. He doesn’t get around to describing all the limits of the 9th amendment that he would advocate, since that might take a whole book. But I think he convincingly shows that the Bork/Scalia version of the 9th amendment is totally unsupportable:
What is the forbidden construction? We all know the answer to that question. The forbidden construction says, “The first eight amendments enumerate certain rights. No other rights are enumerated. Because no other rights are enumerated, it follows that the constitution denies or disparages other rights which might have been retained by the people. If the people had wished to retain these other rights, they would have enumerated them.” We know with absolute certainty that this is the construction which the text of the Ninth Amendment forbids, because this is the construction that is expressly negated by the text.
Of course, this textualist point does not provide us a construction of the Ninth Amendment. A construction of the Ninth Amendment requires more: it requires answers to the questions about the meaning of “deny or disparage,” “rights,” “retained rights,” “retention by the people,” and so forth. The textualist point does tell us how we must start our inquiry if we are to be faithful to the ideal of a written constitution that binds us to the text.
And he is absolutely right to point everyone to the numerous debates that have been going on over this issue over the past few days around the blogosphere. You should follow the link to his article, then follow the links he shows at the end to the best of the other entries. Alas, my contributions to the debate aren’t on his list, but that is probably as it should be. I’m a rank amateur hanging around the edges trying to gleen insight from the brilliant contributions of so many others.
This is truly one of the great things about blogging. We now have everyday access to the thoughts of eminent scholars in a wide range of fields. Just in the field of legal theory, we can read the daily insights of so many top notch legal scholars that it’s hard to keep up with them all – Eugene Volokh, David Bernstein, Jack Balkin, Michael Rappaport, Howard Bashman, Randy Barnett, Tim Sandefur, the entire lineup at Southern Appeal, Jacob Levy, and so many more. Take advantage of it while you can.