I am having an extended debate with Jimmy G in the comments on this thread over the nature of the 9th amendment. Jimmy’s argument is that the 9th amendment must be read as a federalism provision and that the “unenumerated rights” mentioned in it are limited to those rights found in state constitutions at the time of the ratification. I thought I’d move it up top and explore it in a bit more detail. His position is what Randy Barnett calls the “rights-powers conception” of the 9th amendment in an article in the Harvard Journal of Law and Public Policy. But as Barnett points out, this reading still renders the 9th amendment meaningless:
First, this interpretation treats the Ninth and Tenth Amendments as exactly the same. The Tenth Amendment reads:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.
The idea that animates the rights-powers conception that powers not delegated are reserved is clearly expressed here. If the only intention of the Framers was to state the theory of enumerated powers, the Tenth Amendment was entirely sufficient to the task. There was absolutely no need for another amendment written confusingly in terms of “rights” retained by the people to express exactly the same idea.
Barnett argues further that this reading prevents the 9th amendment from having “any potential application” and therefore simply reads it out of the Constitution. But the first rule of textual interpretation is that a given passage has to mean something, it must have some application in some situation. Barnett goes on to argue that the purpose of the Bill of Rights was not merely to reinforce the limits on governmental authority, but to prescribe the methods by which they could exercise that authority as well:
The idea that constitutional rights are simply what is left over after the people have delegated powers flies in the face of the amendments themselves. For example, it is simply impossible to find a right to “a speedy and public trial, by an impartial jury,” a right against double jeopardy or self incrimination or a right to be free from “unreasonable searches and seizures” by closely examining the limits of the enumerated powers of the national government. The reason for this is that the delegated powers provisions limit the proper ends or scope of federal powers, while these examples of enumerated rights limit the means by which the federal government may use those powers that are within its proper scope.