Constitutional Individualism: The Proper Construction and Application of the Ninth Amendment in Defense of the “Natural Rights of Man” Lucas Drill Columbia University 1 I. Introduction Upon the founding of this country, the constituent members of what would become the United States declared: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.1 With these words, the U.S. established itself as the first democratic nation to certify the existence of the natural rights of man. This philosophy holds that all human beings inherently possess an array of freedoms which cannot be granted to, or assumed by, any government. In the Constitution and the Bill of Rights, the people of a new and independent country created a system of government wherein the state possesses certain specific, even sweeping powers, but where the citizens also retain certain prerogatives which the government may not invade. Often lost in the ensuing and evolving debate over the extent of governmental power, and the limits which the rights of its citizens placed upon it, is a seemingly innocuous, and arguably overly legalistic, provision in the Bill of Rights. It memorializes the notion articulated in the preamble to the Declaration of Independence that we should never consider exhaustive any list of the natural rights of man and the boundaries they place upon the government: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”2 The meaning, scope, and majesty of this Ninth Amendment to the Constitution of the United States, and its potential impact on the country’s jurisprudence in the twenty-first century, is the subject of this article. Throughout the political and legal history of the U.S., much of the debate concerning the tension between governmental power and individual liberties has justifiably focused on the meaning and extent of the rights enumerated in the first eight amendments to the Constitution. At first blush, the enumeration of those rights appears comprehensive; one struggles to articulate a liberty that does not appear among them. However, one of our most cherished rights, the right to privacy, is just one example of a right not specifically mentioned in either the Constitution or the Bill of Rights. Granted, the Fourth Amendment stipulates that we have the right to be free from warrantless searches, but few would argue that such is the extent of our right to privacy.3 Rather, most Americans would undoubtedly agree that this right encompasses many aspects of self- determination, including the right to live as one chooses. These “unenumerated” rights are exactly what the Ninth Amendment enshrines and protects. The Ninth Amendment, above all else, expressly recognizes the existence of individual liberties not enumerated in the U.S. Constitution and its subsequent amendments. We should, therefore, categorize all unmentioned rights, unless explicitly within the scope of the government’s constitutionally enumerated powers, as natural and within the scope of the Ninth Amendment’s protection. Given this, it seems curious that few Supreme Court cases have discussed the Ninth Amendment, and that when, on the rare occasions they have done so, they have interpreted it to state a truism so obvious that they basically relegate it to the status of a rule of construction. Consequently, rather than using the Ninth Amendment as a touchstone of a school of constitutional analysis whose underlying assumption is that the government has only the powers granted to it by 1 U.S. Declaration of Independence (1776). 2 U.S. Constitution Amendment IX. 3 U.S. Constitution Amendment IV. 2 the people and that the people retain all else, in practice, the Supreme Court has generally validated the expansion of federal power since the tenure of Chief Justice John Marshall. Nevertheless, there are those who believe that the Ninth Amendment is not just a rule of interpretation. Instead, it is properly seen, and should be construed by the courts, as a bulwark against undue governmental interference in people’s private lives. Read literally, the Ninth Amendment can be invoked by persons defending individual liberties across the political spectrum. While many issues may implicate other provisions of the Constitution and the Bill of Rights (including the Fourteenth Amendment), the Ninth Amendment is a largely unexplored provision that encapsulates the “natural rights” theory fundamental to this country’s foundation. This article begins by defining natural rights as those that are, in the words of Thomas Jefferson, “unalienable,” or rights that enacted laws do not, and cannot, limit.4 These are typically, but not exclusively, rights that affect the individual and his/her familial dependents. In this view, government can only limit those rights that intrude on the natural rights of others. The theory of natural rights is based on the political philosophy of John Locke5 and others who, in the seventeenth and eighteenth centuries, refined a concept dating back to the Greek stoics as a challenge to the prevailing monarchical forms of government where all power resided in the sovereign, and people only had such rights as were granted them by royal fiat which, of course, could be revoked at any time. The U.S. Constitution actually represents a marriage between natural rights theory and the “Social Contract” of Jean-Jacques Rousseau, wherein a government derives its power from the consent of the governed, who cede certain rights to the government in order to establish a political and civil society, but nevertheless retain all other rights not specifically granted to the government.6 The Bill of Rights, adopted almost immediately after the ratification of the Constitution, is the primary vehicle for protecting those rights, and the Ninth Amendment should serve to defend against government usurpation of the rights not enumerated in the First through the Eighth Amendments. Next, this article explores the origins and history of the Ninth Amendment. This section begins with an analysis of original proposals for the Ninth Amendment and debates surrounding those proposals. It then flows into an examination of similar state constitution provisions modeled on the Ninth Amendment, the so-called “Baby Ninths,” an area in which Anthony Sanders provides the lion’s share of the research and writing. Based upon that work, this article briefly reviews the history of the Baby Ninths, but primarily focuses on actual and hypothetical litigants’ abilities to use these analogs as foundations for arguing in favor of recognizing their judicially- established individual protections at the federal level through the Ninth Amendment.7 This review reveals history’s strong suggestion that the proper interpretation of the Ninth Amendment is that it protects individual as opposed to collective rights, and that when a conflict arises between an overreaching governmental power and individual liberty, all doubts should be resolved in favor of such liberties, for they are the wellspring of our civil society. This article continues its review and analysis by delving into the modern interpretation of the Ninth Amendment by the Supreme Court, which has cited the Amendment on several 4 U.S. Declaration of Independence (1776). 5 Tuckness, Alex. “Locke’s Political Philosophy.” Edited by Edward N. Zalta, Stanford Encyclopedia of Philosophy, Stanford University, 11 Jan. 2016. 6 Rousseau, Jean-Jacques. The Social Contract. 1762. 7 Sanders, Anthony B. “Baby Ninth Amendments and Unenumerated Individual Rights in State Constitutions Before the Civil War.” Mercer Law Review, vol. 68, 2017, pp. 389–443. 3 occasions, especially in late-twentieth century opinions. Through this examination, we see that the Supreme Court’s interpretation is rather vague and uncertain. Although the Ninth Amendment clearly protects individual liberties (particularly privacy), the Court has yet to attempt to categorically define what those liberties are and where they end. Interestingly, the Supreme Court seems to prefer the use of the Fourteenth Amendment over the Ninth when addressing unenumerated rights. This seems odd given that, unlike the Fourteenth Amendment, the Ninth Amendment speaks directly to this topic, while the Fourteenth focuses only on the powers of individual state governments, and not on the substantial reach of the national government into our daily lives. Consequently, this Article presents an argument in favor of establishing a new relationship between the Ninth and the Fourteenth Amendments, with the former providing the intellectual underpinning for the latter in cases involving unenumerated rights. Indeed, the Fourteenth Amendment, when dealing with unenumerated rights, appears to lack intellectual bite, and using it often requires an overly-strained reading of the Amendment’s language. Conversely, the Ninth Amendment contains the necessary teeth in cases establishing or defining the parameters of any liberties not expressly guaranteed by the U.S. Constitution. Therefore, only the Ninth Amendment provides a textual foundation for the protection of unenumerated and developing rights.8 Perhaps due to the paucity of specific court precedents, or maybe in spite of it, modern academic debate surrounding the Ninth Amendment is quite vigorous. There are several resounding voices in this arena, and they are all in fairly constant conversation. Perhaps the most widely recognized voice is that of Akhil Amar, who interprets the Ninth Amendment as focusing on the communal, rather than individual, rights of “the people” identified in the text when those people operate as a body politic.9 On the other hand, Randy Barnett consistently maintains, as largely does this paper, that the amendment “means what it says,” which is to say that its purpose is to protect and defend individual liberties.10 There are several other academics who routinely write on this subject, and this article reviews their work and discusses their nuanced understandings of the Ninth Amendment.