The Ninth Amendment says, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” It means what it says, yet Mr. Whelan reads it merely as setting forth “a rule of construction governing the first eight amendments.” What he seems to mean by that odd construction — the lacunae are gaping — is this: Since the Bill of Rights could not enumerate all of our rights (there are too many), several Framers feared that enumerating only certain rights “would imply that the national government’s powers were far greater than they were.” But that’s a rule for construing powers, not amendments. Moreover, it conflates the two main objections those Framers raised against a bill of rights.
The first was that such a bill was unnecessary since the enumeration of limited federal powers was sufficient protection for our rights: where there is no power, by implication there is a right. The second objection, once it became clear that a bill of rights would be necessary to ensure the Constitution’s ratification, led directly to the Ninth Amendment; and it did invoke a rule of construction: Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another. The Framers feared that their inability to enumerate all of our rights would imply that those not enumerated were not meant to be protected. Hence the Ninth Amendment — to make it clear that unenumerated rights were to be protected too. That’s a very different inference than Mr. Whelan’s, but it comports far better with both text and original understanding.
By reducing the amendment to a rule of construction, however, Mr. Whelan is able to treat unenumerated rights as “non-constitutional rights that state law is free to protect, including the basic right of the people to engage in self-governance.” To be sure, prior to the ratification of the 14th Amendment, the Bill of Rights applied only against the federal government. (And note that Abigail Alliance is a federal case.) But since then, states too have been bound by the Ninth Amendment. Does that raise the potential for judicial activism? Of course. But the remedy for judicial activism is not judicial abdication. It’s better judging, which starts with giving texts their proper reading.
Vice President for Legal Affairs