Protecting Rights from Rights: Enumeration, Disparagement, and the Ninth Amendment


Laurence Claus

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The ninth amendment speaks to the problem of tension between federal constitutional rights and other legal rights. It provides that enumerating certain rights in the Constitution shall not be construed to have negative effects on other rights "retained by the people." The ninth amendment reaches beyond the founders' particular concern that the Constitution's enumeration of powers be taken seriously. By providing more generally that enumerating rights should not negatively affect other rights, the founders guarded against both the possible negative effect that they could foresee, and any others that they could not. When the fourteenth amendment introduced the Constitution's broad guarantees of individual right as limitations upon the states, another possible negative effect appeared. Enumerating rights in the Constitution might negatively affect other rights retained by the people if enumeration prompted courts to expand enumerated rights at the expense of other rights retained by the people. This article examines ways in which the ninth amendment's tension-resolving role may be conceived, traversing possible meanings of rights, of denial or disparagement, and of retention by the people.