As we have seen, there are conflicting claims about the original meaning of the Ninth Amendment. In particular, what meaning was conveyed to the public by the phrase the “rights . . . retained by the people” at the time of its enactment? One important clue is provided by James Madison’s handwritten notes for his speech to Congress proposing amendments. There he refers to “natural rights, retained as speach,” showing both that the freedom of speech was considered to
be a natural right—which he underlined—and that such rights were “retained” by the people. But perhaps the most illuminating evidence was discovered in 1987 among Madison’s papers: a list of proposed amendments in the handwriting of fellow committee member, Connecticut Representative Roger Sherman. Sherman is credited with the idea that amendments to the Constitution should be appended to the end, rather than literally modifying or “amending” the original text, as
Madison assumed they would. His list was not his own proposal, but rather was his effort to convert the proposals of others to separate articles. Of particular significance is the second: The people have certain natural rights which are retained by them when they enter into Society, Such are the rights of Conscience in matters of religion; of acquiring property and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with
decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the Government of the united States. [Emphases added].
Like Madison’s notes, this provision links the terms “rights,” “retained” and “the people”—all of which appear in its first sentence, while explicitly identifying these rights as “natural rights.” Notwithstanding his opposition to some of these amendments, Sherman’s use of language is highly pertinent to the original meaning of the words that were then used by the committee in the Ninth Amendment. The significance has nothing to do with the intentions of Roger Sherman—apart from his intention to use the English language in a manner that would be understood by his audience. It simply shows the content these words would have communicated to the general public.
Further, the rights listed in Sherman’s draft included such undeniably individual rights as the rights of conscience, acquiring property, and pursuing happiness and safety, along with the individual rights to speak, write, and publish one’s sentiments. That these were not the only rights retained, but are merely examples, is conveyed by the words, “Such are.” Given that only some of these individual rights came to be included in the Bill of Rights, the Ninth Amendment appears designed to prevent the “others” not included from being, in Sherman’s words, “deprived by the Government of the united States.”
Sherman’s examples not only strongly support an individual natural rights [rather than a “collective rights”] reading of “retained” rights, but neither are any of the rights to which his proposal refers state law rights. Instead they are “natural rights which are retained” by the People “when they enter into Society.” Nor are these rights defined residually by the enumeration of federal powers. Instead, they are identified by name. So Sherman’s draft is incompatible with the state law rights, residual rights, and collective rights interpretations of the Ninth Amendment.
Sherman’s examples of natural rights were well-known to the public. Several state constitutions had adopted similar formulations, copied from George Mason’s 1776 draft of the Virginia Declaration of Rights:
THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Arguing that the Ninth Amendment was not intended to refer specifically to these natural rights, Professor Seidman places great weight on the fact that Congress declined to adopt similar language. But that decision, made for unknown reasons, does not affect the public meaning of the text that was adopted. The “rights . . . retained by the people,” clearly meant natural rights, and Mason’s wording was the canonical summary of what “natural rights” meant to the public. Later, Justice Bushrod Washington would use similar wording to describe the privileges and immunities of citizens.
If this is the Amendment’s original meaning, what is its legal effect? How should these words be implemented? First and foremost, the Ninth Amendment is a rule of construction—“shall not be construed”— that tells us how not to construe a written bill of rights: the fact that some rights are in writing does not elevate them above other rights that were not included. So, at a minimum, the Ninth Amendment is inconsistent with first line of Footnote Four of United States v. Carolene Products [1938], which reads:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. [Emphases added].
By giving enhanced protection to a “specific prohibition,” Footnote Four violates the Ninth Amendment’s rule of construction by disparaging those rights that were not specifically included.
But the Amendment implies more than this. Its wording presupposes that there are natural rights retained by the people and that these rights shall not be disparaged or denied altogether. It would make no sense otherwise. It does not convey the meaning that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage [whatever] others [may or may not have been] retained by the people.” Such language would surely have been ridiculed as too trivial and without effect to merit inclusion as a separate amendment.
But does protecting the retained rights from disparagement and denial require judges to identify all the natural rights retained by the people and then protect them? Hardly. The natural rights one has before entering into society can be most concisely described as “liberty rights,” and all liberty can be reasonably regulated to avoid violating the rights of others. Indeed, that is one way that government secures the rights of each individual.
So adhering to the Ninth Amendment requires only that judges scrutinize regulations of liberty to ensure that they are indeed “reasonable” and not “arbitrary” means of protecting the rights of others—for example, their health and safety—and were not instead passed for other improper motives, such as conveying benefits to special interests at the expense of the general public. By adopting a rebuttable “presumption of liberty,” as I have proposed, judges can ensure that the natural “rights . . . retained by the people” are not “denied or disparaged” by their servants—public officials tasked with securing the rights of the individuals who comprise the sovereign “People,” each and every one.