The Ninth Amendment has been largely ignored by the Supreme Court of the United States. Because the Ninth Amendment is unquestionably a part of our written Constitution, ignoring it would not have been possible without some theory that renders it without any function. This paper will first examine this theory, which is based on what I call the "rightspowers conception" of constitutional rights, a conception of constitutional rights that is applied only to the Ninth Amendment. Then I will describe an alternative to this view of the Ninth Amendment, one that is based on what I call the "powerconstraint conception" of constitutional rights, the conception that we normally use with constitutional rights. Lastly I will briefly address the topic of this part of the Symposium: "The Ninth Amendment and its Relationship to Natural Rights."
Randy E. Barnett, Two Conceptions of the Ninth Amendment, 12 Harv. J.L. & Pub. Pol'y 29 (1989).
Scholarly Commons Citation
Barnett, Randy E., "Two Conceptions of the Ninth Amendment" (1989). Georgetown Law Faculty Publications and Other Works. Paper 1543.