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The courts long have protected constitutional rights that are not listed explicitly in the Constitution, but are they warranted in doing so? As scholars and commentators vigorously debate this and other questions about the appropriate role of judges in interpreting the Constitution, the Ninth Amendment has assumed increasing importance. Its declaration that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" has suggested to many that the set of rights protected by the Constitution is not dosed and that judges may be authorized to protect these "unenumerated" rights on occasion.

Publication Citation

Randy E. Barnett, Reconceiving the Ninth Amendment, 74 Cornell L. Rev. 1 (1988).