The Ninth Amendment: Righting an Unwritten Constitution
As the recent Symposium in these pages indicated, the preliminary debate over the meaning of the ninth amendment is essentially over. Despite the diversity of views expressed in the Symposium, all but one contributor agreed that the ninth amendment does protect judicially enforceable unenumerated rights. The real question now must be how to identify those rights. Only Professor Michael McConnell disputes the conclusion that the ninth amendment allows judges to enforce unenumerated rights. He suggests that neither the history of the Constitution nor sound political theory supports such a reading of the ninth amendment.' Using his article as a focus for this Essay, I would like to do two things: (1) to add to the historical work demonstrating the framers' commitment to judicially enforceable unenumerated rights; (2) to comment generally on the New Right insistence on strict textual limits to judicial activism, which I believe stems from a mistaken view of the judicial process.