Whenever I blog about the Ninth Amendment, there are always respondents offering contrary interpretations. In response to my Rule of Law column, In RE: Life or Death, in Saturday's Wall Street Journal, several commenters disputed the relevance of the original meaning of Ninth Amendment to a federal regulation restricting access to experimental drugs to terminally ill patients. So did two contributors to National Review On-Line, Ed Whelan and Matthew Franck. While their interpretations are not unreasonable, I believe they do not line up with the available evidence. Ed Whelan relies on Tom McAffee's entry in The Heritage Guide to the Constitution.
Resolving this dispute over original meaning highlights the limitations of blogging and the need for long-form legal scholarship. The competing models of original meaning must be carefully defined and then comprehensively compared with the available evidence of original meaning to see which model or models is supported and which is undercut by the available evidence. There I do consider McAffee's interpretation and show how it is directly contradicted by the evidence.
Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: the state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This Article examines thirteen crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strongly support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say: the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwords, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights. In short, the Amendment is what it appears to be: a meaningful check on federal power and a significant guarantee of individual liberty.
I will add one cautionary note to avoid confusion. The article primarily concerns the original meaning of the text. It is not directly about judicial review. Unsurprisingly, none of the amendments in the Bill of Rights directly mentions judicial review, although the Ninth Amendment comes very close, given that it provides a rule of construction ("shall not be construed") that, presumably, is directed at all branches and levels of government, including the courts. If you are interested in the issue of judicial review you should look at my piece, The Original Meaning of the Judicial Power.