The Ninth Modification and the Federalist Interpretation

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Andrew Hyman writes a response to my put up that the Ninth Modification refers to pure rights, though it doesn't shield them as constitutional rights. Hyman provides a special interpretation of the Ninth Modification, one I name the Federalist interpretation (which I referred to in my earlier put up).

Hyman argues that the:

Modification means the Structure’s enumeration of powers – and never its enumeration of rights – could also be construed to disclaim or disparage unenumerated retained rights to the identical extent as underneath the unique unamended Structure.

Why, you may ask, would the framers have steered that the enumeration of powers may be construed to disclaim unenumerated retained rights?  It's not a thriller.  As James Madison wrote to George Washington on December 5, 1789: “If a line may be drawn between the powers granted and the rights retained, it could appear to be the identical factor, whether or not the latter be secured by declaring that they shall not be abridged, or that the previous shall not be prolonged.”

Hyman’s put up is a bit transient. However it's worthwhile explaining his view in a bit extra element, since it's a important one. Underneath this view, there was a priority that the Invoice of Rights is perhaps harmful and result in interpretations that may develop the powers of the federal authorities. How might that occur?

Think about the next instance. The Federalists had argued that an modification defending freedom of the press was pointless as a result of Congress didn't have authority underneath the enumerated powers to control the press. But when a freedom of the press modification was handed, that could possibly be harmful. Individuals may argue that the passage of the liberty of the press modification confirmed that Congress’s powers had been broad sufficient to control the press. The reason being freedom of the press modification might need appeared pointless if the enumerated powers didn't lengthen to rules of the press. The modification would have been superfluous. To keep away from that superfluousness, one ought to interpret the enumerated powers to permit regulation of the press. Subsequently, a Invoice of Rights may develop the interpretation of the enumerated powers. In keeping with this argument, the Ninth Modification was wanted to get rid of this inference.

I used to want this interpretation of the Ninth Modification and nonetheless suppose there may be a lot to it. However in the end I concluded that it didn't match the unique that means of the textual content in addition to the interpretation I defended in my earlier put up.

Let me clarify why. Madison’s unique proposal for the Ninth Modification was the next:

The exceptions right here or elsewhere within the structure, made in favor of specific rights, shall not be so construed as to decrease the simply significance of different rights retained by the individuals; or as to enlarge the powers delegated by the structure; however both as precise limitations of such powers, or as inserted merely for higher warning. [Emphasis added.]

Thus, Madison’s unique proposal was involved with two inferences: that the enumeration within the Invoice of Rights would enlarge Congress’s enumerated powers (the italicized portion) and that the enumeration would disparage the rights retained by the individuals.

However Madison’s proposal was became the Ninth Modification, which states: “The enumeration within the Structure, of sure rights, shall not be construed to disclaim or disparage others retained by the individuals.”  Clearly, the italicized language has been taken out.  As an alternative, it's only the language in regards to the retained rights that continues to be.

Thus, it's onerous to argue that the Ninth Modification merely protects in opposition to the growth of Congress’s powers. Provided that the language about rights retained by the individuals usually referred to pure rights, I imagine the perfect public that means of the language here's a reference to these pure rights. Now, it is perhaps doable that the Ninth Modification can also be referring to the growth of enumerated powers. If that's the case, then the Ninth Modification could have a that means that protects in opposition to the liberty of press inference described above. However I don't imagine that the perfect that means can deny that pure rights are at the least half of what's being referred to right here within the Ninth Modification.

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