On Reading the Ninth Amendment: A Reply to Raoul Berger

• Author: Simeon C.R. McIntosh
• Profession: Professor Emeritus of Law at Howard University, Washington, DC
• Pages: 148-168

On Reading the

Ninth Amendment:

A Reply to Raoul Berger

Introduction

In his essay on the ninth amendment in the Cornell Law Review,1

Professor Raoul Berger sharply criticizes Justice Goldberg’s interpretation of

the amendment in his concurring opinion in Griswold v. Connecticut,2 and

has advanced, what I take is, in his opinion, the proper interpretation of the

amendment. In this essay, I argue that Professor Berger’s reading of the ninth

amendment is deeply flawed because it rests on a rather naïve and inadequate

theory of constitutional interpretation. In sum, his theory is founded on

an overly simplistic epistemology, one that seems oblivious of the fact that

constitutional interpretation is, essentially, an hermeneutical enterprise3 and

does not consist in the mere empirical accounting of the framers’ declarations

of intention. What is more, his reading of the ninth amendment does not

evidence a fundamental awareness that the amendment is part of a whole,

a totality, a text. Consequently, it denies a basic hermeneutical premise, an

operating ideal, that the text possesses some unifying insight, some inner

dynamic, present in each of its parts. For although interpretation may

begin with the study of a part, it is ultimately the whole we are seeking to

understand, and it is in grasping the unifying insight of the whole that one

understands or makes sense of the part. Constitutional interpretation, then, as

an hermeneutical enterprise, is, essentially, a dialectical process, ‘a part-whole-

part movement, a constant back and forth.’4 I wish to emphasize, therefore,

that, particularly with respect to the understanding and application of the

more important and open-textured clauses or sections of the Constitution,

constitutional adjudication inevitably entails an expounding of the structure,

the architectonic of the Constitution as a whole.

In his opinion in Griswold, Justice Goldberg concluded that ‘the

language and history of the ninth amendment’5 reveal that the framers of the

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On Reading the Ninth Amendment: A Reply to Raoul Berger

Constitution believed that there are additional fundamental rights, protected

from governmental infringement, which exist alongside those fundamental

rights specifically mentioned in the first eight constitutional amendments.’6

But Professor Berger asks: ‘Who is to protect [these] undescribed rights?’ He

charges that Justice Goldberg, and other similarly inclined, would transform

the ninth amendment into a bottomless well into which the judiciary can

dip for the formation of undreamed of ‘rights’ in their limitless discretion,

something the founders would have rejected out of hand,7 for this would

constitute the most blatant form of judicial legislation, an obvious violation

of the democratic ideal of separation of powers. What is more, Berger sees

Justice Goldberg’s reading of the ninth amendment as facilitating federal

encroachment into local matters reserved to the states by the Constitution.

For Berger, the ninth amendment, which provides that ‘the enumeration

in the Constitution, of certain rights, shall not be construed to deny or

disparage others retained by the people,’ should be read in conjunction with

the tenth amendment, which provides that ‘the powers not delegated to the

United States by the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people,’ since, he believes, they

are paired opposites of the same coin. He takes the words of James Madison

to be conclusive:

If a line can be drawn between the powers granted and the rights retained,

it would seem to be the same thing, whether the latter be secured by

declaring that they shall not be abridged, or that the former shall not be

extended. If no such line can be drawn, a declaration in either form would

amount to nothing.8

It would seem intuitively obvious that the central problem raised in

the interpretation of the ninth amendment would be that of ascertaining

these unstipulated ‘rights’ that are supposedly retained by the people. If this

is true, then Madison’s words would seem rather simplistic, for they would

suggest that we may know what rights are retained simply by looking to see

what powers have been granted. But granted to whom? Both to the federal

government and the states? True, if there are rights retained by the people,

then the federal government lacks the power to take away those rights, in the

same sense that it lacks the power to take away rights that are stipulated in the

first eight amendments. This conclusion, however, merely restates a factual

proposition without providing an answer to the question. And what of the

states? They, too, have powers reserved to them by the Constitution. Do they

also lack the power to deny or disparage the ‘rights’ retained by the people?

This would seem the very question that Justice Goldberg had read Griswold