On Reading the Ninth Amendment: A Reply to Raoul Berger

AuthorSimeon C.R. McIntosh
ProfessionProfessor Emeritus of Law at Howard University, Washington, DC
Pages148-168
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

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