Purpose of the Ninth Amendment to the Constitution of the United States. Protecting Unenumerated Rights

Author: Prince, Charles O.
Year:2005
Pages:140
ISBN:0-7734-6073-X
978-0-7734-6073-7
Price:139.95
This work establishes the intent and application of the Ninth Amendment to the United States Constitution. Its traces the amendment’s historic origins to the Federalist—Anti-Federalist debates. It links the provenance of the Ninth Amendment back to the state constitutions, bills of rights and positive laws of the Constitution’s Framing period. It discusses James Madison’s introduction of the Bill of Rights during the first Congress. It reviews each recommendatory amendment submitted by the states during the ratification process along with each state constitution and bill of rights contemporaneous with the Framing. It examines each Supreme Court decision referencing the Ninth Amendment. It also summarizes main Ninth Amendment theories described in the literature.

The author presents a case for finding Ninth Amendment unenumerated rights within the positive law of the framing period as expressed in the state bills of rights and constitutions and within the penumbras formed by specifically enumerated rights.

Reviews

“This work makes a valuable contribution to constitutional scholarship in at least three important ways. First, this work is a thorough review of the case law and scholarly literature on the Ninth Amendment.

Second, in tying this amendment to positive law and other concrete underpinnings, it moves Ninth Amendment scholarship away from the more traditional natural law arguments that have dominated the debate for some time. Since natural law theory – arguably – seems to be subjective in terms of those values it encompasses, this move away from subjectivity is particularly valuable in light of the increasingly complex cultural and ethical society we face in the 21st century.

A third scholarly contribution is the rich yet largely untilled field of future research on this topic. Dr. Prince suggests that the connection to states apart from 14 Amendment ties is particular intriguing. Connections or parallels to the Court use of the congressional power to regulate interstate commerce (Heart of Atlanta Motel v. U.S., 379 U.S. 241, 1964), rather than the 14th Amendment portal, are especially suggestive. Historical research in the personal papers of members of state ratifying conventions, if such data are available, has potential to yield valuable insights.

In addition to the scholarly contributions this book makes, there is an important teaching/ pedagogical impact as well. In my judgment, this is a work suitable for any university course dealing with constitutional law or constitutional history. It is clear and direct in its style, without being overbearing or pedestrian. It’s a short book, which increases the chances that students will actually read it. It presents the arguments in a clear and precise manner, which yields opportunity for debate and discussion. And it illuminates a relatively unexplored area of study, which will broaden the student’s understanding of constitutional structure and interpretations.

In sum, this work should be found on bookshelves of all who study or teach about the Constitution.” – (from the Foreword) Earl Phippen, Department of Political Science, Idaho State University

“… This book is sure to prompt much debate and discussion among public law scholars and those interested in the political significance of the Ninth Amendment to contemporary American politics. Prince’s book is appropriate for use by Ninth Amendment researchers as well as by professors in a variety of courses focusing on public law, history, and American politics.” – Mark K. McBeth, Professor of Political Science, Idaho State University

Table of Contents

Foreword by Earl Phippen
Introduction
1. The Origins of the Ninth Amendment
2. State Bills of Rights During the Framing Period
3. State Ratification Debates
4. State Recommendatory Amendments
5. Ninth Amendment Supreme Court Decisions
6. Ninth Amendment Schools of Interpretation
7. Interpreting the Ninth Amendment
Conclusion
Notes
Bibliography
Index
Table of Cases