From: Camden Hutchison <crh2014@columbia.edu>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Sun, 01 May 2005 22:58:42 -0400

paper two

The Radical Ninth Amendment

by Camden Hutchison



“The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.”

U.S. Const. amend. IX



	A focus of our Computers, Privacy and the Constitution course has
been the exploration of potential constitutional and legislative
means for defining and protecting rights to information privacy. 
Of the various avenues for defending privacy discussed in class and
in our readings, the idea that I find the most interesting -— less
so for its likely practical importance regarding privacy rights
than for its implications for constitutional theory generally -— is
that of empowering the long-dormant Ninth Amendment.  Dismissed as a
mere truism by the Supreme Court, neglected by academics, and
ignored in first-year constitutional law courses, it is perhaps
understandable why the Ninth Amendment is excluded from mainstream
constitutional theory:  If taken seriously, the Ninth Amendment
bestows on courts a startlingly broad power to define civil
liberties independent of the language of the Constitution itself.

	At first blush, the Ninth Amendment seems a fairly innocuous
rebuttal of the principal of expressio unius est exclusio alterius
-— in this case, the express inclusion of certain rights does not
deny the existence of other rights.  Indeed, this is how the
amendment has traditionally been interpreted by courts and
commentators, with little excitement.  In the context of a system
of government in which constitutional issues are regularly
ventilated by judicial decisions, however, the true scope of the
Ninth Amendment should be apparent -— its application would expand
the source of constitutional rights beyond the text of the
Constitution to include the whole body of American legal and
political intellectual tradition.
	Under existing constitutional jurisprudence, for example, a party
seeking redress for violation of a constitutional right bears the
burden of locating that right somewhere in the language of the
Constitution.  The difficulty of satisfying this burden at any
given point in time tracks the political complexion of the Supreme
Court.  If read literally, however, the Ninth Amendment would
displace this obstacle altogether.  Rather than identifying a
particular right within the body of the Constitution, a party would
instead need to show that the claimed right had been “retained by
the people” —- a more malleable and potentially much broader
standard.  To counter that a right doesn’t exist because it’s not
in the Constitution would itself be a constitutionally void
argument.
	For better or for worse, this interpretation of the Ninth Amendment
would create a role for judges as the primary arbiters of Americans’
civil and political rights.  In the Supreme Court’s only meaningful
engagement with the Ninth Amendment that I am aware of, -Griswold
v. Connecticut-, a concurring Justice Goldberg acknowledges the
scope of the Ninth Amendment’s grant of judicial power, but denies
that judges would exercise that power as based on their own
political views.  This is a dubious notion, of course.  How else
would judges give content to a notion as vague as “rights retained
by the people” but by reference to their own intuitions and values?
 One would expect different judges to acknowledge different retained
rights.  While one Supreme Court justice might discover a right to
social assistance, another might find a right against burdensome
taxation.
	Mitigating the potential power of the Ninth Amendment is that it
can only be used to acknowledge rights, not deny them -- i.e., the
amendment performs an additive function.  This was apparently the
view put to the Supreme Court by our own Eben Moglen in the context
of abortion regulation.  I assume that this position was too
disruptive to established notions of judicial restraint for the
Supreme Court to take it seriously, though it seems fairly
compelled by the constitutional language.

	Relating this discussion to the primary subject of our course, the
relevance of an empowered Ninth Amendment to privacy rights is
obvious.  A constitutional right to privacy -— heretofore
flickering at the edge of the constitutional vision, sometimes
here, sometimes not -— would seem to be the easiest example of an
implied right retained by the people.  The Fourth Amendment can get
us most of the way there.  In a world of increasingly pervasive
electronic monitoring, the privacy values that the Fourth Amendment
expresses with regards to physical space and property are now
equally important in the context of information privacy.  Having
been drafted over 200 years ago, the Fourth Amendment of course
does not expressly protect non-physical information.  The Ninth
Amendment could be used to bridge this time gap by transporting
citizens’ existing liberties into the new technological reality. 
At least rhetorically, it’s not so difficult to argue that the
people have retained rights against the government’s surveillance
of their private lives.  This is the United States of America,
after all, not communist East Germany.  Freedom from government
oppression lies at the very core of the Constitution’s spirit. 
It’s just that a right against government monitoring -— a practical
impossibility in the 18th century -— is nowhere explicitly set out. 
By calling reference to prevailing political values and judges’
intuitions rather than the Constitutional text, application of the
Ninth Amendment could cure this deficiency.

	The problem with this theory of the Ninth Amendment is getting any
member of today’s Supreme Court to accept it.  The idea seems too
radical -— having not thought seriously about the Ninth Amendment
before taking this course, even I have a hard time believing it
actually means what it says.  In the real world, then, efforts for
securing privacy rights (or any sort of right, for that matter)
should probably be directed toward more promising grounds.  The
Ninth Amendment will remain forgotten, trapped in Justice
Goldberg’s -Griswold- concurrence.  A pity -— I, for one, would
prefer honest and open application of the Ninth Amendment to talk
of penumbras any day.

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