Senator Sasse never ceases to impress – his extensive knowledge of law, (despite not being a lawyer himself), philosophy, and political theory, all aid his principled resistance to partisanship. I hope this guy continues doing what he does.
This time, he’s done it again by asking a fantastic question about the almost-always-forgotten Ninth Amendment on the third day of Judge Gorsuch’s confirmation hearings:
Senator Sasse:[The Ninth Amendment reads] ‘the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’
Senator Sasse: What does that mean?
Judge Gorsuch: Well, Senator, I think it means what it says. . . . It’s one of those amendments that hasn’t had a lot of judicial attention.
In so few words, Judge Gorsuch’s reply hints at some exciting possibilities for restoring the Ninth Amendment to its proper place in our constellation of constitutional liberties. Very little substantive information comes out of confirmation hearings these days, but I’m reading this one as a optimist. Here’s why.
Judge Gorsuch: “Well, Senator, I think it means what it says.”
This just so happens to be the name of an influential article on the original meaning of the Ninth Amendment by Georgetown’s Randy Barnett, which concludes:
The historical evidence presented here supports an unremarkable, almost mundane, conclusion: The Ninth Amendment’s public meaning in the founding era is identical to what ordinary readers take it to mean today (until they enter law school and are told otherwise). No elaborate theory or hidden code is required to decipher its words. The Ninth Amendment prohibits constitutional constructions—like that propounded by the Supreme Court in Footnote Four of Carolene Products—that infringe upon the unenumerated, natural, and individual rights retained by the people. In other words, it means what it says.
Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 Tex. L. Rev 1-82 (2006)(available here).
Lacking precedent, the original meaning of the Ninth Amendment could one day play an important role, much like the Second Amendment was reinvigorated in Heller with little precedent in the way that might have otherwise dictated a less principled, originalist result.
When Senator Sasse asked about precedent, Judge Gorsuch stated the Ninth Amendment is one that has been “less interpreted.” This is an artful understatement – one of the last (and one of the only) times the Ninth Amendment saw any meaningful engagement by anyone on the high court was in Justice Goldberg’s concurring opinion in Griswold v. Connecticut. Justice Scalia, the man who Judge Gorsuch is about to replace, once remarked that “I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) [an] unenumerated right” under the Ninth Amendment – that is, according to Justice Scalia, the Ninth Amendment is an unenforceable null-set in federal court.
As an optimist, I’m taking Judge Gorsuch’s terse response as leaving open the possibility that, since he would not be bound by precedent on this subject, he would apply his unquestionably originalist interpretive methodology when faced with a question about the meaning of the Ninth Amendment. And, if he were to have a positive influence on other justices in doing so, they have robust scholarship readily available on the topic suggesting that the Court has consistently ignored its meaning and purpose, thereby reducing it to a mere “ink blot.” As Professor Barnett’s work demonstrates, however, the Amendment is much more than an ink blot.
Call me naïve, but I think there’s reason to hope the Ninth Amendment might not be so forgotten for too much longer.