Robert Bork was only the beginning of the case and does not mark the best understanding of originalism today.
Recently, I wrote a couple of posts on whether the Privileges or Immunities Clause protected unenumerated rights. In my view, the Clause does protect such rights, but in a disciplined way.
This naturally raises the question whether another part of the Constitution—the Ninth Amendment—also protects unenumerated rights. Here I want to explain my view that the Ninth Amendment recognizes unenumerated rights but does not protect them as constitutional rights.
There are two common opposing positions on the Ninth Amendment. One view is that the Amendment refers to natural rights and protects them as other constitutional rights. Thus, if there was a natural right to possess private property, the courts should hold unconstitutional any federal laws that violate that natural right.
The opposite view is that the Ninth Amendment does not provide constitutional protection for those rights. There are a variety of ways that people reach this conclusion—some based on a federalist interpretation of the Ninth Amendment, others based on a nonjusticiability interpretation, and many others—but they all conclude that courts should not hold violations of natural rights to be unconstitutional under the Ninth Amendment.
Over the years, I have adopted various positions on the Amendment. Today, I have something of an intermediate position. I agree that the Ninth Amendment makes reference to unenumerated natural rights. But I do not believe that it protects those natural rights as constitutional rights.
Let’s start by looking at the language of the Amendment, which provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” While some people deny that this language refers to natural rights, I have now come to believe that the best reading is that it does refer to such rights. In particular, the rights “retained by the people” was generally understood as referring to natural rights at the time. Thus, the Constitution does make reference to natural rights.
This is hardly surprising. At the time of the Constitution, the dominant approach to conceptualizing government was a Lockean social compact framework, a framework that also lay at the foundation of the Declaration of Independence.
But just because the Ninth Amendment refers to natural rights does not mean that it protects such rights as constitutional rights. The Amendment does not say “the rights retained by the people should be protected as constitutional rights.” Instead, it merely says that they should not be “denied or disparaged.”
When the original Constitution was enacted, but the before the Bill of Rights and the Ninth Amendment were passed, natural rights were not enforced by the courts to hold statutory provisions that conflicted with those rights void. Instead, such rights were understood as providing a political justification for government and for constraints on that government. The violation of such rights might justify rebellion (as they did in the War for Independence), but those rights were not enforced by courts as constitutional rights that took priority over statutes.
The Ninth Amendment is concerned that the enumeration or listing of rights shall not be construed to deny or disparage natural rights. That means that the listing in the Bill should not lead to any reduction in the role of natural rights. But since natural rights were not enforceable by courts as constitutional rights prior to the Bill of Rights, the refusal of courts to enforce them after the listing does not disparage them. Courts continue to respect their traditional status. They simply do not elevate that status.
Does this leave these natural rights with no function other than as a justification for government and constraints? No. Natural rights were also reflected in the common law and so courts would properly consider natural rights when articulating common law rights. Similarly, natural rights were relevant when interpreting statutes. Statutes that seemed to abridge such rights were not interpreted to do so unless there was a clear statement to that effect. These functions may still be proper today. But the Ninth Amendment does not require or authorize the Courts to hold statutes unconstitutional that violate natural rights.