Advocates and opponents of birthright citizenship are stuck in a dilemma: originalism binds us to accept it, nonoriginalism offers room to deny it.
One of the puzzles in constitutional law has been the original meaning of the Ninth Amendment. Some years ago, during his unsuccessful confirmation hearings, Judge Robert Bork analogized our lack of understanding of the Amendment to the situation where the language of a constitutional provision was obscured by an inkblot. He argued that since we don’t understand the provision, we are in no better position to enforce it than if an ink blot covered it.
Over the years, various explanations have been offered for the amendment. Some have argued that it protects enumerated natural rights to the same extent as the enumerated constitutional rights. Others have interpreted it to have a much less significant role.
In my view, the best interpretation of the Amendment is supplied by Michael McConnell in a relatively recent law review article. At the beginning of my scholarly career, I had come upon the same idea, but was persuaded not to write it up. My mistake, although I don’t think I would have done as good a job as McConnell does.
The Ninth Amendment provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” McConnell argues that this provision operates to protect certain natural rights, but not by conferring constitutional status on those rights. Instead, it protects those rights as natural rights were protected prior to the Constitution’s enactment. Such rights were protected through equitable interpretation. That is, if a congressional statute were to appear to infringe on such a natural right, it should not be interpreted to have that effect unless the statute’s language was clear on the matter. Otherwise, it should be assumed that Congress did not intend to infringe on a natural right. This is both a natural interpretive rule and the way that natural rights were protected prior to the Constitution.
Why was the Ninth Amendment needed? The thought was that by enumerating certain rights in the Bill of Rights, that might be taken to indicate that all other rights that the people enjoyed prior to entering civil society would be eliminated. When a list of rights, especially a long list was compiled, it is a reasonable inference to assume that only those rights should be protected. After all, if other rights were intended to be protected, why were they not added to the list? So the Ninth Amendment was added to prevent anyone from inferring from the addition of the Bill that other retained natural rights were eliminated or given up.
What is the evidence for this interpretation? First, it flows from the text of the Amendment. That the Amendment is referring to natural rights is supported by the reference to “rights retained by the people.” Under Lockean natural rights theory, retained rights were those natural rights that the people had not given up when they formed the political society by establishing the Constitution.
This interpretation also provides a strong reading of the terms “deny or disparage.” Under the interpretation, these natural rights would not be denied nor disparaged. That is, those natural rights would continue to exist in the same way that they had existed prior to the Constitution. Significantly, the alternative interpretation of the Amendment—which would enforce the natural rights as constitutional rights—has problems here. Not denying or disparaging a natural right is not the same thing as constitutionalizing such a right. Giving that right its traditional protection would not disparage it. Constitutionalizing it elevates it.
I would add two other complementary functions of the Ninth Amendment which are implicit in McConnell’s argument. First, natural rights were also often protected as a matter of common law. If the Bill of Rights was taken to eliminate the natural rights, then they might be thought to be repealed as common law rights. The Ninth Amendment eliminates this inference. Second, the violation of natural rights was also thought to justify revolution under a Lockean theory. Thus, it was important that those rights not be taken to be repealed. In both of these cases—common law and justifying revolution—the Ninth Amendment protects the pre-constitutional role of natural rights, without constitutionalizing those natural rights.