Thursday, May 19, 2011

The "Constitutional Jester": Theory & History on the 9th Amendment

"Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism," by Michael Seidman (Georgetown--law), published in a recent issue of the California Law Review (Vol. 98, No. 6., Dec., 2010) may be of interest to constitutional historians. The article mostly is a work of constitutional theory, but includes accounts of history and discussions of originalism. The abstract follows, and the full article can be found here.

The Ninth Amendment—our resident anarchic and sarcastic “constitutional jester”—mocks the effort of scholars and judges alike to tame and normalize constitutional law. The Amendment stubbornly resists control. It stands as a paradoxical, textual monument to the impossibility of textualism, an entrenched, settled instantiation of the inevitability of unsettlement. If it did not exist, constitutional skeptics would have had to invent it.
Part I of this essay presents a new originalist account of the Ninth Amendment. It argues that the Amendment deliberately leaves unsettled the status of unenumerated rights. Because of the Ninth Amendment, the Constitution does not “deny” or “disparage” these rights, but neither does it embrace or imply them. The Amendment puts off to another day a final reckoning of the extent to which we are bound by constitutional text.
Part II argues that the Ninth Amendment states a truth that we would have to deal with whether or not it was part of the original text: No matter how comprehensive, no text can control the force of ideas and commitments that lie outside the text. This simple truth leaves the status of liberal constitutionalism permanently and inevitably unsettled. The day of final reckoning will never arrive.

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