Inkblots: How the Ninth Amendment and the Privileges or Immunities Clause Protect Unenumerated Constitutional Rights – Note by Kyle Alexander Casazza

From Volume 80, Number 6 (September 2007)
DOWNLOAD PDF

One commentator has rightly noted that “principles of natural justice are summoned to highlight moral requirements of the legal and political order, to defend individual rights against the utilitarian interests of a political majority, or to guide the adjudication of hard cases which fall into textual gaps or open ended clauses of the Constitution.” Despite the presence of these open-ended clauses, our Framers “understood and observed a distinction between ‘natural’ rights and…‘positive’ rights.” The former are comprised of “Lockean notions concerning the ‘unalienable’ rights of the people,” while the latter look to “common, constitutional, and statutory law.”

The Framers’ enumeration of some rights did not distinguish between the two – the Bill of Rights enumerated traditionally natural and positive rights because both are “essential to secure the liberty of the people.” The Ninth Amendment and the Privileges or Immunities Clause can be read to protect distinct classes of unenumerated rights across these two categories. Under such an approach, the Ninth protects unenumerated rights inherent in all persons, while the Privileges or Immunities Clause protects a unique class of unenumerated rights born in both civil government and the Constitution itself.

General attitudes toward the Ninth Amendment are perhaps best exemplified by the statement of then-Judge Robert Bork during his 1987 confirmation hearings, in which he stated that the Ninth Amendment should be viewed as “‘an amendment that says “Congress shall make no” and then there is an inkblot, and you can’t read the rest of it, and that is the only copy you have.’” Interestingly enough, Robert Bork has referred to both the Ninth Amendment and the Privileges or Immunities Clause as inkblots.


 

80_1383