While leading a discussion section on Griswold yesterday, I had what has now become a familiar experience: students tend to prefer, by a large margin, Justice Goldberg’s Ninth Amendment-based reasoning to Justice Douglas’s liberty reasoning, insofar as they both identify a constitutional right to privacy. Many students tend to be chary of Douglas’s “penumbras” and “emanations,” which they see as Lochnerizing – substantive due process rearing its ugly head. They see Goldberg’s reasoning as the more restrained option, in fact: they think that because he hangs his hat on the Ninth Amendment, he has a firmer textual basis for his argument than Douglas, who relies on a structural reading of the relationships between, and implications of, different rights guarantees, precedents, and principles. In my students' eyes, Goldberg is a more principled textualist, at least in comparison with Douglas, whom they regard as ambitious, far-reaching, or activist.
Of course, virtually all other justices, before and after Griswold, have been reluctant to interpret the Ninth Amendment to mean that there are more, judicially enforceable, rights than those rights against the federal government that are enumerated in the first eight amendments. Most justices and legal commentators have construed the Ninth Amendment to mean that the Court may not strike down legislation simply because it refers to fundamental rights that are not among those enumerated in the Bill of Rights, but that it does not mean that the courts may positively identify additional unenumerated rights. From the point of view of many of my students, Ninth Amendment has been in near-desuetude for pretty much the entire length of the history of judicial review, although it has also attracted some scholarly attention as a possible, better alternative to due process as an anchor for the modern Court’s individual rights jurisprudence (see Dan Farber’s Retained by the People for a compelling, but to my mind still ultimately satisfactory, account of how the Court should rely on the Ninth Amendment to support its rights jurisprudence, rather than, say, due process).
I sometimes do get a contingent of students who support Black’s dissent in Griswold: he argues that where no rights are enumerated, the Court has no business talking about them. Black’s absolutist textualism can sometimes be appealing, no doubt. But it smacks of a certain political naïveté, in my view. Judicial review is now seen as the major – perhaps the only – engine for constitutional change, and for better or worse most political actors seem to think that the Court is the only appropriate venue for articulating (constitutional) rights claims. Perhaps, if he could have been convinced that the Court played an unavoidable role in national politics, Black would have enthusiastically endorsed extrajudicial constitutional interpretation. But perhaps not.
In any event, the Ninth Amendment poses some difficult questions for popular constitutionalists, at least insofar as they endorse extrajudicial constitutional interpretation. The Ninth Amendment has been construed both by conservative originalists like Antonin Scalia and liberal nonoriginalists like Laurence Tribe to mean only that the Court should not construe the enumeration of rights in the Bill of Rights to be exhaustive of the rights that the government must respect. The claim that it explicitly authorizes the expansion of rights claims (through judicial interpretation of the constitution) has never commanded a strong following in jurisprudence or legal scholarship. And yet (anecdata alert!) it seems to me that many, if not most, nonspecialists, when confronted with the text of the Ninth Amendment, interpret it to mean that the Court is authorized – even compelled – to identify “new” or unenumerated rights through judicial review. Judicial supremacy has become so entrenched – in our political practice and in our culture – that, to many minds (especially my students'), “of course” the Court has a responsibility to interpret the Ninth Amendment, whether the case is about gun rights or privacy or whatever. The possibility of extrajudicial interpretation – whether or not it’s grounded in putative “Ninth Amendment principles” – doesn’t occur to my students. Constitutional interpretation is something that the Supreme Court does, or so their thinking goes. The justices may balk at that notion; but one of the (rather perverse) outcomes of the political construction of judicial supremacy is the emergence of the cultural expectation that the Supreme Court can, should, and must solve all dilemmas and conundrums of elaborating the Constitution’s meaning.
Not all conceptions of popular constitutionalism hold that “the people themselves” are always or infallibly correct in interpreting their own constitution, but the intent, text, and legal history of the Ninth Amendment seem to be at odds with many popular expectations or understandings today. That fact, in and of itself, doesn’t bother me – as a popular constitutionalist I privilege contemporary interpretation and feel compelled to take it seriously, whether that leads to originalist, living constitutionalist, or anti-judicial supremacist results – but what does bother me is the idea that “we, the people” must find a textual warrant for interpretive control of our own Constitution. We don’t need the Ninth Amendment as an excuse or permission slip for asserting popular control over the processes of constitutional change; we should feel confident in so doing because it’s an exercise in democratic self-government. But it must be admitted that this is not a proposition that is self-evident to many people.