If George Carey is correct in his review of Marshall DeRosa’s The Ninth Amendment and the Politics of Creative Jurisprudence (September 1996), then Professor DeRosa is justified in his concern that the judges might misapply the Ninth Amendment, as they have other general phrases, such as “due process” and “equal protection.” In recent years, the justices have indeed taken it upon themselves to become “statesmen,” who see their mission as “problem solvers” for a “changing society.” Of course, such was not the role of the judiciary envisioned by the Framers.

But the Ninth Amendment is not a threat, as Professor DeRosa fears. To the contrary, this long-dormant clause of the Bill of Rights may become the antidote to unlimited expansion of federal power, as was no doubt intended. As Madison told his colleagues in urging them to support the Bill of Rights: “I believe that the great mass of the people who opposed it [the Constitution] disliked it because it did not contain effectual provisions against encroachments on particular rights, and those safeguards which they have been long accustomed to.” As the drafting of the Bill of Rights (Madison referred to them as “exceptions to the grant of power”) progressed, it became clear that a list of rights would become awkwardly lengthy. But Madison acknowledged a problem that any listing of rights would pose: “It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in the enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.” The solution? The Ninth Amendment, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

I believe that this clause, rather than being a further conduit for expansion of federal power, is our primary way of checking it. Since it is the people themselves who retained these rights, however, it is the people who would logically define them. It is obvious that Hamilton was much too optimistic in Federalist 78, where he expects the Court to side with the will of the people in defending traditional (Ninth Amendment) rights. Indeed, the Court has become the instrument by which minority interests rule the majority. The Congress would be a more logical institution to provide the mechanism. Since its members also take the oath to uphold the Constitution, Congress could enact legislation establishing the national initiative and referendum to define Ninth Amendment rights. The result of such a process would be binding, and not subject to appeal in the federal courts.

        —Joseph M. Salmon
Dothan, AL

Dr. DeRosa Replies:

I can appreciate Mr. Salmon’s Ninth Amendment romanticism; unfortunately juridical developments and congressional politics make it highly improbable that the Ninth Amendment will be utilized as a meaningful check on the national government’s usurpation of the police power prerogatives of the states. To the contrary, the Ninth Amendment will—in the not too distant future—be contorted into an even more significant weapon in the national government’s arsenal of political power aggrandizement, the Framers’ intentions notwithstanding. It is this realistic view of things to come that I explicate in my book, which I hope Mr. Salmon will read.