NCJ Number
115128
Date Published
1987
Length
99 pages
Annotation
This paper examines the language, history, and purpose of the 9th amendment and the privileges or immunities clause of the 14th amendment, concluding that neither provision can fairly be interpreted to permit judicial recognition or creation of extra-textual rights limiting valid exercises of State or Federal powers.
Abstract
Under the ninth amendment, the unenumerated rights retained by the people are those aspects of the people's original sovereignty not delegated to the Federal Government. Accordingly, by definition, such unenumerated rights cannot conflict with or override the delegated powers. This conclusion is consistent with the plain meaning of the text, which is phrased as a rule of construction, not as a substantive limitation on Federal power. The conclusion is also supported by contemporaneous understandings of 'rights' as 'powers reserved' to individuals, and with the legislative history of the amendment, which shows that the language was intended to prevent over-broad construction of Federal powers. With respect to the privileges or immunities clause of the 14th amendment, the paper concludes that the protected privileges or immunities most likely consist of those that arise elsewhere in the Constitution and laws duly enacted thereunder and a requirement of nondiscrimination in the extension of privileges or immunities under State law. 311 footnotes. (Author summary modified)