Note: An updated and revised version of this article is included as Chapter 21 of Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023).
***
Below is a lightly edited text version of “Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights [1995],” Hastings Const. L.Q. 24, no. 3 (Spring 1997): 757–84.
Update:
Of course. Context, custom, tradition, language, communication matters. A similar point was made by @RandyEBarnett , if I am not mistaken, in his seminal work on the ninth amendment and natural rights. IIRC — the argument is something like this: if you take an originalist…
— Stephan Kinsella (@NSKinsella) August 22, 2025
“may have found it. p. vii of Barnett’s foreword in vol. 1, “The essays raise both historical and philosophical questions: How should we use history in interpreting the Constitution? Which body of history should we use? Given that many of the Framers believed in natural rights, should those principles inform our constitutional adjudication, as Bennett B. Patterson argues?” [nsk note: FIX LATER] see also pp. 32-34 in vol. 2, of Barnett’s chapter. See also other quotes in this ChatGPT conversation e.g. Restoring the Lost Constitution p. 78;
and p. 34 of vol. 1:
The adoption of the Ninth Amendment forces those who reject the reality of such rights, but who seek to interpret the Constitution according to either original intent or original meaning, to hypothesize on the content of this expanded list. Without such an attempt, the scheme of delegated powers and reserved rights becomes fundamentally different from the one that the Framers promised and the people involved in the ratification process agreed on. Modern philosophical skepticism about rights is simply beside the point. Just as contract law seeks to enforce the “benefit of the bargain” as agreed to, enforcing the Constitution as enacted would seem to require protection of the retained rights and liberties of the people assumed by the Ninth Amendment in the same manner as we would if we believed these rights and liberties to be “real.“ From the perspective of either original intent or original meaning, ignoring the Ninth Amendment because it does not comport with modern moral philosophy is (to shift the metaphor) a form of constitutional bait and switch.
Taking the Ninth Amendment Seriously
Review of Calvin R. Massey, Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights (Philadelphia: Temple University Press, 1995)
By N. Stephan Kinsella[1]
Abstract: In this review, Mr. Kinsella details and critiques Calvin R. Massey’s recent book on the Ninth Amendment. Massey points out that many modern constitutional theorists hold that the Ninth Amendment cannot be read as a source of rights that can be used to strike down legislation, but only as a rule of construction that prevents construing the Bill of Rights to imply the existence of federal powers beyond those enumerated. However, Massey argues, because of the modern expansion of federal powers and current constitutional jurisprudence, it is now “impossible” to achieve the amendment’s original function of limiting the implied powers of the federal government. Massey suggests that, under a theory of “constitutional cy pres,” the original government-limiting purpose of the Ninth Amendment can nevertheless be achieved if it is read as a source of unenumerated rights that can be used to trump legislation. Massey goes on to argue that these unenumerated rights include both natural rights and positive rights protected in state constitutions.
Kinsella argues that Massey’s theory has little constitutional support, and that this theory would undermine the principle of federalism, itself one of the original purposes of the Constitution. Kinsella concludes by suggesting better approaches to constitutional interpretation or reform, such as the approaches of Randy Barnett and Marshall DeRosa. [continue reading…]
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