Wednesday, March 10, 2010

Seidman on the Ninth Amendment and the Impossibility of Textualism

Originalists take heed! My colleague Louis Michael Seidman, Georgetown University Law Center, has posted Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism. Here's the abstract:
The Ninth Amendment - our resident anarchic and sarcastic "constitutional jester" - mocks the effort of scholars and judges alike to tame and normalize constitutional law. It is not as if the stern disciplinarians haven't tried. We now have two generations worth of painstaking, erudite, and occasionally brilliant scholarship that attempts to rein it in. Yet the amendment stubbornly resists control. It stands as a paradoxical, textual monument to the impossibility of textualism, an entrenched, settled instantiation of the inevitability of unsettlement. If it did not exist, constitutional skeptics would have had to invent it.

This essay has two parts. In Part I, I present a new and, I hope, persuasive, originalist account of the Ninth Amendment. My claim is that the Amendment deliberately leaves unsettled the status of unenumerated rights. Because of the Ninth Amendment, the Constitution does not "deny" or "disparage" these rights, but neither does it embrace or imply them. The amendment puts off to another day a final reckoning of the extent to which we are bound by constitutional text.

Although I use originalist methodology in Part I, I do not want to be understood as embracing originalism. Instead, this Part is an exercise in internal critique. As Part II explains, the Ninth Amendment states a truth that we would have to deal with whether or not it was part of the original text: No matter how comprehensive, no text can control the force of ideas and commitments that lie outside the text. This simple truth leaves the status of liberal constitutionalism permanently and inevitably unsettled. The day of final reckoning will never arrive.

1 comment:

Shag from Brookline said...

I attended Prof. Bernard Bailyn's lecture yesterday at Boston College on "How Historians Get it Wrong: The American Constitution, for Example." Prof. Bailyn discussed James Madison's role with the Constitution and with the Bill of Rights; with respect to the latter, he pointed out that the 9th Amendment may have been a "throw in" and seemed not to be challenged, including in the ratifying process. We have the benefit of Prof. Kurt Lash's articles on the 9th Amendment. I look forward to reading Prof. Seidman's article. Prof. Bailyn suggested during Q & A that the 9th Amendment can be expected to addressed some current political issues. (Note: during Q & A Prof. Bailyn declined to address originalism, although there were several questions about the 2nd Amendment and its historical aspect.) (Further Note: I learned of this lecture at this Blog. Thank you.)