Below is the 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], 24 Hastings Const. L. Q. 757 (1997). This submitted draft version may differ slightly from version published.
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. [click to continue…]
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