Sunday, June 08, 2003

Is the Ninth Amendment on the bar exam?

Reading these blogs brings me back to thoughts from I don't know when, and one of them is what is a federal judge supposed to do when relying on the "text" of the Constitution (or a statute) and the text says other unspecified things are covered - this post from the Volokh Conspiracy says "Where I most strongly disagree with judicial conservatives is over their stance on unenumerated rights. If it is improper 'judicial activism' to ignore the text, structure, and original meaning of the Constitution, then when assessing the proper scope of federal power it is improper to ignore the Ninth Amendment, which says: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

This kind of question was at the front of my brain not too long ago when I was arguing a case where the issue was, of all the things, the meaning of the words "other utilities." That "other" means something, even in a Virginia statute defining the powers of local governments in the face of the Dillon Rule, and one would suspect it means something in the Ninth Amendment. Of course, the most famous exposition on the Ninth Amendment, indeed, the only one I know, and the only thing I know about Justice Goldberg, is his opinion in the case of Griswold v. Connecticut. (I can't recall what if anything Professor Jeffries suggested if one of the multiple choice answers on the multi-state was "the Ninth Amendment.")

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