Notwithstanding decades of significant legal scholarship focusing on the Ninth Amendment to the U.S. Constitution, a large portion of the practicing legal community, and even a substantial percentage of legal scholars, are unfamiliar with the provision. The primary reason for this phenomenon is the striking absence of an identifiable body of Ninth Amendment adjudication. In this Article, Mark Niles focuses on this phenomenon and endeavors to develop an interpretative theory of the amendment upon which an adjudicative role can be founded. In Part I of this Article, Niles outlines the traditional judicial treatment of the Ninth Amendment, or more precisely, the remarkable lack of judicial treatment. He asks why courts have been willing to interpret and apply other "open-ended" constitutional language, but have all but completely left the Ninth Amendment alone. He concludes that the feature that sets the Ninth Amendment apart from other constitutional provisions, and which has resulted in its jurisprudential dormancy, is its lack of an apparent interpretive "theme." In Part II, relying on the political theory of John Locke and a review of the intent of the drafters and ratifiers of the amendment, Niles identifies this hidden theme, arguing that the Ninth Amendment is essentially about the proper balance between personal freedom and government action that seeks to infringe upon that freedom. The "rights retained by the people," discussed in the amendment, are rights to act in ways that pose no threat of harm to others or the community as a whole, and the amendment stands for the proposition that government action that seeks to restrict or regulate such "private" acts is illegitimate. In Part III, Niles suggests an adjudicative mechanism for resolving Ninth Amendment claims. The Ninth Amendment mechanism mirrors that employed in resolving disputes regarding the application of the Equal Protection Clause of the Fourteenth Amendment to the extent that it also seeks to identify government action that is motivated by an invalid motivation-in the case of the Ninth Amendment, an intent to restrict private activity-and to preclude such action. In Part IV, Niles compares this new adjudicative mechanism to the device currently used to address disputes over the proper extent of personal freedom "substantive" due process analysis. Niles argues that Ninth Amendment jurisprudence would be a significant improvement over substantive due process adjudication of issues of personal freedom and government regulation, because it would provide the textual and normative foundations for a concept of personal autonomy that substantive due process cannot provide. In Part V, he applies the Ninth Amendment adjudicative mechanism to two major substantive due process cases of the twentieth century, Bowers v. Hardwick and Lochner v. New York, to demonstrate both the vitality of the Ninth Amendment mechanism and its advantages over substantive due process. Niles concludes that in addition to providing a more satisfactory result in the sample cases, Ninth Amendment adjudication, regardless of the outcome in any particular case, would allow the legal community to better address the balance between personal freedom and legitimate government action, and therefore, facilitate the creation and preservation of the freest (and safest) possible society.
Ninth Amendment Adjudication: An Alternative To Substantive Due Process Analysis of Personal Autonomy Rights, 48 UCLA L. REV. 85