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64 Chi.-Kent L. Rev. 1001 (1988)
The Ninth Amendment: Righting an Unwritten Constitution

handle is hein.journals/chknt64 and id is 1015 raw text is: THE NINTH AMENDMENT: RIGHTING AN UNWRITTEN CONSTITUTION SUZANNA SHERRY* As the recent Symposium in these pages indicated, the preliminary debate over the meaning of the ninth amendment is essentially over. De- spite the diversity of views expressed in the Symposium, all but one con- tributor agreed that the ninth amendment does protect judicially enforceable unenumerated rights. The real question now must be how to identify those rights. Only Professor Michael McConnell disputes the conclusion that the ninth amendment allows judges to enforce unenumerated rights. He sug- gests that neither the history of the Constitution nor sound political the- ory supports such a reading of the ninth amendment.' Using his article as a focus for this Essay, I would like to do two things: (1) to add to the historical work demonstrating the framers' commitment to judicially en- forceable unenumerated rights; (2) to comment generally on the New Right insistence on strict textual limits to judicial activism, which I be- lieve stems from a mistaken view of the judicial process. I. As Sanford Levinson points out,2 the fascination with the ninth amendment began largely as a reaction to the New Right insistence that constitutional interpretation can legitimately rest only on the specific written text and its history-a sharp change from the traditional prac- tices of, and canonical commentary on, the Supreme Court. Until originalism became the vogue, there was no need to delve into the for- gotten amendment or its history in order to support non-originalist review. This reactive foray into the origins of the ninth amendment- and to an even greater extent, into the eighteenth century idea of unenumerated rights generally-has rewarded historically-minded non- originalists beyond their wildest dreams. And, to the surprise of no one, * Professor of Law, University of Minnesota. A.B. 1976, Middlebury College; J.D. 1979, University of Chicago. I would like to thank Daniel A. Farber for his helpful comments on an earlier draft of this Essay. 1. McConnell, A Moral Realist Defense of Constitutional Democracy, 64 CHI.-KENT L. REV. 89 (1988). 2. Levinson, Constitutional Rhetoric and the Ninth Amendment, 64 CHI.-KENT L. REV. 131, 134-39 (1988).

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