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Levine on the Ninth Amendment

By Lawrence Solum

Samuel J. Levine (Pepperdine University School of Law) has posted Of Inkblots and Omnisignificance: Conceptualizing Secondary and Symbolic Functions of the Ninth Amendment, in a Comparative Hermeneutic Framework (Michigan State Law Review, Vol. 2009, No. 2, 2009) on SSRN. Here is the abstract:

In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the Torah and the United States Constitution contain sections that, notwithstanding a textual appearance of actual implementation, have been interpreted by at least some legal authorities as not susceptible to practical application. Specifically, in the case of the United States Constitution, the Ninth Amendment appears on its face to serve as a basis for the identification of constitutional rights not enumerated elsewhere in the Constitution. In practice though, the Ninth Amendment has not served such a function; its harshest critics have characterized the amendment as the functional equivalent of an inkblot, while the United States Supreme Court, though not as dismissive in tone, has resisted arguments that would rely on the Ninth Amendment as a source for the derivation of unenumerated, individual constitutional rights. In an effort to reconceptualize the function of the Ninth Amendment in American constitutional interpretation, Levine looks to the analogue of the Biblical account of the ?stubborn and rebellious son,? one of three legal scenarios in the Torah that, in the views of some Talmudic authorities, will never occur. According to a number of Jewish legal scholars and philosophers, the Talmud ascribes to these sections of the Torah considerable legal significance, albeit of secondary or symbolic legal value. Although these legal scenarios may never occur, the lessons derived from the text have both pedagogical and practical implications for understanding and interpreting the laws of the Torah. Likewise, perhaps the Ninth Amendment functions neither as a primary source for the derivation of unenumerated constitutional rights nor as an inkblot. Instead, the Ninth Amendment may serve a secondary role, providing both practical and symbolic lessons for understanding and interpreting the United States Constitution.

Full post as published by Legal Theory Blog on April 27, 2010 (boomark / email).