The Golden Mean Between Kurt & Dan: A Moderate Reading of the Ninth Amendment

In these remarks given at the Drake Constitutional Law Center Symposium, Professor Randy Barnett addresses his disagreement with Dan Farber's view of the Ninth Amendment in his new book and with Kurt Lash's view of the Ninth Amendment in his recent articles, and he asks why the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment have been overlooked. The author explains that his view is closer to Farber's; however, he asserts that the Ninth Amendment protects all fundamental liberties—not just some. He asserts that Lash incorrectly views the Ninth Amendment as protecting state majoritarianism rather than individual liberties. His argument relies on historically significant writings by Philadelphia Constitutional Convention delegate Representative Roger Sherman. The author responds to critics who worry that his broad view of liberty could permit courts to impede the workings of government by saying that rights do not receive absolute protection. Instead, his approach sensibly places the burden on the government to justify its restrictions on individual rights. Professor Barnett provided a detailed explanation of his theory in a significant recent book.