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Originalism and the Invisible Constitution
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We can imagine a variety of possible approaches to construction when an
irreducible contextual ambiguity exists. We can explore this problem in the
context of its most famous exemplar – the Ninth Amendment.
3.6.4. The Ninth Amendment
The Ninth Amendment to the United States Constitution states “[t]he enumer-
ation in the Constitution, of certain rights, shall not be construed to deny or dis-
parage others retained by the people.” We can begin with the word “construed.”
The Ninth Amendment is a rule of construction in the technical sense. This is
not a product of the perhaps fortuitous use of “construed,” which is a form of
the same root word as “construction.” Rather, it follows from the interpretation–
construction distinction and the implication–implicature construction.
The Constitution enumerates certain rights, in Sections 9 and 10 of Article
I, in Article IV, and in various amendments, including the first eight pro-
visions of the Bill of Rights, and subsequent to the Ninth Amendment in
various other amendments, including the Fourteenth Amendment. As a mat-
ter of interpretation, the enumeration of these rights could not give rise to a
constitutional impliciture that denied or disparaged other rights retained by
the people. The semantic content of the enumerated rights consists of pos-
itive statements about the right in question – freedom of speech, the right
to bear arms, and so forth. The fact of enumeration is a structural feature of
the Constitution. Nothing in the semantic content of the rights contains a
semantic content that explicitly denies or disparages other rights retained by
the people. But it is at least possible that the communicative content of the
enumeration of particular rights gives rise to an implicature that denies or
disparages other rights. The reasoning would go as follows:
The Constitution enumerates a list of particular rights of the people. The
point of enumerating particular rights (and omitting a more general state-
ment) is to create an exhaustive list. Therefore, there is an impliciture – an
unstated provision of the Constitution that says something [and no other
rights] after the enumerated rights.
The semantic content of the Ninth Amendment forbids this form of implici-
ture, and it would forbid this impliciture even if the impliciture best captured
the public meaning of the Constitution as it would have been without the
Ninth Amendment.
But the semantic content does a second thing. Even if enumeration did
not give rise to an impliciture of exclusivity, there could be a constitutional
doctrine (legal content) that forbade judicial enforcement of unenumerated
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Lawrence B. Solum
rights. The reasoning in favor of such a rule of constitutional construction
might have proceeded as follows:
The Constitution enumerates a list of particular rights of the people. This
enumeration could give rise to an inference of exclusivity or it could give
rise to an opposing inference that other relevantly similar rights are also pro-
tected. This implicitive ambiguity requires constitutional construction. The
better construction is that the list is exclusive. Therefore, there should be a
rule of constitutional doctrine that limits individual rights to those that are
enumerated and those that result by logical implication from the enumer-
ated rights.
The semantic content of the Ninth Amendment forbids this construction, and
hence the Ninth Amendment is itself a rule of construction.
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So far, we have focused on the semantic content of the Ninth Amendment,
but most of the debate about the meaning of the Ninth concerns implica-
ture and other forms of contextual enrichment. Again, consider the text: “The
enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.” The text does not state that
the people do have retained rights. This can be demonstrated by adding the
words “if any” to the text as follows: “The enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage others, if any,
retained by the people.” The “if any” does not create a logical contradiction.
For this same reason, the semantic content of the text does not give rise to a
constitutional implication that the people have retained rights – it is not logi-
cally required by the semantic content.
But the Ninth Amendment does give rise to a straightforward constitutional
presupposition that the people retain other rights. The reasoning is simple.
There would be no reason for the Ninth Amendment if there were no rights
retained by the people; given what the Ninth Amendment does say and the
publicly available context of constitutional communication, a competent
speaker of English would recognize the presupposition. And hence the pre-
supposition is part of the communicative content of the Ninth Amendment.
Given the Constraint Principle, public meaning originalists ought not endorse
constitutional doctrine that is inconsistent with the presupposition – at least
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