The Bill of Federalism
Article [of Amendment 9] — [Protecting the Rights Retained by the People]Proposed Text
The rights of citizens of the United States include all the enumerated and unenumerated liberties, and privileges recognized by this Constitution. Nothing in this constitution shall be construed to create any conclusive or irrebuttable presumption that a law, regulation, or order of the United States or of a State does not infringe such rights. In any case or controversy in which an abridgment of such rights is alleged, no party shall be denied the opportunity to introduce evidence or otherwise show that a law, regulation or order is an unreasonable restriction on such rights and therefore is unconstitutional.
Professor Barnett's Commentary
The existing Ninth Amendment says that “The enumeration in the Constitution of certain rights shall not be construed to denyor disparage others retained bythe people.” Since the 1950s, however, the Supreme Court has adopted a construction by which any restriction of what it calls the “liberty interests” of the people is upheld as constitutional unless the Court deems a particular libertyinterest to be a “fundamental right.” In this way, it has foreclosed any citizen from presenting proof that a restriction on a liberty not deemed to be fundamental is unreasonable. Because enumerated rights such as the freedom of speech are typically considered fundamental and protected, while the unenumerated rights to which the Ninth Amendment refers are deemed unprotected “liberty interests,” the practical result of this is the denial and disparagement of the rights retained by the People in violation of the rule of construction provided by the Ninth Amendment. The ninth proposed amendment provides for the equal protection of all the liberties of the people, whether enumerated or unenumerated, without empowering judges to define unenumerated rights. Instead, whenever a person’s liberty is restricted, that person is allowed to present proof that the restriction is unreasonable and therefore unconstitutional. This amendment will focus on the reasonableness of the government’s justification for restricting liberty rather than on the precise definition of a particular unenumerated right.
Public Comment Section on the Second Amendment of the Bill of Federalism