The Ninth Amendment enters the show’s conversations as a claim about what the Bill of Rights does not do: it does not treat its list as exhaustive. In the 2016 episode on police body cameras, Bob Zadek frames the amendment as the textual basis for unenumerated rights, saying the Constitution “does state that the specific rights listed in the Bill of Rights are only representative and are not there to denigrate other what is called unenumerated rights.” On that reading, the absence of an explicit right to privacy from the text is not evidence against it. Matthew Feeney on Best Practices for Police Body Cameras (2016)
Privacy and body cameras
Zadek introduces the body-camera episode by describing its subject as the intersection between small cameras and the Ninth Amendment, and asking whether there is a constitutionally protected right to privacy and what its extent might be. He tells listeners that while the Constitution contains no such thing as a right to privacy, Americans who believe they have one are adopting an originalist or libertarian view, because the Ninth Amendment reminds us that the omission of privacy from the enumerated list does not denigrate it. Matthew Feeney on Best Practices for Police Body Cameras (2016)
Guest Matthew Feeney, of the Cato Institute, responds that although there is no explicit right to privacy in the Constitution, what is called the right to privacy can be protected under some of the amendments, and that the most often cited in privacy cases is the Fourth Amendment, which protects the people against unreasonable searches and seizures. He notes that Justice Brandeis, in his Olmstead dissent, wrote that the makers of the Constitution undertook to secure conditions favorable to the pursuit of happiness and recognized the significance of man’s spiritual nature, his feelings and his intellect. Matthew Feeney on Best Practices for Police Body Cameras (2016)
Feeney then turns to body cameras as devices that raise questions about what the state sees and what it publishes and reveals. He calls the cameras morally neutral in themselves, made good or bad by rules, laws and legislation, and argues that legislation ignoring the privacy concern will run into problems. He draws a distinction between private residences and the public as a way to protect privacy while improving law enforcement. Matthew Feeney on Best Practices for Police Body Cameras (2016)
Zadek offers a related distinction of his own: he says he does not object to the government holding information about him, but is attentive to how that data is used, and that the mere existence of data in a government database does not violate his right to privacy. He asks whether Feeney means something similar — that intimate information recorded on a body camera and held by the government does not trouble him so long as there are safeguards about its use. Matthew Feeney on Best Practices for Police Body Cameras (2016)
Majority rule and the Founders
The 2017 episode with Michael Munger on public choice economics invokes the Ninth Amendment in a different register: as one of the categories of rights placed beyond majority control. Zadek says the Founders were intensely skeptical of majority rule and determined to protect the rights of minorities, and that under their scheme majority rule applied only to a modest subset of decisions. In most decisions, he says, whatever the majority wanted they had no power — such as the protected rights in the original Constitution, the enumerated rights in the Bill of Rights, and the unenumerated rights in the Ninth Amendment. Leviathan in Chains: Michael Munger on Public Choice Economics (2017)
The amendment here is not analyzed in its own right. It appears as the third item in a list, alongside enumerated rights and rights protected in the original Constitution, all of them treated as limits on what majorities may do. The episode’s argument concerns governmental decision-makers and the flaws of voters rather than the text or interpretation of the Ninth Amendment. Leviathan in Chains: Michael Munger on Public Choice Economics (2017)
Progressive and conservative drafts
Two 2021 episodes bring the amendment into a comparison of alternative constitutional drafts. In the November episode with Caroline Fredrickson on the progressive Constitution, Zadek asks about the tension between natural rights — rights he says many believe human beings have simply by dint of their humanness, such as the right to travel and freedom of conscience — and a more robust democracy. He notes that many of those rights are embodied and enumerated in the Bill of Rights, and that there are other rights in the Ninth Amendment captured as unenumerated rights. Caroline Fredrickson on the Progressive Constitution (2021)
Fredrickson answers that her draft does not eliminate the Bill of Rights and ensures key protections are part of the constitution, including fundamental rights and rights of conscience covering religion and also freedom of conscience for those who may not be religious, which she says goes back to James Madison’s original conception. She says the draft provides protections including an Equal Rights Amendment covering gender, sexual orientation and gender identity, and reaffirms protections for minorities based on race. She adds that the draft does not try to enumerate every single right, and that much is left to the political process, which the draft seeks to make free and fair. Caroline Fredrickson on the Progressive Constitution (2021)
In the December episode on the conservative Constitution, Zadek asks Ilan Wurman about fundamental rights, describing them as the rights enshrined and enumerated in the Bill of Rights and other rights captured by the Ninth Amendment. Wurman answers by separating his view of the actual Constitution from the draft. He says the original Constitution created a federal structure in which the Bill of Rights limited the national government’s power but did not apply to the states, and that the states had their own bills of rights, most with similar or parallel provisions. He says that after the adoption of the 14th Amendment, and especially in the 20th century, the Supreme Court incorporated the Bill of Rights against the states and nationalized unwritten fundamental rights under the concept of substantive due process. The Conservative Constitution (2021)
Wurman argues in his book The Second Founding: An Introduction to the 14th Amendment that the original meaning of the 14th Amendment precludes substantive due process, which he says was made up in the 1870s and ’80s, and that incorporation was wrong. In the conservative draft, he says, substantive due process is nipped in the bud by language providing that the Due Process Clause shall not be construed by the Supreme Court to empower the national judiciary to impose unwritten rights on the nation, while the Bill of Rights is explicitly incorporated. The Conservative Constitution (2021)
Across episodes: no shared doctrine
The excerpts show the Ninth Amendment invoked in four episodes across five years, but they do not show a developing argument about it. In 2016 Zadek uses it to ground a right to privacy and Feeney answers with the Fourth Amendment and Brandeis’s Olmstead dissent; in 2017 Zadek lists it among the limits on majority rule; in 2021 Fredrickson and Wurman each place it within a proposed constitutional draft, Fredrickson leaving most rights to a fair political process and Wurman rejecting substantive due process while incorporating the Bill of Rights. What changes is the setting — a privacy debate, a public choice discussion, two competing drafts — not the treatment of the amendment itself. No guest in these excerpts offers an interpretation of the Ninth Amendment’s text or its case law.
What the sources do not cover
The excerpts do not state what the Ninth Amendment says, when it was ratified, or which cases have turned on it. They do not identify any Supreme Court decision applying the amendment, and the only case named, Olmstead, is cited for a Brandeis dissent concerning the Fourth Amendment. The excerpts also do not say whether the amendment has been used to protect any specific right, or how courts have treated unenumerated rights claims. Where the December 2021 excerpt breaks off, at Zadek’s introduction of a section on conscription and the Necessary and Proper Clause, the discussion of fundamental rights ends.