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Our Unsettled Ninth Amendment: An Essay On Unenumerated Rights And The Impossibility Of Textualism, Louis Michael Seidman

Louis Michael Seidman

The Ninth Amendment – our resident anarchic and sarcastic “constitutional jester” – mocks the effort of scholars and judges alike to tame and normalize constitutional law. It is not as if the stern disciplinarians haven’t tried. We now have two generations worth of painstaking, erudite, and occasionally brilliant scholarship that attempts to rein it in. Yet the amendment stubbornly resists control. It stands as a paradoxical, textual monument to the impossibility of textualism, an entrenched, settled instantiation of the inevitability of unsettlement. If it did not exist,

This essay has two parts. In Part I, I present a new and, …