Retained by the People: The Ninth Amendment
Short video featuring Laurence Tribe, Randy Barnett, and Michael McConnell
Short video featuring Laurence Tribe, Randy Barnett, and Michael McConnell
It has been called a dead letter, an inkblot, the most important amendment in the Constitution. Although the Ninth Amendment was ratified in 1791, its history and purpose are contested to this day. It reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But what does this mean? How have the courts interpreted it? What does it say about the role of government in protecting our rights?
Three distinguished law professors, Laurence H. Tribe, Randy E. Barnett, and Michael W. McConnell, take on these questions and more in Retained by the People.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Follow Professor Laurence H. Tribe: @TribeLaw
https://twitter.com/tribelaw
Learn more about Professor Tribe:
https://hls.harvard.edu/faculty/directory/10899/Tribe
Follow Professor Randy E. Barnett: @RandyEBarnett
https://twitter.com/RandyEBarnett
Learn more about Professor Barnett:
https://www.law.georgetown.edu/faculty/randy-e-barnett/
Follow Professor Michael W. McConnell: @StanfordConLaw
https://twitter.com/StanfordConLaw
Learn more about Professor McConnell:
https://law.stanford.edu/directory/michael-w-mcconnell/
Related Links & Differing views:
Judge Michael McConnell delivers fourth annual Hayek lecture [NYU Law]
https://www.law.nyu.edu/news/MCCONNELL_HAYEK_LECTURE
The Ninth Amendment: It Means What It Says [Georgetown University Law Center]
https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1850&context=facpub
The Ninth Amendment in Light of Text and History [Cato Supreme Court Review]
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1678203
Dissenting from Natural Rights Nationalism: A Reply to Randy Barnett [Law & Liberty]
https://lawliberty.org/dissenting-from-natural-rights-nationalism-a-reply-to-randy-barnett/
Reconceiving the Ninth Amendment [Georgetown Law]
https://scholarship.law.georgetown.edu/facpub/1545/
Carl M. Loeb University Professor, Harvard Law School
Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard, has taught at its Law School since 1968 and was voted the best professor by the graduating class of 2000. The title “University Professor” is Harvard’s highest academic honor, awarded to just a handful of professors at any given time and to just 68 professors in all of Harvard University’s history. Born in China to Russian Jewish parents, Tribe entered Harvard in 1958 at 16; graduated summa cum laude in Mathematics (1962) and magna cum laude in Law (1966); clerked for the California and U.S. Supreme Courts(1966-68); received tenure at 30; was elected to the American Academy of Arts and Sciences at 38 and to the American Philosophical Society in 2010; helped write the constitutions of South Africa, the Czech Republic, and the Marshall Islands; has received eleven honorary degrees, most recently a degree honoris causa from the Government of Mexico in March 2011 that was never before awarded to an American and an honorary D. Litt. From Columbia University; has prevailed in three-fifths of the many appellate cases he has argued (including 35 in the U.S. Supreme Court); was appointed in 2010 by President Obama and Attorney General Holder to serve as the first Senior Counselor for Access to Justice; and has written 115 books and articles, including his treatise, American Constitutional Law, cited more than any other legal text since 1950. Former Solicitor General Erwin Griswold wrote: “[N]o book, and no lawyer not on the [Supreme] Court, has ever had a greater influence on the development of American constitutional law,” and the Northwestern Law Review opined that no-one else “in American history has… simultaneously achieved Tribe’s preeminence… as a practitioner and… scholar of constitutional law.”
Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center; Faculty Director, Georgetown Center for the Constitution
Randy E. Barnett is the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center and is the Faculty Director of the Georgetown Center for the Constitution. After graduating from Northwestern University and Harvard Law School, he tried many felony cases as a prosecutor in the Cook County States’ Attorney’s Office in Chicago. A recipient of a Guggenheim Fellowship in Constitutional Studies and the Bradley Prize, Professor Barnett has been a visiting professor at Penn, Northwestern and Harvard Law School.
Professor Barnett’s publications includes thirteen books, more than one hundred articles and reviews, as well as numerous op-eds. His most recent book is Felony Review: Tales of True Crime and Corruption in Chicago (2026). His other books on the Constitution include: A Life for Liberty: The Making of an American Originalist (2024); The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (2021) (with Evan Bernick); An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know (2019) (with Josh Blackman); Restoring the Lost Constitution: The Presumption of Liberty (2nd ed. 2013); Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016); and Constitutional Law: Cases in Context (5th ed. forthcoming 2027) (with Josh Blackman). His books on contracts are The Oxford Introductions to U.S. Law: Contracts (2010) and Contracts: Cases and Doctrine (7th ed. 2021) (with Nate Oman). And he is the author of The Structure of Liberty: Justice and the Rule of Law (2nd ed. 2014).
In 2004, he argued the medical marijuana case of Gonzalez v. Raich before the U.S. Supreme Court. In 2012, he was one of the lawyers representing the National Federation of Independent Business in its constitutional challenge to the Affordable Care Act in NFIB v. Sebelius. He’s appeared in numerous documentaries and portrayed a prosecutor in the 2010 science-fiction feature film, InAlienable: The Movie. On X he is @RandyEBarnett
Richard and Frances Mallery Professor of Law and Faculty Director, Constitutional Law Center, Stanford Law School
Michael W. McConnell is the Richard and Frances Mallery Professor and Faculty Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. From 2002 to 2009, he served as a Circuit Judge on the United States Court of Appeals for the Tenth Circuit. He was nominated by President George W. Bush, a Republican, and confirmed by a Democratic Senate by unanimous consent. McConnell has previously held chaired professorships at the University of Chicago and the University of Utah, and visiting professorships at Harvard and NYU. He teaches courses on constitutional law, constitutional history, First Amendment, and interpretive theory. He has published widely in the fields of constitutional law and theory, especially church and state, equal protection, and separation of powers. His book, “The President Who Would Not Be King: Executive Power Under the Constitution,” was published by Princeton University Press in 2020, based on the Tanner Lectures in Human Values, which he delivered at Princeton in 2019. His latest book, co-authored with Nathan Chapman, “Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience,” was published by Oxford University Press in mid-2023. McConnell has argued sixteen cases in the United States Supreme Court, most recently Carney v. Adams (2020). defending a provision of the Delaware Constitution requiring political balance on that state’s courts. More recently, he was co-counsel in Gonzalez v. Google. He earned his B.A. from Michigan State University and his J.D. from the University of Chicago, and has received honorary degrees from Notre Dame University and Michigan State. He served as law clerk to Supreme Court Justice William J. Brennan, Jr. and D.C. Circuit Chief Judge J. Skelly Wright. He has been Assistant General Counsel of the Office of Management & Budget, Assistant to the Solicitor General of the Department of Justice, and a member of the President’s Intelligence Oversight Board. He is Senior of Counsel to the law firm Wilson, Sonsini, Goodrich & Rosati, and is co-chair of Meta’s Oversight Review Board.
