I fervently wished someone would have asked that of Justice Barrett before her elevation.
I actually thought Senator Sasse (R-NE) was heading there on Day 3:
https://www.rev.com/blog/transcripts/amy-coney-barrett-senate-confirmation-hearing-day-3-transcript
Sen. Sasse: To tackle a few of those constitutional structural questions for a popular audience, can you explain what the Ninth Amendment is about? Why do we have it?
Amy Coney Barrett: Well, it’s often treated as a rule of interpretation. There’s not a lot of substantive doctrine or any substantive doctrine under it. It’s preserving. It says that the individual’s rights are preserved, that those not expressly granted aren’t taken away.
Sen. Sasse: And if we maybe broaden it from just the Ninth amendment to the Bill of Rights in general, why do we have one and what would be different in our constitutional structure if we didn’t have the Bill of Rights?
Amy Coney Barrett: If we didn’t have a Bill of Rights, we wouldn’t have particular rights singled out for special protection. As I’m sure you know, Senator, the Bill of Rights was added in 1791 because during the debate about the ratification of the original Constitution, many states objected to the fact that there was no Bill of Rights. The original idea, when the original Constitution, and by that, I mean beginning with Article One, moving up, was that the very structure of government protected rights. And there wasn’t thought to be a need to have a Bill of Rights because it was thought that the separation of powers and the structure of federalism would be a protection for those rights. But those who really felt like they wanted the additional protection, the Bill of Rights prevailed and James Madison drafted them and they were ratified in 1791.
Sen. Sasse: So I don’t mean to put words in your mouth. I mean to lay out a hypothesis so you can expand upon it or correct me, but is it fair to say that most governments in human history have had a default assumption of prohibition? Governments can do whatever they want and citizens don’t have rights unless governments proactively give them rights. The default assumption is you don’t have freedom of religion in most governments across time and space. You don’t have the freedom to start a business. And the American system starts with the opposite assumption, which is that freedom is the default condition. People are created in the image of God with inalienable rights. These are pre-governmental rights and the government has to have specifically enumerated powers. We, the Congress, have to authorize Article Two branch, the Executive Branch to go ahead and do anything. And if they don’t have those authorities, in the Executive Branch and the Administrative Agencies, they can’t do anything unless Congress gives them the freedom. And the people’s default assumption is freedom.
And so our system is to flip the historic prohibition assumption and we have a freedom assumption on people and a prohibition assumption on government. And so prior to the Bill of Rights, the structure of the Constitution was saying that we don’t need to enumerate rights because the assumption is you have a right, unless a prohibition has been created. Is that a fair way to think about it? And how would you expand upon it more eloquently since you teach this stuff?
Amy Coney Barrett: You are far more eloquent than I, Senator Sasse. I think that is an accurate description of how the assumptions underlying our Constitution. That the assumption was that if Congress had limited power, it wouldn’t have the ability to infringe rights in the first place. And of course at the time the Constitution was ratified, the states were thought to have… Because the people are closer to their state governments… Well, that’s the point of federalism, right? That citizens can have different policies in states and more influence over their state governments and their state legislatures than the federal government.
