Texas Wesleyan Law Review


Warren Norred

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This Comment discusses the consolidated case Rapanos v. United States and the challenged scope of the Clean Water Act as an example ok where the Ninth Amendment should serve as a counter-balance to Chevron deference when agencies act against individual liberties without specific enabling statutory authority. The Comment examines historical evidence revealed and discussed in recent scholarship to establish the various legal views concerning the Ninth Amendment and the protection it was intended to provide. While some commentators see an expansive "natural law" Ninth Amendment, others see a mere rule of construction that cannot be used to reject a law as unconstitutional. However, this Comment finds common ground within all of the accepted legal views that give the Ninth Amendment any substance, even when these views collide in many other respects. This Comment asserts that any effective reading of the Ninth Amendment should find it protects individuals against expansive interpretations by federal agencies of vague statutes. As an example, this Comment asserts that the Supreme Court should employ Ninth Amendment reasoning to restrict the jurisdiction of the Army Corps of Engineers in Rapanos to include only those lands directly connected to navigable waters. This Comment makes no broad claims of Ninth Amendment protection for every activity not mentioned in the Constitution, nor does it make any attempt to establish what the outer contours of the Ninth Amendment should encompass. This theory threatens no floodgate of newly discovered rights, nor does this theory invalidate any federal law. However, it would remove some of Judge Bork's perceived inkblot from the Ninth Amendment and thereby restore some substance to the Ninth Amendment that the Court has given to the rest of the Bill of Rights.



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