INVOKING THE POWER OF THE NINTH AMENDMENT
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
— The Ninth Amendment
The core of this argument rests on three pillars: the historical definition of "natural rights," the original structure of the legal profession, and the distinction between a private guild and a government mandate.
1. The Right to a Lawful Calling
The Ninth Amendment was designed as a catch-all to protect the natural rights of individuals that were too numerous to list in the Bill of Rights. Under English common law, which heavily influenced the founders, the right to pursue a lawful trade or calling—including advocating for others—was considered a fundamental liberty. In early America, a person did not go to an accredited law school or pass a standardized state exam to practice law; they "read the law" as an apprentice. Therefore, the right to earn a living through legal advocacy, and the reciprocal right of a citizen to hire the representative of their choice, are unenumerated rights "retained by the people."
2. Bar Associations as Private Guilds
The argument posits that the modern requirement to pass the Bar violates these retained rights because of what the Bar historically was: a private trade association. The American Bar Association (founded in 1878) and various state bar associations began as voluntary fraternities. They were created by lawyers, for lawyers, to establish networking, ethics codes, and a sense of prestige. They were not originally government agencies endowed with the sovereign power to license.
3. Unconstitutional Delegation of Power
If the right to work and the right to contract for representation are unenumerated rights protected by the Ninth Amendment, the state cannot mandate that a citizen join a private, dues-collecting organization (the Bar) in order to exercise that right. By giving a private trade guild a monopoly on who is allowed to speak for others in a court of law, the state is effectively forcing citizens to seek permission from a private entity to exercise a retained constitutional liberty.
