The Ninth Amendment states, The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  It was designed to work with the Tenth Amendment to reinforce limits on the federal government.

The original Constitution contained three types of restrictions on federal power:

Type 1:     The Constitution listed things the government could not do (e.g., pass an ex post facto law).

Type 2:     The Constitution enumerated the powers the government was to have (e.g., regulate interstate commerce, but not agriculture).

Type 3:     The Constitution included specific restrictions on specific powers (e.g., Congress could appropriate money for an army, but only for a two-year period).

Some argued that Type 1 should be expanded with a Bill of Rights. But others (James Madison among them) pointed to a risk in that proposal.  Because of the legal maxim Designatio unius est exclusio alterius (the designation of one thing implies the exclusion of another), adding a Bill of Rights might encourage people to disregard the Type 2 and 3 restrictions on federal power.

When the demand for a Bill of Rights prevailed, Madison agreed to draft one – but he included what became the Ninth Amendment to make it clear that expanding Type 1 did not mean abandoning Types 2 or 3.

A key to reading the Ninth (and Tenth) Amendments properly is to know that the Founding Generation often used the words “right” and “power” interchangeably. (We more rarely do the same, as when we refer to the President’s “right” to veto a bill.)  That is how they were used here.  If you sometimes read the word “rights” in the Ninth Amendment as “powers” and “powers in the Tenth Amendment as “rights,” you can better understand their meaning.

Few parts of the Constitution have been so misunderstood as the Ninth Amendment.  For example, some have argued that it reserved a mass of “natural rights” that the Courts should enforce against the federal, and even the state, governments – such as abortion, property, and contract rights.  That misunderstanding arises from failure to understand that “rights” in the Ninth Amendment means “powers.”

The Ninth Amendment was not designed to enable the Courts to create new rights – or even to recognize old ones.  It was designed to work with the Tenth Amendment to preserve the Constitution’s other restrictions on federal power.

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

LEARN MORE

01

Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles

02

Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog

03

State of the Nullification Movement

108 pages. History, constitutionality, and application today.

get the report

01

Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty

02

maharrey minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today

TENTHER ESSENTIALS

Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!

JOIN TAC

01

The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment

03

Nullification

Get an overview of the principles, background, and application in history - and today.

nullification