EDITOR’S NOTE: The following text is the introduction to Constitutional Scholar Kurt Lash’s essential study on the Ninth Amendment as a partner in federalism to the Tenth.

FROM THE AUTHOR: This Article presents previously missed or unrecognized evidence regarding the original meaning of the Ninth Amendment. Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. James Madison’s initial draft of the Ninth Amendment expressly adopted language suggested by the state conventions, and he insisted that the final draft expressed the same rule of construction desired by the states.

The altered language of the final draft, however, prompted former Virginia Governor Edmund Randolph to halt his state’s efforts to ratify the Bill of Rights due to his concern that the Ninth no longer reflected the demands of the state convention. Antifederalists used Randolph’s concerns to delay Virginia’s, and thus the country’s, ratification of the Bill of Rights for two years. While ratification remained pending in Virginia, Madison delivered a major speech in the House of Representatives explaining that the origin and meaning of the Ninth Amendment in fact were rooted in the proposals of the state conventions and that the Ninth guarded against a “latitude of interpretation” to the injury of the states.

Although the Ninth’s rule of construction distinguishes it from the Tenth Amendment’s declaration of principle, Madison and other legal writers at the time of the Founding viewed the Ninth and Tenth Amendments as twin guardians of our federalist structure of government. Over time, the Tenth Amendment also came to be understood as expressing a federalist rule of construction. The original federalist view of the Ninth Amendment, however, remained constant and was repeated by bench and bar for more than one hundred years.

INTRODUCTION

In the fall of 1789, former Virginia Governor Edmund Randolph brought to a halt the Virginia Assembly’s efforts to ratify the Bill of Rights due to his concerns about the Ninth Amendment. State conventions considering the ratification of the Constitution, including the convention in Virginia, had insisted that an amendment be added to the document controlling the “constructive enlargement” of federal power. Madison’s original draft of the Ninth Amendment expressly echoed these concerns. The final version of the Ninth, however, looked nothing like the version proposed by Virginia and the other state conventions, and concerns about the alteration led Randolph to oppose the ratification of both the Ninth and Tenth Amendments. Because these two amendments were critical to gaining support for the rest of the Bill, the entire Virginia ratification process ground to a halt. Letters flew to James Madison telling him about the trouble in Virginia, and Madison dutifully reported the events to President Washington. Madison was baffled: The final draft of the Ninth accomplished exactly what Virginia desired. Unconvinced, the Virginia Assembly remained stalled, and the Antifederalists managed to exploit Randolph’s concerns about the Ninth and delay Virginia’s (and thus the country’s) ratification of the Bill of Rights for two years. During that time, Madison gave a major speech before the House of Representatives opposing the creation of the Bank of the United States. In that speech, Madison explained the meaning of the Ninth Amendment and its roots in the declarations and proposals of state ratifying conventions. A few months later, Virginia voted in favor of ratification, and the Bill of Rights was added to the Constitution.

This account cannot be found in any history of the Ninth Amendment. The events themselves are easily verified by consulting the original sources. Those sources, however, are missing in major compilations of the documentary history of the Ninth Amendment. The precursors to the Ninth Amendment – the proposals submitted by the state ratification conventions upon which Madison based his draft – are either not discussed, missing, or mislabeled throughout contemporary scholarship. Although letters triggered by the debate in the Virginia Assembly have been discussed, no work on the Ninth Amendment has investigated the debate itself. Madison’s speech before the House of Representatives on the Bank of the United States remains missing from major compilations of original sources regarding the Ninth Amendment. Although some scholars have addressed portions of this speech, Madison’s discussion of the Ninth Amendment’s roots in the state convention proposals has been completely missed. Other scholarly works place Madison’s speech in a context having nothing to do with the Ninth Amendment, editing out his specific mention of the Ninth.

The history of the Ninth Amendment has not been completely missed, but it has been broken apart and scattered. Once the pieces of this historical puzzle are properly labeled and brought together, a picture emerges which suggests that it was no accident that the Ninth Amendment was placed alongside the Tenth. Both provisions originally guarded the federalist structure of the Constitution. The Tenth’s declaration that all nondelegated and nonprohibited powers are reserved to the states assures that the federal government exercises only enumerated delegated powers. This declaration, however, does not prevent expansive interpretations of enumerated federal powers – interpretations which, if broad enough, would render meaningless the Tenth’s reservation of powers to the states (state power having been supplanted by federal action). The danger of expansive interpretations of federal power did not escape the members of the state ratifying conventions who considered the original Constitution, and they insisted on adding a rule of construction that limited the interpretation of enumerated federal power. James Madison complied by drafting the Ninth Amendment. According to Madison, the purpose of the Ninth Amendment was to “[guard] against a latitude of interpretation” while the Tenth Amendment “exclud[ed] every source of power not within the constitution itself.”

The first of two articles on the lost history of the Ninth Amendment, The Lost Original Meaning, starts at the beginning. Part II considers the text of the Ninth Amendment and the two general theories which have emerged regarding its original meaning. Part III revisits the historical record and focuses on the unique text of the Ninth Amendment that controls judicial interpretation, or “construction,” of the Constitution. The roots of this provision are found in the writings of the Antifederalists who raised concerns about federal courts engaging in “latitudinarian interpretations” of federal power. These concerns were picked up by the state ratifying conventions, many of which submitted proposed amendments to the Constitution expressly prohibiting the constructive enlargement of federal power.

Part IV focuses on James Madison and the drafting of the Ninth Amendment. Fulfilling a promise to his own state convention, Madison’s draft of the Ninth Amendment contained a rule of interpretation expressly limiting the constructive enlargement of federal power and preserving the retained rights of the people. When the language regarding the construction of federal power was removed from the final draft, this triggered concerns in the Virginia Assembly that Congress had ignored the demands of the states. Receiving word about the delay in Virginia’s ratification, Madison wrote to fellow Virginian George Washington and declared that Virginia’s concerns were fanciful – the final draft continued to express the same rule of construction desired by Virginia and the other states. Prohibiting constructions that disparaged retained rights amounted to the same thing as prohibiting constructions that enlarged federal powers. Although Edmund Randolph and the Virginia House soon withdrew their objections, the Antifederalists in the Virginia Senate seized upon Randolph’s concerns and managed to delay ratification for two years. The Report of the Virginia Senate, missing from all previous accounts of the Ninth Amendment, explains the Senate’s objections to the Ninth and sheds important light on Randolph’s concerns and the responses of Hardin Burnley and James Madison.

While the Bill of Rights remained pending in Virginia, James Madison delivered an important speech on the constitutionality of the proposed Bank of the United States. In his speech before the House of Representatives, Madison argued that federal power could not legitimately be construed to include the power to charter the bank. Recounting the concerns of the state conventions regarding expansive interpretations of federal power at the expense of the states, Madison argued that the Constitution had been ratified with the understanding that constructive enlargement of federal power was prohibited. Madison concluded by noting that the Ninth and Tenth Amendments were added specifically to address these concerns, with the Ninth guarding against “a latitude of interpretation” and the Tenth declaring the principle of delegated power. Madison’s speech removed any ambiguity regarding his understanding of the Ninth Amendment, and the Virginia Assembly was entitled to rely on Madison’s description of the Ninth when, only a few months later, it ratified the Bill of Rights.

Having restored key pieces of the history of the Ninth Amendment, Part V traces a theory of the Ninth Amendment as it likely would have been understood by the Founders. This Part concludes by considering the relationship between the federalism-based Ninth Amendment and the Founders’ widespread belief in natural rights. Although the Founding generation believed in natural rights “retained by the people,” the identification and protection of such rights were a matter of local concern. The Ninth and Tenth Amendments declare that all nondelegated powers and rights are retained by the people who may delegate them to their respective state governments as they see fit. The Ninth Amendment prevents the nationalization of these powers and rights through expansive readings of the Constitution. Early natural rights opinions by the Supreme Court follow this approach, with the Court discussing natural rights as a matter of state law when hearing diversity appeals from lower federal courts, but avoiding natural rights holdings when hearing federal question appeals under section 25 of the original Judiciary Act.

Part V also considers the rise of the Tenth Amendment as a rule of construction analogous to the Ninth. Having taken center stage in the controversy over the Alien and Sedition Acts, the Tenth Amendment also came to be understood as limiting the construction of federal power. By the time of McCulloch v. Maryland, arguments denying federal power to charter a bank focused on the Tenth instead of the Ninth Amendment as a limiting rule of construction and, perhaps for that reason, were easily dismissed by John Marshall in his opinion upholding the national bank.

Finally, Part VI explores how key elements of the historical roots of the Ninth Amendment are missing, mislabeled, or misconstrued in major works of constitutional history.

In a second Article, The Lost Jurisprudence of the Ninth Amendment, I reveal the extensive and, until now, mostly unknown case law dealing with the Ninth Amendment. That Article follows the interpretation and application of the Ninth as a federalist rule of construction from the earliest opinions of the Supreme Court, through antebellum America, the Progressive Era, and into the era of the New Deal. In addition to revealing the lost jurisprudence of the Ninth, the second Article addresses the historical relationship between the Ninth and Fourteenth Amendments.

The lost history presented in these two Articles includes both newly discovered historical material and a re-evaluation of materials long known and discussed. In particular, the debate in the Virginia Assembly regarding the Ninth Amendment, including the Virginia Senate’s Majority and Minority Report, have gone unnoticed despite the fact that they specifically involve public debates regarding the Ninth Amendment during the critical period of ratification. Also newly presented is James Madison’s draft veto of the Bank Bill and references to the historical roots of the Ninth Amendment in his bank speech, which, until now, have gone unnoticed. Other material discussed in this Article is not new and has been available for some time, but has been often ignored or mislabeled. The state convention declarations and proposed amendments fall into this category. Finally, in light of this new and newly appreciated evidence, it is possible to take a new look at historical materials that have been both known and discussed, but under the erroneous assumption that all Founding-era discussions of rights go to the Ninth Amendment while all discussions of power go to the Tenth. A clearer understanding of evidence long known, then, also constitutes part of the lost history of the Ninth Amendment.

In the end, given the work done by so many, particularly in regard to the Bill of Rights, no presentation of the original meaning of the Constitution can be completely new. This Article and its companion build upon important scholarship undertaken by legal historians, many of whose early insights are supported by the evidence now brought to light. Nevertheless, these two Articles bring together lost and scattered pieces of history in order to bring into better focus an Amendment that, from an historical perspective, has had remarkably bad luck for over two hundred years.

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