Understanding the Ninth Amendment

In 2004, University of Illinois College of Law Professor Kurt T. Lash wrote The Lost Original Meaning of the Ninth Amendment for the Texas Law Review (Vol. 83, December 2004). It is the first in a series of two articles explaining the Ninth Amendment in light of newly discovered and seldom discussed material. Because there was not unanimous consensus in the ratification debates, this article seeks to identify the core concepts of the original meaning of the Ninth Amendment, rather than an absolute definition.

In considering the history of the Bill of Rights, the current nomenclature is anachronistic. Originally, the Bill of Rights was simply referred to as the amendments. This makes sense when one reads the Ninth and Tenth Amendments, which do not protect certain rights like the other amendments, but rather protect federalism by limiting the possible interpretations of the Constitution. The Ninth reads:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Thus, the enumerated rights in the first eight amendments, along with the rights found elsewhere in the Constitution, such as the right against government impairment of contracts, cannot be read to diminish our other natural rights not specifically mentioned in the Constitution.

There are two prevailing theories on the practical application of the Ninth Amendment. The “libertarian” theory uses the Ninth Amendment as a basis for an engaged judicial enforcement of unenumerated rights against the federal government. The “federalist” theory reads the Ninth Amendment, in conjunction with the Tenth, with each amendment serving to buttress the other by striking a balance between federal and state power.

Both theories, Lash claims, have historical merit.

The original Constitution, as ratified, included no list of guaranteed freedoms as state constitutions did. Madison and other federalists argued that the doctrines of enumerated powers already protected these rights. In other words, the federalist argument ran, “Why should we create exceptions to powers not granted in the first place?” Furthermore a list of rights could never be exclusive, so a bill of rights might both eliminate rights not mentioned and inadvertently expand federal power.

Congress and state ratifying conventions created many drafts of what would ultimately become the Ninth Amendment, all of which sought to limit the “interrelation” or “construction” of the Constitution.

For instance, New York’s proposal directly stated that federal powers are few and enumerated, and that state powers are unenumerated. The proposal also guaranteed that any limit placed on Congress does not “imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.”

Thus the antifederalist fears of a broad interpretation of the Necessary and Proper Clause were assuaged as were the federalist fears of the limiting of rights. The proposals from other states also shared this duality. Rhode Island’s and South Carolina’s proposals were almost identical to New York’s. Other states, like North Carolina, differed in that they did not merely declare the principle of enumerated powers but also allowed for certain specific interpretations of constitutional provisions.

Madison himself thought such declarations were unnecessary, but he followed North Carolina’s method anyway.

What remains unclear, however, is whether the rights protected by what came to be the Ninth Amendment are natural individual rights or a collective right to local self-government. North Carolina’s and Virginia’s proposal preferred the natural rights interpretation and New York’s preferred the collective right. Although Madison and other drafters of the Ninth Amendment believed in natural rights, it is unclear whether they thought the Ninth Amendment guaranteed these rights.

In the House, the debate between these two theories continued. One position, later echoed by Robert Bork, feared that “retaining” unenumerated rights begs the unanswerable question of what rights are retained. Because of this difficult question, proponents of this side, represented chiefly by Edmund Randolph, wanted to focus on the limiting of federal power and not protecting rights.

Madison’s side countered that the line between powers limited and rights retained was “fanciful.” The Senate continued this debate in largely the same terms. However because both the Senate majority and minority reports were unclear as to the meaning of the proposed Ninth Amendment, neither theory can claim victory. Whatever ambiguities remained, the objections were eventually overcome and the amendment ratified.

Many have read Madison’s comments in the House debate to mean that he supported the “federalist” as opposed to the “libertarian” theory. Lash points out that this is a slightly inaccurate reading. The House debate centered on whether courts would be more adept at enforcing rights or limiting powers, not whether rights were collective or individual. The fact that Madison removed the language of powers from the proposed amendment and replaced it with language of rights, an idea which no state had proposed, instead suggests he sympathized with the “libertarian” theory.

Madison’s views were made clearer when the first national bank bill was being debated. He claimed, that a bank would “directly interfere with the rights of the States, to prohibit as well as to establish banks.” Thus his argument was, according to Lash, one of a collective right to local self-governance.

Indeed Madison did not even mention individual rights in his speech to Congress on the bank question. Another constitutional scholar, Randy Barnett, believes Madison actually took the “libertarian” approach in arguing against the bank. Barnett’s argument rests on Madison’s statement that a bank would affect “the equal rights of every citizen.”

In conclusion, Lash maintains that the original purpose of the Ninth Amendment was to limit federal power and preserve local control of “political conventional rights.” At that time, individual rights and states’ rights were seen as opposite sides of the same coin of personal freedom.