Excerpted from a brief of Prof. Lash as Amicus Curiae in support of petitioners in Dobbs v Jackson Women’s Health Organization

The Ninth Amendment guarantees the right of local self-government in all matters not expressly prohibited to the states or clearly delegated to the federal government.

The drafter of the Ninth Amendment, James Madison, expressly described the Ninth Amendment as working in tandem with the Tenth to prevent the national government from interfering with matters constitutionally reserved to the people in the states.

The Ninth Amendment, like the rest of the Bill of Rights, prevents unjustifiably broad interpretations of federal power. When anti-federalists raised concerns about the lack of a Bill of Rights in the original proposed Constitution, Federalist supporters of the original Constitution defended the omission on the grounds that such an addition was unnecessary in a constitution based on the principle of limited enumerated federal power.

According to Alexander Hamilton, adding a list of restrictions on federal power would be “dangerous” since it might be read to imply otherwise unlimited congressional authority. Nevertheless, to assuage continuing complaints and help secure the ratification of the Constitution, Federalists ultimately agreed to support the addition of a Bill of Rights in the First Congress.

On June 8, 1789, James Madison submitted to the House of Representatives a list of proposed amendments to the Constitution. In his accompanying speech, Madison acknowledged Hamilton’s warning about adding a list of rights, but insisted he had “guarded against” such a dangerous implied expansion of federal power by proposing “the last clause of the fourth resolution.” That clause ultimately evolved into our current Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people.”

Madison explained the meaning of the Ninth Amendment in a speech he delivered while the Bill of Rights remained pending before the states. In that speech, Madison expressly linked the Ninth and Tenth Amendments as jointly protecting the reserved powers and rights of the people in the states. Madison reminded his colleagues that the people in the state ratifying conventions had been promised a government of limited enumerated power.

The provisions in the proposed Bill of Rights were declaratory reminders that the Constitution carefully preserved the retained powers and rights of the people in the states. Madison “remark[ed] particularly on the 11th and 12th [proposed amendments], the former as guarding against a latitude of interpretation, the latter excluding every source of power not of exercising the within the Constitution itself.”

Madison’s description of the Ninth Amendment as “guarding against a latitude of interpretation” is consistent with his originally stated purpose for “the last clause of the fourth resolution.” The Ninth declares that just because the Bill of Rights list some constraints on federal power, this may not be construed to imply that federal power is otherwise unconstrained (Hamilton’s concern).

The Tenth Amendment further declares that all powers not properly construed as falling within those enumerated powers are reserved to the people in the states. Significantly, both the Ninth and Tenth Amendments use the language of popular sovereignty – it is the people’s right to create a national government of limited power and reserve all nondelegated powers and rights to the people in the states.

Between the Founding and Reconstruction, scholars, lawyers, and judges repeatedly and consistently interpreted the Ninth Amendment as working in tandem with the Tenth to preserve the retained powers and rights of the people in the states.

In the years between the Founding and Reconstruction, scholars and judges repeatedly described the Ninth Amendment as a federalism provision working in tandem with the Tenth to preserve the people’s retained powers and rights. In the first treatise on the American Constitution, St. George Tucker echoed Madison’s understanding that the Ninth Amendment worked in tandem with the Tenth to preserve the rights of local self-government.

According to Tucker, the Ninth and Tenth Amendments jointly established the principle that “the powers delegated to the federal government, [were], in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn in question.” Tucker’s “View of the Constitution” was the most influential constitutional treatise prior to the publication of Joseph Story’s COMMENTARIES ON THE CONSTITUTION.

As we shall see, Story himself included citations to Tucker’s discussion of the Ninth and Tenth Amendments in his Commentaries.

Other members of the Founding generation shared Madison’s and Tucker’s view of the Ninth and Tenth Amendments. John Page, a member of the House of Representatives when Madison proposed the Bill of Rights, argued that the Alien and Sedition Acts were “an encroachment on the reserved rights of the individual states (see, the 11th and 12th articles of the amendments).” Hardin Burnley, a member of the Virginia House of Delegates, supported ratification of the Ninth Amendment on the grounds that the provision would “protect[] the rights of the people & of the States.”

In his opinion in Glasgow’s Lessee v. Smith, John Overton, a member of the second North Carolina Ratifying Convention, cited Tucker’s discussion of the Ninth and Tenth Amendments and explained that these two amendments supported a rule of strict construction whenever “the sovereign rights of the states” were threatened.

In his opinion in State v. Antonio, South Carolina Supreme Court Judge and ratifier of the federal Constitution John Grimke read the Ninth and Tenth Amendments as jointly establishing the principle that if “the individual States were in possession of [a] power before the ratification of the Constitution; and if there is no express declaration in that instrument, which deprives them of it, they must still retain it.”

This was not a regional understanding limited to southerners. The most influential antebellum constitutional commentator, Joseph Story, also shared St. George Tucker’s federalist understanding of the Ninth and Tenth Amendments. In his 1833 “Commentaries on the Constitution,” Story’s discussion of the Ninth and Tenth Amendments refers readers to both Hamilton’s warning about the addition of a Bill of Rights in Federalist 84, and to St. George Tucker’s discussion of the Ninth and Tenth Amendments.

The “Commentaries” index headings, “Reserved Powers and Rights of the People” and “Rights Reserved to the States and the People,” both refer readers to Story’s discussion of the Ninth and Tenth Amendments. Finally, if only to underscore Story’s federalist understanding of the Ninth Amendment, the Commentaries’ headnote above Story’s discussion of the Ninth Amendment reads “Non-Enumerated Powers” while the headnote for the Tenth Amendment reads “Powers not Delegated.” Story, in other words, understood both the Ninth and Tenth Amendment as having to do with limiting the powers of the national government to enumerated powers and reserving “non-enumerated” powers to the people in the States.

Judges, politicians, and lawyers throughout the antebellum period echoed Tucker’s and Story’s view that the Ninth Amendment worked in tandem with the Tenth as one of the twin guardians of federalism. This understanding of the Ninth Amendment did not change with the advent of Civil War. In 1863, the Indiana Supreme Court linked the Ninth and Tenth Amendments as jointly calling for a narrow construction of federal power over navigable waters within the state.

In the 1864 case Philadelphia & Railroad Co. v. Morrison, 19 F. Cas. 487, 489-91 (C.C.E.D. Pa. 1864), federal judge John Cadwalader declared that the federalist understanding of the Ninth and Tenth Amendments was so well known as to constitute a “truism:”:

[T]he ninth and tenth amendments of the constitution . . . whether their words are to be understood as restrictive or declaratory, preclude everything like attribution of implied residuary powers of sovereignty, or ulterior inherent rights of nationality, to the government of the United States. . . . That the amendments were thus intended for security against usurpations of the national government only, and not against encroachments of the state governments, may be considered a truism. But recurrence to historical facts which explain constitutional truisms, cannot be too frequent, if they are in danger of being overlooked in calamitous times, or of being crowded out of memory by any succession of appalling events.

In The Legal Tender Cases, 79 U.S. 457, 634 (1870), Supreme Court Justice Stephen J. Field insisted that the majority’s approach violated the rule of construction demanded by the state ratification conventions and declared by the Ninth Amendment. Recounting the history behind the adoption of the Bill of Rights, Field repeated Story’s “Hamiltonian” argument that the initial rejection of a Bill of Rights “was upon the ground that such a bill would contain various exceptions to powers not granted, and on this very account would afford a pretext for asserting more than was granted.”

Field then cited, among other sources, “Story on the Constitution, Sections 1861, 1862, and note.” This citation is to Story’s description of the Ninth Amendment in his Commentaries and includes Story’s citation to Tucker’s federalist analysis of the Ninth Amendment in his “View of the Constitution.”

In sum, from 1791 to 1870, scholars and judges commonly interpreted the Ninth Amendment as a federalist provision working in tandem with the Tenth Amendment to protect the people’s reserved powers and rights. This was the consensus understanding of the Ninth Amendment at the time of the framing and ratification of the Fourteenth Amendment.


Concordia res parvae crescunt


Small things grow great by concord...

Tenth Amendment Center


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