Constitutional Impact of the Ninth Amendment

• Author: Charles D. Kelso; R. Randall Kelso
• Profession: Professors of Law
• Pages: 1044-1055

Page 1044

The Ninth Amendment provides, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This text, taken literally, does not itself create rights. Instead, the text states a rule of constitutional interpretation that calls upon those who construe the Constitution to recognize that the people have retained some rights not specified by the Constitution. As with other provisions in the Constitution, there are natural law, formalist, Holmesian, and instrumentalist ways of interpreting the Ninth Amendment.

ß 24 1 The Natural Law Approach

The first way of construing the Ninth Amendment is that it means just what it says, that the enumerated of certain rights in the Constitution should not be construed to deny or disparage others retained by the people. From this perspective, the Ninth Amendment is a reminder of the background natural law theory that animated the Constitution's drafting that individuals have natural rights that the government is created to protect.¹ As has been noted, "The Founding generation disagreed about many things, but the existence of natural rights was not one of them. From James Madison to Roger Sherman, from The Federalist Papers to the Antifederalist papers, both supporters and opponents of the Constitution repeatedly affirmed their shared belief in natural rights. Virtually all commentators agree that the [f]ramers and ratifiers of the Bill of Rights believed in natural rights as a general matter."² This natural law background is also discussed at ßß 8.4.1 & 12.3.3.

Against this background, one concern that Madison and others had in drafting the Bill of Rights was that under the maxim of construction, expressio unius est exclusio alterius (the expression of one thing implies exclusion of others), the enumeration of certain rights in the Bill of Rights might suggest that the federal government had plenary power over all other matters. Since that view was inconsistent with the intent of the framers and ratifiers that the federal government be a government of limited, delegated power, the Ninth Amendment was an attempt to craft language to prevent federal governmental power from being construed in any broader way. Based on an exhaustive look at the history and precedents of the Ninth Amendment, Professor Kurt Lash noted:

One of the original purposes of the Ninth Amendment was to prevent the Bill of Rights from being construed to suggest that congressional power extended to all matters except those expressly restricted. As Joseph Story would later write in his Commentaries on the Constitution:Page 1045 [The Ninth Amendment] was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others; and È converso, that a negation in particular cases implies an affirmation in all others. The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies. The amendment was undoubtedly suggested by the reasoning of the Federalist on the subject of a general bill of rights.³

From this perspective, the Ninth Amendment is a reminder that in interpreting the Constitution, including the first eight Amendments, a natural law theory of interpretation should be used, which supports background natural rights and, as noted at ßß 2.4 & 3.4, rejects the "positivism" of the formalist and Holmesian approaches that rights only derive from positive legal affirmations.

There are two ways to view this limitation: a libertarian perspective and a federalist perspective. The history surrounding the Ninth Amendment suggests that both perspectives were part of the concerns of the framers and ratifiers. Consistent with the Supreme Court's focus on federalism matters in many of its earlier cases, noted at ßß 18.1.1-18.1.2, 18.2.1 & 18.4.1, the federalism concern was most prominent in the 19^th century. The libertarian concern has been more prominent in the 20^th century.

Reflecting the federalism concern, Professor Lash noted, "The Ninth Amendment itself seems particularly responsive to concerns that the enumeration of certain rights might undermine the theory of limited enumerated authority. Early drafts of the Ninth contain language that not only speaks of retained rights, but also of limiting the construction of federal power. Madison himself described the Ninth's language regarding the disparagement of rights as amounting to the same thing as a rule preventing the enlargement of federal power."⁴

This is the way the Ninth Amendment predominantly was used during the 19^th century. For example, in Houston v. Moore,⁵ an issue arose over the power of the states to regulate on matters involving militias. The text of Article I, ß 8, cl. 16, after granting Congress power to organize and discipline the militia, reserved to the states "the Appointment of the officers, and the Authority of training the Militia according to the discipline prescribed by Congress." Professor Lash has noted:

[Under the expressio unius maxim,] this reservation implied that all power not expressly reserved to the states was exclusively in the hands of Congress. Story rejected this argument, applying the rule of construction he believed declared by the Ninth Amendment:

Page 1046

It is almost too plain for argument, that the power here given to Congress over the militia, is of a limited nature, and confined to the objects specified in these clauses; and that in all other respects, and for all other purposes, the militia are subject to the control and government of the State authorities. Nor can the reservation to the States of the appointment of the officers and authority of the training the militia according to the discipline prescribed by Congress, be justly considered as weakening this conclusion. That reservation constitutes an exception merely from the power given to Congress "to provide for organizing, arming, and disciplining the militia;" and is a limitation upon the authority, which would otherwise have developed upon it as to the appointment of officers. But the exception from a given power cannot, upon any fair reasoning, be considered as an enumeration of all the powers which belong to the States over the militia. . . .

Having announced that determining the scope of exclusive federal power must be guided by the letter and spirit of the Ninth Amendment, Story then applie[d] the rule of construction he describes in Commentaries as mandated by the Ninth. That rule forbids construing a reservation of rights to suggest that all other rights are surrendered. In this case, the enumeration of certain rights - the state's right to appoint officers - must not be construed to deny or disparage other rights retained by the states - the right to create courts martial.

Story's opinion in Houston describes the Ninth Amendment as limiting the interpreted scope of federal power in order to preserve state regulatory autonomy. This echoes James Madison's description of the Ninth as "guarding against a latitude of interpretation" of federal power to the injury of the people's retained rights. Federal power is thus prevented from intruding into matters retained by the people who remain free to delegate that power to their state government as they see fit.⁶

The libertarian theory of the Ninth Amendment is also supported by arguments of text, context, and history. Libertarian scholars point out that the framers and ratifiers held a conception of rights that went well beyond those few listed in the first eight amendments to the Constitution. For example, as Professor Lash noted:

Such rights, declared James Iredell in the North Carolina ratifying convention, were incapable of exhaustive enumeration:

[I]t would be not only useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.

Page 1047

Members of Congress who participated in the drafting of the Ninth Amendment also declared their belief in natural rights retained by the people. [For example,] Roger Sherman, who served with Madison on the House drafting committee, suggested an amendment declaring that "[t]he people have certain natural rights which are retained by them when they enter into Society."⁷

Both Sherman and Madison were members of the House Select Committee appointed to review Madison's drafts for the Ninth and Tenth Amendments. Reflecting language suggested by numerous state ratifying conventions, Madison's draft of the Ninth Amendment provided, "The exceptions, here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution." Madison's draft of the Tenth Amendment provided, "The powers not delegated by this constitution, nor prohibited by it to the States, are reserved to the States respectively."⁸

The final drafts of these two amendments made two significant changes. With...