Denied and disparaged: applying the 'federalist' Ninth Amendment.

Author:Rokosky, Seth

INTRODUCTION I. A BRIEF HISTORY OF THE NINTH AMENDMENT A. "Forgetting" the Ninth Amendment B. Randy Barnett's Early Work C. Uncovering the "Lost History" of the Ninth Amendment D. The Modern Ninth Amendment Debate E. Two Models of the Ninth Amendment II. APPLYING THE "INDIVIDUAL RIGHTS MODEL" III. APPLYING THE "FEDERALISM MODEL" A. The Commerce Power 1. Before the New Deal 2. The New Deal 3. Expanding the "Substantial Effects" Test 4. Limiting the "Substantial Effects" Test 5. Reaffirming the "Substantial Effects" Test 6. The "Federalism Model" and the Commerce Clause B. The "Spirit" of the Tenth Amendment 1. Early References to an Active Tenth Amendment 2. Resurrecting the "Spirit" of the Tenth Amendment 3. The Tenth Amendment as a Limit on Federal "Commandeering" 4. The "Federalism Model" and the "Spirit" of the Tenth Amendment C. The Eleventh Amendment 1. Expanding the Eleventh Amendment 2. Questioning the Eleventh Amendment's Expansion 3. Combining the Eleventh Amendment with the Tenth 4. The "Federalism Model" and the Eleventh Amendment CONCLUSION INTRODUCTION

In 1987, Robert Bork testified before the Senate as a nominee for the Supreme Court. (1) Time and again, he defended his views about the Constitution by invoking its original meaning. (2) When asked about the Ninth Amendment, (3) however, Bork was at a loss:

I do not think you can use the [N]inth [A]mendment unless you know ... what it means. For example, if you had an amendment that says "Congress shall make no" and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot.... (4) After the Bork hearings, Randy Barnett began a study of the Ninth Amendment. (5) He concluded that it protected individual rights not listed in the Constitution. (6) According to Barnett, the Ninth Amendment created a "presumption of liberty," which placed the burden on the government to justify its infringements on individual liberties. (7)

One scholar, however, recently challenged Barnett's work as anachronistic and incomplete. In 2004, Kurt Lash claimed to have uncovered "lost history" of the Ninth Amendment. (8) He produced historical evidence that the Ninth and Tenth Amendments were intended to work together to protect state powers, rather than individual rights. (9) Whereas the Tenth Amendment reserved powers to the states, (10) the Ninth prohibited interpretations of enumerated power that disparaged those states' rights. (11) The debate between Lash and Barnett is ongoing, yet it has attracted little attention until now. Lash's "federalism model" (12) could have far-reaching consequences for federalism jurisprudence; its potential lies in linking the Ninth and Tenth Amendments. Indeed, the Supreme Court often has been criticized for invoking the Tenth Amendment to protect state sovereignty. The Tenth Amendment, critics say, is just a "truism," declaring that states retain all powers not ceded to the federal government. (13) Therefore, the argument goes, the Tenth Amendment cannot limit the power that was delegated to the federal government.

Despite that criticism, the Court has invoked the Tenth Amendment's "spirit" on a number of occasions. (14) In the 1970s and 1980s, it struck down statutes that interfered with "traditional" state functions. In the 1980s and 1990s, it protected state sovereign immunity in cases where the Eleventh Amendment's text seemed not to apply. Finally, in 1995, the Court limited the commerce power for the first time in sixty years. (15) In citing the Tenth Amendment, however, the Court consistently came under fire, from both academics and some of its own members, for protecting state sovereignty without textual or historical support. (16)

In this Comment, I explore how Lash's "federalism model" of the Ninth Amendment might be applied to the Supreme Court's federalism jurisprudence. My aims are twofold: first, to provide an objective summary of Barnett and Lash's recent debate to discern exactly what their two "models" of the Ninth Amendment entail; and second, to demonstrate how the lack of a federalist Ninth Amendment might have forced the Court to stretch the scope of the Tenth and Eleventh Amendments beyond their text, inviting charges of judicial activism.

In Part I, I trace the Ninth Amendment's history by focusing on Lash's and Barnett's developing scholarship. In Part II, I explain how Barnett's "individual rights model" (17) already has been applied, albeit unsuccessfully, over the last fifty years. Finally, in Part III, I apply the "federalism model" to Commerce Clause, Tenth Amendment, and Eleventh Amendment jurisprudence. I argue that the Court struggled in each instance to protect states from expanding federal power partly because the Ninth Amendment's federalist history had not yet been uncovered. To prevent broad interpretations of federal power as it did, the Court needed a rule of construction that the Tenth Amendment's text could not supply. Under the "federalism model," however, the Ninth Amendment would provide such a rule. Therefore, the Court could have answered charges of judicial activism by citing the Ninth Amendment in addition to the Tenth. Ultimately, I conclude that, if Lash's historical analysis proves correct, then the Ninth Amendment could provide a check on federal power that is more rooted in constitutional text than are existing protections of federalism.


    Since ratification, the Ninth Amendment's history has been subject to numerous interpretations. (19) By the middle of the twentieth century, scholars and judges had concluded that the Amendment's past was "forgotten." (20) After Bork compared the Ninth Amendment to an "ink blot," however, Randy Barnett demonstrated that it was a response to the federalist challenge that a bill of rights would be dangerous because it implied that the people's rights were only those enumerated in the Constitution. (21) Barnett concluded that the Ninth Amendment was originally intended to protect unenumerated, individual rights. (22) A decade later, Kurt Lash claimed to have uncovered some parts of the "lost history" of the Ninth Amendment, concluding that it was actually intended to protect powers that were reserved to the states. (23) Barnett and Lash now agree that the Ninth Amendment eventually came to be understood as a protection of reserved state powers and that the Amendment's federalist history was later "forgotten" by the courts. (24) Yet they still disagree about whether the Ninth Amendment, as originally adopted, protected individual rights of the people or collective powers of the states. (25) Therefore, Lash and Barnett continue to endorse two distinct models of the Ninth Amendment.

    1. "Forgetting" the Ninth Amendment

      In 1791, the states ratified the Ninth Amendment, ensuring that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (26) Throughout a century and a half of scholarship (27) and judicial use, (28) the Ninth Amendment was consistently cited alongside the Tenth, which provides that "[t]he 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." (29) By 1955, one scholar had concluded that there were "a number of cases which briefly mention the Ninth Amendment by grouping it with the Tenth Amendment. However, these decisions do not actually discuss the Ninth Amendment, but actually discuss the Tenth...." (30) The relationship between the two was puzzling: why were the Ninth and Tenth Amendments nearly always paired together if the former protected rights of the people, while the latter only reserved powers to the states?

      Ten years later, the Supreme Court debated the Ninth Amendment's meaning in Griswold v. Connecticut, which considered a state ban on contraceptives. (31) Concurring with the majority that the Ninth Amendment supported a right to privacy, Justice Goldberg argued that "[t]he Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied ... simply because they are not specifically listed in the first eight constitutional amendments." (32) He concluded that the Ninth Amendment required invalidation of state laws that violated unenumerated rights. (33) By contrast, Justice Stewart recited the popular view that "[t]he Ninth Amendment, like its companion the Tenth ... 'states but a truism that all is retained which has not been surrendered.'"(34) According to Stewart, the Ninth and Tenth Amendments stood for the principle that the states retain all powers not delegated to the federal government, and "to say that the Ninth Amendment ha[d] anything to do with th[e] case [was] to turn somersaults with history." (35) Unlike Stewart's passive view, Justice Black argued that the Ninth Amendment preserved an active rule of federalism, protecting state powers against federal expansion. (36) In short, Justices Goldberg, Stewart, and Black had very different views of the Ninth Amendment.

      By 1987, the Amendment was a mystery. Robert Bork had been nominated to the Supreme Court and had compared the mysterious text to an "inkblot." (37) The Senate then rejected his confirmation partly because he refused to endorse Griswold's individual rights interpretation. (38) As the decade drew to a close, Bork's "inkblot" continued to baffle historical and legal scholars. (39)

    2. Randy Barnett's Early Work

      After Bork's confirmation hearings, Randy Barnett tried to remove the "inkblot" from the Ninth Amendment and uncover its original meaning. He concluded that it protected individual rights that were not listed in the Constitution.

      Barnett began by criticizing the "rights-powers conception" of the Ninth Amendment. (40) That conception began with the...

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