The Inescapable Federalism of the Ninth Amendment

Author:Kurt T. Lash
Position:Professor and W. Joseph Ford Fellow, Loyola Law School (Los Angeles)

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth Amendment has been Professor Randy Barnett, who has argued in a number of articles and books that the Ninth ... (see full summary)


Professor and W. Joseph Ford Fellow, Loyola Law School (Los Angeles). J.D., Yale Law School (1992); B.A., Whitman College (1989).

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I Introduction

One of the benefits of using history as a guide to constitutional interpretation is that it allows for ever more refined conclusions based on an ever growing database of historical evidence. As scholars reassess and reformulate prior conclusions, newer understandings increasingly stabilize as the range of plausible interpretations narrows. Recently, Ninth Amendment scholarship has witnessed this kind of aggregated evolution of understanding as a number of works have greatly increased the stock of historical evidence surrounding the enactment of this heretofore mysterious Amendment.1 For those interested in the original meaning of the Constitution, this new evidence provides a significant opportunity to refine (or alter) our prior assumptions about the Ninth Amendment.2

The Supreme Court's decision in Griswold v. Connecticut set the stage for the first modern debate over the meaning of the Ninth Amendment.3 The majority of Justices in Griswold accepted the Ninth Amendment as textual support for judicial enforcement of a broad array of individual rights.4 The dissenting Justices claimed the Ninth Amendment simply mirrored the Tenth Amendment as a general statement of limited federal power.5 In the decades that followed, the scholarly debate essentially echoed the Griswold divide: Most legal commentators accepted the majority's libertarian reading of the Ninth Amendment,6 while a few dissenters attempted to link the Page 805 Ninth Amendment to the state-protective declaration of the Tenth Amendment.7 The latter passive-federalist accounts (so-called because they see no active role for the Ninth Amendment) failed to gain significant academic support, leaving the libertarian model as the predominant view in legal scholarship.

The preeminent scholarly standard bearer for the libertarian reading of the Ninth Amendment is Professor Randy Barnett. Because Professor Barnett is both the most eloquent and influential advocate of a libertarian reading of the Ninth Amendment, this Article focuses on his arguments in comparing the libertarian and federalist accounts of the Amendment. Over the past two decades, Barnett has produced a number of books and articles advocating a libertarian reading of the Ninth Amendment on both normative and originalist grounds.8 Although Barnett's work extends well beyond the Ninth Amendment, he has consistently argued that the original meaning of the Ninth Amendment supports judicial enforcement of unenumerated individual natural rights.9 As Barnett believes Ninth Amendment principles are enforceable by courts of law, this Article refers to his approach as an active libertarian reading of the Ninth Amendment.10

Recently uncovered historical evidence, however, calls into question the libertarian reading of the Ninth Amendment. In two prior articles, I presented a substantial body of evidence indicating that the Ninth Amendment was conceived and received as a federalist provision preserving the people's retained right to local self-government.11 This is how its drafter, James Madison, understood the Amendment, and this is how scholars and judges construed the Amendment for more than one-hundred years after its Page 806 enactment.12 Although libertarian theorists like Professor Barnett correctly read the Ninth Amendment as an active enforceable amendment and not a mere passive statement of principle, the evidence suggests that a much broader understanding of retained rights prevailed at the time of the Founding than that proposed by the libertarian model.13 The Ninth Amendment was understood to preserve all retained rights, whether individual, majoritarian, or collective,14 from undue federal interference, reserving control of the same to state majorities. This understanding makes the Ninth Amendment an active federalist provision that calls upon courts to limit the interpretation of enumerated federal power in order to preserve the people's retained right to local self-government.

Recognizing the challenge this evidence presents to libertarian theories of the Constitution, Professor Barnett has now drafted a response to both my work and the work of others on the Ninth Amendment.15 In his response, Barnett concedes that the evidence supports either an active federalist or active libertarian reading of the Ninth Amendment.16 However, Barnett downplays the significance of his conclusion due to his belief that nothing in the federalist model is necessarily inconsistent with his own libertarian reading of the Ninth Amendment.17

Because my articles concentrated more on historical evidence than the construction of constitutional theory, the specific differences and similarities between the libertarian and federalist readings of the Ninth Amendment remained unclear.18 For example, Professor Barnett and I both concede the Page 807 possibility that the retained rights of the Ninth Amendment include both individual and collective rights. We also both agree that the Ninth Amendment is "federalist" to the extent that it binds only the federal government and not the states. Perhaps, then, Barnett and I are merely focusing on two sides of the same coin: he, emphasizing the libertarian side of the Ninth Amendment; I, emphasizing the collective (or federalist) side. How much substantive difference can there be between these two positions?

Quite a bit, it turns out. Barnett's libertarian Ninth Amendment is the mirror image of his libertarian reading of the Fourteenth Amendment's Privileges or Immunities Clause. He believes that these two Amendments work in tandem to protect the same set of unenumerated individual rights and justify judicial enforcement of these rights against both state and federal action.19 Under my reading of the Ninth Amendment, however, the original federalist aspect of the Amendment remains in force and requires judicial protection of local self-government today just as it did in 1791. Not only is it logically impossible for the Ninth and Fourteenth Amendments to protect the same set of rights, the Ninth Amendment forbids reading the Privileges or Immunities Clause as negating the general police powers of the state. Thus, if my reading of the Ninth Amendment is correct, it would significantly undermine Barnett's theory of a libertarian Constitution.

My prior two articles in the Texas Law Review20 were meant to provide an exhaustive account of recently uncovered historical materials involving the Ninth Amendment. Even now, however, I continue to discover previously unknown documents that involve early discussion and application of the Ninth Amendment. The most significant of these new discoveries are presented for the first time in this Article. The purpose of this Article, however, is to focus on those aspects of the historical record that have particular significance in the federalist versus libertarian debate. Following a roughly chronological approach, this Article summarizes the relevant evidence and addresses Professor Barnett's arguments as it proceeds. In the penultimate Section, I consider the relationship between the Ninth and Fourteenth Amendments.21 Page 808

II Preliminary Matters: Defining Terms And Approach
A Two Stories
Behold two stories of the Ninth Amendment:
1. The Libertarian Account

The Ninth Amendment is James Madison's unique and personal contribution to our Constitution. Like other Founders, Madison shared the belief that the retained natural rights of man require no enumeration (indeed, they cannot be enumerated). Madison added the Ninth Amendment in order to prevent the erroneous assumption that the rights listed in the Bill of Rights were the only individual rights retained by the people. Although the Ninth Amendment (and the Bill of Rights as a whole) originally restricted only the federal government, the natural rights of individuals deserve protection from any government, including state governments. However, it was not until the adoption of the Fourteenth Amendment in 1868 that the...

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