Reconciling Unenumerated Rights: The History and Future of the Ninth Amendment Debate

Ashley J. Becnel

I. INTRODUCTION…………………………………..…………………………………….1

II. GRISWOLD………………………………………………………………………………2

III. BARNETT………………………………………………………………………..……….4

IV. LASH…………………………………………………...…………………………………9

V. ANALYSIS……………………………………………………………..………………..17

VI. CONCLUSION……………………………………………………….………………….25

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or

disparage others retained by the people.”1

I. INTRODUCTION

The Ninth Amendment’s meaning has perplexed Americans almost since its inception.

The potential breadth of its scope is alluring to many, who see it as a heretofore unrecognized

source of authority for unenumerated fundamental rights or as an additional bulwark against

overreaching by the federal government into areas properly reserved to the states. While there is

a wealth of information on its creation, the precise function of the amendment is unclear. For

much of our history, the Ninth Amendment was used in conjunction with the Tenth, blurring and

confusing the meanings of both. After Justice Goldberg cited the Ninth Amendment in his

concurring opinion for Griswold v. Connecticut2, however, scholarship concerning the

Amendment has increased exponentially. Currently, the debate has solidified into two distinct

camps: the individualist beliefs espoused by Randy Barnett and the federalist leanings of Kurt

1
Lash. This Article attempts to examine the two competing arguments and to assess the future

applicability and usage of the Ninth Amendment in our fundamental rights jurisprudence.

II. GRISWOLD

The Ninth Amendment has regained prominence in constitutional scholarship after a

controversial mention of its premise in Justice Goldberg’s concurrence in Griswold v.

Connecticut.3 In this famous case, restoring Lochner v. New York’s4 substantive due process and

recognizing the right of privacy, Justice Goldberg cited the Ninth Amendment as a potential

source of unenumerated individual rights. Goldberg wrote, “[T]he Ninth Amendment shows a

belief of the Constitution’s authors that fundamental rights exist that are not expressly

enumerated in the first eight amendments and an intent that the list of rights included there not be

deemed exhaustive.”5

Justice Goldberg drew from historical sources, namely the arguments of James Madison

in support of the amendment before Congress.6 He posited that the purpose of the Ninth was to

“quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad

to cover all essential rights and that the specific mention of certain rights would be interpreted as

a denial that others were protected.”7 He concluded that it is “clear that the Framers did not

intend that the first eight amendments be construed to exhaust the basic and fundamental rights

which the Constitution guaranteed to the people.”8 Goldberg applied this principle in Griswold,

reaffirming the existence of a constitutional right to privacy:

To hold that a right so basic and fundamental and so deeprooted in

our society as the right of privacy in marriage may be infringed

because that right is not guaranteed in so many words by the first

eight amendments to the Constitution is to ignore the Ninth

2
 Amendment and give it no effect whatsoever. Moreover, a judicial

construction that this fundamental right is not protected by the

Constitution because it is not mentioned in explicit terms by one of

the first eight amendments or elsewhere in the Constitution would

violate the Ninth Amendment . . . .9

Goldberg, however, explicitly stated that he did not believe the Ninth Amendment could be

applied against the states by the Fourteenth Amendment.10 Rather, it seems that Justice

Goldberg intended for the Ninth Amendment to stand as a general proposition in support of

recognizing new fundamental rights—outside of the first eight amendments—through the

doctrine of substantive due process.11

This libertarian reading of the Ninth Amendment as a source of judicially enforceable

personal liberties was novel. Goldberg cited to a contemporary book by Bennett Patterson

entitled The Forgotten Ninth Amendment and noted that he could only find three references to

the Ninth Amendment in the history of Supreme Court jurisprudence in order to explain the

originality of his argument.12 Justice Black, writing in dissent, explained the dearth of libertarian

Ninth Amendment citations differently.13 To Black, the Ninth Amendment was not intended as a

guardian of individual freedom; rather, it was intended as a measure to protect the states from

usurpation of their powers by the federal government.14 Black wrote, “[F]or a period of a

century and a half no serious suggestion was ever made that the Ninth Amendment, enacted to

protect state powers against federal invasion, could be used as a weapon of federal power to

prevent state legislatures from passing laws they consider appropriate to govern local affairs.”15

The debate between Goldberg and Black has persisted since the dawn of our nation and

still persists to this day. It hearkens back to the different views of the federalists and the

3
antifederalists regarding states’ rights and the powers of the federal government at our nation’s

founding.16 Further, it essentially represents the positions taken by Barnett and Lash,

respectively. Both Barnett and Lash extensively support their respective theories with

exhaustive historical evidence regarding the original meaning of the clause at the time of its

creation and ratification in a bid to discover the single original meaning of the Ninth

Amendment.

III. BARNETT

Barnett describes his view of the application of the Ninth Amendment as part of the

“power-constraint” conception of constitutional rights.17 Barnett explains, “Constitutional rights

can be conceived as ‘power-constraints’ that regulate the exercise of power by Congress and the

executive branch by constraining either their choice of means or their choice of ends.”18 Barnett

contrasts this idea with a “rights-powers” conception of constitutional rights, a view that sees the

power of the government and the rights of the people as mutually exclusive converses, such that

the people’s rights are defined as anything outside of government’s power.19 Barnett’s problem

with such a scheme is that it ignores the fact that the rights of the people and the power of the

government can, in a variety of situations, overlap, requiring a balancing of the respective

interests involved.20

To a libertarian, like Barnett, the idea of the Constitution as a power constraint on

government is appealing. As the moniker suggests, libertarians put great faith in the idea of

personal liberty, and believe that the government should preserve and protect the natural rights of

man by intruding on the lives of its citizens to the smallest degree possible. Implicit in the

concept of personal liberty is the importance of individual rights, rather than collective rights.

4
This is the crux of Barnett’s entire theory—that the rights “retained by the people” in the Ninth

Amendment are individual rights that protect personal liberty.

Barnett subscribes to what he describes as two different models of the meaning of the

Ninth Amendment.21 One of these models is Kurt Lash’s model, which he describes as the

federalism model, and which will be examined further infra.22 While Barnett sees this theory as

a potential application of the Ninth Amendment, his later scholarship makes it clear that he

believes the other model, the individual rights model, to capture the primary meaning of the

Ninth Amendment.23 The essential philosophy behind the individualist model is that the Ninth

Amendment was intended to protect the “individual, natural, preexisting rights” of the people.24

Barnett explains, “[T]he purpose of the Ninth Amendment was to ensure the equal protection of

unenumerated individual natural rights on a par with those individual natural rights that came to

be listed ‘for greater caution’ in the Bill of Rights.”25

There are two important corollaries to this interpretation. First, “natural rights precede

the Constitution, and the Ninth Amendment is not their source.”26 Second, like enumerated

natural rights, the Ninth does not imply that natural rights defeat any law that conflicts with

them.27 Reasonable restrictions may be placed on unenumerated natural rights, just as

reasonable rights may be placed on the enumerated rights, like restrictions on speech.28

The way that the individual rights model would function in reality is to essentially create

a constitutional presumption of liberty.29 As Barnett describes it, “[T]he courts could put the

burden of justification on the federal government whenever legislation restricts the exercise of

liberty. . . . [T]his presumption may be rebutted by a showing that a particular law was a

necessary regulation of a rightful act or a prohibition of a wrongful act.30 Essentially, then,

application of the individual rights model of the Ninth Amendment would require strict scrutiny-

5
like examination of laws that interfere in some way with individual liberty. This method of

application would prevent courts from being forced to somehow identify particular natural,

individual rights protected by the Ninth Amendment.31 Indeed, part of the purpose of the Ninth

Amendment was to codify the recognition that enumeration of every right would be a pointless

and impossible task.32

Barnett examines the history behind the Ninth Amendment in a number of ways to show

that the Ninth Amendment was intended, at least in part, to protect individual rights. First, one

of Madison’s key concerns during the period in which he helped to draft the Bill of Rights was

the danger posed to minority rights.33 As Madison told Thomas Jefferson,

In our Governments the real power lies in the majority of the

community, and the invasion of private rights is chiefly to be

apprehended, not from the acts of Government contrary to the

sense of its constituents, bur from acts in which the Government is

the mere instrument of the major number of the Constituents.34

Madison’s fear of the private rights being trampled by a majority of their peers stems from a

regard for the individual rights of man, and a desire to see these rights protected is visible in the

first eight amendments in the Bill of Rights.35 Such a scheme serves an entirely different

purpose than protecting the rights of the collective people and majorities.

Barnett also examines the use of the term “the people” in other provisions of the

Constitution.36 One of the primary difficulties of interpreting the meaning of the Ninth

Amendment is the difference between the language used therein and the language used in its

related provision, the Tenth Amendment. Where the Ninth speaks of “rights” “retained by the

people,” the Tenth refers to “powers” “reserved to the States respectively, or to the people.”37

6
Essentially, the argument advanced by the individual rights model is that the Ninth’s reference to

“the people” means exactly that—the individual persons who make up this nation.38 However,

other models, especially Lash’s federalism model, see the Ninth’s reference to “the people” as

similar to the Tenth’s mention of “the States” “or . . . the people.”39 If the term “the people” is

intended to refer to individual citizens rather than to the body of persons comprising a polity as a

whole, the individual rights model gains strong support.

Barnett first looks to the Fourth Amendment.40 The Fourth begins: “The right of the

people to be secure in their persons . . . .”41 The individual nature of “their persons” implies that

the use of “the people” is meant to refer to each citizen separately and independently.42 The

Third Amendment’s reference to houses and their owners also suggests that the right is meant to

imply to individual persons.43 The Fifth and Sixth Amendments similarly refer to individuals.44

As Barnett describes the individualist use of “the people,” “all the persons comprising ‘the

people’ can possess individual rights in common.”45 Furthermore, even though the Seventh and

Eighth Amendments do not make specific reference to men as individuals, the right to a jury trial

in civil cases and the right to be free from cruel and unusual punishment are inherently rights of

the individual.46 The predominant use of the term “the people” to refer to a group’s individual

rights rather than collective or majoritarian rights strongly supports Barnett’s individual rights

model of the Ninth Amendment.47

Barnett also argues that the First and Second Amendments refer to individual rights

despite their potential collective interpretations.48 While many argue that the Second

Amendment’s protection of the right to bear arms is limited to the right of states to maintain a

militia, this essentially protects an individual’s right to bear arms in the context of militia

service.49 Similarly, the right of the people to assemble, as protected by the First Amendment, is

7
a right for individuals to gather together.50 Essentially, these rights should be conceived as

“belonging to individuals, though . . . each can sometimes be exercised in and by groups of

individuals.”51 The continuity of individual rights language and focus in the Bill of Rights

provides a strong textual support for Barnett’s individual rights reading of the Ninth

Amendment.

The use of “the people” to refer to individual Americans who make up the nation’s body

politic served the antifederalist agenda.52 According to Barnett, “choosing language protecting

individual private rights would satisfy the public’s concerns about the absence of a bill of rights,

[and] reinforce the national character of ‘the people’ to which the Preamble referred, without

threatening the fledgling national government’s power to reign in abusive state governments.”53

Barnett also presents interpretations of the Ninth Amendment from its ratification

debates. For example, the Virginia senate was hesitant to adopt the Amendment because it

feared that it was ineffective at protecting individual rights. Barnett quotes the senate debates:

[A]s it respects personal rights, [it] might be dangerous, because,

should the rights of the people be invaded or called into question,

they might be required to shew by the constitution what rights they

have retained, and such as could not from that instrument be

proved to be retained by them, they might be denied to possess.54

The senate’s specific use of the term “personal rights” implies that Americans read the Ninth as

referring to individual, rather than majoritarian rights.55 The senate further objected to the use of

the phrase “the people” in the Tenth Amendment: “It is not declared to be the people of the

respective States; but the expression applies to the people generally as citizens of the United

States, and leaves it doubtful what powers are reserved to the State Legislatures.”56 The senate

8
clearly did not understand “the people” to refer to state legislatures, as the majoritarian or

federalist model holds.57

Barnett also considers to the changes adopted by the Confederate States of America when

forming their own Constitution. The Confederate analogue to the Ninth Amendment reads: “The

enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage

others retained by the people of the several States.”58 If, as the federalist model holds, the Ninth

Amendment’s primary meaning was to protect the rights of states rather than the rights of

individuals, a change in the wording would not be necessary to make this meaning clear.59

Barnett’s final historical source is a treatise on the meaning of the Constitution prepared

during the ratification debates by St. George Tucker, a legal professor and judge who served as

the American editor of Blackstone’s Commentaries.60 Tucker wrote of the Ninth and Tenth

Amendments: “[T]he powers delegated to the federal government, are, 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.”61 According to Barnett, this

passage sets up a clear parallelism: “‘[T]he rights of a state’ parallel the term ‘collectively’ while

‘the rights of . . . the people’ parallel the term ‘individually.’”62 This signifies the difference

between the two amendments by defining their disparate applications: the Ninth protects

individual rights of the people whereas the Tenth guards the collective rights of a state.63

IV. LASH

Kurt Lash’s theory is very different from that of Randy Barnett. Lash describes his

theory as federalist, believing that both the Ninth and Tenth Amendments were intended as

guardians of the federalist structure of the Constitution.64 However, while later usage and

scholarship tended to run the two provisions together, both served independent, though

9
interrelated, functions.65 To Lash, the Ninth Amendment was meant to serve as a rule of

construction that aided courts in determining when the federal government had overstepped the

bounds provided for it by the Tenth Amendment.66

Because much of Lash’s theory as to the meaning of the Ninth Amendment depends on

the meaning of the Tenth Amendment and what the two accomplish when used in concert, it is

helpful to first examine the Tenth Amendment. The Tenth Amendment reads: “The 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.”67 The meaning of this amendment is clear: “all

nondelegated and nonprohibited powers are reserved to the states.”68 Essentially, this provision

limits the federal government to exercising only the powers specifically granted to it by the

people in the Constitution.69

However, Lash believes that even with this severe limitation, the federal government

would still have a great degree of latitude without the Ninth Amendment.70 Because of

expansive grants of power in the Constitution, most notably the Necessary and Proper clause, the

federal government could impermissibly exceed the desired scope of its powers by using

expansive means to achieve enumerated ends.71 As a result, according to Lash, the Ninth

Amendment was intended as a rule of construction “prohibit[ing] an expanded interpretation of

those enumerated powers.”72 Lash cites Madison to further explain the respective roles of the

Ninth and Tenth Amendments: “[T]he Ninth ‘guard[ed] against a latitude of interpretation’ while

the Tenth ‘exclud[ed] every source of power not of exercising within the Constitution itself.”73

The Necessary and Proper Clause provides an illuminating example of the manner in

which the Ninth and Tenth could work differently. Lash writes:

10
 The necessary and proper clause granted Congress the power to

exercise unenumerated powers when ‘necessary and proper’ to

advancing an enumerated end. It was possible that Congress might

attempt to extend its enumerated powers by way of the necessary

and proper clause to such a degree as to, in effect, arrogate to itself

all powers except those expressly denied in the Bill of Rights.

Should Congress do so, this would not violate the Tenth

Amendment . . . .74

According to Lash, then, the Ninth Amendment is necessary to preserve, or, in other words, to

prevent denial or disparagement, of unenumerated rights violated by such an expansive federal

action.75 In essence, “the Ninth prohibits the federal government from claiming that the only

limit to its ‘necessary and proper powers’ are those expressly enumerated in the Constitution.”76

Lash’s historical evidence serves to demonstrate two key points. First, to the founders, a

rule of construction preserving the autonomy of the states, like his interpretation of the Ninth,

was the ideal way to preserve all the rights of the people, both collective and individual.77

Second, the obscurity of this meaning has resulted from both expansive federal judicial action

and improper use of the Tenth Amendment as a rule of construction, rather than the recognition

of the Ninth as a separate textual basis for such a rule.78

Lash posits that part of the reason his interpretation of the Ninth Amendment is not

immediately clear to modern readers is that the founders had a different conception of how rights

were protected. Lash explains,

A rule of construction guarding the retained rights of the people

amounted to the same thing as limiting the power of the federal

11
 government to interfere with matters believed left to state control.

Equating states’ rights with the retained rights of the people,

however, has long since fallen out of fashion . . . .79

According to Lash, retained rights were rights held from the federal government, but not from

the local control exercised by the states.80 Lash quotes a number of founding-era viewpoints to

shore up this assertion. John Taylor, a congressman and governor of South Carolina, flatly

stated, “[S]tates rights are rights of the people.”81 Essentially, then, federalism was not only the

best way to preserve the people’s rights, it was also itself a right of the people.82 To Madison,

this right was crucial to the viability of both the nation and its Constitution.83 Madison wrote,

“[T]he permanent success of the Constitution depends on a definite partition of powers between

the General and the State Governments.”84 Others also saw federal power as a threat to the rights

of the people, including St. George Tucker, who wrote in his treatise on the meaning of the

Constitution that federal power must be construed strictly “whenever the right of personal

liberty” was at stake.85

Lash cites to the states’ proposed amendments to further support his model. Quoting the

proposals from New York, South Carolina, and Virginia, Lash shows that state proposals

included not only a provision limiting the federal government to its enumerated powers, but also

a provision insisting that “the enumeration of rights must not suggest any extension of

enumerated powers.”86 These proposals, which used nearly identical language, made it clear that

any nondelegated powers were to remain in the hands of the states.87 Virginia proposed:

First, That each State in the Union shall respectively retain every

power, jurisdiction and right which is not by this Constitution

12
 delegated to the Congress of the United States or to the

departments of the Foederal [sic] Government. . . .

Seventeenth, That those clauses which declare that Congress shall

not exercise certain powers be not interpreted in any manner

whatsoever to extend the powers of Congress. But that they may

be construed either as making exceptions to the specified powers

where this shall be the case, or otherwise as inserted merely for

greater caution.88

These proposals make it plain that at least some of the states sought an amendment that would

reinforce their powers against the federal government alongside the Tenth, just as Lash believes

the Ninth does.

Lash also shows that the meaning of the Ninth Amendment was obscured both by federal

judges improperly extending federal power, and later by judges who conflated the meanings of

the Ninth and Tenth. According to Lash, early judges, most notably Justices Marshall and Story

either marginalized or ignored the meaning and import of the Ninth Amendment in influential

opinions, neutering the provision.89 Lash’s most powerful example of this is culled from

Marshall’s opinion in Gibbons v. Ogden.90 Marshall had previously ignored the Ninth

Amendment by refusing to acknowledge its importance in James Madison’s argument against the

Bank of the United States in McCulloch v. Maryland.91 In Gibbons, however, Marshall went

farther, writing:

This instrument contains an enumeration of powers expressly

granted by the people to their government. It has been said, that

these powers ought to be construed strictly. But why ought they to

13
 be so construed? Is there one sentence in the constitution which

gives countenance to this rule? In the last of the enumerated

powers, that which grants, expressly, the means for carrying all

others into execution, Congress is authorized ‘to make all laws

which shall be necessary and proper’ for the purpose. But this

limitation on the means which may be used is not extended to the

powers which are conferred; nor is there one sentence in the

constitution, . . . which we have been able to discern, that

prescribes this rule.92

This analysis completely goes against the Ninth Amendment’s use as a rule constricting the

means by which the federal government may achieve their enumerated ends.93 Marshall further

asserted in the same opinion that Congress’s power to regulate commerce is “complete in itself,

may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed

in the Constitution.”94 Essentially, according to Lash, Marshall felt that unenumerated rights

were never a constraint for the federal government.95

Justice Story’s opinion in Houston v. Moore,96 early in his career, supports Lash’s view

of the function of the Ninth Amendment.97 That case concerned whether states could discipline

their citizens for failure to perform federal militia duty.98 The Constitution granted Congress the

power to organize and discipline the militia, but reserved to the states “the Appointment of the

officers, and the Authority of training the Militia according to the discipline prescribed by

Congress.”99 The defendant argued that anything not expressly reserved was exclusively the

province of Congress.100 Story disagreed, stating that Congress’s power was “merely an

affirmative power, and if not in its own nature incompatible with the existence of a like power in

14
the States, it may well leave a concurrent power in the latter.”101 Essentially, Story believed that

federal powers were not to be construed expansively, denying powers to the states by

implication.102

Later, however, in Story’s Commentaries on the Constitution, Story explicitly adopted

Justice Marshall’s view of the Ninth Amendment’s role in questions of state power.103 Story

quotes Marshall’s opinion in Gibbons extensively, including Marshall’s view that the

Constitution does not require a limited interpretation of federal powers.104 Story also endorses

Marshall’s stance in McCulloch, “constru[ing] the enumeration of rights in Article I, Section 9 to

suggest an otherwise broad degree of federal power.”105 Finally, while Story describes his

Houston opinion, he removes his reference to the Ninth Amendment in that opinion from his

Commentaries.106 This abandonment of the Ninth Amendment by two luminaries of American

jurisprudence helped to remove it from consideration in further legal discourse.

Reconstruction also dealt a blow to the federalist importance of the Ninth Amendment.

After the Civil War, the government felt it important to present a unified front and to exert more

control over the states, a sentiment embodied in the Fourteenth Amendment.107 In the Legal

Tender Cases,108 the Supreme Court adopted Marshall’s views of the Ninth, holding that the

“Congress had ‘the right to employ freely every means, not prohibited, necessary for its

preservation, and for the fulfillment of its acknowledged duties.’”109 In fact, the Court

specifically wrote that the existence of the Bill of Rights showed that there was vast

unenumerated federal power:

[The amendments] tend plainly to show that, in the judgment of

those who adopted the Constitution, there were powers created by

it, neither expressly signified nor deducible from any one specified

15
 power, or ancillary to it alone, but which grew out of the aggregate

of powers conferred upon the government, or out of the

sovereignty instituted.110

Preventing such reasoning was the precise purpose of the Ninth Amendment.111

Later litigants seized upon this reasoning, attempting to have the Court declare that the

Fourteenth Amendment had put an end to unenumerated rights.112 However, in The

Slaughterhouse Cases,113 the Court stopped short of totally abandoning the principles of the

Ninth.114 There, the Court refused to read any “constitutional provision in a manner that

‘radically changes the whole theory of the relations of the State and Federal governments to each

other and of both these governments to the people . . . in the absence of language which

expresses such a purpose too clearly to admit of doubt.’”115 The Court reminded Americans that

the Reconstruction Amendments had been adopted to address the evils of slavery, and that their

scope must be understood in light of that purpose.116

Another problem that developed for the interpretation of the Ninth Amendment was

courts’ tendency to mistake the Tenth Amendment for the Ninth.117 Joint citations by courts to

the Ninth and Tenth Amendments effectively “collapsed” the meaning of the Clauses, making it

unclear whether the Amendments served distinct purposes, or whether both supported the rule of

construction limiting enumerated powers.118 According to Lash, part of the reason for this

misunderstanding is the attention given to Madison’s speech on the Alien and Sedition Acts.119

Both this speech and Madison’s speech about the Bank of the United States presented a claim

that expansive federal action violated the Constitution if it were not pursuant to a specifically

granted power.120 Madison’s argument in that speech referred solely the Tenth Amendment,

unlike his argument against the Bank of the United States, which clearly designated the two

16
different roles of the Ninth and Tenth.121 Lash claims that because the Bank of the United States

speech refers to the amendments by their preratification numbers, eleven and twelve, rather than

by their current status as Ninth and Tenth, scholarship ignored the implications for the Bank

speech on Ninth Amendment interpretation.122

As a result, according to Lash, “Supreme Court justices linked Madisonian arguments

regarding latitudinarian construction to the Tenth Amendment in cases involving the

construction of enumerated power.”123 This misidentification continues even today.124 In cases

like City of Boerne v. Flores125 and United States v. Morrison,126 where the Court limits the

means available to Congress in pursuing enumerated ends, the Court rests their decision on the

Tenth Amendment, rather than the rule of construction Lash asserts is provided by the Ninth.127

V. ANALYSIS

While both Barnett and Lash make convincing arguments regarding the meaning of the

Ninth Amendment, there are significant problems with both of their theories. Barnett’s theory

has little historical support, weakening his claim that his view represents the true originalist

meaning of the Ninth. Lash’s argument is also flawed since much of his historical evidence

relies on inferences that are somewhat farfetched or tenuous.

While Barnett may be able to point to support in the semantics of the Bill of Rights, the

fact remains that courts have not historically interpreted the Ninth Amendment to protect

individual rights. Barnett cannot point to any cases before Griswold that even considered the

Ninth in such a role. Barnett’s sole case analysis consists of Chisholm v. Georgia.128 There, he

points to Justice Wilson’s characterization of “the individual free man as an original sovereign

and the states as mere aggregations of individuals, a collection of individual sovereigns.”129

This, to Barnett, provides further support for his individualist reading of the first eight

17
amendments by not only recognizing the importance of the individual in our governmental

scheme, but also by refuting Lash’s notion that the states themselves were seen as the

constitutionally relevant actors in the Bill of Rights, rather than the men who comprised them.130

The problem with this reasoning is that Chisholm was effectively overturned by the

adoption of the Eleventh Amendment.131 Chisholm has been viewed as an incorrect decision that

required the passage of the Eleventh to restore the status quo.132 Barnett, however, disagrees

with this view, believing that the Eleventh Amendment altered the Constitution’s stance on

sovereign immunity, and that Chisholm was decided correctly based on the then-existing

Constitutional scheme.133 To support this assertion, Barnett quotes Justice Marshall’s opinion in

Fletcher v. Peck134 to show that the Eleventh Amendment wrought a change rather than merely

correcting an error made by the Court: “The Constitution, as passed, gave the courts of the

United States jurisdiction in suits brought against individual states . . . . This feature is no longer

found in the Constitution, but it aids in the construction of those clauses with which it was

originally associated.”135 Therefore, according to Barnett, the principles underlying the

Chisholm opinion—that states are made up of individuals, and are not in themselves sovereign—

still remain, despite the Eleventh Amendment.136

Even so, however, Barnett still has a total lack of evidence showing courts using the

Ninth as a guardian of individual rights before Griswold. Lash points to especially compelling

evidence that courts never before considered the Ninth to protect such rights.137 The Ninth

Amendment became a key part of the slavery debate.138 If Barnett’s individual rights model

truly represented the original meaning of the Ninth, one would think that abolitionists would

have cited it in their fight against slavery.139 However, the Ninth is absent from abolitionist

arguments.140 It is not absent from the arguments advanced by the slave states.141 The relative

18
rights of the states and the federal government were key issues in the secession and slavery

debates, and the Ninth was generally understood to protect the states’ rights to maintain their

slave systems as they saw fit.142 When an issue was this clearly framed—states’ rights versus

individual liberties—it is telling that the nation believed the Ninth came down squarely in

support of federalist rights.

Lash’s historical support for his argument is also flawed. His principal arguments rely

upon general federalist assertions from men like James Madison and St. George Tucker.

However, Barnett can also cite to these men, thus weakening the effectiveness of Lash’s use.

Lash also gives great credence to the states’ proposed amendments. However, it seems obvious

that proposals by state legislatures would be biased and would seek to retain as much power as

possible in the states, or, in other words, in their own hands. This evidence remains

unconvincing.

Like Barnett, he can provide little judicial support for his model of the meaning of the

Ninth Amendment. However, unlike Barnett, Lash exerts a considerable amount of energy

providing historical evidence for why his model lacks support. Rather than helping his cause,

however, much of this evidence rests on tenuous assumptions which work against his assertion

that the federalist model captured the original meaning of the Ninth Amendment.

One of Lash’s main arguments for the obscurity of his model is that federal courts

misconstrued the meaning of the Ninth in key opinions.143 In support of this, Lash presents

passages from opinions by both Justices Marshall and Story, leading luminaries of American

jurisprudence, which contradict his claimed meaning.144 However, the idea that somehow such

great legal minds as Marshall and Story could have misunderstood or misconstrued the meaning

and importance of the Ninth Amendment is a hard pill to swallow. Furthermore, Lash claims

19
that Justice Marshall (and Justice Story by acquiescence) essentially ignored the Ninth entirely,

writing it out of the Constitution.145 But a closer look at Marshall’s Gibbons opinion shows that

that may not be the case. In a passage quoted by Lash, Marshall writes that Congress’s power

over commerce is “complete in itself, may be exercised to its utmost extent, and acknowledges

no limitations, other than are prescribed in the Constitution.”146 Lash asserts that this shows that

Marshall had utterly abandoned the Ninth.147 However, it could just as easily be argued that the

Ninth Amendment is clearly a “limitation” “prescribed in the Constitution.” Lash’s argument is

a bit of a stretch, and makes several large logical leaps that are not fully supported. It appears

unlikely that, as Lash claims, someone as revered as Justice Marshall knew of the federalist

original meaning of the Ninth Amendment but decided to surreptitiously neuter it by ignoring it

in his opinions.148 Such an act of Constitutional change would surely not have gone unnoticed

all these years.

Another problem with Lash’s theory is his argument that a reason the federalist model of

the Ninth Amendment is not widely accepted and supported is that the courts tended to collapse

the meaning of the Ninth and Tenth Amendments. First, he argues that this may have happened

because scholars missed the importance of James Madison’s Bank of the United States speech

because of its reference to the Ninth Amendment as the Eleventh, and the Tenth Amendment as

the Twelfth.149 It has long been known that the amendments were renumbered after the debates

regarding their ratification is over, and it seems unlikely that two hundred years of Constitutional

scholarship could have ignored crucial evidence merely because of a clerical change in the

numbers of the Amendments. Even if that is the case, if the federalist meaning is so elusive it

can be overlooked if it is not clearly labeled as the Ninth Amendment, it is unlikely that this was

the primary originalist meaning for this specific amendment.

20
 This argument that the Ninth and Tenth Amendments’ meanings have been “collapsed” is

also problematic in and of itself. First, it requires readers to assume that the Supreme Court, over

two hundred years, has either been too lazy to clearly divide the purposes of the Ninth and Tenth

Amendments in their reasoning, or, more farfetched, that the Supreme Court did not comprehend

the difference. Given the legal scholarship that goes into any Supreme Court opinion, either of

these explanations is unlikely. Additionally, Lash argues that the part of the reason scholars

have missed evidence supporting the federalist model of the Ninth Amendment is that courts,

while sometimes citing both amendments, tend to only cite the Tenth Amendment when basing

their reasoning on a combination of both amendments.150 However, if courts feel that they have

adequately supported their reasoning and holdings with a citation only to the Tenth Amendment,

then the Tenth Amendment is simply enough to support that theory. The Ninth plays no role in

the federalist logic Lash sees, despite his (largely unsupported) claims that it does.

An additional problem with evaluating the relative merits of the two theories based on the

strength of their originalist evidence is that it is unlikely that there existed one singular “original”

meaning. At the time the Constitution and Bill of Rights were proposed and ratified, Americans

had essentially divided into two camps: the federalists and the antifederalists. Antifederalists

supported a strong national government, and their views of “the people” tended to include all

Americans, which could represent a more individualist viewpoint. The federalists preferred a

weak national government and sought to keep as much power at the state level as possible.

Federalists likely viewed the Ninth as a failsafe that would provide an additional level of

protection to the states’ rights established by the federal scheme and the Tenth Amendment.

Since an understanding of the authoritative original meaning of the Ninth Amendment is at best

21
elusive and at worst non-existent, other sources of meaning must be examined in determining the

manner in which the Ninth should function in our constitutional jurisprudence.

Given that neither author can provide an unquestionable claim that his model truly

captures the original meaning of the Ninth Amendment, perhaps the best way to examine the

question of how to treat the Ninth is to study the ways in which the Ninth Amendment can best

contribute to modern legal problems. This can be done by first looking to the text of the

Constitution and the Bill of Rights, and then by examining how the Ninth Amendment can best

serve the legal system in terms of policy.

The fact that both Lash and Barnett can ground their arguments for their models in

credible historical evidence lends originalist support, but that is not the sole source of

constitutional authority. The text itself can provide clear direction as to the meaning of its

various provisions. In the context of the Ninth Amendment, Barnett provides strong evidence

that the first eight amendments in the Bill of Rights use the term “the people” to express

individual rights.151 This supports an inference that the Ninth Amendment similarly protects

individual rights. Furthermore, the Tenth Amendment, which is universally acknowledged to

refer to collective, federalist rights, specifically refers to the states and speaks in terms of

“powers” rather than rights.152 This suggests a fundamental difference in the intended objects of

the two amendments. As such, the text supports an individualist reading of the Ninth

Amendment.

On a policy level, the individualist model of the Ninth Amendment is far more appealing

for several reasons. First, the federalist theory of the Ninth Amendment limits the Ninth to being

merely a supportive corollary for the Tenth. While under that model the Tenth deals with “ends”

and the Ninth with “means,” both serve the same general purpose: limiting the scope and power

22
of the federal government. As recent federalism decisions like City of Boerne and Morrison

show, the Tenth Amendment serves as a fully adequate support for protecting federalist rights

and values.153

A federalist view of the Ninth Amendment is also inherently limited in applicability,

regardless of the function of the Tenth Amendment. Since the adoption of the Fourteenth

Amendment, states’ rights have been vastly curtailed.154 The expanded powers of the federal

government, as well as the incorporation of the Bill of Rights onto the states, reduces a federalist

reading of the Ninth Amendment to a seldom used vestige of our early nationhood. While

federalist values made somewhat of a resurgence in the Rehnquist court, the text of the

Constitution, as well as a wide array of precedent severely limit the rights of the states as

compared to the powers of the federal government. It seems fruitless to interpret a constitutional

provision in a manner that affords it little relevance.

The final policy argument in favor of the individualist model of the Ninth Amendment is

its potential applications. Since its inception, the doctrine of substantive due process has been

problematic, to say the least. While many of the right to privacy decisions have been lauded and

have achieved great things for a large number of Americans, the doctrine remains questionable,

both in some of the decisions it has produced, as well as in its justification. This is most clearly

seen in the uproar over Roe v. Wade155, a decision that is still hotly contested thirty years after it

was announced. Many claim that substantive due process has inadequate constitutional

foundation, both on textual and originalist grounds. The Ninth Amendment could prove to be a

more appealing method of identifying and protecting unenumerated rights such as the right to

privacy. Its text more clearly protects individual rights, and there may even be more historical

support for the idea that the Ninth Amendment was intended to protect individual rights than

23
there is for the argument that the due process clause of the Fourteenth Amendment can

legitimately protect individuals’ right to privacy.

The primary argument against this kind of reading of the Ninth Amendment is that the

Ninth was intended to guard the freedoms of Americans against the federal government, and not

against the states. A number of people, including Justice Black in Griswold and John Bingham,

the drafter of the Fourteenth Amendment, believe that the Fourteenth Amendment did not

incorporate the Ninth Amendment.156 Without arguing that the Ninth is incorporated by the

Fourteenth, one cannot claim that the Ninth Amendment can be used against states to enforce

unenumerated rights of the people. This presents a serious problem. Randy Barnett argues that

the Ninth could be construed as creating a general presumption of liberty, which courts would be

forced to consider when looking even at state action.157 However, using strict scrutiny to defeat

state laws based on a constitutional provision that does not apply to the states would be

problematic, to say the least.

There are a few potential solutions to this problem. First, the Court (or the American

public through the amendment process) could decide that the Fourteenth Amendment does

incorporate the Ninth Amendment. This would be a drastic step, and, as explained above, would

greatly upset proponents of states’ rights. Another potential answer relies on the fact that many

states’ constitutions contain provisions that mirror the Ninth Amendment, adopted around the

time of the ratification of the Ninth. Therefore, litigants could argue that if the federal Ninth

Amendment protects individual freedoms against action by the federal government, an analogous

provision in a state constitution offers similar protection to individual rights against restrictive

laws of state governments. Obviously, this argument could be rejected in a state supreme court,

24
or states could alter their constitution to prevent granting such meaning to their unenumerated

rights amendments.

A more ideal solution would essentially split the difference between the two theories,

thus attempting to pacify both federalists and libertarians. This model, which could potentially

be termed the experimental state model, would shield state laws that protect individual freedoms

from federal interference. This model would work to safeguard state laws that are more

protective of individual rights than the federal government, especially in controversial areas like

gay marriage, right to die, and medicinal marijuana, where some states are willing to experiment

with legalization of these concepts. Given that states can serve an important laboratory function,

such a reading of the Ninth Amendment would preserve progress in the states as well as the

independence of the states, thus serving important federalist functions. Additionally, it would

serve the individual, who has a more direct voice in local elections and referenda.

However, this model could not work as a complete replacement for the rights that

substantive due process has allowed Americans to come to enjoy. The abortion debate provides

a ready example. While in some areas, like those mentioned above, states can be more

progressive than the federal government, in other areas, like abortion, states tend to be more

conservative. Preventing conservative states resistance to legalized abortion was, in fact, the

entire purpose of Roe. Under the experimental state model, state laws that restrict individual

freedoms, like those which prevent a woman from terminating her pregnancy, would not be

protected by the Ninth Amendment.

VI. CONCLUSION

Despite much scholarly debate, the meaning of the Ninth Amendment remains obscure.

Different people likely had opposing conceptions of its application even at the time of

25
ratification. This gulf in understanding persists even until today. Because of the vastly different

natures of the potential applications, it is difficult to reconcile the national and individualistic

model with the collective state’s rights model, since in many cases one works to the exclusion of

the other. This small provision, however, holds much power and promise, and the only way to

understand how it can best serve American jurisprudence is further study and discussion.

This article © Ashley J. Becnel 2008. All rights reserved.

1
U.S. CONST. amend. IX.
2
381 U.S. 478, 488 (1965) (Goldberg, J., concurring).
3
See id. at 486-99.
4
198 U.S. 45 (1905).
5
Griswold v. Connecticut, 381 U.S. at 492.
6
Id. at 488.
7
Id. at 488-89.
8
Id. at 490.
9
Id. at 491.
10
Id. at 492.
11
See id. at 492-93.
12
Id. at 490, n. 6.
13
Griswold v. Connecticut, 381 U.S. at 520 (Black, J., dissenting).
14
Id.
15
Id.
16
See generally PAUL BREST, PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND
MATERIALS 19-26 (5th ed. 2006).
17
Randy E. Barnett, Reconcieving the Ninth Amendment, 74 CORNELL L. REV. 1, 2-3 (1988)
(hereinafter Reconcieving).
18
Id. at 12.
19
Id. at 5.
20
See id. at 6-8.
21
Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 Tex. L. Rev. 1, 3 (2006)
(hereinafter It Means What It Says).
22
Id. at 19.
23
Id. at 13. See also generally Randy E. Barnett, Kurt Lash’s Majoritarian Difficulty
(Georgetown Law Faculty Working Papers, 2008), available at
http://ssrn.com/abstract=1079104 (hereinafter Majoritarian Difficulty).
24
It Means What It Says, supra note 21, at 13-14.
25
Id. at 14.
26
Id.

26
27
Id.
28
Id.
29
Id. at 15.
30
Id.
31
Id.
32
See id. at 27-28.
33
Majoritarian Difficulty, supra note 23, at 5.
34
Letter from James Madison to Thomas Jefferson (Oct. 17, 1788) in 1 The Letters and Other
Writings of James Madison 425 (1867) (quoted in Majoritarian Difficulty, supra note 23, at 5).
35
Majoritarian Difficulty, supra note 23, at 5.
36
Id. at 10.
37
U.S. CONST. amend. IX; U.S. CONST. amend. X.
38
Majoritarian Difficulty, supra note 23, at 10; U.S. CONST. amend IX.
39
Majoritarian Difficulty, supra note 23, at 12.
40
Id. at 10.
41
U.S. CONST. amend. IV.
42
Majoritarian Difficulty, supra note 23, at 10.
43
Id.
44
Id. at 11 (referring to the Fifth Amendment’s use of the terms “no person,” “any person,” and
“himself;” and the Sixth Amendment’s use of “the accused,” “him,” and “his defense.” U.S.
CONST. amend. V.; U.S. CONST. amend. VI.)
45
Id.
46
Id. at 11-12.
47
Id.
48
Id. at 12-13.
49
Id. at 12.
50
Id. at 13.
51
Id.
52
Id. at 10.
53
Id.
54
Id. at 16-17 (quoting Entry of Dec. 12, 1789, in Journal of the Senate of the Commonwealth of
Virginia 63 (Richmond 1828)).
55
Id. at 17.
56
Id. at 16-17 (quoting Entry of Dec. 12, 1789, in Journal of the Senate of the Commonwealth of
Virginia 64 (Richmond 1828)).
57
Id. at 17.
58
Id. at 19 (quoting Constitution of the Confederate States of America, Art VI, § 5 (March 11,
1861)).
59
Id.
60
Id. at 27.
61
Id. at 30 (quoting 1 BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE
CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE
COMMONWEALTH OF VIRGINIA, Appendix 1, 141 (St. George Tucker ed., Augustus M. Kelley
reprint 1969)(1803)).
62
Id. at 30-31.
63
Id. at 31.

27
64
Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L. Rev. 331, 336
(2004) (hereinafter Lost Meaning).
65
Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment 21 (Loyola Law School,
Legal Studies Paper No. 2007-17, 2007), available at http://ssrn.com/abstract=953008
(hereinafter Textual-Historical Theory).
66
Id.
67
U.S. CONST. amend. X.
68
Lost Meaning, supra note 64, at 336.
69
Id.
70
Textual-Historical Theory, supra note 65, at 24.
71
Id.
72
Lost Meaning, supra note 64, at 399.
73
Textual-Historical Theory, supra note 65, at 21(quoting James Madison, Speech Opposing the
Bank of the United States (1791)).
74
Id. at 24.
75
Id. at 24-25.
76
Id. at 25.
77
Lost Meaning, supra note 64, at 394-95.
78
Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 Tex. L. Rev. 597, 613-639;
669-670 (2005) (hereinafter Lost Jurisprudence); Textual-Theoretical History, supra note 65, at
28.
79
Lost Meaning, supra note 64, at 394.
80
Id. at 394-95.
81
Id. at 395 (quoting John Taylor, New Views of the Constitution of the United States 96
(Washington D.C., Way & Gideon 1823)); Biographical Directory of the United States
Congress: Taylor, John, http://bioguide.congress.gov/scripts/biodisplay.pl?index=T000085 (last
visited Apr. 25, 2008).
82
Lost Meaning, supra note 64, at 395.
83
Id. at 395.
84
Id. (quoting James Madison, Veto Message to Congress (Mar. 3, 1817), in James Madison,
Writings 720 (Jack N. Rakove, ed., 1999)).
85
Id. at 397 (quoting St. George Tucker, 1 Blackstone’s Commentaries: With Notes of Reference
to the Constitution and Laws of the Federal Government of the United States; and of the
Commonwealth of Virginia app. 1, at 151).
86
Id. at 355-58.
87
Id. at 358.
88
Id. at 357 (quoting Amendments Proposed by the Virginia Convention (June 27, 1788), in THE
COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES AND ORIGINS 675 (Neil H. Cogan
ed., 1997)).
89
Lost Jurisprudence, supra note 78, at 613-639.
90
22 U.S. (9 Wheat.) 1 (1824); Lost Jurisprudence, supra note 78, at 624-25.
91
17 U.S. (4 Wheat.) 316 (1819); Lost Jurisprudence, supra note 78, at 625.
92
Gibbons, 22 U.S. (9 Wheat.) at 187-88.
93
Lost Jurisprudence, supra note 78, at 625.
94
Id. at 625 (quoting Gibbons, 22 U.S. (9 Wheat.) at 196).
95
Id. at 625.

28
96
18 U.S. (5 Wheat.) 1, 49 (1820) (Story, J., dissenting).
97
See Lost Jurisprudence, supra note 78, at 613-22.
98
Id. at 615.
99
Id. at 619 (quoting U.S. CONST. art. I, § 8, cl. 16)
100
Id.
101
Id. at 620 (quoting Houston, 18 U.S. (5 Wheat.) at 58).
102
Id. at 619-620.
103
Id. at 633.
104
Id.
105
Id.
106
Id.
107
Id. at 653.
108
79 U.S. (12 Wall.) 457 (1870).
109
Lost Jurisprudence, supra note 78, at 653 (quoting 79 U.S. (12 Wall.) at533-34).
110
Legal Tender Cases, 79 U.S. (12 Wall.) at 534-35.
111
Lost Jurisprudence, supra note 78, at 655.
112
Id. at 658.
113
83 U.S. 36 (1873).
114
Lost Jurisprudence, supra note 78, at 658.
115
Id. at 659 (quoting The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 78 (1872)).
116
Id. at 658.
117
Id. at 669.
118
Id. at 669-70.
119
Id. at 670.
120
Id.
121
Id.
122
Id.
123
Id.
124
Textual-Historical Theory, supra note 65, at 28.
125
521 U.S. 507 (1997).
126
529 U.S. 598 (2000).
127
Textual-Historical Theory, supra note 65, at 28.
128
2 U.S. (2 Dall.) 419 (1973); Majoritarian Difficulty, supra note 23, at 20.
129
Majoritarian Difficulty, supra note 23, at 24.
130
See id. at 24-25.
131
Id. at 26; see also Hans v. Louisiana, 134 U.S. 1 (1890).
132
Majoritarian Difficulty, supra note 23, at 26.
133
Id. at 26.
134
10 U.S. (6 Cranch.) 87 (1810)
135
Id.
136
Majoritarian Difficulty, supra note 23, at 27.
137
Lost Jurisprudence, supra note 78, at 639.
138
Id. at 639.
139
Id. at 647.
140
Id.
141
Id. at 640.

29
142
Id. at 640.
143
See id. at 613-39.
144
See id.
145
See id.
146
Id. at 625 (quoting 22 U.S. (9 Wheat.) at 196).
147
Id.
148
Id.
149
Id. at 670.
150
Textual-Historical Theory, supra note 65, at 28.
151
Majoritarian Difficulty, supra note 23, at 11-13.
152
U.S. CONST. amend. X.
153
See generally 512 U.S. 507 (1997); 529 U.S. 598 (2000).
154
U.S. CONST. amend. XIV.
155
410 U.S. 113 (1973).
156
Lost Meaning, supra note 64, at 399.
157
It Means What It Says, supra note 21, at 15.

30