The Ninth Amendment states, quite simply, that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Over the past forty years or so, since Justice Arthur Goldberg’s concurrence in Griswold v. Connecticut, 381 U.S. 479, 485 (1965), a debate has developed over the meaning of the Amendment, and in particular over the phrase “other[] [rights] retained by the people.” Does this not suggest – or even plainly state – that the people retain other, unenumerated rights not specifically set forth in the Constitution?
“Progressives” (for want of a better term) have argued that the Ninth Amendment’s reference provides a textual basis for discerning additional rights not specifically described in the Constitution – the right to have an abortion, for example. In his book, Restoring the Lost Constitution: The Presumption of Liberty, Randy Barnett has advanced an alternative, libertarian reading of the Constitution based in part on the Ninth Amendment.
There seems little doubt that the ideas of the Founding Generation included a significant strain of natural law thinking. Nonetheless, I am persuaded that the “unenumerated rights” argument ultimately does not fly as a historical matter. The better view is set forth by Kurt T. Lash in two articles published in the Texas Law Journal and available online, The Lost Original Meaning of the Ninth Amendment, 83 Texas Law Review 331 (Dec. 2004) and The Lost Jurisprudence of the Ninth Amendment, 83 Texas Law Review 597 (Feb. 2005).
In brief, Professor Lash argues convincingly that the key word in the Amendment is the word “construed.” One principal argument against the adoption of what became the Bill of Rights was that it was unnecessary. The Constitution created a federal government that was authorized to exercise only those limited powers specifically described in the document. To the extent that the Constitution did not specifically grant powers to the federal government, the people necessarily retained the corresponding rights. It was unnecessary, therefore, to amend the Constitution to protect a right of freedom of speech or of the press (for example), because the Constitution did not grant to the federal government any power over speech or the press. Thus the people already retained those rights.
Even worse, it was argued, was the fact that the passage of a bill of rights might inadvertently create the inference that the federal government had any powers that were not specifically withheld. The Constitution, for example, did not delegate to the federal government the power to tell me what color shirt to wear when I got up in the morning; I had the right to choose whatever color shirt struck my fancy. But would the addition of a bill of rights omitting a right to wear any shirt I choose not suggest that I did not have such a right in the first place, and that the federal government had the power to tell me what color shirt to wear?
The evidence appears overwhelming that the Ninth and Tenth Amendments were included in the Bill of Rights to meet these concerns. In this reading, the two amendments complement each other. The Tenth reconfirms the rule that the federal government has only those powers specifically delegated to it. The Ninth is a rule of construction, providing that the enumeration of certain rights in the Bill of Rights should not be construed by negative inference as an enlargement of the powers delegated to the federal government.
What has obscured the connection is that the two amendments use different language. The Tenth refers to “powers”, while the Ninth speaks of “rights:”
Tenth: “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.”
Ninth: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The drafting history, however, confirms that the differing language arises out of the fact that the drafters regarded governmental “powers” and simply the opposite of retained popular “rights.” The reason that the Ninth Amendment refers only to “rights” is merely the result of stylistic polishing. Consider the various versions of the text that became the Ninth Amendment, in chronological order, emphasizing the words “rights” and “powers:”
Virginia Convention June 27, 1788
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.
New York Convention July 26, 1788 (the predecessor language of the Tenth Amendment is bracketed)
[[T]hat every power, jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same;] and that those clauses in the said Constitution, which declare, that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution.
Proposed by Madison June 8, 1789
Fourthly, That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit:
[Numerous other provisions]
That 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.
House Select Committee July 28, 1789
ART. 1, SEC. 9 – Between PAR. 2 and 3 insert,
[Other provisions, including the predecessors of the First through Fifth and Eighth Amendments]
The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
House of Representatives August 24, 1789
ARTICLE THE FIFTEENTH
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.
Senate September 9, 1789
ARTICLE THE ELEVENTH
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Final Proposal to States September 25, 1789
Article the eleventh . . . The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
“Progressives” (for want of a better term) have argued that the Ninth Amendment’s reference provides a textual basis for discerning additional rights not specifically described in the Constitution – the right to have an abortion, for example. In his book, Restoring the Lost Constitution: The Presumption of Liberty, Randy Barnett has advanced an alternative, libertarian reading of the Constitution based in part on the Ninth Amendment.
There seems little doubt that the ideas of the Founding Generation included a significant strain of natural law thinking. Nonetheless, I am persuaded that the “unenumerated rights” argument ultimately does not fly as a historical matter. The better view is set forth by Kurt T. Lash in two articles published in the Texas Law Journal and available online, The Lost Original Meaning of the Ninth Amendment, 83 Texas Law Review 331 (Dec. 2004) and The Lost Jurisprudence of the Ninth Amendment, 83 Texas Law Review 597 (Feb. 2005).
In brief, Professor Lash argues convincingly that the key word in the Amendment is the word “construed.” One principal argument against the adoption of what became the Bill of Rights was that it was unnecessary. The Constitution created a federal government that was authorized to exercise only those limited powers specifically described in the document. To the extent that the Constitution did not specifically grant powers to the federal government, the people necessarily retained the corresponding rights. It was unnecessary, therefore, to amend the Constitution to protect a right of freedom of speech or of the press (for example), because the Constitution did not grant to the federal government any power over speech or the press. Thus the people already retained those rights.
Even worse, it was argued, was the fact that the passage of a bill of rights might inadvertently create the inference that the federal government had any powers that were not specifically withheld. The Constitution, for example, did not delegate to the federal government the power to tell me what color shirt to wear when I got up in the morning; I had the right to choose whatever color shirt struck my fancy. But would the addition of a bill of rights omitting a right to wear any shirt I choose not suggest that I did not have such a right in the first place, and that the federal government had the power to tell me what color shirt to wear?
The evidence appears overwhelming that the Ninth and Tenth Amendments were included in the Bill of Rights to meet these concerns. In this reading, the two amendments complement each other. The Tenth reconfirms the rule that the federal government has only those powers specifically delegated to it. The Ninth is a rule of construction, providing that the enumeration of certain rights in the Bill of Rights should not be construed by negative inference as an enlargement of the powers delegated to the federal government.
What has obscured the connection is that the two amendments use different language. The Tenth refers to “powers”, while the Ninth speaks of “rights:”
Tenth: “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.”
Ninth: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The drafting history, however, confirms that the differing language arises out of the fact that the drafters regarded governmental “powers” and simply the opposite of retained popular “rights.” The reason that the Ninth Amendment refers only to “rights” is merely the result of stylistic polishing. Consider the various versions of the text that became the Ninth Amendment, in chronological order, emphasizing the words “rights” and “powers:”
Virginia Convention June 27, 1788
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.
New York Convention July 26, 1788 (the predecessor language of the Tenth Amendment is bracketed)
[[T]hat every power, jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same;] and that those clauses in the said Constitution, which declare, that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution.
Proposed by Madison June 8, 1789
Fourthly, That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit:
[Numerous other provisions]
That 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.
House Select Committee July 28, 1789
ART. 1, SEC. 9 – Between PAR. 2 and 3 insert,
[Other provisions, including the predecessors of the First through Fifth and Eighth Amendments]
The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
House of Representatives August 24, 1789
ARTICLE THE FIFTEENTH
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.
Senate September 9, 1789
ARTICLE THE ELEVENTH
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Final Proposal to States September 25, 1789
Article the eleventh . . . The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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