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Saturday, September 05, 2009

The Ninth Amendment and the Original Bill of Rights

In my last post, I provided a brief sketch of original public meaning originalism.  A number of scholars have contributed to the development of this more sophisticated form of originalism, but no one has done more work to explain the theory of originalism than Illinois law professor Lawrence Solum.  Much of my last post is beholden to his extraordinary work-in-progress, Semantic Originalism, and readers interested in the latest and best articulation of originalist theory are encouraged to read Solum’s great work.


The original understanding of the Bill of Rights took center stage in the Supreme Court’s decision in Heller.  The Second Amendment, of course, was only one of a group of provisions added to the Constitution in order to assure the states that the new federal government would be, as promised, one of limited enumerated power.  As readers of this blog know, the original Constitution did not contain a Bill of Rights—an omission Federalists defended as due to the presumed theory of enumerated federal power and the danger of adding an inevitably incomplete list of retained rights.  Forced by ratification politics to reverse course, James Madison and other Federalists promised the addition of Bill in the first Congress.  True to his word, Madison presented a draft Bill in the newly constituted House of Representatives and he included a provision ensuring that the addition of certain enumerated rights “shall not be construed to deny or disparage others retained by the people.”


This provision—our Ninth Amendment—represents a guarantee that there are additional limits the federal power beyond those specifically enumerated in the Bill of Rights.  Ever since Justice Goldberg’s paean to the Ninth Amendment in Griswold v, Ct., scholars have struggled to define the “other rights” protected by the Ninth, most commonly concluding that the provision refers to a set of unenumerated individual natural rights.  Until recently, the effort to define the rights of the Ninth Amendment proceeded under the assumption that there had been no significant discussion of the Amendment since the time of its enactment in 1791.  We now know this is not true—there is a great deal of historical discussion regarding the original meaning of the Ninth Amendment.  This newly available –and greatly expanded -- body of historical evidence suggests that scholars have wrongly limited the presumed protections of the Ninth to a set of individual natural rights.  The Ninth Amendment sought to preserve all the rights of the people which were not delegated into the hands of the National government, whatever their nature.


More after the break: 


The concept of the Ninth is quite simple and clearly explained by James Madison in a 1791 speech delivered to the House of Representatives while ratification of the Bill of Rights remained pending in the States.  According to Madison, proponents of the Constitution in the state ratifying conventions had promised a federal government of limited enumerated power.  The conventions themselves ratified the Constitution with the understanding that this would be the case, but they insisted on a Bill of Rights that would make this principle of limited federal power an express part of the Constitution.  The new Congress responded by proposing a Bill of Rights, with the final two proposed amendments ensuring that enumerated federal power would be narrowly construed and that all powers not given into the hands of the federal government would be reserved to the people in the several states.  As Madison put it, the purpose of the Ninth Amendment was to “[guard] against a latitude of interpretation” of enumerated federal power, while the Tenth Amendment “exclud[ed] every source of power not in the Constitution itself.”  Madison concluded his speech by insisting that the Ninth and Tenth Amendment together preserved the rights of local self-government and the autonomy of the people in the states.  To Madison, the Ninth and Tenth Amendments worked together to ensure that all powers and rights not delegated to the federal government were retained by the people in the states.


This reading of the Ninth and Tenth Amendments was repeated by every member of the Founding generation who discussed the Amendment.  This includes the drafter of the Ninth (James Madison), ratifiers like John Page and John Overton, the first constitutional treatise writer St. George Tucker, and even the otherwise nationalist-oriented Justice Joseph Story.  This is also how courts interpreted the Ninth and Tenth Amendment for the first 150 years of the Constitution. 


According to this view, the Ninth Amendment did preserve individual natural rights, but it also preserved majoritarian rights of local self-government, and collective rights such as the right of revolution.  In brief, the Ninth Amendment protected every conceivable right not delivered into the hands of the federal government—and preserved them in the hands of the people in the several states.  This point is critical to understanding both the original view of the Ninth Amendment and its later interaction with the Fourteenth Amendment:  The rights protected by the Ninth, as originally understood by its framers and ratifiers, included more than just individual rights, but embraced every right meant to be retained out of the control of the federal government, from the common law right of self-defense, to the right of local majorities in the states to establish local commercial and educational policy, to the collective right of the people to assemble and alter or amend their constitutions.


Madison expected that, over time, federal courts would specify the scope of these “other rights” and the limits of federal power through a series of “landmark” decisions.  His basic understanding of the Ninth, however, was clear:  The Ninth Amendment, like the rest of the Bill of Rights, was understood by both framer and ratifier as preserving the rights of local self-government.  The historical testimony echoing Madison’s view is broad and deep.  Readers who wish to explore this history (and the general debate) in depth may do so here and (in book-length form) here.


For now, my point is the uncontroversial one (uncontroversial to most constitutional historians, at any rate) that the rights of the Constitution during the first period of our Republic were federalist in that they limited the powers of the federal government and preserved the rights and powers of the people in the states.  However counterintuitive that might seem from a modern perspective, the consensus position of the state ratifying conventions was that personal liberty (in all its forms) was a matter best protected if left generally under local control.  How this federalist understanding of retained individual, majoritarian and collective rights played out in antebellum law, and how the federalist structure of the original Constitution changed at the time of Reconstruction, will be the subject of future posts.

Posted by Kurt Lash on September 5, 2009 at 09:14 AM | Permalink


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