The Right Coast

February 23, 2004
More on The Ninth Amendment: Rights versus Powers
By Mike Rappaport

Larry Solum has written an excellent post challenging in part the federalism interpretation of the Ninth Amendment. Larry argues that the federalism interpretation is not really consistent with the text of the Ninth Amendment. As usual, Larry’s argument is careful, powerful, and helpful. His argument gets to the nub of the issue. Yet, in this case, I believe that the federalism interpretation has an answer.

Larry argues that the federalism interpretation reads the text as if it said:
    “The enumeration in the Constitution, of certain rights, shall not be construed to enlarge the enumerated legislative powers of Congress.”
In fact, though, the Ninth Amendment says
    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Larry is correct: The federalist interpretation does read the text in this manner. But this is not a problem, even for strict textualists like Larry and me. The reason is that, in the context of the Ninth Amendment, “the denial of rights retained by the people” is the equivalent of “the enlargement of the legislative powers of Congress.” They are two ways of saying the same thing.

Now, if you are unfamiliar with the history of the Ninth Amendment, you should be skeptical of my claim. But still you must admit that it is possible that the Framers’ generation might have understood the terms in this way. To persuade you of my claim, though, I would have to show you that the Framers’ generation used the terms in such a way that “the denial of rights retained by the people” is the equivalent of “the enlargement of the legislative powers of Congress.”

Imagine then that I could prove to you the following:

First, the Framers generation viewed government powers and the rights of the people as mutually exclusive: Whatever was a government power was not a right of the people. By contrast, whatever was a right of the people could not be a government power. (In our world, the government can have a power at the same time that the people have a right, and in that situation, the right ordinarily trumps the power. But not in their world, at least when they talked about the Ninth Amendment.)

Consequently, for the Framers’ generation, the relationship between government power and rights of the people is like a border between two countries. By moving the border between Canada and the US northward, you necessarily shrink Canada and enlarge the US. Similarly, by expanding government power, you shrink the retained rights of the people.

Second, the Framers’ generation did not always think of the government having power and the people having rights. Sometimes they thought of the people having power and the government having rights. This interchangeability of rights and powers fits in with the idea that an expansion of government powers/rights contracts the peoples’ powers/rights, and visa versa.

If you are with me so far, then you would, of course, want to know what my evidence is. Well, a post is not the place for anything comprehensive. So let me just give you some excerpts from classic discussions from the Framers’ generation of the Ninth Amendment.

Consider first the speech by James Wilson in the Philadelphia Ratifying Convention explaining why a Constitution with enumerated powers did not need a federal bill of rights. Wilson says:

"A bill of rights annexed to a constitution is an enumeration of the powers reserved.” So, for Wilson, there are powers conferred and powers reserved.

Next consider Madison’s speech introducing his proposed bill of rights. Madison says:
    “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.”
Notice two points about Madison’s claim: Madison thinks of rights as “exceptions to powers.” Not as trumps, but as exceptions. Also, when the people’s rights are mistakenly taken away Madison describes that, not as abridging rights, but as assigning those rights to the government.

Finally, Madison makes explicit the claim that rights end where powers begin: In a letter to George Washington explaining the Ninth Amendment, Madison writes: “if a line can be drawn between the power granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.”

I think this evidence shows that the Framers generation sometimes used the language as I have suggested, especially in the context of the Ninth Amendment. Moreover, it also may explain why the House changed the version of the Ninth Amendment that Madison proposed into our Ninth Amendment. Madison had proposed an amendment that spoke of not construing the enumeration of rights either (1) to diminish the other rights retained by the people or (2) to enlarge the powers delegated by the constitution to the federal government. Under this theory, Madison’s statement was redundant and the House may have eliminated the enlargement of powers language because it was essentially duplicative of the diminishing the other rights retained by the people language.

Of course, this change made the Ninth Amendment harder to understand. Although Madison claimed that the new language was the equivalent of the old, people like Edmund Randolph did not think the new language was clear enough. Yet, in the end, Randolph’s arguments to the Virginia Legislature that the language was insufficiently clear did not prevail and that legislature ratified the Ninth Amendment.

Update: For Larry Solum's response to this post, see here; For my first post on the Ninth Amendment, see here.