The Right Coast

February 20, 2004
The Ninth Amendment
By Mike Rappaport

There has been an interesting debate on the Ninth Amendment, both at Southern Appeal and throughout the Blogosphere. For Southern Appeal, start here and read up. For some other posts, look here.

Coincidentally, I am covering the Ninth Amendment in my Advanced Constitutional Law Class, which focuses on constitutional history. While I have not completely made up my mind on the question, I lean strongly in favor of the traditional federalism interpretation.

Under that interpretation, the Ninth Amendment was intended to address the possibility that the inclusion of a Bill of Rights would lead to an unjustified widening of the federal government’s enumerated powers. In Federalist 84, Alexander Hamilton argued that a bill of rights generally, and a provision protecting Freedom of the Press specifically, would be dangerous, because it might lead to a mistaken broadening of Congress’s enumerated powers. Hamilton writes:
    I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
When introducing the Ninth Amendment to the House, Madison explained that it was intended to guard against this problem.

Thus, under the Federalism interpretation, the “rights retained by the people” include those rights that the people enjoy against the federal government because they lie outside of the federal government’s enumerated powers. Accordingly, the Ninth Amendment would protect against the federal government’s regulation of abortion, not because there is a natural right to abortion, but because there is no enumerated power allowing the federal government to regulate it in the states. (However, Congress would have an enumerated power to regulate abortion in the District of Columbia.)

One difficulty that people have with this interpretation is that it assumes that powers not conferred on the federal government are rights of the people. To our ears, that seems problematic, or as John Hart Ely put it, “a category mistaken.” But the Federalists used this formulation all of the time, saying that the enumerated powers protected people’s rights because those powers were limited. For example, as Madison stated to George Washington in a letter explaining the Ninth Amendment: “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. If no line can be drawn, a declaration in either form would amount to nothing.”

Another criticism of the federalism interpretation is that it renders the Ninth Amendment redundant of the Tenth Amendment, but this is clearly mistaken. The Tenth Amendment guards against the mistaken claim that there are unenumerated powers; the Ninth Amendment guards against the mistaken inference that the enumerated powers are broader than they would otherwise seem, because only such a broad interpretation would be consistent with the adoption of the bill of rights.

One further point about the federalism interpretation. It does not necessarily deny that some of the rights retained by the people are natural rights. After all, under the original meaning of the enumerated powers, many natural rights might exist in areas beyond the federal government’s enumerated powers.

In contrast to the federalism interpretation, others have argued that the Ninth Amendment protects unenumerated, individual, natural rights that apply against the federal government even when it is exercising its enumerated powers. While there may be some support for this view, at present I am more convinced of the federalism interpretation.

Without assessing the unenumerated rights position, let me just mention some of the complications of that view. Significantly, even if one does believe that the Ninth Amendment refers to unenumerated natural rights, it is not clear that this would allow judicial review to protect individual rights, whether they be marital privacy or the right to contract. First, it is not clear that the federal courts are supposed to enforce those natural rights. It is quite possible that the Framers would have thought that these natural rights should be protected through political action, such as the type of action by state legislatures that Madison and Jefferson tried to promote against the Sedition Act, or though revolutionary action, such as the Revolutionary War, which justified itself based on natural rights.

Second, some of these natural rights might be group rights. For example, Madison tried to include in the Bill of Rights the following provision: “That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.” Such a right was included in the great majority of state bills of rights, and Akhil Amar makes a strong case for showing that the Framers believed that this was a natural right (even though he does not persuade me that that right should override Article V of the Constitution).