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The Ninth Amendment Means What it Says:
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.
While many in the blogosphere have debated the original meaning of this amendment, in the end it is evidence that should settle the question. But this requires the more traditional forms of scholarship rather than blogging. For some months, I have been promising a major new treatment of the evidence concerning the Ninth Amendment's original meaning. Finishing it occuppied most of my summer, but now it is available for downloading on SSRN. It is entitled, The Ninth Amendment: It Means What it Says. Here is the abstract:
Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: The state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This article examines twelve crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strong support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say.
I am activating comments for anyone who reads the paper and has comments or suggestions for its improvement. These can also be sent to me by email. (If you spot any typos, please send tell me about them by email rather than in comments.)

Related Posts (on one page):

  1. Clayton Cramer on the Ninth Amendment:
  2. The Ninth Amendment Means What it Says:
billb:
There's a typo in the abstract "or strong support the ..." should be "or strongly support the ...".
8.29.2005 11:49am
Carol Anne:
An impressive tour de force of the various interpretations of the Ninth. I stand in awe of the integrity of the piece, and I feel inadequate to fully understand all of it, being a mere lay reader of the law.

You can be sure I'll be watching this thread to see what else I can learn.

One minor recommendation: The "gold" or "yellow" text in the table int he Appendix is virtually unreadable on a white background. You might want to change that color.
8.29.2005 12:26pm
Fred Vincy (www):
I am looking forward to reading this more closely, but did I miss it or have you not cited Charlie Black's book on the Ninth Amendment? I would think you would have to discuss that, even if you disagree,
8.29.2005 12:43pm
Justice Fuller:
I have downloaded the article and read the intro, but the intro doesn't say what is new about the article. Can someone please summarize the new contribution for me?
8.29.2005 1:02pm
Challenge:
I hope it occurs to Mr Barnett that the Tenth Amendment "means what its says" too!

Mr Barnett's interpretation of the Ninth Amendment is an embrace of governmental power, specifically judicial governmental power, not the embrace of the rights of the people.

The Ninth Amendment can be read quite literally when applied in a federal context, it cannot however be incorporated into the Fourteenth Amendment and made applicable to the states for the same reason the Tenth cannot--it's a structural guide to interpretation, not a "privilege or immunity" of the kind intended by the ratifiers of the Fourteenth Amendment.

I have yet to read Barret's work verbatim, but of the 70 or 80 pages in his article, only the last several take up the question of incorporation. Huh? That is the CRUCIAL and controversial question at issue, but Barnett barely addresses it. I plan on carefully reading the article and responding at length at a later time.
8.29.2005 1:07pm
Jim Lindgren (mail):
Randy:

This is really brilliant work, just fabulous!

I had one point (p. 77) where I strongly suspect that you misunderstand what Tucker was saying. His reference on p. 77 to civil society is not to states (though they certainly form part of that civil society). He appears to be writing in the Lockean tradition. When a government is dissolved, you don't go back into the state of nature. Most theorists did not think that the US was in the state of nature in July 1776. Rather, they drew a distinction between civil and political society, or between a social contract and a political contract. When a government is dissolved or reconstituted, you fall back into civil society (not the state of nature), until there is a new political or governmental contract. (This is briefly discussed in the 1967 ed. Encyclopedia of Philosophy's entry on Locke (v. 3, pp. 499-500).)

So Tucker here is not talking particularly about residual state governments (though they are part of civil society), he is talking about not being in the state of nature. Once you understand what he appears to be saying, he is drawing the natural law distinction between social and political contracts. By contrasting the federal government with the pre-existing civil society, he invokes a strongly natural rights way of framing the issue.

The only thing that's unclear from this passage alone is whether Tucker believed (as did a majority of theorists and as the 9th amendment enshrined) that most or all natural rights were retained after one joined civil or political society. But I take it that is made clear by his other writings. And there is no reason that someone using the natural law phrase "civil society" in a discussion of retained rights would mean something other than the usual natural law interpretation of this language.

You can see this retention of civil society after the dissolution of legislative power, though made for a different purpose, in ch 19 of Locke's 2d Treatise. Here is Locke's summary of that chapter:


Sec.243. To conclude, The power that every individual gave the society, when he entered into it, can never revert to the individuals again, as long as the society lasts, but will always remain in the community; because without this there can be no community, no common-wealth, which is contrary to the original agreement: so also when the society hath placed the legislative in any assembly of men, to continue in them and their successors, with direction and authority for providing such successors, the legislative can never revert to the people whilst that government lasts; because having provided a legislative with power to continue for ever, they have given up their political power to the legislative, and cannot resume it. But if they have set limits to the duration of their legislative, and made this supreme power in any person, or assembly, only temporary; or else, when by the miscarriages of those in authority, it is forfeited; upon the forfeiture, or at the determination of the time set, it reverts to the society, and the people have a right to act as supreme, and continue the legislative in themselves; or erect a new form, or under the old form place it in new hands, as they think good.

In the Lockean tradition, the rights you give up in joining society are very limited and do not include the bulk of your natural rights. There is nothing in the passage quoted on p. 77 that even hints that Tucker was not being an orthodox natural lawyer with those words.

Also, your abstract should restate your conclusion on the proper interpretation of the 9th amendment in its last sentence.
8.29.2005 2:25pm
Jeff R.:
I've always thought that one thing the ninth could be clearly read as is as a gaurantee that individual rights preserved under the Articles of Confedration would also be preserved under the Constitution. The only such example I'm aware of is "and the people of each State shall free ingress and regress to and from any other State," (Article I, section IV of the AoC.) The Constitution has no such provision; in fact has text that follows that section closely but excises that provision, and yet it seems fairly obvious that were Idaho to pass a law closing its borders to travellers from Montana, said law would be held unconstitional and a 9th amendment case against it would be strong.
8.29.2005 2:32pm
RogerA (mail):
As a lay reader, I found the paper well argued and supported--and as a visual learner, I also found the table summarizing the evidence very helpful. At the beginning of the paper I noted the three methods of constitutional interpretation and that fact that public meaning was the method selected. A question for those trained in the law: is public meaning acknowledged by members of the legal establishment as an appropriate metric? A second question: What would have been the role of English Common Law--does common law relate to the concept of social contract discussed inter alia by Hobbes and Locke? I would appreciate posters thoughts--

And FWIW: it is nice to have confirmed for me that my "public meaning" squares with the historical evidence cited by Professor Barnett. :)
8.29.2005 2:32pm
Clayton E. Cramer (mail) (www):
One flaw with Caplan's "state-law rights model" is
states were free to change their own constitutional or common law rights without violating the Ninth Amendment and, under the Supremacy Clause, national legislation that affected these state law rights, but which was within the powers of the federal government, would also not violate the Ninth Amendment.


Another method of applying the "state-law rights model" is to understand the Ninth Amendment as defining those rights then existing under state law. If right X was protected under the state laws in effect in the period 1789-91, either explicitly by state constitutional guarantees, or by the absence of state laws regulating or prohibiting X, then the Ninth Amendment would protect the right to do X against federal intrusion.

Your Presumption of Liberty on p. 14 still suffers a core problem: there does not seem to have been a presumption of liberty at the state level. People like Madison recognized that the majority might well oppress the minority, but as Amar's The Bill of Rights points out, Madison was definitely ahead of his peers in this understanding. The concern that most had at the time was what Amar calls "self-dealing": individuals or factions misusing government power for their own gain, not to satisfy a majority.

Amar's claim that you quote on page 15 that "the people" should be understood as a collective right collapses when you look at the other rights that are reserved to "the people" in the Bill of Rights. Even ignoring the 2nd Amendment's use (where gun control advocates continue to argue for a collective meaning), and the 1st Amendment's use (where it is at least plausible that "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" refers to a collective right to petition), the Fourth Amendment's "The right of the people to be secure in their persons, houses, papers, and effects" is clearly an individual right.

Your discussion of the federalism model on p. 20 seems to be deficient in some logical step.
Certainly as a logical matter, an "active" federalism reading of the Ninth Amendment that effectively limited the scope of Congressional powers would serve to protect both the natural rights of individuals and any collective right of the people to self-government (Lash) or to alter or abolish their government (Amar). In this sense the federalism model is consistent with both the individual and collective natural rights models. With the Ninth Amendment, as elsewhere in the Constitution, federalism is a means rather than an end in itself. And a principal end of federalism is the protection of the liberties of the people, both personal and political.


This again comes back to your Presumption of Liberty. Federalism, at least in the eyes of many of the Framers, was not for the purpose of guaranteeing individual liberties, but guaranteeing the power of representative state governments to make laws. While I share Madison's concern that majorities are perfectly capable of abusing the rights of minorities, this seems not to have been a major concern at the time--except with respect to a federal government. At least to make this claim compelling, you will have to demonstrate that state governments also operated on a Presumption of Liberty--and the states did not.

On p. 22 you write:
So too with Caplan's claim that natural rights were subject to the regulation
of state laws—especially the common law. So they were thought to be. The question is whether this means that the Ninth Amendment provided no constitutional barrier
to the federal interference with the exercise of these rights, as did the enumerated natural rights of freedom of speech, press, assembly, and to keep and bear arms—natural rights that were also regulated by state laws. Evidence for this interpretive claim is completely lacking.


I can't quite follow your argument here. I think Caplan's point was that if state laws regulated or even prohibited action X, the Ninth Amendment's protection of unenumerated rights would not protect action X from federal action. Certainly, if most of the states were regulating or prohibiting action X in 1789-91, they would not have ratified the Ninth Amendment had they understood that it would require them to give up their legislative power to control X.

On p. 25:
All by itself, Madison's characterization of the problem for which the Ninth
Amendment was his solution substantially undercuts Russell Caplan's thesis that the Ninth Amendment was added to address the concerns of Antifederalists that the
Constitution would supplant state law rights.


Again, Madison certainly saw the Bill of Rights as potentially a set of limitations on not only federal but also state power, but it is clear that other members of the First Congress did not share that view--or the establishment clause would not have been sent to the states in the form that it was, knowing full well that many states would not ratify a clause contrary to their own state constitutions and statutes.

On p. 27:
First, none of these protests make any direct connection to state law rights, or the rights of the people in their respective states. Although such rights might well have been included in the impossible-to-enumerate rights retained by the people, these quotes fail to reveal any hint that the retained rights are limited to state constitutional or common law rights. While these quotes do not directly contradict the state-law rights model, therefore, they offer scant support for it.


Uh, no. You quote Pinckey in support of that claim:
[W]e had no bill of rights inserted in our Constitution: for, as we might perhaps have omitted the enumeration of some of our rights, it might hereafter be said we had delegated to the general government a power to take away such of our rights as we had not enumerated. [emphasis added]


That phrase "general government" clarifies that he was speaking specifically about the power of the federal government. I would guess that some of the other quotes do not explicitly describe this is federal vs. state terms because the authority of the state governments to pass all sorts of laws (for good and for bad) subject only to the state constitution's limits, was understood.

Your discussion on p. 29 on Wilson's discussion of individual rights is intended to bolster the individual natural rights theory of the Ninth Amendment--but simply because Wilson (and probably all other Framers) believed that there was an extensive list of natural rights with which government should not interfere does not lead to the Presumption of Liberty individual natural rights theory. If so, there would not have been state laws prohibiting sodomy, bestiality, adultery, obscenity, and a host of other moral laws that violate your Presumption of Liberty.

Your discussion on pp. 31-32 of the exchange between Sedgwick and Page actually demolishes your claim. Page's point was that even a matter as simple as the right to wear a hat had actually been subject to regulation, and was therefore not anywhere near as simple of a "natural right" as Sedgwick wanted to believe. Page could have pointed to examples from current law--for example, when serving in the militia, some states required you to wear a particular uniform, or to remove one's hat when entering a courtroom. The list of natural rights was not as obvious that Sedgwick made them sound. Hence, Page believed that explicitly listing the right to assemble was worthwhile.

Page then underscores the equivalence of these personal rights with that of the right of assembly. At least in this exchange, all these personal individual
rights were thought by all three Congressmen to appertain to "the people." Page even uses the term "people" here to refer to the plural of individual persons, rather than as
some mystical corporate body.


Page is not finding these personal rights equivalent to the right of assembly. He is pointing out that these personal rights were restricted, at least on some occasions, and wanted the right of assembly protected because it was so important.

Your discussion of retained rights on pp. 39-41 fails to account for why, if this Presumption of Liberty really describes the prevailing sentiment of the Framers, that state laws throughout this period continued to regulate and prohibit a great many activities that you apparently consider natural rights: state establishment of churches; mandatory church attendance laws; laws regulating alcohol sales; sexual morality; etc.

The core problem of this paper is that you are attempting to use statements usually made in the context of limiting federal power as evidence for a widespread Presumption of Liberty among the Framers. This was simply not the case; there was a fear of federal power because it was believed that it was too far removed from the people, unlike the state governments, who were more directly accountable to the people. Even then, many of the state constitutions had enumerated rights, because there was a Presumption of Power there--not of Liberty.
8.29.2005 2:35pm
Richard Bellamy (mail):
Your conclusion takes something of a "weight of the argument" position, stating that there is often conflicting data, so the most likely interpretation is "based on the cumulative weight of the evidence."

The gathered evidence, however, is overwhelmingly the view taken by Federalists (Madison, in particular), although the Federalists were against the Bill of Rights to begin with, and only agreed to it in order to get anti-Federalists to sign on. Is it possible that the two parties would have interpreted the Amendment differently, and voted for it based on their own independent interpretations?

As it is, the conclusion seems a little bit to me like trying to determine the meaning of "Disability" in the "Americans with Disability Act" by looking only at the speeches of Republicans.

I recognize that the evidence is what the evidence is, and there is no getting around the fact that a lot of it is from Madison. Looking over you Appendix however, I couldn't help but wonder whether "Madison thinks it six times" is much weightier than Madison thinking it once.
8.29.2005 3:41pm
Cityduck (mail):
An excellent article. However, I am fundamentally perplexed as to why you purport to rely upon the "original public understanding" interpretative paradigm when you cite not a single source as to the public's understanding. I don't see any newspapers on the subject, any of the sensational pamplets, any private letters by non-framer/ratifiers/politicians on the subject, just legislative history or, even worse, private notes of public figures.

The more intellectually honest approach, I think, would be to admit you are looking at both Framers and Ratifiers Intent (or perhaps even their ideals), not the original public understanding. After all the original public understanding paradigm cannot be reconciled with incorporation.

For example, on p. 23, I think you really miss a key concept in Madison's Bill of Rights speech. Madison states in support of his response to the argument that the Bill of Rights is unnecessary:

"It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, <b>in the same manner as the powers of the state governments under their constitutions may to an indefinite extent</b>; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof."

So, Madison clearly views the 9th Amendment as guarding against what he <b>personally</b> sees as a potential federal abuses of power that are already prevalent in the states. This strongly suggests that the liberty interest you seek to protect with the 9th Amendment, the myriad rights cited by Mr. Iredell (my favorite ratifier), cannot be defined with reference to Madison's writings, <b>if you subscribe to the original public understanding paradigm</b>, because Madison was far ahead of the public in his thinking on this topic!

Personally, I fail to see how the original public understanding paradigm makes any sense at all as it is predicated upon an interpretative principle that is better suited for insurance contracts than Constitutions. As we all know, insurance contracts are, in some contexts, interpreted to effectuate the insured's "reasonable expectations" as to what the insurance contract means when the text is ambigious. But this is because an insurance contract is the product of a bargain between two parties (insurer and insured) and the insurer who drafted the insurance contract and created the ambiguity is charged with the consequences, not the insured who is reasonably interpreting the words on the contract presented to them. In that context, it would be unfair to bind the insured with the insurer's "hidden intent."

But, in contrast, our Constitution is not the result of a two party bargain. There is no "hidden intend." The framers and ratifiers rejected the notion that the Constitution was a bargain or compact between the rulers, or some sort of ruling class, and the governed. Instead, the theory of our Constitution is that all power derived from the People and the men who drafted and ratified the Constitution were acting as the People's representatives. Consequently, the way in which you ascertain the People's intent, is to look precisely at the framers and ratifiers intent, not some mythical "public understanding," because the framers/ratifiers were tasked by the people with creating the Constitution and it is their intent which is the People's intent on this issue. The fact that a private letter of a dairy farmer who's sole source of information is a newspaper would be as relevant to someone adhering to the "original public understanding" paradigm as Madison's letter tells you it is an absurd interpretative paradigm and you would be well advised to abandon it.
8.29.2005 4:01pm
DrewSil (mail):
Cityduck,

You err in assuming that because much use is made of Madison's statements the point of the arguments presented in the paper must be to determine His peculiar intent.

Most commonly the drafters of any particular ammendment (or other document) will be the people who discuss it most often and in the most depth. Such discussions are an excellent indication of what the text which they have drafted means. Thus their statements can lend support to a hypothesized original meaning. Particularly if such statements are made in public, or even better in an adversarial forum such as the senate where inappropriate use of language is likely to be corrected.

In this case it is true that Madison's original intent most likely coincides with the original meaning. For the purposes of this article this congruence is irrelevant. Were another source of public meaning available (such as the ones you postulate) Prof. Barnett would most assuredly examine them, and happily add a few more rows to his chart. Alternatively imagine that Madison's long lost diaries were to be found in which he states "I intended the 11th (9th) ammendment to mean that there is a collective right to liberty, but subsequent to its passage found, to my great dismay, that my colleagues all believed it to imply and individual right". Not only would the paper ignore the first part of this "qoute", but this would further bolster the case that the 9th ammendment is about individual rights regardless of Madison's intention.

This is probably an area that should be cleared up a bit, as there seems to be some confusion. Possibly putting the disclamer closer to the front of the paper (where various forms of originalism are discussed?). Noting that much of the obtainable evidence about the meaning of the 9th ammendment comes from Madison, and while this evidence can also be used in arguing about the original intent, no such purpose is meant here.

To close, original intent is perfectly good evidence for original public meaning. However, an original public meaning analysis must go beyond original intent to examine other sources if they are available. When no other sources can be obtained the original intent will obviously control.
8.30.2005 1:41am
Tom Perkins (mail):
"original public understanding" has an attraction as a concept that I hope is overwhelming and clear--even if evidence about what it was is not presented here--it is the thinking of the people with the authority to make grants of authority, "we the people", who have the original intent we are to adhere here to make legitmate law and governemnt.

Yours, TDP, ml, msl, &pfpp
8.30.2005 10:34am
Cityduck (mail):
>>>it is the thinking of the people with the authority to make grants of authority, "we the people", who have the original intent we are to adhere here to make legitmate law and governemnt.<<<

But, "We the People" granted our representatives the authority to draft and ratify a Constitution without reserving any veto power to the public if the public did not like what the representatives of "We the People" crafted. In short, the grant of power from "We the People" to the framers and ratifiers makes the original public understanding irrelevant to determining the intent of "We the People."
8.30.2005 12:48pm
Cityduck (mail):
>>>Were another source of public meaning available (such as the ones you postulate) Prof. Barnett would most assuredly examine them, and happily add a few more rows to his chart.<<<

What makes you think they do not exist? I see no evidence for this proposition from Prof. Barnett's paper. Maybe I missed the footnote where he said there are newspaper editorials or pamplets relevant to the Ninth Amendment. But, the overall impression I get is that Prof. Barnett is completely unconcerned with the "public's" understanding, as I think he should be, because he makes no effort to discern the general public's view, as opposed to the politicians, understanding of "inherent rights" etc. He fails to discuss state law at all, or public reaction to various laws which would appear to have violated the "retained rights" in which Prof. Barnett believes.
8.30.2005 12:56pm
Shelby (mail):
without reserving any veto power to the public if the public did not like what the representatives of "We the People" crafted

I believe you're mistaken, Cityduck. The public had the right to vote on what was drafted -- hence the need for the Federalist Papers et al., to persuade members of the public to ratify (or not) the proposed Constitution.
8.30.2005 5:36pm
Cityduck (mail):

The public had the right to vote on what was drafted -- hence the need for the Federalist Papers et al., to persuade members of the public to ratify (or not) the proposed Constitution.


No. The public delegated the power to approve the Constitution to the ratifiers who voted in the State ratifying conventions. James Iredell, cited by Prof. Barnett, is one such ratifier. So, again, it is not the general public's original understanding which is important, it is the intent of the Framers and Ratifiers.
8.31.2005 1:12pm