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Suggestions for Further Research

Wilson v. Seiter, 501 U.S. 294 (1991) Hudson v. McMillian, 503 U.S. 1 (1992) Austin v. United States, 509 U.S. 602 (1993) BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) United States v. Bajakajian, 524 U.S. 321 (1998) Atkins v. Virginia, 533 U.S. 976 (2001) Ewing v. California, 538 U.S. 11 (2003) Lockyer v. Andrade, 538 U.S. 63 (2003) Gherebi v. Bush, 352 F.3d 1278 (9th Cir. 2003) United States v. Goba, 240 F. Supp. 2d 242 (W.D.N.Y. 2003) Roper v. Simmons, 125 S. Ct. 1183 (2005)

William F. Duker, The Right to Bail: A Historical Inquiry, 42 Ala. L. Rev. 33 (1977) Barry L. Johnson, Purging the Cruel and Unusual: The Autonomous Excessive Fines Clause and DesertBased Constitutional Limits on Forfeiture after United States v. Bajakajian, 2000 U. Ill. L. Rev. 461 (2000) Calvin R. Massey, The Excessive Fines Clause and Punitive Damages: Some Lessons from History, 40 Vand. L. Rev. 1233 (1987) Hermine Herta Meyer, Constitutionality of Pretrial Detention, 60 Geo. L.J. 1139 (1972)

Significant Cases Pervear v. Commonwealth, 72 U.S. 475 (1866) Wilkerson v. Utah, 99 U.S. 130 (1878) In re Kemmler, 136 U.S. 436 (1890) O’Neil v. Vermont, 144 U.S. 323 (1892) Weems v. United States, 217 U.S. 349 (1910) Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) Stack v. Boyle, 342 U.S. 1 (1951) Carlson v. Landon, 342 U.S. 524 (1952) Trop v. Dulles, 356 U.S. 86 (1958) Robinson v. California, 370 U.S. 660 (1962) Schilb v. Kuebel, 404 U.S. 357 (1971) Furman v. Georgia, 408 U.S. 238 (1972) Estelle v. Gamble, 429 U.S. 97 (1976) Gregg v. Georgia, 428 U.S. 153 (1976) Woodson v. North Carolina, 428 U.S. 280 (1976) Coker v. Georgia, 433 U.S. 584 (1977) Ingraham v. Wright, 430 U.S. 651 (1977) Lockett v. Ohio, 438 U.S. 586 (1978) Rummel v. Estelle, 445 U.S. 263 (1980) Hunt v. Roth, 648 F.2d 1148 (1981) Rhodes v. Chapman, 452 U.S. 337 (1981) Enmund v. Florida, 458 U.S. 782 (1982) Solem v. Helm, 463 U.S. 277 (1983) Schall v. Martin, 467 U.S. 253 (1984) Ford v. Wainwright, 477 U.S. 399 (1986) Tison v. Arizona, 481 U.S. 137 (1987) United States v. Salerno, 481 U.S. 739 (1987) Thompson v. Oklahoma, 487 U.S. 815 (1988) Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257 (1989) Penry v. Lynaugh, 492 U.S. 302 (1989) Stanford v. Kentucky, 492 U.S. 361 (1989) Harmelin v. Michigan, 501 U.S. 957 (1991)

Rights Retained by the People The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. (Amendment IX)


Over the past few decades, a number of scholars and Justices, sometimes called noninterpretivists, have defined the “rights retained by the people” of the Ninth Amendment by various formulas such as “the traditions of the people,” “ordered liberty,” social justice, or current notions of autonomy. Originalists take a different perspective. Yet, even among originalists, there are differences in interpretation. At present there are three very different originalist theories of the Ninth Amendment’s place in the constitutional structure. The view traditionally held among most originalist scholars, as well as jurists and judges at least until recently, distinguishes between the purposes and functions of the Ninth and the Tenth Amendments, finding them complementary but not redundant. The Tenth Amendment—reserving to the states or to the people of the several states the powers not delegated to the United States government—was designed to confirm the separate juridical competency of the respective 366

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states in relation to a federal government of limited powers. The Framers of the amendment drew some of its language from Article II of the Articles of Confederation, though they carefully retained legislative scope for congressional power under the Necessary and Proper Clause. McCulloch v. Maryland (1819). According to the traditional view, the Ninth Amendment was written to accomplish a different set of objectives: (1) to prevent the application of the statutory rule of interpretation, inclusio unius est exclusio alterius (the inclusion of one thing necessarily excludes all others); (2) to permit the Federalists to save face by affirming the argument they had made against the necessity of a bill of rights; and (3) to confirm the republican principles, espoused by Federalists and Anti-Federalists alike, that the people retain their communal right of self-governance. A well-known rule of interpretation concerned the Framers. During the ratifying conventions, many Anti-Federalists demanded a bill of rights. In answer, the defenders of the Constitution asserted that a bill of rights was not only unnecessary, but also dangerous. At the North Carolina ratifying convention, James Iredell (later Justice of the Supreme Court) declared:

text to claim more than were granted.” James Wilson had declared: “If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.” When James Madison introduced his resolutions for the bill of rights to the House, including what would become the Ninth Amendment, he said: 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. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. Madison was, in other words, guarding against the well-understood rule of inclusio unius est exclusio alterius, whereby the very listing of certain rights as immune from congressional regulation would necessarily imply a grant of general legislative power in Congress to legislate over all others. Madison’s proposed amendment, then, was an attempt to avoid the result feared by James Wilson, who contended that a bill of rights “would imply that whatever is not expressed was given, which is not the principle of the proposed Constitution.” That Wilson believed that the people’s fundamental rights were secured by the Constitution’s grant of limited, enumerated powers, is powerfully illustrated by his frank admission that a freedom of the press guarantee would have been essential had Congress been granted the power to regulate literary publications. Indeed, Wilson concluded that a free press guarantee would be essential in the District of Columbia, where the power

If we had formed a general legislature, with undefined powers, a bill of rights would not only have been proper, but necessary; and it would have then operated as an exception to the legislative authority in such particulars. It has this effect in respect to some of the American constitutions, where the powers of legislation are general. But where they are powers of a particular nature, and expressly defined, as in the case of the federal Constitution before us, I think, for the reasons I have given, a bill of rights is not only unnecessary, but would be absurd and dangerous. In The Federalist No. 84, Alexander Hamilton asserted that a bill of rights would “contain various exceptions to powers which are not granted” and that this “would afford a colourable pre367

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of legislation would be “general,” rather than limited and enumerated. When the Virginia assembly debated the proposed amendment, Edmund Randolph wondered at the phrasing of the Ninth Amendment. He stated that he would rather have “a provision against extending the powers of Congress” than one giving “protection to rights reducible to no definitive certainty.” In a letter to George Washington, Madison wrote that he thought Randolph’s proposed distinction between preventing unenumerated powers and securing unenumerated rights was “altogether fanciful.” He went on: “If a line can be drawn between the powers 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.” An additional, and directly related, purpose of the Ninth Amendment was to provide cover for the Federalists’ most embarrassing gaffe during the ratification debates. As noted above, the Federalists had argued that the danger of a bill of rights was that by listing certain rights, it would change Congress into a legislature with general legislative powers, permitting it to rule on anything and everything not specifically prohibited to it. The Anti-Federalists responded that some prohibitions, such as the right of habeas corpus and trial by jury in criminal cases, had already been included. The Federalists had no credible response and were forced to accede to the demand for a bill of rights. But when it came time to draft the amendments, they crafted the Ninth to legitimate the argument they had made all along: the listing of certain rights does not give Congress the authority to legislate over every subject not listed. Finally, according to the traditional view, the amendment confirmed the republican nature of the Constitution and the federal government. The “residual rights” retained by the people were not a set of particularized rights that somehow escaped the listing of the Bill of Rights. Rather, they were rights that eighteenth-century Americans thought of as inalienable, natural, communal, and political. Residual rights included the right held most dear by all segments of American opinion from James Otis to George Wash-

ington and beyond: the right of self-government. In sum, the Ninth Amendment protected the very liberty for which the Revolution was fought. Otherwise it could plausibly be argued that the listing of a few traditional rights was all the people possessed, and that by ratifying the Constitution, they had thereby given everything else over to the government. The scholars affirming the traditional view hold that the Ninth Amendment was written by Federalists to accomplish Federalist aims: to legitimize the interpretive arguments they had made during the ratification debates and to affirm their belief, shared by the Anti-Federalists, in the sovereign authority of the people. The traditionalists believe that some modern conceptions that regard “rights retained by the people” as an unenumerated list of particular rights judicially discoverable and enforceable is an anachronistic projection of modern theories of rights, or worse, of political policies, into the text of the Ninth Amendment. Rather, in their view, the Ninth Amendment simply reinforces the integrity of the constitutional structure and the underlying sovereign authority of the people. The amendment provides no independent basis for judicial enforcement. There is, however, a very different perception of the Ninth Amendment among some modern scholars. Generally of a libertarian point of view, this group of originalists, such as Randy Barnett, have argued that the Ninth Amendment does indeed point to a set of judicially enforceable unenumerated rights, often calling them “natural rights,” rights that no government can legitimately deny. They argue that the Framers intended that such rights be protected, and they point out that the amendment has only become relevant recently because of its application to the states through the Fourteenth Amendment and because of the great expansion of government intrusion at all levels into the lives of individuals. These scholars point to the acknowledged fact that, although the Constitution limited Congress to a set of enumerated powers, the means available to Congress, through the Necessary and Proper Clause, could permit it to trench upon the rights of the people. Madison, 368

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in particular, saw the danger, and it was one of the main reasons he changed his mind and vigorously pressed for a bill of rights in the First Congress. Madison placed the text of what would be the Ninth Amendment at the end of the list of specific rights in order to demonstrate that those rights were but a partial listing of all the rights retained by the people against governmental infringement. In the same letter (quoted earlier) from Madison to Washington, which the traditionalists believe supports their view, Barnett asserts that Madison was distinguishing between the mechanisms of limiting powers and of securing rights to the same end. Barnett contends that the same understanding was repeated in the work of an early interpreter of the Constitution, St. George Tucker. This originalist interpretation of the Ninth Amendment differs from another latitudinarian view espoused by modern noninterpretivists who do not limit their understanding of “rights retained by the people” to the conceptions of the Framers. On the contrary, libertarian originalist proponents of natural rights do not believe in an “evolving Constitution,” but in one that has the same force today as it did in 1791. The originalist libertarians also reject that idea that the “rights retained by the people” are not judicially enforceable, for that would leave Congress or the state legislatures in the position of defining the extent of those rights. The more principled strategy would be for the Court to assume its appropriate position in enforcing all of the Bill of Rights, including the Ninth Amendment, by historical inquiry as to what those liberties were that the Framers sought to ensure. Some libertarian originalists assert that the “liberty” so protected would include economic or contractual rights, which the Court once enforced, but no longer does. Lastly, a new, third version of the meaning of the Ninth Amendment has surfaced. In reviewing the Ninth Amendment’s history, Kurt Lash finds that Madison drafted it in specific response to a number of state ratifying conventions’ demands for a protection against construing the new federal government’s delegated powers too broadly. Throughout the ratification debates, the consistent Anti-Federalist plaint

from writers such as Brutus and the Federal Farmer was that there were two enormous holes in the Federalists’ assurance of the limited nature of federal power: the Necessary and Proper Clause and the Supreme Court. The former allowed Congress to invade areas left to the states in furtherance of executing its delegated powers. The latter allowed an organ of the federal government, the Supreme Court, to construe Congress’s delegated powers as broadly as possible. Many states, including Virginia, drafted resolutions for a bill of rights that sought to correct those two deficiencies. In response, Madison and the Congress drafted the Tenth Amendment to affirm that the states retained all powers not delegated to the federal government. But the Tenth Amendment would be ineffective if the Congress and the Court construed the federal government’s delegated powers broadly enough to undo residual state authority. Consequently, the Ninth Amendment was drafted to plug that hole: it mandates that the delegated powers of Congress not be given a latitudinarian interpretation to the prejudice of the states. Most recent scholarly interpretations of the Ninth Amendment dwell on the “rights retained by the people” language. The key words, however, are “shall not be construed.” Following the urgings of the Virginia ratifying convention, Madison’s draft of what would become the Ninth Amendment read: The exceptions, here or elsewhere in the constitution, made in favor of particular rights, shall not be 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. The Select Committee distilled Madison’s language to the text that was sent to the states for ratification: The enumeration in this constitution of certain rights shall not be construed to 369

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deny or disparage others retained by the people.

tion or to same-sex relations under an “autonomy” rationale, Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), Lawrence v. Texas (2003), even though the Court has not enforced the economic rights that libertarians believe the Ninth Amendment was designed originally to protect. Opposing the use of the Ninth Amendment as an invitation for the Court to find new rights, a number of Justices, such as Justice Antonin Scalia, adhere to the traditional interpretation, reading the Ninth Amendment as designed to prevent the expansion of federal power seemingly implied by the listing of prohibitions within the Bill of Rights.

In the Virginia House of Representatives, Edmund Randolph objected to the new phrasing and preferred wording that would have limited “extending the powers of Congress” rather than protecting rights “retained by the people.” But Madison saw no difference in the effect of each phrase and thus affirmed that the reason for the Ninth Amendment was not to expand the power of the Court to find new rights, but rather to restrict the ability of the Court to expand the legislative powers of Congress. Madison continued to maintain that that was the central meaning of the Ninth Amendment throughout his life, and his interpretation was seconded by most commentators of the time. The courts have not had much occasion to construe the Ninth Amendment, but it seems clear that from the time of its ratification until the New Deal, the Ninth Amendment was understood as a principle limiting the construction of federal power to the detriment of the states. Nevertheless, it was not clear how much bite the Ninth Amendment’s interpretive rule had. In some important cases, such as McCulloch v. Maryland (1819), the Court ignored the Ninth Amendment altogether. And in the Legal Tender Cases (1871), the Court openly declared that the limited nature of the Bill of Rights demonstrated that Congress had unenumerated powers, a position directly at odds with what every commentator affirms the Ninth Amendment was at the very least designed to prevent. After 1937, the Supreme Court abandoned the effort to keep Congress within the bounds of its delegated powers, and even as a background principle protecting the traditional powers of the states and the people of the states, the Ninth Amendment fell into desuetude. In 1965, however, in Griswold v. Connecticut, several Justices of the Court revived the amendment, not in its traditional sense, but rather as a source for an “unenumerated rights” doctrine. The current judicial view of the Ninth Amendment is in some ways closer to the libertarian interpretation than to the traditional view, as when the Court protects the right to an abor-

Thomas McAffee

See Also Article I, Section 8, Clause 18 (Necessary and Proper Clause) Article VI, Clause 2 (Supremacy Clause) Amendment X (Reserved Powers of the States)

Suggestions for Further Research Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004) Randy E. Barnett, The Rights Retained by the People: The History and Meaning of the Ninth Amendment (1989) Raoul Berger, The Ninth Amendment, 66 Cornell L. Rev. 1 (1980) Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 Tex. L. Rev. 597 (2005) Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L. Rev. 331 (2004) Calvin R. Massey, Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights (1995) Thomas B. McAffee, Inherent Rights, the Written Constitution, and Popular Sovereignty: The Founders’ Understanding (2000) Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 Colum. L. Rev. 1215 (1990) Thomas B. McAffee, A Critical Guide to the Ninth Amendment, 69 Temp. L. Rev. 61 (1996) Susanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987)

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rules of statutory construction, by forbidding the government from acting in certain areas, a bill of rights necessarily implied that the government could act in all other areas not forbidden to it. That would change the federal government from one of limited powers to one, like the states, of general legislative powers. The Federalists relented and passed the Bill of Rights in the First Congress only after making certain that no such implication could arise from the prohibitions of the Bill of Rights. Hence, the Tenth Amendment—a rule of construction that warns against interpreting the other amendments in the Bill of Rights to imply powers in the national government that were not granted by the original document. That interpretative rule was vital because some of the provisions of the Bill of Rights purport to limit federal powers that are not actually granted by the original Constitution and thus might give rise to a (faulty) inference that the Bill of Rights implied the existence of such powers. The First Amendment, for instance, states that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Did that mean that the original Constitution had therefore granted Congress power to abridge those freedoms? The Federalists did not think so, which is why they initially opposed inclusion of a bill of rights. As Alexander Hamilton observed of the unamended constitutional text in The Federalist No. 84: “Here, in strictness, the people surrender nothing; and as they retain everything they have no need for particular reservations. . . . 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?” Numerous other important figures made similar statements during the ratification debates. Obviously, the nation chose to include the Bill of Rights, but only with the Tenth Amendment as a bulwark against implying any alteration in the original scheme of enumerated powers. If Congress was not originally delegated power to regulate speech or the press, no such power is granted or implied by adoption of the Bill of Rights. Despite the Framers’ concerns and the clear text of the Tenth Amendment, the Supreme

John C. Yoo, Our Declaratory Ninth Amendment, 42 Emory L.J. 967 (1993)

Significant Cases McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820) Legal Tender Cases, 79 U.S. (12 Wall.) 457 (1871) Griswold v. Connecticut, 381 U.S. 479 (1965) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) Lawrence v. Texas, 539 U.S. 558 (2003)

Reserved Powers of the States 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. (Amendment X)


The Tenth Amendment expresses the principle that undergirds the entire plan of the original Constitution: the national government possesses only those powers delegated to it. The Framers of the Tenth Amendment had two purposes in mind when they drafted it. The first was a necessary rule of construction. The second was to reaffirm the nature of the federal system. Because the Constitution created a government of limited and enumerated powers, the Framers initially believed that a bill of rights was not only unnecessary, but also potentially dangerous. State constitutions recognized a general legislative power in the state governments; hence, limits in the form of state bills of rights were necessary to guard individual rights against the excess of governmental power. The Constitution, however, conferred only the limited powers that were listed or enumerated in the federal Constitution. Because the federal government could not reach objects not granted to it, the Federalists originally argued, there was no need for a federal bill of rights. Further, the Federalists insisted that, under the normal 371