Reconciling Unenumerated Rights

Reconciling Unenumerated Rights: The History and Future of the Ninth Amendment Debate Ashley J. Becnel I.

INTRODUCTION…………………………………..…………………………………….1

II.

GRISWOLD………………………………………………………………………………2

III.

BARNETT………………………………………………………………………..……….4

IV.

LASH…………………………………………………...…………………………………9

V.

ANALYSIS……………………………………………………………..………………..17

VI.

CONCLUSION……………………………………………………….………………….25

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”1 I.

INTRODUCTION The Ninth Amendment’s meaning has perplexed Americans almost since its inception.

The potential breadth of its scope is alluring to many, who see it as a heretofore unrecognized source of authority for unenumerated fundamental rights or as an additional bulwark against overreaching by the federal government into areas properly reserved to the states. While there is a wealth of information on its creation, the precise function of the amendment is unclear. For much of our history, the Ninth Amendment was used in conjunction with the Tenth, blurring and confusing the meanings of both. After Justice Goldberg cited the Ninth Amendment in his concurring opinion for Griswold v. Connecticut2, however, scholarship concerning the Amendment has increased exponentially. Currently, the debate has solidified into two distinct camps: the individualist beliefs espoused by Randy Barnett and the federalist leanings of Kurt

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Lash. This Article attempts to examine the two competing arguments and to assess the future applicability and usage of the Ninth Amendment in our fundamental rights jurisprudence. II.

GRISWOLD The Ninth Amendment has regained prominence in constitutional scholarship after a

controversial mention of its premise in Justice Goldberg’s concurrence in Griswold v. Connecticut.3 In this famous case, restoring Lochner v. New York’s4 substantive due process and recognizing the right of privacy, Justice Goldberg cited the Ninth Amendment as a potential source of unenumerated individual rights. Goldberg wrote, “[T]he Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.”5 Justice Goldberg drew from historical sources, namely the arguments of James Madison in support of the amendment before Congress.6 He posited that the purpose of the Ninth was to “quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.”7 He concluded that it is “clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people.”8 Goldberg applied this principle in Griswold, reaffirming the existence of a constitutional right to privacy: To hold that a right so basic and fundamental and so deeprooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth

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Amendment and give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment . . . .9 Goldberg, however, explicitly stated that he did not believe the Ninth Amendment could be applied against the states by the Fourteenth Amendment.10 Rather, it seems that Justice Goldberg intended for the Ninth Amendment to stand as a general proposition in support of recognizing new fundamental rights—outside of the first eight amendments—through the doctrine of substantive due process.11 This libertarian reading of the Ninth Amendment as a source of judicially enforceable personal liberties was novel. Goldberg cited to a contemporary book by Bennett Patterson entitled The Forgotten Ninth Amendment and noted that he could only find three references to the Ninth Amendment in the history of Supreme Court jurisprudence in order to explain the originality of his argument.12 Justice Black, writing in dissent, explained the dearth of libertarian Ninth Amendment citations differently.13 To Black, the Ninth Amendment was not intended as a guardian of individual freedom; rather, it was intended as a measure to protect the states from usurpation of their powers by the federal government.14 Black wrote, “[F]or a period of a century and a half no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs.”15 The debate between Goldberg and Black has persisted since the dawn of our nation and still persists to this day. It hearkens back to the different views of the federalists and the

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antifederalists regarding states’ rights and the powers of the federal government at our nation’s founding.16 Further, it essentially represents the positions taken by Barnett and Lash, respectively. Both Barnett and Lash extensively support their respective theories with exhaustive historical evidence regarding the original meaning of the clause at the time of its creation and ratification in a bid to discover the single original meaning of the Ninth Amendment. III.

BARNETT Barnett describes his view of the application of the Ninth Amendment as part of the

“power-constraint” conception of constitutional rights.17 Barnett explains, “Constitutional rights can be conceived as ‘power-constraints’ that regulate the exercise of power by Congress and the executive branch by constraining either their choice of means or their choice of ends.”18 Barnett contrasts this idea with a “rights-powers” conception of constitutional rights, a view that sees the power of the government and the rights of the people as mutually exclusive converses, such that the people’s rights are defined as anything outside of government’s power.19 Barnett’s problem with such a scheme is that it ignores the fact that the rights of the people and the power of the government can, in a variety of situations, overlap, requiring a balancing of the respective interests involved.20 To a libertarian, like Barnett, the idea of the Constitution as a power constraint on government is appealing. As the moniker suggests, libertarians put great faith in the idea of personal liberty, and believe that the government should preserve and protect the natural rights of man by intruding on the lives of its citizens to the smallest degree possible. Implicit in the concept of personal liberty is the importance of individual rights, rather than collective rights.

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This is the crux of Barnett’s entire theory—that the rights “retained by the people” in the Ninth Amendment are individual rights that protect personal liberty. Barnett subscribes to what he describes as two different models of the meaning of the Ninth Amendment.21 One of these models is Kurt Lash’s model, which he describes as the federalism model, and which will be examined further infra.22 While Barnett sees this theory as a potential application of the Ninth Amendment, his later scholarship makes it clear that he believes the other model, the individual rights model, to capture the primary meaning of the Ninth Amendment.23 The essential philosophy behind the individualist model is that the Ninth Amendment was intended to protect the “individual, natural, preexisting rights” of the people.24 Barnett explains, “[T]he purpose of the Ninth Amendment was to ensure the equal protection of unenumerated individual natural rights on a par with those individual natural rights that came to be listed ‘for greater caution’ in the Bill of Rights.”25 There are two important corollaries to this interpretation. First, “natural rights precede the Constitution, and the Ninth Amendment is not their source.”26 Second, like enumerated natural rights, the Ninth does not imply that natural rights defeat any law that conflicts with them.27 Reasonable restrictions may be placed on unenumerated natural rights, just as reasonable rights may be placed on the enumerated rights, like restrictions on speech.28 The way that the individual rights model would function in reality is to essentially create a constitutional presumption of liberty.29 As Barnett describes it, “[T]he courts could put the burden of justification on the federal government whenever legislation restricts the exercise of liberty. . . . [T]his presumption may be rebutted by a showing that a particular law was a necessary regulation of a rightful act or a prohibition of a wrongful act.30 Essentially, then, application of the individual rights model of the Ninth Amendment would require strict scrutiny-

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like examination of laws that interfere in some way with individual liberty. This method of application would prevent courts from being forced to somehow identify particular natural, individual rights protected by the Ninth Amendment.31 Indeed, part of the purpose of the Ninth Amendment was to codify the recognition that enumeration of every right would be a pointless and impossible task.32 Barnett examines the history behind the Ninth Amendment in a number of ways to show that the Ninth Amendment was intended, at least in part, to protect individual rights. First, one of Madison’s key concerns during the period in which he helped to draft the Bill of Rights was the danger posed to minority rights.33 As Madison told Thomas Jefferson, In our Governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from the acts of Government contrary to the sense of its constituents, bur from acts in which the Government is the mere instrument of the major number of the Constituents.34 Madison’s fear of the private rights being trampled by a majority of their peers stems from a regard for the individual rights of man, and a desire to see these rights protected is visible in the first eight amendments in the Bill of Rights.35 Such a scheme serves an entirely different purpose than protecting the rights of the collective people and majorities. Barnett also examines the use of the term “the people” in other provisions of the Constitution.36 One of the primary difficulties of interpreting the meaning of the Ninth Amendment is the difference between the language used therein and the language used in its related provision, the Tenth Amendment. Where the Ninth speaks of “rights” “retained by the people,” the Tenth refers to “powers” “reserved to the States respectively, or to the people.”37

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Essentially, the argument advanced by the individual rights model is that the Ninth’s reference to “the people” means exactly that—the individual persons who make up this nation.38 However, other models, especially Lash’s federalism model, see the Ninth’s reference to “the people” as similar to the Tenth’s mention of “the States” “or . . . the people.”39 If the term “the people” is intended to refer to individual citizens rather than to the body of persons comprising a polity as a whole, the individual rights model gains strong support. Barnett first looks to the Fourth Amendment.40 The Fourth begins: “The right of the people to be secure in their persons . . . .”41 The individual nature of “their persons” implies that the use of “the people” is meant to refer to each citizen separately and independently.42 The Third Amendment’s reference to houses and their owners also suggests that the right is meant to imply to individual persons.43 The Fifth and Sixth Amendments similarly refer to individuals.44 As Barnett describes the individualist use of “the people,” “all the persons comprising ‘the people’ can possess individual rights in common.”45 Furthermore, even though the Seventh and Eighth Amendments do not make specific reference to men as individuals, the right to a jury trial in civil cases and the right to be free from cruel and unusual punishment are inherently rights of the individual.46 The predominant use of the term “the people” to refer to a group’s individual rights rather than collective or majoritarian rights strongly supports Barnett’s individual rights model of the Ninth Amendment.47 Barnett also argues that the First and Second Amendments refer to individual rights despite their potential collective interpretations.48 While many argue that the Second Amendment’s protection of the right to bear arms is limited to the right of states to maintain a militia, this essentially protects an individual’s right to bear arms in the context of militia service.49 Similarly, the right of the people to assemble, as protected by the First Amendment, is

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a right for individuals to gather together.50 Essentially, these rights should be conceived as “belonging to individuals, though . . . each can sometimes be exercised in and by groups of individuals.”51 The continuity of individual rights language and focus in the Bill of Rights provides a strong textual support for Barnett’s individual rights reading of the Ninth Amendment. The use of “the people” to refer to individual Americans who make up the nation’s body politic served the antifederalist agenda.52 According to Barnett, “choosing language protecting individual private rights would satisfy the public’s concerns about the absence of a bill of rights, [and] reinforce the national character of ‘the people’ to which the Preamble referred, without threatening the fledgling national government’s power to reign in abusive state governments.”53 Barnett also presents interpretations of the Ninth Amendment from its ratification debates. For example, the Virginia senate was hesitant to adopt the Amendment because it feared that it was ineffective at protecting individual rights. Barnett quotes the senate debates: [A]s it respects personal rights, [it] might be dangerous, because, should the rights of the people be invaded or called into question, they might be required to shew by the constitution what rights they have retained, and such as could not from that instrument be proved to be retained by them, they might be denied to possess.54 The senate’s specific use of the term “personal rights” implies that Americans read the Ninth as referring to individual, rather than majoritarian rights.55 The senate further objected to the use of the phrase “the people” in the Tenth Amendment: “It is not declared to be the people of the respective States; but the expression applies to the people generally as citizens of the United States, and leaves it doubtful what powers are reserved to the State Legislatures.”56 The senate

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clearly did not understand “the people” to refer to state legislatures, as the majoritarian or federalist model holds.57 Barnett also considers to the changes adopted by the Confederate States of America when forming their own Constitution. The Confederate analogue to 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 of the several States.”58 If, as the federalist model holds, the Ninth Amendment’s primary meaning was to protect the rights of states rather than the rights of individuals, a change in the wording would not be necessary to make this meaning clear.59 Barnett’s final historical source is a treatise on the meaning of the Constitution prepared during the ratification debates by St. George Tucker, a legal professor and judge who served as the American editor of Blackstone’s Commentaries.60 Tucker wrote of the Ninth and Tenth Amendments: “[T]he powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn in question.”61 According to Barnett, this passage sets up a clear parallelism: “‘[T]he rights of a state’ parallel the term ‘collectively’ while ‘the rights of . . . the people’ parallel the term ‘individually.’”62 This signifies the difference between the two amendments by defining their disparate applications: the Ninth protects individual rights of the people whereas the Tenth guards the collective rights of a state.63 IV.

LASH Kurt Lash’s theory is very different from that of Randy Barnett. Lash describes his

theory as federalist, believing that both the Ninth and Tenth Amendments were intended as guardians of the federalist structure of the Constitution.64 However, while later usage and scholarship tended to run the two provisions together, both served independent, though

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interrelated, functions.65 To Lash, the Ninth Amendment was meant to serve as a rule of construction that aided courts in determining when the federal government had overstepped the bounds provided for it by the Tenth Amendment.66 Because much of Lash’s theory as to the meaning of the Ninth Amendment depends on the meaning of the Tenth Amendment and what the two accomplish when used in concert, it is helpful to first examine the Tenth Amendment. The Tenth Amendment reads: “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.”67 The meaning of this amendment is clear: “all nondelegated and nonprohibited powers are reserved to the states.”68 Essentially, this provision limits the federal government to exercising only the powers specifically granted to it by the people in the Constitution.69 However, Lash believes that even with this severe limitation, the federal government would still have a great degree of latitude without the Ninth Amendment.70 Because of expansive grants of power in the Constitution, most notably the Necessary and Proper clause, the federal government could impermissibly exceed the desired scope of its powers by using expansive means to achieve enumerated ends.71 As a result, according to Lash, the Ninth Amendment was intended as a rule of construction “prohibit[ing] an expanded interpretation of those enumerated powers.”72 Lash cites Madison to further explain the respective roles of the Ninth and Tenth Amendments: “[T]he Ninth ‘guard[ed] against a latitude of interpretation’ while the Tenth ‘exclud[ed] every source of power not of exercising within the Constitution itself.”73 The Necessary and Proper Clause provides an illuminating example of the manner in which the Ninth and Tenth could work differently. Lash writes:

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The necessary and proper clause granted Congress the power to exercise unenumerated powers when ‘necessary and proper’ to advancing an enumerated end. It was possible that Congress might attempt to extend its enumerated powers by way of the necessary and proper clause to such a degree as to, in effect, arrogate to itself all powers except those expressly denied in the Bill of Rights. Should Congress do so, this would not violate the Tenth Amendment . . . .74 According to Lash, then, the Ninth Amendment is necessary to preserve, or, in other words, to prevent denial or disparagement, of unenumerated rights violated by such an expansive federal action.75 In essence, “the Ninth prohibits the federal government from claiming that the only limit to its ‘necessary and proper powers’ are those expressly enumerated in the Constitution.”76 Lash’s historical evidence serves to demonstrate two key points. First, to the founders, a rule of construction preserving the autonomy of the states, like his interpretation of the Ninth, was the ideal way to preserve all the rights of the people, both collective and individual.77 Second, the obscurity of this meaning has resulted from both expansive federal judicial action and improper use of the Tenth Amendment as a rule of construction, rather than the recognition of the Ninth as a separate textual basis for such a rule.78 Lash posits that part of the reason his interpretation of the Ninth Amendment is not immediately clear to modern readers is that the founders had a different conception of how rights were protected. Lash explains, A rule of construction guarding the retained rights of the people amounted to the same thing as limiting the power of the federal

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government to interfere with matters believed left to state control. Equating states’ rights with the retained rights of the people, however, has long since fallen out of fashion . . . .79 According to Lash, retained rights were rights held from the federal government, but not from the local control exercised by the states.80 Lash quotes a number of founding-era viewpoints to shore up this assertion. John Taylor, a congressman and governor of South Carolina, flatly stated, “[S]tates rights are rights of the people.”81 Essentially, then, federalism was not only the best way to preserve the people’s rights, it was also itself a right of the people.82 To Madison, this right was crucial to the viability of both the nation and its Constitution.83 Madison wrote, “[T]he permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments.”84 Others also saw federal power as a threat to the rights of the people, including St. George Tucker, who wrote in his treatise on the meaning of the Constitution that federal power must be construed strictly “whenever the right of personal liberty” was at stake.85 Lash cites to the states’ proposed amendments to further support his model. Quoting the proposals from New York, South Carolina, and Virginia, Lash shows that state proposals included not only a provision limiting the federal government to its enumerated powers, but also a provision insisting that “the enumeration of rights must not suggest any extension of enumerated powers.”86 These proposals, which used nearly identical language, made it clear that any nondelegated powers were to remain in the hands of the states.87 Virginia proposed: First, That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution

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delegated to the Congress of the United States or to the departments of the Foederal [sic] Government. . . . Seventeenth, That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.88 These proposals make it plain that at least some of the states sought an amendment that would reinforce their powers against the federal government alongside the Tenth, just as Lash believes the Ninth does. Lash also shows that the meaning of the Ninth Amendment was obscured both by federal judges improperly extending federal power, and later by judges who conflated the meanings of the Ninth and Tenth. According to Lash, early judges, most notably Justices Marshall and Story either marginalized or ignored the meaning and import of the Ninth Amendment in influential opinions, neutering the provision.89 Lash’s most powerful example of this is culled from Marshall’s opinion in Gibbons v. Ogden.90 Marshall had previously ignored the Ninth Amendment by refusing to acknowledge its importance in James Madison’s argument against the Bank of the United States in McCulloch v. Maryland.91 In Gibbons, however, Marshall went farther, writing: This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said, that these powers ought to be construed strictly. But why ought they to

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be so construed? Is there one sentence in the constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress is authorized ‘to make all laws which shall be necessary and proper’ for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred; nor is there one sentence in the constitution, . . . which we have been able to discern, that prescribes this rule.92 This analysis completely goes against the Ninth Amendment’s use as a rule constricting the means by which the federal government may achieve their enumerated ends.93 Marshall further asserted in the same opinion that Congress’s power to regulate commerce is “complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.”94 Essentially, according to Lash, Marshall felt that unenumerated rights were never a constraint for the federal government.95 Justice Story’s opinion in Houston v. Moore,96 early in his career, supports Lash’s view of the function of the Ninth Amendment.97 That case concerned whether states could discipline their citizens for failure to perform federal militia duty.98 The Constitution granted Congress the power to organize and discipline the militia, but reserved to the states “the Appointment of the officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”99 The defendant argued that anything not expressly reserved was exclusively the province of Congress.100 Story disagreed, stating that Congress’s power was “merely an affirmative power, and if not in its own nature incompatible with the existence of a like power in

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the States, it may well leave a concurrent power in the latter.”101 Essentially, Story believed that federal powers were not to be construed expansively, denying powers to the states by implication.102 Later, however, in Story’s Commentaries on the Constitution, Story explicitly adopted Justice Marshall’s view of the Ninth Amendment’s role in questions of state power.103 Story quotes Marshall’s opinion in Gibbons extensively, including Marshall’s view that the Constitution does not require a limited interpretation of federal powers.104 Story also endorses Marshall’s stance in McCulloch, “constru[ing] the enumeration of rights in Article I, Section 9 to suggest an otherwise broad degree of federal power.”105 Finally, while Story describes his Houston opinion, he removes his reference to the Ninth Amendment in that opinion from his Commentaries.106 This abandonment of the Ninth Amendment by two luminaries of American jurisprudence helped to remove it from consideration in further legal discourse. Reconstruction also dealt a blow to the federalist importance of the Ninth Amendment. After the Civil War, the government felt it important to present a unified front and to exert more control over the states, a sentiment embodied in the Fourteenth Amendment.107 In the Legal Tender Cases,108 the Supreme Court adopted Marshall’s views of the Ninth, holding that the “Congress had ‘the right to employ freely every means, not prohibited, necessary for its preservation, and for the fulfillment of its acknowledged duties.’”109 In fact, the Court specifically wrote that the existence of the Bill of Rights showed that there was vast unenumerated federal power: [The amendments] tend plainly to show that, in the judgment of those who adopted the Constitution, there were powers created by it, neither expressly signified nor deducible from any one specified

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power, or ancillary to it alone, but which grew out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted.110 Preventing such reasoning was the precise purpose of the Ninth Amendment.111 Later litigants seized upon this reasoning, attempting to have the Court declare that the Fourteenth Amendment had put an end to unenumerated rights.112 However, in The Slaughterhouse Cases,113 the Court stopped short of totally abandoning the principles of the Ninth.114 There, the Court refused to read any “constitutional provision in a manner that ‘radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people . . . in the absence of language which expresses such a purpose too clearly to admit of doubt.’”115 The Court reminded Americans that the Reconstruction Amendments had been adopted to address the evils of slavery, and that their scope must be understood in light of that purpose.116 Another problem that developed for the interpretation of the Ninth Amendment was courts’ tendency to mistake the Tenth Amendment for the Ninth.117 Joint citations by courts to the Ninth and Tenth Amendments effectively “collapsed” the meaning of the Clauses, making it unclear whether the Amendments served distinct purposes, or whether both supported the rule of construction limiting enumerated powers.118 According to Lash, part of the reason for this misunderstanding is the attention given to Madison’s speech on the Alien and Sedition Acts.119 Both this speech and Madison’s speech about the Bank of the United States presented a claim that expansive federal action violated the Constitution if it were not pursuant to a specifically granted power.120 Madison’s argument in that speech referred solely the Tenth Amendment, unlike his argument against the Bank of the United States, which clearly designated the two

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different roles of the Ninth and Tenth.121 Lash claims that because the Bank of the United States speech refers to the amendments by their preratification numbers, eleven and twelve, rather than by their current status as Ninth and Tenth, scholarship ignored the implications for the Bank speech on Ninth Amendment interpretation.122 As a result, according to Lash, “Supreme Court justices linked Madisonian arguments regarding latitudinarian construction to the Tenth Amendment in cases involving the construction of enumerated power.”123 This misidentification continues even today.124 In cases like City of Boerne v. Flores125 and United States v. Morrison,126 where the Court limits the means available to Congress in pursuing enumerated ends, the Court rests their decision on the Tenth Amendment, rather than the rule of construction Lash asserts is provided by the Ninth.127 V.

ANALYSIS While both Barnett and Lash make convincing arguments regarding the meaning of the

Ninth Amendment, there are significant problems with both of their theories. Barnett’s theory has little historical support, weakening his claim that his view represents the true originalist meaning of the Ninth. Lash’s argument is also flawed since much of his historical evidence relies on inferences that are somewhat farfetched or tenuous. While Barnett may be able to point to support in the semantics of the Bill of Rights, the fact remains that courts have not historically interpreted the Ninth Amendment to protect individual rights. Barnett cannot point to any cases before Griswold that even considered the Ninth in such a role. Barnett’s sole case analysis consists of Chisholm v. Georgia.128 There, he points to Justice Wilson’s characterization of “the individual free man as an original sovereign and the states as mere aggregations of individuals, a collection of individual sovereigns.”129 This, to Barnett, provides further support for his individualist reading of the first eight

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amendments by not only recognizing the importance of the individual in our governmental scheme, but also by refuting Lash’s notion that the states themselves were seen as the constitutionally relevant actors in the Bill of Rights, rather than the men who comprised them.130 The problem with this reasoning is that Chisholm was effectively overturned by the adoption of the Eleventh Amendment.131 Chisholm has been viewed as an incorrect decision that required the passage of the Eleventh to restore the status quo.132 Barnett, however, disagrees with this view, believing that the Eleventh Amendment altered the Constitution’s stance on sovereign immunity, and that Chisholm was decided correctly based on the then-existing Constitutional scheme.133 To support this assertion, Barnett quotes Justice Marshall’s opinion in Fletcher v. Peck134 to show that the Eleventh Amendment wrought a change rather than merely correcting an error made by the Court: “The Constitution, as passed, gave the courts of the United States jurisdiction in suits brought against individual states . . . . This feature is no longer found in the Constitution, but it aids in the construction of those clauses with which it was originally associated.”135 Therefore, according to Barnett, the principles underlying the Chisholm opinion—that states are made up of individuals, and are not in themselves sovereign— still remain, despite the Eleventh Amendment.136 Even so, however, Barnett still has a total lack of evidence showing courts using the Ninth as a guardian of individual rights before Griswold. Lash points to especially compelling evidence that courts never before considered the Ninth to protect such rights.137 The Ninth Amendment became a key part of the slavery debate.138 If Barnett’s individual rights model truly represented the original meaning of the Ninth, one would think that abolitionists would have cited it in their fight against slavery.139 However, the Ninth is absent from abolitionist arguments.140 It is not absent from the arguments advanced by the slave states.141 The relative

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rights of the states and the federal government were key issues in the secession and slavery debates, and the Ninth was generally understood to protect the states’ rights to maintain their slave systems as they saw fit.142 When an issue was this clearly framed—states’ rights versus individual liberties—it is telling that the nation believed the Ninth came down squarely in support of federalist rights. Lash’s historical support for his argument is also flawed. His principal arguments rely upon general federalist assertions from men like James Madison and St. George Tucker. However, Barnett can also cite to these men, thus weakening the effectiveness of Lash’s use. Lash also gives great credence to the states’ proposed amendments. However, it seems obvious that proposals by state legislatures would be biased and would seek to retain as much power as possible in the states, or, in other words, in their own hands. This evidence remains unconvincing. Like Barnett, he can provide little judicial support for his model of the meaning of the Ninth Amendment. However, unlike Barnett, Lash exerts a considerable amount of energy providing historical evidence for why his model lacks support. Rather than helping his cause, however, much of this evidence rests on tenuous assumptions which work against his assertion that the federalist model captured the original meaning of the Ninth Amendment. One of Lash’s main arguments for the obscurity of his model is that federal courts misconstrued the meaning of the Ninth in key opinions.143 In support of this, Lash presents passages from opinions by both Justices Marshall and Story, leading luminaries of American jurisprudence, which contradict his claimed meaning.144 However, the idea that somehow such great legal minds as Marshall and Story could have misunderstood or misconstrued the meaning and importance of the Ninth Amendment is a hard pill to swallow. Furthermore, Lash claims

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that Justice Marshall (and Justice Story by acquiescence) essentially ignored the Ninth entirely, writing it out of the Constitution.145 But a closer look at Marshall’s Gibbons opinion shows that that may not be the case. In a passage quoted by Lash, Marshall writes that Congress’s power over commerce is “complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.”146 Lash asserts that this shows that Marshall had utterly abandoned the Ninth.147 However, it could just as easily be argued that the Ninth Amendment is clearly a “limitation” “prescribed in the Constitution.” Lash’s argument is a bit of a stretch, and makes several large logical leaps that are not fully supported. It appears unlikely that, as Lash claims, someone as revered as Justice Marshall knew of the federalist original meaning of the Ninth Amendment but decided to surreptitiously neuter it by ignoring it in his opinions.148 Such an act of Constitutional change would surely not have gone unnoticed all these years. Another problem with Lash’s theory is his argument that a reason the federalist model of the Ninth Amendment is not widely accepted and supported is that the courts tended to collapse the meaning of the Ninth and Tenth Amendments. First, he argues that this may have happened because scholars missed the importance of James Madison’s Bank of the United States speech because of its reference to the Ninth Amendment as the Eleventh, and the Tenth Amendment as the Twelfth.149 It has long been known that the amendments were renumbered after the debates regarding their ratification is over, and it seems unlikely that two hundred years of Constitutional scholarship could have ignored crucial evidence merely because of a clerical change in the numbers of the Amendments. Even if that is the case, if the federalist meaning is so elusive it can be overlooked if it is not clearly labeled as the Ninth Amendment, it is unlikely that this was the primary originalist meaning for this specific amendment.

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This argument that the Ninth and Tenth Amendments’ meanings have been “collapsed” is also problematic in and of itself. First, it requires readers to assume that the Supreme Court, over two hundred years, has either been too lazy to clearly divide the purposes of the Ninth and Tenth Amendments in their reasoning, or, more farfetched, that the Supreme Court did not comprehend the difference. Given the legal scholarship that goes into any Supreme Court opinion, either of these explanations is unlikely. Additionally, Lash argues that the part of the reason scholars have missed evidence supporting the federalist model of the Ninth Amendment is that courts, while sometimes citing both amendments, tend to only cite the Tenth Amendment when basing their reasoning on a combination of both amendments.150 However, if courts feel that they have adequately supported their reasoning and holdings with a citation only to the Tenth Amendment, then the Tenth Amendment is simply enough to support that theory. The Ninth plays no role in the federalist logic Lash sees, despite his (largely unsupported) claims that it does. An additional problem with evaluating the relative merits of the two theories based on the strength of their originalist evidence is that it is unlikely that there existed one singular “original” meaning. At the time the Constitution and Bill of Rights were proposed and ratified, Americans had essentially divided into two camps: the federalists and the antifederalists. Antifederalists supported a strong national government, and their views of “the people” tended to include all Americans, which could represent a more individualist viewpoint. The federalists preferred a weak national government and sought to keep as much power at the state level as possible. Federalists likely viewed the Ninth as a failsafe that would provide an additional level of protection to the states’ rights established by the federal scheme and the Tenth Amendment. Since an understanding of the authoritative original meaning of the Ninth Amendment is at best

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elusive and at worst non-existent, other sources of meaning must be examined in determining the manner in which the Ninth should function in our constitutional jurisprudence. Given that neither author can provide an unquestionable claim that his model truly captures the original meaning of the Ninth Amendment, perhaps the best way to examine the question of how to treat the Ninth is to study the ways in which the Ninth Amendment can best contribute to modern legal problems. This can be done by first looking to the text of the Constitution and the Bill of Rights, and then by examining how the Ninth Amendment can best serve the legal system in terms of policy. The fact that both Lash and Barnett can ground their arguments for their models in credible historical evidence lends originalist support, but that is not the sole source of constitutional authority. The text itself can provide clear direction as to the meaning of its various provisions. In the context of the Ninth Amendment, Barnett provides strong evidence that the first eight amendments in the Bill of Rights use the term “the people” to express individual rights.151 This supports an inference that the Ninth Amendment similarly protects individual rights. Furthermore, the Tenth Amendment, which is universally acknowledged to refer to collective, federalist rights, specifically refers to the states and speaks in terms of “powers” rather than rights.152 This suggests a fundamental difference in the intended objects of the two amendments. As such, the text supports an individualist reading of the Ninth Amendment. On a policy level, the individualist model of the Ninth Amendment is far more appealing for several reasons. First, the federalist theory of the Ninth Amendment limits the Ninth to being merely a supportive corollary for the Tenth. While under that model the Tenth deals with “ends” and the Ninth with “means,” both serve the same general purpose: limiting the scope and power

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of the federal government. As recent federalism decisions like City of Boerne and Morrison show, the Tenth Amendment serves as a fully adequate support for protecting federalist rights and values.153 A federalist view of the Ninth Amendment is also inherently limited in applicability, regardless of the function of the Tenth Amendment. Since the adoption of the Fourteenth Amendment, states’ rights have been vastly curtailed.154 The expanded powers of the federal government, as well as the incorporation of the Bill of Rights onto the states, reduces a federalist reading of the Ninth Amendment to a seldom used vestige of our early nationhood. While federalist values made somewhat of a resurgence in the Rehnquist court, the text of the Constitution, as well as a wide array of precedent severely limit the rights of the states as compared to the powers of the federal government. It seems fruitless to interpret a constitutional provision in a manner that affords it little relevance. The final policy argument in favor of the individualist model of the Ninth Amendment is its potential applications. Since its inception, the doctrine of substantive due process has been problematic, to say the least. While many of the right to privacy decisions have been lauded and have achieved great things for a large number of Americans, the doctrine remains questionable, both in some of the decisions it has produced, as well as in its justification. This is most clearly seen in the uproar over Roe v. Wade155, a decision that is still hotly contested thirty years after it was announced. Many claim that substantive due process has inadequate constitutional foundation, both on textual and originalist grounds. The Ninth Amendment could prove to be a more appealing method of identifying and protecting unenumerated rights such as the right to privacy. Its text more clearly protects individual rights, and there may even be more historical support for the idea that the Ninth Amendment was intended to protect individual rights than

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there is for the argument that the due process clause of the Fourteenth Amendment can legitimately protect individuals’ right to privacy. The primary argument against this kind of reading of the Ninth Amendment is that the Ninth was intended to guard the freedoms of Americans against the federal government, and not against the states. A number of people, including Justice Black in Griswold and John Bingham, the drafter of the Fourteenth Amendment, believe that the Fourteenth Amendment did not incorporate the Ninth Amendment.156 Without arguing that the Ninth is incorporated by the Fourteenth, one cannot claim that the Ninth Amendment can be used against states to enforce unenumerated rights of the people. This presents a serious problem. Randy Barnett argues that the Ninth could be construed as creating a general presumption of liberty, which courts would be forced to consider when looking even at state action.157 However, using strict scrutiny to defeat state laws based on a constitutional provision that does not apply to the states would be problematic, to say the least. There are a few potential solutions to this problem. First, the Court (or the American public through the amendment process) could decide that the Fourteenth Amendment does incorporate the Ninth Amendment. This would be a drastic step, and, as explained above, would greatly upset proponents of states’ rights. Another potential answer relies on the fact that many states’ constitutions contain provisions that mirror the Ninth Amendment, adopted around the time of the ratification of the Ninth. Therefore, litigants could argue that if the federal Ninth Amendment protects individual freedoms against action by the federal government, an analogous provision in a state constitution offers similar protection to individual rights against restrictive laws of state governments. Obviously, this argument could be rejected in a state supreme court,

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or states could alter their constitution to prevent granting such meaning to their unenumerated rights amendments. A more ideal solution would essentially split the difference between the two theories, thus attempting to pacify both federalists and libertarians. This model, which could potentially be termed the experimental state model, would shield state laws that protect individual freedoms from federal interference. This model would work to safeguard state laws that are more protective of individual rights than the federal government, especially in controversial areas like gay marriage, right to die, and medicinal marijuana, where some states are willing to experiment with legalization of these concepts. Given that states can serve an important laboratory function, such a reading of the Ninth Amendment would preserve progress in the states as well as the independence of the states, thus serving important federalist functions. Additionally, it would serve the individual, who has a more direct voice in local elections and referenda. However, this model could not work as a complete replacement for the rights that substantive due process has allowed Americans to come to enjoy. The abortion debate provides a ready example. While in some areas, like those mentioned above, states can be more progressive than the federal government, in other areas, like abortion, states tend to be more conservative. Preventing conservative states resistance to legalized abortion was, in fact, the entire purpose of Roe. Under the experimental state model, state laws that restrict individual freedoms, like those which prevent a woman from terminating her pregnancy, would not be protected by the Ninth Amendment. VI.

CONCLUSION Despite much scholarly debate, the meaning of the Ninth Amendment remains obscure.

Different people likely had opposing conceptions of its application even at the time of

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ratification. This gulf in understanding persists even until today. Because of the vastly different natures of the potential applications, it is difficult to reconcile the national and individualistic model with the collective state’s rights model, since in many cases one works to the exclusion of the other. This small provision, however, holds much power and promise, and the only way to understand how it can best serve American jurisprudence is further study and discussion. This article © Ashley J. Becnel 2008. All rights reserved.

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U.S. CONST. amend. IX. 381 U.S. 478, 488 (1965) (Goldberg, J., concurring). 3 See id. at 486-99. 4 198 U.S. 45 (1905). 5 Griswold v. Connecticut, 381 U.S. at 492. 6 Id. at 488. 7 Id. at 488-89. 8 Id. at 490. 9 Id. at 491. 10 Id. at 492. 11 See id. at 492-93. 12 Id. at 490, n. 6. 13 Griswold v. Connecticut, 381 U.S. at 520 (Black, J., dissenting). 14 Id. 15 Id. 16 See generally PAUL BREST, PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS 19-26 (5th ed. 2006). 17 Randy E. Barnett, Reconcieving the Ninth Amendment, 74 CORNELL L. REV. 1, 2-3 (1988) (hereinafter Reconcieving). 18 Id. at 12. 19 Id. at 5. 20 See id. at 6-8. 21 Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 Tex. L. Rev. 1, 3 (2006) (hereinafter It Means What It Says). 22 Id. at 19. 23 Id. at 13. See also generally Randy E. Barnett, Kurt Lash’s Majoritarian Difficulty (Georgetown Law Faculty Working Papers, 2008), available at http://ssrn.com/abstract=1079104 (hereinafter Majoritarian Difficulty). 24 It Means What It Says, supra note 21, at 13-14. 25 Id. at 14. 26 Id. 2

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Id. Id. 29 Id. at 15. 30 Id. 31 Id. 32 See id. at 27-28. 33 Majoritarian Difficulty, supra note 23, at 5. 34 Letter from James Madison to Thomas Jefferson (Oct. 17, 1788) in 1 The Letters and Other Writings of James Madison 425 (1867) (quoted in Majoritarian Difficulty, supra note 23, at 5). 35 Majoritarian Difficulty, supra note 23, at 5. 36 Id. at 10. 37 U.S. CONST. amend. IX; U.S. CONST. amend. X. 38 Majoritarian Difficulty, supra note 23, at 10; U.S. CONST. amend IX. 39 Majoritarian Difficulty, supra note 23, at 12. 40 Id. at 10. 41 U.S. CONST. amend. IV. 42 Majoritarian Difficulty, supra note 23, at 10. 43 Id. 44 Id. at 11 (referring to the Fifth Amendment’s use of the terms “no person,” “any person,” and “himself;” and the Sixth Amendment’s use of “the accused,” “him,” and “his defense.” U.S. CONST. amend. V.; U.S. CONST. amend. VI.) 45 Id. 46 Id. at 11-12. 47 Id. 48 Id. at 12-13. 49 Id. at 12. 50 Id. at 13. 51 Id. 52 Id. at 10. 53 Id. 54 Id. at 16-17 (quoting Entry of Dec. 12, 1789, in Journal of the Senate of the Commonwealth of Virginia 63 (Richmond 1828)). 55 Id. at 17. 56 Id. at 16-17 (quoting Entry of Dec. 12, 1789, in Journal of the Senate of the Commonwealth of Virginia 64 (Richmond 1828)). 57 Id. at 17. 58 Id. at 19 (quoting Constitution of the Confederate States of America, Art VI, § 5 (March 11, 1861)). 59 Id. 60 Id. at 27. 61 Id. at 30 (quoting 1 BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA, Appendix 1, 141 (St. George Tucker ed., Augustus M. Kelley reprint 1969)(1803)). 62 Id. at 30-31. 63 Id. at 31. 28

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64

Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L. Rev. 331, 336 (2004) (hereinafter Lost Meaning). 65 Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment 21 (Loyola Law School, Legal Studies Paper No. 2007-17, 2007), available at http://ssrn.com/abstract=953008 (hereinafter Textual-Historical Theory). 66 Id. 67 U.S. CONST. amend. X. 68 Lost Meaning, supra note 64, at 336. 69 Id. 70 Textual-Historical Theory, supra note 65, at 24. 71 Id. 72 Lost Meaning, supra note 64, at 399. 73 Textual-Historical Theory, supra note 65, at 21(quoting James Madison, Speech Opposing the Bank of the United States (1791)). 74 Id. at 24. 75 Id. at 24-25. 76 Id. at 25. 77 Lost Meaning, supra note 64, at 394-95. 78 Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 Tex. L. Rev. 597, 613-639; 669-670 (2005) (hereinafter Lost Jurisprudence); Textual-Theoretical History, supra note 65, at 28. 79 Lost Meaning, supra note 64, at 394. 80 Id. at 394-95. 81 Id. at 395 (quoting John Taylor, New Views of the Constitution of the United States 96 (Washington D.C., Way & Gideon 1823)); Biographical Directory of the United States Congress: Taylor, John, http://bioguide.congress.gov/scripts/biodisplay.pl?index=T000085 (last visited Apr. 25, 2008). 82 Lost Meaning, supra note 64, at 395. 83 Id. at 395. 84 Id. (quoting James Madison, Veto Message to Congress (Mar. 3, 1817), in James Madison, Writings 720 (Jack N. Rakove, ed., 1999)). 85 Id. at 397 (quoting St. George Tucker, 1 Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia app. 1, at 151). 86 Id. at 355-58. 87 Id. at 358. 88 Id. at 357 (quoting Amendments Proposed by the Virginia Convention (June 27, 1788), in THE COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES AND ORIGINS 675 (Neil H. Cogan ed., 1997)). 89 Lost Jurisprudence, supra note 78, at 613-639. 90 22 U.S. (9 Wheat.) 1 (1824); Lost Jurisprudence, supra note 78, at 624-25. 91 17 U.S. (4 Wheat.) 316 (1819); Lost Jurisprudence, supra note 78, at 625. 92 Gibbons, 22 U.S. (9 Wheat.) at 187-88. 93 Lost Jurisprudence, supra note 78, at 625. 94 Id. at 625 (quoting Gibbons, 22 U.S. (9 Wheat.) at 196). 95 Id. at 625. 28

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18 U.S. (5 Wheat.) 1, 49 (1820) (Story, J., dissenting). See Lost Jurisprudence, supra note 78, at 613-22. 98 Id. at 615. 99 Id. at 619 (quoting U.S. CONST. art. I, § 8, cl. 16) 100 Id. 101 Id. at 620 (quoting Houston, 18 U.S. (5 Wheat.) at 58). 102 Id. at 619-620. 103 Id. at 633. 104 Id. 105 Id. 106 Id. 107 Id. at 653. 108 79 U.S. (12 Wall.) 457 (1870). 109 Lost Jurisprudence, supra note 78, at 653 (quoting 79 U.S. (12 Wall.) at533-34). 110 Legal Tender Cases, 79 U.S. (12 Wall.) at 534-35. 111 Lost Jurisprudence, supra note 78, at 655. 112 Id. at 658. 113 83 U.S. 36 (1873). 114 Lost Jurisprudence, supra note 78, at 658. 115 Id. at 659 (quoting The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 78 (1872)). 116 Id. at 658. 117 Id. at 669. 118 Id. at 669-70. 119 Id. at 670. 120 Id. 121 Id. 122 Id. 123 Id. 124 Textual-Historical Theory, supra note 65, at 28. 125 521 U.S. 507 (1997). 126 529 U.S. 598 (2000). 127 Textual-Historical Theory, supra note 65, at 28. 128 2 U.S. (2 Dall.) 419 (1973); Majoritarian Difficulty, supra note 23, at 20. 129 Majoritarian Difficulty, supra note 23, at 24. 130 See id. at 24-25. 131 Id. at 26; see also Hans v. Louisiana, 134 U.S. 1 (1890). 132 Majoritarian Difficulty, supra note 23, at 26. 133 Id. at 26. 134 10 U.S. (6 Cranch.) 87 (1810) 135 Id. 136 Majoritarian Difficulty, supra note 23, at 27. 137 Lost Jurisprudence, supra note 78, at 639. 138 Id. at 639. 139 Id. at 647. 140 Id. 141 Id. at 640. 97

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142

Id. at 640. See id. at 613-39. 144 See id. 145 See id. 146 Id. at 625 (quoting 22 U.S. (9 Wheat.) at 196). 147 Id. 148 Id. 149 Id. at 670. 150 Textual-Historical Theory, supra note 65, at 28. 151 Majoritarian Difficulty, supra note 23, at 11-13. 152 U.S. CONST. amend. X. 153 See generally 512 U.S. 507 (1997); 529 U.S. 598 (2000). 154 U.S. CONST. amend. XIV. 155 410 U.S. 113 (1973). 156 Lost Meaning, supra note 64, at 399. 157 It Means What It Says, supra note 21, at 15. 143

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