The Lost History of the Ninth Amendment Reviewed

The Lost History of the Ninth Amendment—And Its Implications for Libertarian Political Theory and its Relation to the Constitution

Professor Kurt Lash published a book in 2009, The Lost History of the Ninth Amendment [hereinafter The Lost History], that supplies a devastating critique of the contention that it was designed to secure and protect “unenumerated rights,” beyond the fundamental rights stated in the first ten amendments, or elsewhere in the Constitution.  The amendment states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The key to understanding the “others” (meaning other rights) that were “retained by the people,” is to realize that “the people” referred to the sovereign people who granted power to the federal government--and therefore “retained” (as rights) all that they did not grant to the nation in the Constitution’s system of limited and defined powers.  Modern Americans have difficulty appreciating that the founders closely related the rights of the people with a government of limited powers, and contrasted the proposed Constitution with the constitutions of the states.  In defending the omission of a bill of rights from the proposed Constitution, James Wilson explained:

When the people established the powers of legislation under their separate governments, they invested their representative with every with every right and authority which they did not in explicit terms reserve; and therefore upon every question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete.  But in delegating federal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union.  Hence it is evident, that in the former case [of the states] everything which is not reserved is given, but in the latter [case of the federal Constitution] the reverse of the proposition prevails, and every thing which is not given, is reserved.

(James Wilson, Speech in the State House Yard (Oct. 6, 1787), in The Documentary History of the Ratification of the Constitution 167-68 (1976) [hereinafter Documentary History].)  Thus Nathaniel Gorham could justify the omission of a bill of rights from the proposed Constitution on the grounds that a bill of rights enabled the people “to retain certain powers,” given that under the state constitutions “the legislatures had unlimited powers.” (Id. at 335 (Sept. 27, 1787).)

Modern Americans seldom even know that the first ten amendments to the federal Constitution—the portion often referred to as the Bill of Rights—were actually part of twelve proposed amendments adopted by Congress and referred to the states for ratification. A consequence was that references to the Ninth Amendment in the early American republic often called it the “eleventh proposed amendment.”  (The Lost History xv, 40.)   Modern America lost track of much of the history of litigated cases relating to the Ninth Amendment as the result of Justice Story’s initial argument for concurrent state and federal power based on “the letter and spirit of the eleventh amendment of the constitution.”  (Houston v. Moore, 18 U.S. (5 Wheat.) 1, 47 (1820); see The Lost History 200.)  Unlike modern arguments on behalf of the “unenumerated rights” reading of the Ninth, both Justice Story’s use of the amendment and the Ninth Amendment case law of the following century were rooted in an interpretation of the amendment as a provision elaborating the implications of the Constitution’s system of federalism.

A modern conception is the idea that the other rights “retained” by the people refers to the “natural” or “inherent” rights that are automatically kept by the people when they leave the state of nature, embrace the social contract, and grant power to government. But the framers’ simply rejected the idea that these rights would inevitably be “retained,” and contended that they were retained only as the residuum left after granted powers were explicated and applied.  See 1 Annals of Cong. 438 (Joseph Gales ed., 1789) (Madison describing Federalist defense that “the Constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be necessary as if the residuum was thrown into the hands of the government”). Thus James Wilson contended that if Congress had been granted a power “to regulate literary publications,” it would have been essential “to stipulate that the liberty of the press should be preserved inviolate.”  (2 Documentary History 168.)  Since Wilson and most others viewed freedom of the press as an inalienable natural right,  the quoted argument clarifies that he did not assume that “inalienable” natural rights are ipso facto enforceable constitutional rights.

In fact, this argument led Wilson and others to fear the inclusion of a bill of rights precisely on the ground that it might raise an inference that its provisions were the only limits on government power—and hence the limited powers granted to the national government would not “retain” rights.  Alexander Hamilton, for example, contended that since a bill of rights would “contain various exceptions to powers which are not granted,” this “would afford a colourable pretext to claim more than were granted.”  (The Federalist No. 84, at 434, 437 (Garry Wills ed. 1982).)  The same contention prompted Wilson to assert “that an imperfect enumeration would throw all implied power into the scale of government; and the rights of the people would be rendered incomplete.”  (2 Documentary History 388.)  It is this argument, advanced by Wilson and Hamilton, that explains why Madison once stated that he could support a bill of rights “provided it be so framed as not to imply powers not meant to be included in the enumeration.”  (Letter to Thomas Jefferson, Oct. 17, 1788.)

Professor Lash’s book shows that the “federalism” reading of the Ninth Amendment was uniformly adopted by the Supreme Court through the Nineteenth Century and to the middle of the Twentieth Century.  It was not until the modern Supreme Court, as part of the New Deal revolution, came to abandon (at least for a few years) the notion that the Constitution secures fundamental rights, granted by the very nature of the social contract the Constitution symbolizes, that some advocates began to argue that the text of the Ninth Amendment authorized the imposition of “natural rights” as those “retained” by the people.  Professor Lash’s demonstration that this does not describe the purpose or intended meaning of the Ninth Amendment makes his book a “must read” to those trying to understand the nature of the founders’ commitment to individual rights.

Modern Americans who want to embrace libertarian political philosophy—as do some advocates of the Tea Party movement—should not confuse their preferred politics with the meaning and purposes of the federal Constitution.  Some careful modern thinkers would use the Constitution’s text, and some strands of American history, to justify the finding of implied fundamental rights, often based on the Anglo-American legal tradition, the common law, or modern society’s consensus about the meaning to be attributed to expansive language.  But there is little evidence to support the view of others that our prescribed task is to engage in the moral analysis needed to identify and apply the natural moral rights that should be protected by our fundamental law.

For a useful summary and review of Professor Lash’s book, see Thomas B. McAffee, Book Review (of Kurt T. Lash, The Lost History of the Ninth Amendment (Oxford Univ. Press 2009)), 28 L. & Hist. Review 1099 (2010).  For additional insight on the Ninth Amendment, see Thomas B. McAffee, The “Foundations” of Anti-Foundationalism—Or, Taking the Ninth Amendment Lightly:  A Comment on Daniel A. Farber’s Book on the Ninth Amendment, 9 Nev. L.J. 226 (2008) (reviewing Daniel A. Farber, Retained by the People:  The “Silent” Ninth Amendment and the Rights Most Americans Don’t Know They Have (2007)); Thomas B. McAffee , A Critical Guide to the Ninth Amendment, 69 Temple L. Rev. 61 (1996).

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