Although there is much dispute among constitutional scholars about the meaning and legal effect of the Ninth Amendment, there is consensus about its origin. During the ratification debates over the Constitution, some opponents of ratification (“Anti-Federalists”) vociferously complained about the absence of a bill of rights. In response, supporters of the Constitution (“Federalists”) such as James Wilson argued that a bill of rights would be dangerous. Enumerating any rights, Wilson argued, might imply that all those not listed were surrendered. And, because it was impossible to enumerate all the rights of the people, a bill of rights might actually be construed to justify the government’s power to limit any liberties of the people that were not enumerated. Nevertheless, because the Anti-Federalist demand for a bill of rights resonated with the public, Federalists like James Madison countered with a pledge to offer amendments after the Constitution’s ratification.
As a representative from Virginia to the first Congress, Madison repeatedly insisted, over both indifference and vocal opposition, that the House take up the issue of amendments. In a now famous and much-analyzed speech, he introduced a list of amendments that he proposed be inserted within the text of the Constitution so as literally to “amend” or change it. For example, he proposed that “there be prefixed” to the Constitution a declaration that “Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.”
At the end of the list of rights to be added to Article I, Section 9 (where the individual right of habeas corpus was located) Madison would have placed the language that was the forerunner to the Ninth Amendment:
The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so 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.
By contrast, Madison proposed that the provision that eventually became the Tenth Amendment be inserted after Article VI as a new Article VII.
In his speech, Madison explained his proposed precursor of the Ninth Amendment in terms that connect it directly with Federalist objections to the Bill of Rights:
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 urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against.
All of Madison’s proposals were then referred to a Select Committee of which he was made a member, along with others such as Roger Sherman of Connecticut.
The Committee dropped Madison’s proposed declaration and rewrote his Ninth Amendment proposal to read as it reads today: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” At Sherman’s urging, what eventually emerged from the House was a list of amendments to be appended to the end of the Constitution, rather than integrated within the text.
Since its enactment, scholars and judges have argued about both the Ninth Amendment’s meaning and its legal effect, and the courts have rarely relied upon it. During his failed confirmation hearing to become a Supreme Court justice in 1987, Robert Bork analogized the Amendment to an “inkblot,” which hid the constitutional text that was under it. Just as judges should not guess what was under an inkblot, he argued, so too they should not guess at the Ninth Amendment’s meaning. Bork’s very public denial that any meaning of the Amendment could be discovered fueled intense academic interest in the original meaning of the text.
In the literature that developed, much of the controversy concerned the original meaning of the phrase “rights . . . retained by the people.” Since the 1980s, four rival interpretations of this phrase emerged. Russell Caplan claimed that it referred to rights that were granted by state laws, which could be then be preempted by federal laws under the Supremacy Clause. Thomas McAffee contended that the Amendment referred to those “residual” rights that are not surrendered by the enumeration of powers. From this, it followed that, if Congress is exercising its enumerated powers, it cannot be violating a retained right. Akhil Amar argued that its core meaning referred to the “collective” rights of the people, for example, to alter or abolish their government, and that to suppose it protected “counter-majoritarian” individual rights was anachronistic. Finally, Randy Barnett maintained that the Amendment referred to the natural liberty rights of the people as individuals, which are also referred to in the Declaration of Independence, state bills of rights, and Madison’s proposed addition to the Preamble. Only the last of these approaches would have much application to legal cases or controversies.
Others have focused on the meaning of the phrase “shall not be construed to deny or disparage.” For example, while conceding that the rights retained by the people include the “unalienable Rights” to which the Declaration of Independence refers, Justice Antonin Scalia has argued that “the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.” In this way, Justice Scalia would deny the amendment any judicially-enforced legal effect.
In contrast, the “federalism” approach advocated by Kurt Lash and Randy Barnett would give the provision judicial effect by narrowly construing the scope of the enumerated powers of Congress, especially its implied powers under the Necessary and Proper Clause. Barnett also maintains that the Ninth Amendment mandates the “equal protection” of enumerated and unenumerated rights: unenumerated rights should be judicially protected to the same extent that enumerated rights are protected. To implement this requirement, Barnett proposes a rule of construction—the “presumption of liberty”—to protect all the retained rights of the people by placing the onus on legislatures to justify their restrictions on liberty as both necessary and proper, without judges needing to specifically identify the retained individual rights.
Finally, Louis Michael Seidman argues that, while it defeats the inference that the enumeration of some rights denies the existence of others, the Amendment does not itself establish the existence of these other rights. Just as opponents of unenumerated rights cannot rely on the enumeration of some rights to defeat the claim that there are other rights, proponents of unenumerated rights cannot rely on the text of the Ninth Amendment to prove that the rights exist or to establish what the rights are. Instead, in his view, the Ninth Amendment leaves the argument about unenumerated rights unresolved.
Americans too often look to the Constitution to answer important questions of political morality. Worse yet, they too often think that they have found the answers that they are looking for. This tendency is unfortunate because we need to answer these questions for ourselves rather than rely on people who are long dead to answer them for us. The broad and sweeping language of the Constitution is best treated as raising questions rather than providing answers.
The Ninth Amendment provides a case in point. Many scholars have looked to the Amendment to answer the vexed question of what rights Americans have. In fact, though, the Amendment leaves that question for us to answer in our own time.
To understand why this is so, we must begin by recognizing that James Madison faced a serious problem as he spoke to his colleagues in the House of Representatives about his proposed bill of rights. On the one hand, he had to satisfy colleagues who worried that the enumeration of specific rights might by implication deny the existence of other rights. As Madison himself admitted, this was “one of the most plausible arguments I have ever heard urged against the admission of a bill of rights.”
On the other hand, Madison faced a second argument that looked in the opposite direction. Many of his colleagues worried about additions to the Constitution that were vague and open ended. For example, John Vining of Delaware complained of the “uncertainty with which we must decide on questions of amendment, founded merely on speculative theory.” Samuel Livermore of New Hampshire objected to the proposed Eighth Amendment because “it seems to have no meaning in it. . . . [We] ought not to be restrained from making necessary laws by any declaration of this kind.” And James Jackson of Georgia referred to the entire exercise of approving amendments as “treading air.”
Madison had to take both sets of objections seriously. At the time the House debated his proposals, two states remained outside the Union and other states plausibly threatened to convene a new constitutional convention if no action were taken. It was urgent that Congress act quickly and that congressional opposition be minimized. As Madison wrote to his friend Edmund Pendleton, the amendments must be limited to “points on which least difficulty was apprehended” and “[n]othing of a controvertible nature ought to be hazarded.”
It was therefore crucial that Madison satisfy both sides of the argument about unenumerated rights. He accomplished this goal with a brilliant compromise. The Ninth Amendment clearly rebutted the possible presumption that enumeration of some rights precluded the recognition of others. By its terms, it provides that the enumeration of specific rights should not be “construed to deny or disparage” other rights. Thus, advocates of nonenumerated rights could be satisfied that adoption of Madison’s proposal would not endanger their claims. But the Amendment does not establish these rights or say what they are. Although the Amendment makes clear that the rest of the Bill of Rights should not be read to “deny or disparage” extra-textual rights, it does not assert that these rights exist. Thus, opponents of vague or underspecified rights could also be satisfied that the Constitution did not entrench the kind of rights that they opposed.
This essay is part of a discussion about the Ninth Amendment with Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory and Director of Georgetown Center for the Constitution, Georgetown University Law Center. Read the full discussion here.
Madison’s compromise left both sides where they were before a bill of rights was adopted. Proponents of nontextual rights could still argue that they should be enforced, and opponents of such rights could still argue that they did not exist. Neither side need oppose the rest of the Bill of Rights on the ground that its position on nontextual rights was jeopardized.
This interpretation is strongly supported not just by what the Ninth Amendment says, but also by what it does not say. When states submitted proposed amendments to the new Constitution, some of them suggested changes that would have expressly protected natural and unenumerated rights. Similarly, Madison and Sherman each proposed natural rights amendments, and a similar provision was proposed in the Senate. Congress adopted none of the state provisions, and the Madison, Sherman, and Senate proposals were all defeated. Madison’s initial draft of the Ninth Amendment praised the “just importance” of unenumerated rights, but the House committee that considered the Amendment removed even this indirect endorsement of natural rights.
To summarize, then, on five separate occasions, Congress was presented with provisions that would have expressly protected unenumerated rights, but it failed to adopt any of them. Of course, sometimes when language is left out of a document, it is omitted because it is redundant. If the Ninth Amendment clearly mandated the protection of natural rights, this might provide an explanation for the rejection of other natural rights language. But at very best, the Ninth Amendment protects natural rights by implication. Those who favor the unenumerated rights view must explain why Congress would pass a measure that, at most, did indirectly precisely what it repeatedly refused to do directly.
So where does this leave us today? The Ninth Amendment tells us that the existence of a written constitution should not be treated as an excuse for ignoring nontextual rights, but it also tells us that the advocates of these rights cannot rest on ancient constitutional text to establish their existence. Instead, it is for us, the living, to decide whether we would be better off recognizing these rights.
The necessity for a contemporary decision on this question may seem daunting, perhaps even frightening, to some, but the responsibility for decisions like this is built into the notion of popular sovereignty. As Thomas Jefferson claimed, prior generations are like a foreign country to us. No American would cede to France or Russia or the United Nations the authority to determine the content of our basic rights. Neither should we cede that question to people who have been dead for centuries, many of whom believed in slavery and saw no problem with denying the right to vote to women, American Indians, and people who did not own property. It is our responsibility to decide for ourselves what kind of country we want to live in. No one can or should decide that question for us.
As we have seen, there are conflicting claims about the original meaning of the Ninth Amendment. In particular, what meaning was conveyed to the public by the phrase the “rights . . . retained by the people” at the time of its enactment? One important clue is provided by James Madison’s handwritten notes for his speech to Congress proposing amendments. There he refers to “natural rights, retained as speach,” showing both that the freedom of speech was considered to be a natural right—which he underlined—and that such rights were “retained” by the people.
But perhaps the most illuminating evidence was discovered in 1987 among Madison’s papers: a list of proposed amendments in the handwriting of fellow committee member, Connecticut Representative Roger Sherman.
Sherman is credited with the idea that amendments to the Constitution should be appended to the end, rather than literally modifying or “amending” the original text, as Madison assumed they would. His list was not his own proposal, but rather was his effort to convert the proposals of others to separate articles. Of particular significance is the second:
The people have certain natural rights which are retained by them when they enter into Society, Such are the rights of Conscience in matters of religion; of acquiring property and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the Government of the united States. (Emphases added).
Like Madison’s notes, this provision links the terms “rights,” “retained” and “the people”—all of which appear in its first sentence, while explicitly identifying these rights as “natural rights.” Notwithstanding his opposition to some of these amendments, Sherman’s use of language is highly pertinent to the original meaning of the words that were then used by the committee in the Ninth Amendment. The significance has nothing to do with the intentions of Roger Sherman—apart from his intention to use the English language in a manner that would be understood by his audience. It simply shows the content these words would have communicated to the general public.
Further, the rights listed in Sherman’s draft included such undeniably individual rights as the rights of conscience, acquiring property, and pursuing happiness and safety, along with the individual rights to speak, write, and publish one’s sentiments. That these were not the only rights retained, but are merely examples, is conveyed by the words, “Such are.” Given that only some of these individual rights came to be included in the Bill of Rights, the Ninth Amendment appears designed to prevent the “others” not included from being, in Sherman’s words, “deprived by the Government of the united States.”
Sherman’s examples not only strongly support an individual natural rights (rather than a “collective rights”) reading of “retained” rights, but neither are any of the rights to which his proposal refers state law rights. Instead they are “natural rights which are retained” by the People “when they enter into Society.” Nor are these rights defined residually by the enumeration of federal powers. Instead, they are identified by name. So Sherman’s draft is incompatible with the state law rights, residual rights, and collective rights interpretations of the Ninth Amendment.
Sherman’s examples of natural rights were well-known to the public. Several state constitutions had adopted similar formulations, copied from George Mason’s 1776 draft of the Virginia Declaration of Rights:
THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
This essay is part of a discussion about the Ninth Amendment with Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center. Read the full discussion here.
Arguing that the Ninth Amendment was not intended to refer specifically to these natural rights, Professor Seidman places great weight on the fact that Congress declined to adopt similar language. But that decision, made for unknown reasons, does not affect the public meaning of the text that was adopted. The “rights . . . retained by the people,” clearly meant natural rights, and Mason’s wording was the canonical summary of what “natural rights” meant to the public. Later, Justice Bushrod Washington would use similar wording to describe the privileges and immunities of citizens.
If this is the Amendment’s original meaning, what is its legal effect? How should these words be implemented? First and foremost, the Ninth Amendment is a rule of construction—“shall not be construed”— that tells us how not to construe a written bill of rights: the fact that some rights are in writing does not elevate them above other rights that were not included. So, at a minimum, the Ninth Amendment is inconsistent with first line of Footnote Four of United States v. Carolene Products (1938), which reads:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. (Emphases added).
By giving enhanced protection to a “specific prohibition,” Footnote Four violates the Ninth Amendment’s rule of construction by disparaging those rights that were not specifically included.
But the Amendment implies more than this. Its wording presupposes that there are natural rights retained by the people and that these rights shall not be disparaged or denied altogether. It would make no sense otherwise. It does not convey the meaning that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage [whatever] others [may or may not have been] retained by the people.” Such language would surely have been ridiculed as too trivial and without effect to merit inclusion as a separate amendment.
But does protecting the retained rights from disparagement and denial require judges to identify all the natural rights retained by the people and then protect them? Hardly. The natural rights one has before entering into society can be most concisely described as “liberty rights,” and all liberty can be reasonably regulated to avoid violating the rights of others. Indeed, that is one way that government secures the rights of each individual.
So adhering to the Ninth Amendment requires only that judges scrutinize regulations of liberty to ensure that they are indeed “reasonable” and not “arbitrary” means of protecting the rights of others—for example, their health and safety—and were not instead passed for other improper motives, such as conveying benefits to special interests at the expense of the general public. By adopting a rebuttable “presumption of liberty,” as I have proposed, judges can ensure that the natural “rights . . . retained by the people” are not “denied or disparaged” by their servants—public officials tasked with securing the rights of the individuals who comprise the sovereign “People,” each and every one.