The inescapable federalism of the Ninth Amendment

Iowa Law Review

Volumn 93, Issue 3, 2008, Pages 801-879

  Lash, Kurt T ^a  

^a Loyola Law School Los Angeles   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 42349102731     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (358)

1. For some of the more influential recent works on the Ninth Amendment, see generally Randy E. Barnett, James Madison's Ninth Amendment, in 1 THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT 1 (Randy E. Barnett ed., 1989);
2. RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004); EDWARD DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY (1957);
3. CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS (1995);
4. BENNETT B. PATTERSON, THE FORGOTTEN NINTH AMENDMENT: A CALL FOR LEGISLATIVE AND JUDICIAL RECOGNITION OF RIGHTS UNDER SOCIAL CONDITIONS OF TODAY (1955);
5. Raoul Berger, The Ninth Amendment, 66 CORNELL L. REV. 1 (1980);
6. Russell L. Caplan, The History and Meaning of the Ninth Amendment, 69 VA. L. REV. 223 (1983);
7. Knowlton H. Kelsey, The Ninth Amendment of the Federal Constitution, 11 IND. L.J. 309 (1936);
8. Norman Redlich, Are There "Certain Rights . . . Retained by the People"?, 37 N.Y.U. L. REV. 787 (1962);
9. Eugene M. Van Loan, III, Natural Rights and the Ninth Amendment, 48 B.U. L. REV. 1 (1968). I, too, have written on the Ninth Amendment.
10. See generally Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 TEX. L. REV. 331 (2004) [hereinafter Lash, The Lost Original Meaning];
11. Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 TEX. L. REV. 597 (2005) [hereinafter Lash, The Lost Jurisprudence];
12. Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment, 60 STAN. L. REV. 895 (2008) [hereinafter Lash, Textual-Historical Theory].
13. U.S. CONST. amend. IX ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.").
14. See Griswold v. Connecticut, 381 U.S. 479 (1965).
15. See id. at 484; id. at 486-92 (Goldberg, J., concurring).
16. See id. at 529-30 (Black, J., dissenting).
17. See, e.g., Barnett, supra note 1, at 13; BARNETT, supra note 1, at 240-42; MASSEY, supra note 1, at 213; see also CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM 39 (1997);
18. Mark C. Niles, Ninth Amendment Adjudication: An Alternative to Substantive Due Process Analysis of Personal Autonomy Rights, 48 UCLA L. REV. 85, 117-23 (2000);
19. Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. CHI. L. REV. 1127, 1150-55 (1987); Van Loan, supra note 1, at 4-24.
20. See THOMAS B. MCAFFEE, INHERENT RIGHTS, THE WRITTEN CONSTITUTION, AND POPULAR SOVEREIGNTY: THE FOUNDERS' UNDERSTANDING (2000); Caplan, supra note 1, at 228-59. Professor Akhil Amar has suggested the Ninth Amendment protects the people's collective right to alter or abolish their Constitution.
21. See AKHIL REED AMAR, THE BILL OF RIGHTS 122 (1998) ("The rights of 'the people' affirmed in the Ninth and Tenth Amendments may well mean more than the right to alter or abolish, but surely they mean at least this much at their core."). As I later explain, I believe that Amar is correct that the collective right to revolution is one of the retained rights of the people. See infra note 217. Amar also has long recognized the general federalist relationship of the Ninth and Tenth Amendments. See AMAR, supra, at 123-24.
22. See generally Randy E. Barnett, Reconceiving the Ninth Amendment, 74 CORNELL L. REV. 1 (1988) [hereinafter Barnett, Reconceiving the Ninth Amendment]; Barnett, supra note 1;
23. Randy E. Barnett, Implementing the Ninth Amendment, in 2 THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT 1 (Randy E. Barnett ed., 1993) [hereinafter Barnett, Implementing the Ninth Amendment]; BARNETT, supra note 1;
24. Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 TEX. L. REV. 1 (2006) [hereinafter Barnett, The Ninth Amendment].
25. See generally BARNETT, supra note 1; Barnett, The Ninth Amendment, supra note 8.
26. See Lash, The Lost Original Meaning, supra note 1, at 343-47 (describing the difference between active and passive interpretations of the Ninth Amendment).
27. See generally id.; Lash, The Lost Jurisprudence, supra note 1.
28. See generally Lash, The Lost Jurisprudence, supra note 1.
29. See generally Lash, The Lost Original Meaning, supra note 1.
30. For a discussion of each of these categories as retained rights under the Ninth Amendment, see Kurt T. Lash, Federalism, Freedom, and the Founders' View of Retained Rights: A Reply to Randy Barnett, 60 STAN. L. REV. 969 (2008).
31. Barnett, The Ninth Amendment, supra note 8.
32. See id. at 21 ("[E]vidence supporting a federalism function of the Ninth Amendment can be viewed as logically consistent with both the individual and collective rights models."); id. at 79 ("[T]he evidence considered in this Article, taken cumulatively, strongly supports the individual natural rights model of the original meaning of the Ninth Amendment as well as the federalism model. . . .").
33. See id. at 62. Barnett writes: But even if [retained rights include state rights,] this is not logically inconsistent with a reading of the Ninth Amendment as protecting both individual and states' rights from a latitudinarian interpretation of the enumerated powers. Were states' rights included in the meaning along with individual rights, it would simply broaden the scope of the Ninth Amendment to include situations where no individual liberty rights were at issue. Id. (internal citation omitted). Indeed, Barnett insists that I have misled readers into thinking our two approaches to the Ninth Amendment are somehow incompatible. Id. at 79.
34. For example, despite my expressly stating otherwise, Barnett still believes I might be arguing that the Ninth Amendment protects only majoritarian rights. Compare Lash, The Lost Original Meaning, supra note 1, at 401 ("[T]here is no textual reason and little historical reason to believe that the 'other rights' of the Ninth Amendment did not include natural rights."),
35. with Barnett, The Ninth Amendment, supra note 8, at 20 ("Here and elsewhere in his two articles, Lash appears to suggest that the active federalism approach is meant to protect only collective rights."). As I hope this Article makes clear, I believe the evidence strongly suggests that the Ninth Amendment protected both majoritarian and individual rights. Barnett's confusion arises from my argument that the Ninth Amendment leaves all such rights under the collective control of local state majorities. See infra notes 99-101 and accompanying text.
36. See, e.g., BARNETT, supra note 1, at 66 (stating that the Ninth and Fourteenth Amendments both "refer to the same set of unenumerable rights").
37. Lash, The Lost Original Meaning, supra note 1;
38. Lash, The Lost Jurisprudence, supra note 1.
39. This last Section by necessity must be no more than a sketch. For a more comprehensive text-based theory of the Ninth Amendment, see Kurt T. Lash, A Textual-Historical Theory, supra note 1.
40. In his work, Barnett appears to equate the federalism model with limiting the scope of federal power. Under this definition, Barnett is correct to see close similarities between the "federalist" model (which limits federal power) and his "libertarian" model (which limits both state and federal power). He distinguishes this approach from what he calls the "collectivist" model of the Ninth Amendment that views the Amendment as preserving local majoritarian or collective rights. See Barnett, The Ninth Amendment, supra note 8, at 15-17. Barnett's use of the term "federalism" diverges from standard usage of the term as a reference to a theory of divided government, with some matters delegated to the national government and others left under the autonomous control of local majorities. Barnett's categories also obscure the historical situations in which retained rights had a dual nature, being both individual and collective at the same time. See infra notes 99-101 and accompanying text. As I have argued in previous articles, I continue to distinguish "libertarian" models of the Ninth Amendment (limiting the power of the federal governments to interfere with individual rights in furtherance of an overall theory of liberty against state and federal governments) and "federalism" models of the Ninth Amendment (dividing federal and state power in a manner that preserves the retained right to local self-government). I believe my approach conforms with standard usage, and it allows for the existence of retained rights that were both individual (in terms of their protection from federal interference) and collective (in terms of their being retained under the control of local state majorities).
41. See Michael Zuckert, A System Without Precedent: Federalism in the American Constitution, in THE FRAMING AND RATIFICATION OF THE CONSTITUTION 132 (Leonard W. Levy & Dennis J. Mahoney eds., 1987).
42. See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1437 (1987).
43. See generally EMERICH DE VATTEL, THE LAW OF NATIONS (1758). Vattel's work was widely relied upon at the time of the country's founding and for decades afterward. The first major constitutional treatise by St. George Tucker relied heavily on Vattel.
44. See, e.g., St. George Tucker, View of the Constitution of the United States, in 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. Note D (St. George Tucker ed., Phila., William Young Birch & Abraham Small 1803) [hereinafter TUCKER, BLACKSTONE'S COMMENTARIES]. Others in the founding generation shared Vattel's view that governments in general, and states in particular, had retained natural rights.
45. See, e.g., Kentucky Resolutions 10 Nov. 1798, 14 Nov. 1799, reprinted in 5 THE FOUNDERS' CONSTITUTION 131, 134 n.* (Philip B. Kurland & Ralph Lerner eds., 1987) (noting that Thomas Jefferson's draft stated in part that "every State has a natural right in cases not within the compact . . . to nullify of their own authority all assumptions of power by others within their limits");
46. see also JOHN TAYLOR, CONSTRUCTIONS CONSTRUED AND CONSTITUTIONS VINDICATED 172 (Leonard W. Levy ed., De Capo Press 1970) (1820) ("The states have a natural right to make all necessary and proper laws within their national powers reserved . . . .").
47. THE ARTICLES OF CONFEDERATION art. II (U.S. 1781) ("Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.").
48. 2 ANNALS OF CONG. 1944, 1946, 1951 (1791) (statement of Rep. Madison). Madison relied on the understanding of the state conventions even before the states had ratified the Bill of Rights, and he would repeatedly do so throughout his life. See id. at 1951 (statement of Rep. Madison) ("The explanations in the state conventions all turned on the same fundamental principle [Congress could not abridge the retained powers of the states], and on the principle that the terms necessary and proper gave no additional power to those enumerated.").
49. James Madison, The Jay Treaty Speech (Apr. 6, 1796), in 6 THE WRITINGS OF JAMES MADISON 272 (Gaillard Hunt ed., 1906) [hereinafter WRITINGS OF MADISON];
50. see also 5 ANNALS OF CONG. 776 (1796) (statement of Rep. Madison).
51. See, e.g., John Adams, A Defence of the Constitutions of Government of the United States of America, in 6 THE WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES 116 (Boston, Little & Brown 1851). As Adams stated: It is indeed a "most excellent maxim, that the original and fountain of all just power and government is in the people;" and if ever this maxim was fully demonstrated and exemplified among men, it was in the late American Revolution, where thirteen governments were taken down from the foundation, and new ones elected wholly by the people, as an architect would pull down an old building and erect a new one.
52. Id. See generally GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (1998).
53. See WOOD, supra note 29, at 328-43 (describing the special legitimacy of conventions).
54. See, e.g., 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1993);
55. MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986);
56. KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999).
57. See BARNETT, supra note 1, at 109 ("If the substance of a constitution's original meaning falls short of what it takes to establish a legitimate lawmaking process, then that constitution is not binding and can be ignored despite the fact it is in writing.").
58. See id. at 11-14 ("I challenge the idea, sometimes referred to as 'popular sovereignty,' that the Constitution of the United States was or is legitimate because it was established by 'We the People' or the 'consent of the governed.'").
59. Id. at 109-13.
60. See Trevor Morrison, Lamenting Lochne,s Loss: Randy Barnett's Case for a Libertarian Constitution, 90 CORNELL L. REV. 839, 846 (2005) (arguing that Barnett's rejection of the original theory of the Constitution places him in "a rather awkward position").
61. Barnett, The Ninth Amendment, supra note 8, at 6.
62. See id. at 5-6.
63. See, e.g., id. at 17 ("Madison designed the Ninth Amendment by substantially altering state proposals to address the concerns expressed during ratification by Federalist supporters of the Constitution.").
64. Other constitutional scholars who base their work on the theory of popular sovereignty include Akhil Reed Amar, Keith E. Whittington, Bruce Ackerman, Michael Kent Curtis, John Harrison, Michael McConnell, Michael Paulson, Caleb Nelson, and Gary Lawson.
65. See infra notes 194-99 and accompanying text (discussing Barnett's use of post-adoption commentary in his analysis of the Second Amendment).
66. See generally Lash, The Lost Jurisprudence, supra note 1 (documenting how the Ninth Amendment played a significant role in some of the most important constitutional disputes in American history).
67. See, e.g., DANIEL A. FARBER, RETAINED BY THE PEOPLE: THE "SILENT" NINTH AMENDMENT AND THE CONSTITUTIONAL RIGHTS AMERICANS DON'T KNOW THEY HAVE 39 (2007).
68. Barnett, The Ninth Amendment, supra note 8, at 2 ("The purpose of the Ninth Amendment was to ensure that all individual natural rights had the same stature and force after some of them were enumerated as they had before; and its existence argued against a latitudinarian interpretation of federal power."); id. at 13 ("I have defended the view that the 'other rights' protected by the Ninth Amendment are individual natural rights. The purpose of the Ninth Amendment was to ensure that these rights had the same stature and force after enumeration as they had before." (internal citation omitted)).
69. 1 ANNALS OF CONG. 448 (Joseph Gales ed., 1834) (statement of Rep. Madison).
70. Id. at 449-50 (statement of Rep. Madison).
71. Barnett, The Ninth Amendment, supra note 8, at 25.
72. Id. at 54.
73. For a helpful comparison of the amendments and their state precursors, see BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY (Leon Friedman ed., 1971).
74. Barnett, The Ninth Amendment, supra note 8, at 17.
75. Id.; see also id. at 75 ("[T]he Ninth Amendment was invented by James Madison . . . .").
76. Actually, it is misleading to characterize the dangers of adding a Bill of Rights as solely a Federalist concern or to claim that Anti-Federalists inspired the proposals from the states. The proposed amendments from the state conventions clearly echo the "dangerous implications" concern, and men like Edmund Randolph, whom Madison called a "friend of the [proposed] Constitution," championed them. Letter from James Madison to George Washington (Dec. 4, 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION 221-22 (1905) [hereinafter DOCUMENTARY HISTORY OF THE CONSTITUTION] ; see also infra Part III.C.
77. See infra.
78. 1 ANNALS OF CONG. 452-53 (Joseph Gales ed., 1834) (statement of Rep. Madison).
79. 2 ANNALS OF CONG. 1951 (1791) (statement of Rep. Madison).
80. 1 ANNALS OF CONG. 456 (1791) (statement of Rep. Madison) (emphasis added).
81. JAMES MADISON, SPEECH TO THE HOUSE EXPLAINING HIS PROPOSED AMENDMENTS WITH NOTES FOR THE AMENDMENTS SPEECH (1789),
82. reprinted in 1 THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT 65 (Randy E. Barnett ed., 1989). Although Barnett discusses some aspects of Madison's notes, he does not address the lines that refer to the Ninth Amendment. Moreover, although our received account of his speech does not include his point about enlarged power, Madison may have been forced to limit his remarks according to time constraints, a possibility Barnett also acknowledges.
83. See Barnett, The Ninth Amendment, supra note 8, at 34 n.135 (noting Madison's self-reminder "watch Time" in his notes).
84. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 5 WRITINGS OF MADISON, supra note 28, at 271 (emphasis added).
85. In addition to Professor Barnett, the historian Leonard Levy also credited Madison with conceiving the Ninth Amendment entirely on his own. See LEONARD LEVY, ORIGINS OF THE BILL OF RIGHTS 247 (1999) ("Madison improvised that proposal. No precise precedent for it existed.").
86. Ratification by the New York Convention (July 26, 1788), in 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 327 (Jonathan Elliot ed., 1836) [hereinafter ELLIOT'S DEBATES]; see also id. at 329. In ratifying the Constitution, the New York Convention also declared: Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration, - We, the said delegates, in the name and in the behalf of the people of the state of New York, do, by these presents, assent to and ratify the said Constitution. Id.
87. Amendments Proposed by the Virginia Convention (June 27, 1788), in 3 ELLIOT'S DEBATES, supra note 59, at 657, 659, 661. James Madison was a member of the committee that drafted the Virginia proposal, and he expressly noted the role the Virginia proposals played in his proposed draft of the Bill of Rights.
88. Letter from James Madison to George Washington (Nov. 20, 1789), in 5 WRITINGS OF MADISON, supra note 28, at 425.
89. Although New York's declarations addressed the implied abandonment of the principle of enumerated federal power, Virginia's Seventeenth goes further and prohibits any implied enlargement of those powers that were enumerated. In the Virginia Convention, Patrick Henry stated: If you will, like the Virginian government, give them knowledge of the extent of the rights retained by the people, and the powers themselves, they will, if they be honest men, thank you for it. . . . But if you leave them otherwise, they will not know how to proceed; and being in a state of uncertainty, they will assume rather than give up powers by implication. A bill of rights may be summed up in a few words. What do they tell us? - That our rights are reserved. Remarks of Patrick Henry, Debates in the Convention of the State of Virginia (June 14, 1788), in 3 ELLIOT'S DEBATES, supra note 59, at 448. Here, Henry shows the relationship between retained/reserved rights and limiting the constructive enlargement of power (by implication).
90. Amendments Proposed by the North Carolina Convention (Aug. 1, 1788), in 4 ELLIOT'S DEBATES, supra note 59, at 240, 244, 246.
91. Professor Barnett attempts to disparage North Carolina's agreement with Virginia. See Barnett, The Ninth Amendment, supra note 8, at 45.
92. Barnett's point is to minimize the degree of agreement with Virginia's approach by making North Carolina's proposals seem rote and ill-considered. Barnett bases his skepticism on a letter from William Davie of North Carolina to James Madison in which Davie notes "[t]hat farrago of amendments borrowed from Virginia is by no means to be considered as the sense of this country." Letter from William R. Davie to James Madison (June 10, 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 176. But Davie's comment went to the bulk of Virginia's numerous proposals that Madison ultimately rejected. Davie did not mean to disparage, however, those proposals by North Carolina that sought to limit the construction of federal power - in particular, the provisions that echoed Virginia's First and Seventeenth. As Davie goes on to write, he had collected with some attention the objections of the honest and serious - they are but few and perhaps necessary . . . . Instead of a Bill of rights attempting to enumerate the rights of the individual or the State governments, they seem to prefer some general negative confining Congress to the exercise of the powers particularly granted, with some express negative restriction in some important cases. Id. at 177. Davie's letter indicates that even those North Carolinians who counted themselves friends of the Constitution (Davie's "honest and serious" men) nevertheless shared the Virginia convention's concerns about "state rights" and the need to limit the powers of Congress.
93. See Lash, The Lost Original Meaning, supra note 1, at 355-60. Barnett claims that in previous work I have "greatly overstat[ed] the commonality of [New York's and Virginia's] proposals."
94. Barnett, The Ninth Amendment, supra note 8, at 43. According to Barnett: [T]here is a major difference between the Virginia and New York proposed rules of construction. Virginia's proposal speaks of the retention of "every power, jurisdiction and right" in "each State in the Union." In contrast, New York's speaks of "every Power, Jurisdiction and Right" remaining in "the People of the several States, or to their respective State Governments to whom they may have granted tire same." In this manner, New York's proposal distinguishes between "the People" and "State Governments" and reserves rights to the people, as opposed to Virginia's which refers only to reserving rights to the states. Id. at 44 (internal citations omitted). Although Barnett refers here to proposals Madison would rely on in drafting the Tenth Amendment (not the Ninth Amendment), his point goes to the meaning of "the people" in the Ninth Amendment. I have claimed that all of these state proposals endorsed the addition of amendments that would protect the states' rights.
95. See Lash, The Lost Original Meaning, supra note 1, at 358. Barnett disagrees by pointing to New York's proposals that seem to distinguish the rights of states from the rights of the people. Barnett believes that Madison made the same distinction when he referred to the retained rights of the people in the Ninth Amendment. But here Barnett falls into the trap of anachronism. Today "the people" sounds in terms of individual rights, not state rights. This was not true in 1787, and it was most certainly not true of the New York Convention. New York did not simply refer to "the people." The Convention expressly declared all non-delegated power jurisdiction and rights were reserved to "the people of the several states.
96. " Ratification by the New York Convention (July 26, 1788), in 1 ELLIOT'S DEBATES, supra note 59, at 327. This is the precise language that Barnett recognizes elsewhere as a declaration of state rights.
97. See Barnett, The Ninth Amendment, supra note 8, at 79 (referring to the precise same language in the Confederate Constitution). As far as Virginia's reference to the states' retained rights is concerned, this Statement is no different from New York's reference to the retained rights of the people of the states or to their respective state governments. All the Founders agreed that powers and rights retained by the states were, in fact, powers and rights retained by the people in the several states who could delegate them to their respective state governments as they saw fit. This was a fundamental principle of popular sovereignty.
98. Letter from James Madison to Edmund Randolph (Aug. 21, 1789), in 5 WRITINGS OF MADISON, supra note 28, at 417-18.
99. Historians have been aware of the relationship between Virginia's Seventeenth proposal and the Ninth Amendment for a long time. See Leslie W. Dunbar, James Madison and the Ninth Amendment, 42 VA. L. REV. 627, 631 (1956).
100. See generally SCHWARTZ, supra note 48; AMAR, supra note 7, at 121 (discussing both Virginia's and New York's statements as precursors to the Ninth Amendment).
101. 1 ANNALS OF CONG. 456 (Joseph Gales ed., 1834) (statement of Rep. Madison).
102. Id. at 690-91. The committee was comprised of: James Madison (Virginia), John M. Vining (Delaware), Abraham Baldwin (Georgia), Roger Sherman (Connecticut), Aedanus Burke (South Carolina), Nicholas Gilman (New Hampshire), George Clymer (Pennsylvania), Egbert Benson (New York), Benjamin Goodhue (Massachusetts), Elias Boudinot (NewJersey), and George Gale (Maryland).
103. 1 JOURNAL OF THE SENATE 97 (Joseph Gales ed., 1820);
104. see also 1 ANNALS OF CONG. 948 (Joseph Gales ed., 1834).
105. Barnett, The Ninth Amendment, supra note 8, at 80.
106. Letter from James Madison to Spencer Roane (Sept. 2, 1819), in 8 WRITINGS OF MADISON, supra note 28, at 452.
107. Letter from Samuel Adams to Richard Henry Lee (Aug. 24, 1789), in CREATING THE BILL OF RIGHTS 286 (Helen E. Veit et al. eds., 1991).
108. Campbell v. Morris, 3 H. & McH. 535, 554-55 (Md. 1797).
109. See Barnett, The Ninth Amendment, supra note 8, at 16 ("It is possible that the 'other' rights retained by the people were both individual and collective, in which case the collective rights model identifies a potential application of the Ninth Amendment beyond the protection of individual liberties.").
110. See generally Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause 55 ARK. L. REV. 847 (2003);
111. Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101 (2001).
112. See generally Randy E. Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 TEX. L. REV. 237 (2004)
113. (reviewing H. RICHARD UVILLER & WILLIAM G. MERKEL, THE MILITIA AND THE RIGHT TO ARMS, OR, HOW THE SECOND AMENDMENT FELL SILENT (2002)).
114. Barnett, The Ninth Amendment, supra note 8, at 7; see also id. at 23 ("This is why, when direct evidence of particular usage is unavailable (unlike, for example, with the Commerce Clause), the formation of clear models is essential as a first step to adjudicating a dispute over original meaning.").
115. See generally WOOD, supra note 29; see also SEAN WLLENTZ, THE RISE OF AMERICAN DEMOCRACY 32 (2005).
116. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 7-10 (1991).
117. WOOD, supra note 29, at 319-43.
118. See Amar, supra note 24, at 1446 ("[T]he revolutionary generation initially seemed to have in mind the People of each state, and not the People of the United States as a whole.").
119. See THE FEDERALIST No. 2, at 37 (John Jay) (Clinton Rossiter ed., 1961) ("[W]henever and however [government] is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite powers."); id. No. 43, at 279 (James Madison) ("[T]he transcendent law of nature and of nature's God . . . declares that the safety and happiness of society, are the objects at which all political institution's aim . . . .");
120. see also Sanford Levinson, Constitutional Rhetoric and the Ninth Amendment, 64 CHI.-KENT L. REV. 131, 155 (1988) ("[E]ven moral skeptics . . . do not deny that the founding generation, as a general matter, accepted the idea of natural rights.").
121. JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Peter Laslett ed., Cambridge Univ. Press 1988) (1690).
122. See THE FEDERALIST No. 2, at 37 (John Jay) (Clinton Rossiter ed., 1961) ("[Whenever government] is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite powers").
123. See 1 ANNALS OF CONG. 448 (Joseph Gales ed., 1834) (statement of Rep. Madison).
124. See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) ("[W]henever any Form of Government becomes destructive of [unalienable rights], it is the Right of the People to alter or to abolish it. . . .").
125. THE ARTICLES OF CONFEDERATION art. II (U.S. 1781 ).
126. See WOOD, supra note 29, at 354-63. The pre-constitutional commitment to popular sovereignty in the states can be seen in the decision to call state constitutional conventions of the people to reenact state constitutions adopted by the state legislature. State governments were not "the people themselves" and had no authority to establish the fundamental laws of the states. See id. at 328-43. Even the Tenth Amendment's reference to the reserved power of the "states" could be viewed as a reference to the people in the several states. See Report on the Virginia Resolutions (Jan. 1800), in 6 WRITINGS OF MADISON, supra note 28, at 348 (stating the term "states" in the Tenth Amendment and in the Virginia Resolutions "means the people composing those political societies, in their highest sovereign capacity").
127. As Madison explained in his Report on the Virginia Resolutions, which argued that the Alien and Sedition Acts were unconstitutional, references to the rights of states can be understood as references to the sovereign people of a given state. See Report on the Virginia Resolutions (Jan. 1800), in 6 WRITINGS OF MADISON, supra note 28, at 348.
128. The collective people of a state could then entire the right in their state constitution or leave the issue to the majoritarian control of the political process. See 1 TUCKER, BLACKSTONE'S COMMENTARIES, supra note 25, app. Note D 151-53 (discussing state municipal law as among the powers reserved to the states under the Ninth and Tenth Amendments).
129. See WOOD, supra note 29, at 524-32 (discussing the Federalists' assurances that the proposed Constitution would not result in the consolidation of the states into a single national mass).
130. THE FEDERALIST NO. 32, at 198 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
131. The Centinel, Letter to the Editor, Some Objections to the New Constitution Considered, CUMBERLAND GAZETTE (Portland, Me.), Dec. 13, 1787, at 1, available at Archive of Americana, America's Historical Newspapers, 1690-1876 (Readex, NewsBank, Inc.).
132. Remarks of Patrick Henry, Debates in the Convention of the State of Virginia (June 14, 1788), in 3 ELLIOT'S DEBATES, supra note 59, at 445-46.
133. Amendments Proposed by the North Carolina Convention (Aug. 1, 1788), in 4 ELLIOT'S DEBATES, supra note 59, at 244.
134. THE FEDERALIST NO. 44, at 286 (James Madison) (Clinton Rossiter ed., 1961).
135. Senate of Pennsylvania, MAIL; CLAYPOOLE'S DAILY ADVERTISER (Phila.), Jan. 16, 1792, at 3, available at Archive of Americana, America's Historical Newspapers, 1690-1876 (Readex, NewsBank, Inc.).
136. George R. Lamplugh, "Oh the Colossus! The Colossus!": James Jackson and the Jeffersonian Republican Party in Georgia, 1796-1806, 9 J. OF EARLY REPUBLIC 315 (1989). Jackson was a member of the First Congress when Madison gave his speech against the Bank of the United States. Id. at 317-19. Jackson lost re-election in 1791 but was appointed to the Senate in 1792. Id. As Lamplugh writes, "In a private letter to James Madison, Jackson linked the Yazoo speculation to funding and assumption, the Bank of the United States, and John Jay's treaty with Britain as evil fruits of Hamilton's loose construction of the Constitution." Id. at 319. Lamplugh refers to Jackson's Letters of Sicilius as the "bible of the anti-Yazooists." Id.
137. JAMES JACKSON, THE LETTERS OF SICILIUS, TO THE CITIZENS OF THE STATE OF GEORGIA, ON THE CONSTITUTIONALITY, THE POLICY, AND THE LEGALITY OF THE LATE SALE OF WESTERN LANDS, IN THE STATE OF GEORGIA 23-24 (Augusta, Ga., John E. Smith 1795), available at Archive of Americana, Early American Imprints, Series I: Evans, 1639-1800, No. 28889 (Readex, NewsBank, Inc.).
138. Writing in response to Jackson's Sicilius essays, the author of a "Letter of a Farmer" concedes that Georgia's right to alienate its land is one of the rights the state has retained from the national legislature. THE LETTERS OF A FARMER TO THE PEOPLE OF GEORGIA:, OR, THE CONSTITUTIONALITY, POLICY, AND LEGALITY OF THE LATE SALES OF WESTERN LANDS EXAMINED 7-8 (Charleston, S.C, William P. Young 1796), available at Archive of Americana, Early American Imprints, Series I: Evans, 1639-1800, No. 30689 (Readex, NewsBank, Inc.). This, however, leaves the Georgia legislature free to sell the land: Suppose then we admit to give full weight and credit to those theorists, who declaim against the proceedings of the last legislature, as unconstitutional; that the power of alienating any part of the domain of the state, is one of the retained rights of
139. JOHN DICKINSON, THE LETTERS OF FABIUS, IN 1788, ON THE FEDERAL CONSTITUTION, AND IN 1797, ON THE PRESENT SITUATION OF PUBLIC AFFAIRS 65-66 (Wilmington, Del., William C. Smyth 1797), available at Archive of Americana, Early American Imprints, Series I: Evans, 1639-1800, No. 32042 (Readex, NewsBank, Inc.).
140. JAMES MADISON, SPEECH TO THE HOUSE EXPLAINING HIS PROPOSED AMENDMENTS WITH NOTES FOR THE AMENDMENTS SPEECH (1789),
141. reprinted in 1 THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT 64 (Randy E. Barnett ed., 1989).
142. Massachusetts, for example, did not abandon its official religious establishment until 1833. See LEONARD LEVY, THE ESTABLISHMENT CLAUSE 41-42 (2d ed., rev. 1994).
143. Letter from James Madison to Spencer Roane (Sept. 2, 1819), in 8 WRITINGS OF MADISON, supra note 28, at 452.
144. Barnett, The Ninth Amendment, supra note 8, at 26.
145. See discussion of Madison's Bank Speech, infra Part IV.E, and discussion of St. George Tucker, infra Part V.A.3. In The Ninth Amendment, Barnett sometimes seems to back away from the claim that unenumerated rights only included individual rights.
146. See Barnett, The Ninth Amendment, supra note 8, at 16 (noting that the retained rights of the people may include majoritarian collective rights). More recently, however, Barnett has taken a more aggressive stance and insisted that the Ninth Amendment is purely "individualist" in its protection of retained rights.
147. See Randy E. Barnett, Kurt Lash's Majoritarian Difficulty: A Response to A Textual-Historical Theory of the Ninth Amendment, 60 STAN. L. REV. 937, 946-48 (2008).
148. Letter from Samuel Adams to Richard Henry Lee (Aug. 24, 1789), in CREATING THE BILL OF RIGHTS, supra note 71, at 286.
149. See, e.g., Substance of the Debate, in the House of Representatives, on the Suability of the State, INDEP. CHRON.: UNIVERSAL ADVERTISER (Boston), Oct. 17, 1793, at 1, available at Archive of Americana, America's Historical Newspapers, 1690-1876 (Readex, NewsBank, Inc.) ("1It is true, sir, that the words of the preamble recognize the power and authority of the people, but they also confirm the existence and independence of the States-for it is not the people generally, but the people of the United States, which are described in that very preamble, as the author of the Constitution . . . .'" (quoting Dr. Jarvis during debate in the Massachusetts House of Representatives)); see also Amar, supra note 24, at 1450.
150. Although some Anti-Federalists complained that the Tenth Amendment's reference to "the people" might be read as consolidating the nation into a single unitary mass, Federalists denied the claim and moderates had no difficulty in reading the clause as reserving non-delegated power to the people of the individual states. Compare Letter from Richard Henry Lee to Patrick Henry (Sept. 14, 1789), in CREATING THE BILL OF RIGHTS, supra note 71, at 295-96 (complaining about the language of the Tenth Amendment),
151. with Letter from Edmund Randolph to George Washington (Dec. 6, 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 223 ("The twelfth [Tenth] amendment does not appear to me to have any real effect, unless it be to excite a dispute between the United States, and every particular state, as to what is delegated. It accords pretty nearly with what our convention proposed.").
152. For example, Chief Justice Marshall, writing for the Court in McCulloch v. Maryland, stated: The government of the Union, then (whatever may be the influence of this fact on the case), is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. McCulloch v. Maryland, 17 U.S. 316, 404-05 (1819); see also Martin v. Hunter's Lessee, 14 U.S. 304, 324 (1816) ("The constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by 'the people of the United States.'"); 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION § 417, at 400 (Boston, Hilliard, Gray, & Co. 1833) (citing the nationalist depictions of the people in Martin and McCulloch).
153. For a discussion of Tucker's federalist vision of the Constitution and Justice Story's rejection of the same, see generally Kurt T. Lash, "Tucker's Rule": St. George Tucker and the Limited Construction of Federal Power, 47 WM. & MARY L. REV. 1343 (2006).
154. McCulloch, 17 U.S. 316.
155. Cohens v. Virginia, 19 U.S. 264 (1821).
156. Gibbons v. Ogden, 22 U.S. 1 (1824).
157. See generally Spender Roane, Roane's "Hampden" Essays,
158. reprinted in JOHN MARSHALL'S DEFENSE OF MCCULLOCH V. MARYLAND 106 (Gerald Gunther ed., 1969).
159. See CONST. OF THE CONFEDERATE STATES OF AMERICA art. VI, § 5 (1861) ("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."); id. art. VI, § 6 ("The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof."). Barnett concedes that it is logically possible that the additional words in the Confederate Constitution reflect an intent to restore the original meaning of the amendments.
160. See Barnett, The Ninth Amendment, supra note 8, at 80. He claims, however, that there is no evidence that this is the case and that if my assertion about the original and continued understanding of the Ninth Amendment were correct, there would have been no reason to add the additional words. See id. at 79-80. As my article, The Lost Jurisprudence of the Ninth Amendment, makes clear, however, the Marshall Court ignored the Ninth Amendment and insisted that the "people" of the Tenth Amendment were the undifferentiated people of the United States.
161. See Lash, The Lost Jurisprudence, supra note 1, at 606. Every court and commentator who discussed or applied the Ninth Amendment during this period rejected this "consolidationist" reading. See id. at 642. By focusing only on the founding and dismissing the relevance of evidence in the antebellum period, Barnett misses this debate and thus misses the reason why the Confederate states would feel the need to clarify what they believed was the correct original meaning of the Ninth and Tenth Amendments.
162. See Kurt T. Lash, Rejecting Conventional Wisdom: Federalist Ambivalence in the Framing and Implementation of Article V, 38 AM. J. LEGAL HLST. 197, 221 (1994).
163. See LEVY, supra note 58, at 104.
164. Remarks of Edmund Randolph, Debates in the Convention of the State of Virginia (June 15, 1788), in 3 ELLIOT'S DEBATES, supra note 59, at 470.
165. Letter from James Madison to Thomas Jefferson (Dec. 9, 1787), in 5 WRITINGS OF MADISON, supra note 28, at 65.
166. Paul Finkelman, James Madison and the Bill of Rights: A Reluctant Paternity, 1990 SUP. CT. REV. 301, 325;
167. Letter from James Madison to Edmund Randolph (Apr. 10, 1788), in 5 WRITINGS OF MADISON, supra note 28, at 117-20.
168. See, e.g., Amendments to the New Constitution, Proposed by the Hon. Mr. Madison, GAZETTE U.S. (New York), June 13, 1789, at 71, available at Archive of Americana, America's Historical Newspapers, 1690-1876 (Readex, NewsBank, Inc.);
169. Congressional Intelligence: House of Representatives, DAILY ADVERTISER (New York), June 12, 1789, at 2, available at Archive of Americana, America's Historical Newspapers, 1690-1876 (Readex, NewsBank, Inc.).
170. Letter from James Madison to Edmund Randolph (June 15, 1789), in THE PAPERS OF JAMES MADISON 219 (Charles F. Hobson et al. eds., 1979) [hereinafter PAPERS OF MADISON] .
171. Letter from Edmund Randolph to James Madison (June 30, 1789), in 12 PAPERS OF MADISON, supra note 121, at 273. Randolph wrote to Madison again on July 19, 1789, and, again, said nothing about the Bill of Rights in general or the Ninth Amendment in particular.
172. Letter from Edmund Randolph to James Madison (July 19, 1789), in 12 PAPERS OF MADISON, supra note 121, at 298-300.
173. 1 JOURNAL OF THE SENATE 97 (Joseph Gales ed., 1820).
174. Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 219.
175. Letter from Edmund Randolph to George Washington (Dec. 6, 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 223. Notice that Randolph has no objection to the addition of the words "or to the people" in the final draft of the Tenth Amendment. It was only the hyper (and strategically) sensitive Anti-Federalists who saw this addition as posing any danger to the states.
176. Id.
177. Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 219.
178. Id.
179. Letter from Edmund Randolph to George Washington (Nov. 26, 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 216.
180. Letter from James Madison to George Washington (Dec. 5, 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 221-22. Randy Barnett rejects this rights-powers distinction as out of sync with modern understanding of personal rights. BARNETT, supra note 1, at 3. Madison, it appears, had a different point of view.
181. Barnett, The Ninth Amendment, supra note 8, at 54.
182. Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 219 (emphasis added).
183. Barnett, The Ninth Amendment, supra note 8, at 55.
184. Id. at 54-55. Although Burnley distinguished the rights of the people from the rights of the States, the critical point is that he believed the Ninth Amendment protected both. Burnley's distinction is perfectly in line with a pro-state autonomy reading of the Ninth Amendment once one realizes that the Tenth Amendment makes the same distinction.
185. To date, Professor Barnett has never addressed the actual subject of Burnley and Madison's correspondence - the concerns of Edmund Randolph.
186. Letter from James Madison to Edmund Randolph (Oct. 7, 1787), in 5 WRITINGS OF MADISON, supra note 28, at 8-9;
187. Letter from James Madison to Edmund Randolph (Oct. 21, 1787), in 5 WRITINGS OF MADISON, supra note 28, at 15-17;
188. Letter from James Madison to Edmund Randolph (Nov. 18,1787), in 5 WRITINGS OF MADISON, supra note 28, at 56-58.
189. Letter from Edmund Randolph to George Washington (Dec. 15, 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 225-27.
190. See Letter from Ed. Carrington to James Madison (Dec. 20, 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 227-30.
191. Letter from James Madison to George Washington (Jan. 4, 1790), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 231.
192. I have written elsewhere in detail about the debate in the Virginia legislature. See Lash, The Lost Original Meaning, supra note 1, at 371. Prior to my original article on the Ninth Amendment, this first public debate regarding the meaning of the Ninth Amendment had gone unnoticed.
193. See LEVY, supra note 58, at 42 (discussing the Anti-Federalist opposition to the Bill of Rights in the Virginia Senate).
194. For a general discussion over the struggles for and against a second convention, see Lash, supra note 115.
195. Leonard Levy describes the Senate Report as "grossly misrepresenting the First Amendment (then the third)." LEVY, supra note 58, at 42. Madison himself was not troubled by the Senate Report because he believed the Senate had gone too far, particularly in regard to the Senate's purported objections to the First Amendment, which it listed as the third. See Letter from James Madison to George Washington (Jan. 4, 1790), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 231 (expressing his opinion that the Senate's failure to ratify "will have the effect with many of turning their distrust towards their own Legislature" and noting that the "miscarriage of the 3d. art. particularly, will have this effect").
196. Entry of Dec. 12, 1789, in JOURNAL OF THE SENATE OF THE COMMONWEALTH OF VIRGINIA 63 (Richmond, Thomas W. White 1828).
197. Id. at 63-64. The Senate's reported objections to the Tenth Amendment were as follows: We conceive that [the Tenth Amendment] would come up to the 1st article of the Virginia amendments, were it not for the words "or to the people." 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. Unrestrained by the constitution or these amendments, Congress might, as the supreme rulers of the people, assume those powers which properly belong to the respective States, and thus gradually effect an entire consolidation. Id. at 64. This exaggerated concern about the Tenth Amendment does not appear to have been shared by anyone other than those seeking to force a second constitutional convention. See supra notes 136-43 and accompanying text.
198. Barnett, The Ninth Amendment, supra note 8, at 51.
199. This probably echoes a concern originally voiced by Randolph in the House. Burnley's letter to Madison collapses this argument with Randolph's second and independent complaint that the best approach to limit power was to use the language of Virginia's Seventeenth proposal. Even Burnley was not sure that he had adequately presented Randolph's concerns. See Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 219 (indicating that Burnley may not have understood the precise nature of Randolph's objection).
200. See supra note 122 and accompany text.
201. Entry of Dec. 12, 1789, in JOURNAL OF THE SENATE OF THE COMMONWEALTH OF VIRGINIA 62 (Richmond, Va., Thomas W. White 1828).
202. Id.
203. See supra note 143 and accompanying text.
204. Madison's proposals had been widely published in newspapers across the country. See supra note 120 and accompanying text.
205. See Lash, The Lost Original Meaning, supra note 1, at 384-92.
206. ALEXANDER HAMILTON, Final Version of the Second Report on the Further Provision Necessary for Establishing Public Credit, in 7 THE PAPERS OF ALEXANDER HAMILTON 305-42 (Harold C. Syrett ed., 1963).
207. 1 ANNALS OF CONG. 1944 (Joseph Gales ed., 1834) (statement of Rep. Madison).
208. Id.
209. Id.
210. Id.
211. Id. at 1947-48, 1949.
212. 1 ANNALS OF CONG. 1949 (Joseph Gales ed., 1834) (statement of Rep. Madison) ("The examples cited, with others that might be added, sufficiendy inculcate, nevertheless, a rule of interpretation, very different from that on which the bill rests. They condemn the exercise of any power, particularly a great and important power, which is not evidendy and necessarily involved in an express power."); see also id. at 2009 (observing during the debates over the Bank Bill that "[t]he power of granting Charters . . . is a great and important power, and ought not to be exercised unless without we find ourselves expressly authorized to grant them").
213. Id. at 1949.
214. Id. at 1950.
215. Id. at 1949. Madison stated: From this view of the power of incorporation exercised in the bill, it could never be deemed an accessory or subaltern power, to be deduced by implication, as a means of executing another power; it was in its nature a distinct, an independent and substantive prerogative, which not being enumerated in the Constitution could never have been meant to be included in it, and not being included, could never be rightfully exercised. Id. at 1950.
216. Id. at 1951.
217. 1 ANNALS OF CONG. 1951 (Joseph Gales ed., 1834) (statement of Rep. Madison).
218. Id.
219. Id.
220. Ratification was still pending in Virginia.
221. 1 ANNALS OF CONG. 1951 (Joseph Gales ed., 1834) (statement of Rep. Madison).
222. Id.
223. Barnett, The Ninth Amendment, supra note 8, at 56.
224. Id.
225. 1 ANNALS OF CONG. 1951 (Joseph Gales ed., 1834) (statement of Rep. Madison).
226. In his early work, Barnett appeared to claim that Sherman's Draft Bill of Rights also linked the Ninth Amendment to retained individual natural rights. He seems to have since backed away from that claim.
227. Barnett, The Ninth Amendment, supra note 8.
228. See Barnett, Implementing the Ninth Amendment, supra note 8, at 15.
229. Id. (internal citations omitted).
230. 1 ANNALS OF CONG. 1949-50 (Joseph Gales ed., 1834) (statement of Rep. Madison).
231. Id. at 1950.
232. Id.
233. Id. (emphasis added).
234. See Lash, The Lost Original Meaning, supra note 1, at 384-93.
235. See Barnett, The Ninth Amendment, supra note 8, at 58-59.
236. James Madison, Draft Veto Message Regarding the Bank Bill for George Washington (Feb. 21, 1971), in 6 WRITINGS OF MADISON, supra note 28, at 42-43.
237. Although Barnett cites other speakers who complained that the Bank Bill established a monopoly, none of these speakers made any reference to the Ninth Amendment or to a violation of retained individual rights. See Barnett, The Ninth Amendment, supra note 8, at 59.
238. Id. at 61 (citations omitted).
239. Editorial, From the American Daily Advertiser, DAILY ADVERTISER (New York), Feb. 11, 1791, at 2 (emphasis added), available at Archive of Americana, America's Historical Newspapers, 1690-1876 (Readex, NewsBank, Inc.).
240. Although Madison failed to prevent the chartering of the First Bank of the United States, his Ninth Amendment-based arguments against the Bank would live to fight another day. When the Bank came up for renewal in 1810, newspapers reprinted Madison's 1791 speech. See, e.g., The Bank Bill Under Consideration, ENQUIRER (Richmond, Va.), Jan. 4, 1810, at 4, available at Archive of Americana, America's Historical Newspapers, 1690-1876 (Readex, NewsBank, Inc.). For use of the Ninth Amendment in later congressional debates over renewing the Bank of the United States, see infra Part V.A.6.
241. See House of Representatives of the United States, GEN. ADVERTISER & POL., COM., AGRIC. & LITERARY J., Feb. 5, 1791, at 3, available at Archive of Americana, America's Historical Newspapers, 1690-1876 (Readex, NewsBank, Inc.) ("[The Bank] interfered with the rights of private citizens, and in particular with those of state governments."); see also JACKSON, supra note 98, at 50 (deriding the Yazoo scandal as involving a monopoly and injuring both individual equal rights and the collective retained rights of the people of Georgia).
242. 1 ANNALS OF CONG. 1949 (Joseph Gales ed., 1834) (statement of Rep. Madison). Madison stated: The defense against the charge founded on the want of a bill of rights, presupposed . . . that the powers not given were retained; and that those given were not to be extended by remote implications. . . . The explanations in the State Conventions all turned on the same fundamental principle . . . . The explanatory declarations and amendments accompanying the ratifications of the several States formed a striking evidence, wearing the same complexion. . . . The explanatory amendments proposed by Congress themselves, at least, would be good authority with them; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended for. Id. at 1951.
243. Although Barnett quotes some portions of this section of Madison's speech, he limits his discussion to the description of the Ninth Amendment as preventing a latitude of interpretation. He never discusses, or even notes, Madison's linking of the Ninth Amendment to the declarations and demands of the state conventions.
244. Lash, The Lost Jurisprudence, supra note 1.
245. Barnett, The Ninth Amendment, supra note 8, at 79 n.336.
246. Id.
247. See Barnett, supra note 75, at 246, 249-56, 261, 269.
248. See Barnett, The Ninth Amendment, supra note 8, at 75 (citing state constitutional amendments that adopted the language of the Ninth Amendment).
249. Id. at 79. Barnett also dismisses Justice Joseph Story's discussion of St. George Tucker in his famous 1833 Commentaries on the Constitution because Justice Story was an "opinionated" man and because Story wrote his Commentaries "thirty years" after Tucker published his work. Id. Again, this dismissal of Story's work is hard to understand given that Barnett himself relies on historical evidence much further removed from the ratification of the Ninth Amendment.
250. See Lash, The Lost Jurisprudence, supra note 1, at 639-52.
251. McCulloch v. Maryland, 17 U.S. 316 (1819).
252. See generally Lash, The Lost Jurisprudence, supra note 1.
253. ELHANAN WINCHESTER, A PLAIN POLITICAL CATECHISM. INTENDED FOR THE USE OF SCHOOLS, IN THE UNITED STATES OF AMERICA: WHEREIN THE GREAT PRINCIPLES OF LIBERTY, AND OF THE FEDERAL GOVERNMENT, ARE LAID DOWN AND EXPLAINED, BY WAY OF QUESTION AND ANSWER. MADE LEVEL TO THE LOWEST CAPACITIES (Phila., Richard Folwell 1796), available at Archive of Americana, Early American Imprints, Series 1: Evans, 1639-1800, No. 31645 (Readex, NewsBank, Inc.).
254. Id. at 50-51.
255. BARNETT, supra note 1, at 58-60; Barnett, The Ninth Amendment, supra note 8, at 30-33.
256. 1 ANNALS OF CONG. 452-53 (Joseph Gales ed., 1834) (statement of Rep. John Page). Page stated: [L] et me observe to him that such rights have been opposed, and a man has been obliged to pull off his hat when he appeared before the face of authority; people have also been prevented from assembling together on their lawful occasions, therefore it is well to guard against such stretches of authority, by inserting the privilege in the declaration of rights. Id.
257. Barnett, The Ninth Amendment, supra note 8, at 32.
258. JOHN PAGE, ADDRESS TO THE FREEHOLDERS OF GLOUCESTER COUNTY, AT THEIR ELECTION OF A MEMBER OF CONGRESS, TO REPRESENT THEIR DISTRICT, AND OF THEIR DELEGATES, AND A SENATOR, TO REPRESENT THEM IN THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF VIRGINIA, APR. 24, 1799, at 10 (Richmond, John Dixon 1799), available at Archive of Americana, Early American Imprints, Series I: Evans, 1639-1800, No. 36027 (Readex, NewsBank, Inc.). Page was a member of Congress from 1789 to 1797 and Governor of Virginia from 1802 to 1805. Thus, not only was he in Congress when Madison gave his Bank speech, he was a representative from Virginia at the time that state was considering the Bill of Rights. He would be well aware of Madison's opposition to the bank - indeed, the men regularly corresponded.
259. Id. at 13-14; see also 1 JOURNAL OF THE SENATE 97 (Joseph Gales ed., 1820).
260. The Minority Report likely was written, at least in part, by future Chief Justice John Marshall. See generally Kurt T. Lash & Alicia Harrison, Minority Report: John Marshall and the Defense of the Alien and Sedition Acts, 68 OHIO ST. L.J. 435 (2007).
261. PAGE, supra note 206, at 28-29.
262. See, e.g., TUNIS WORTMAN, A TREATISE CONCERNING POLITICAL ENQUIRY AND THE LIBERTY OF THE PRESS (Leonard W. Levy ed., Da Capo Press 1970) (1800).
263. Tucker's "View on the Constitution" is Note D to the appendix of his treatise on Blackstone's Commentaries. TUCKER, BLACKSTONE'S COMMENTARIES, supra note 25, app. Note D.
264. In his Commentaries on the Constitution, Joseph Story quotes Tucker's discussion of the Ninth and Tenth Amendments. 1 STORY, supra note 108, § 410, at 393-94. Story then criticizes Tucker's rule of strict construction as based not on the "rights of the people" but on the "rights of the states." Id. § 411, at 394. Story evidendy read Tucker's interpretation of the Ninth Amendment as a states' rights interpretation, despite Tucker's language of personal liberty. In fact, Tucker's work was widely regarded as representing a states' rights perspective of constitutional interpretation. See G. EDWARD WHITE, 3-4 HISTORY OF THE SUPREME COURT OF THE UNITED STATES, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-1835, at 86-87 (Paul A. Freund & Stanley N. Katz eds., 1988) (noting that Tucker "was particularly concerned with the preservation of state sovereignty").
265. 2 TUCKER, BLACKSTONE'S COMMENTARIES, supra note 25, at 128 n.5 ("The declarations of rights, of the people of the United States are contained, . . . [i]n the articles of confederation and perpetual union, concluded between the several states; which perhaps were abrogated.").
266. Id. at 162 (internal citation omitted).
267. Id. at 162 n.25.
268. 1 JOURNAL OF THE SENATE 97 (Joseph Gales ed., 1820).
269. This single passage explodes Professor Barnett's claim that "no direct or indirect evidence" supports Amar's claim about the Ninth Amendment protecting this collective right of the people. Barnett, The Ninth Amendment, supra note 8, at 22. Barnett himself relies on Tucker as evidence of the original meaning of the Ninth Amendment. Id. at 169-75.
270. Barnett claims that the right of revolution can be understood as an individual natural right. The Founders would not have agreed. Retained individual natural rights were those that could be perfected by the individual himself, without any collective assistance from others. For example, the retained right to religious belief or political opinion. Obviously, revolutionary alteration of the standing government does not fall into this category. This is a right retained and exercised by the collective people.
271. See, e.g., Remarks of James Wilson, Debates in the Convention of the State of Pennsylvania (Oct. 28, 1787), in 2 ELLIOT'S DEBATES, supra note 59, at 436 ("A bill of rights annexed to a constitution is an enumeration of the powers reserved.").
272. For a general discussion of St. George Tucker's federalist vision of the Constitution, see Lash, supra note 109 passim.
273. Barnett, The Ninth Amendment, supra note 8, at 69-75.
274. As had I prior to researching this Article.
275. Tucker also saw the bank episode as an instance of violating the Tenth Amendment - not the Ninth Amendment. This tells us, among other things, that Tucker did not see the issue in the bank episode as having anything to do with individual rights. Tucker, of course, read the Tenth as a rule of construction protecting the rights of the states. See 1 TUCKER, BLACKSTONE'S COMMENTARIES, supra note 25, app. Note D, at 287 n.* (citing Madison's Report on the Alien and Sedition Acts).
276. See generally ST. GEORGE TUCKER, A Dissertation on Slavery: With a Proposal for the Gradual Abolition of It, in the State of Virginia (1796), in VIEW OF THE CONSTITUTION OF THE UNITED STATES: WITH SELECTED WRITINGS 409 (Clyde N. Wilson ed., 1999).
277. After serving as a delegate to the second convention, Overton was later elected to the Superior Court of Tennessee, the precursor to the Tennessee Supreme Court. Theodore Brown, Jr., John Overton 1766-1833, in TENNESSEE ENCYCLOPEDIA OF HISTORY AND CULTURE, http://tennesseeencyclopedia.net/imagegallery.php?EntryID=O023 (last visited Feb. 1, 2008).
278. North Carolina's initial ratification convention debated the Constitution, drafted a "Declaration of Rights" and "Amendments," and voted "neither to ratify nor reject the Constitution." Resolution of the North Carolina Convention (Aug. 1, 1788), in 4 ELLIOT'S DEBATES, supra note 59, at 243, 249, 251.
279. Over a year later, North Carolina ratified the Constitution. Resolution of the North Carolina Convention (Nov. 21, 1789), in 2 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 51, at 290.
280. Glasgow's Lessee v. Smith & Blackwell, 1 Tenn. (1 Overt.) 144, 166 n.1 (1805). The footnote in full reads: ("See Vat. B. 2 c, 17, §§ 305, 308; Amendment to Con. U. S. arts 11, 12; 1 T. Bl. app. to part 1, 307, 308; Ib. 412; Vat. B. 1, c. 1, § 10; 2 Dall. 384; 1 T. Bl. app. to part 1,269; 4 Johns. 163.").
281. Id. at 166-67.
282. Gibbons v. Ogden, 22 U.S. 1 (1824).
283. THE RIGHT OF A STATE TO GRANT EXCLUSIVE PRIVILEGES, IN ROADS, BRIDGES, CANALS, NAVIGABLE WATERS, &C. VINDICATED BY A CANDID EXAMINATION OF THE GRANT FROM THE STATE OF NEW-YORK TO, AND CONTRACT WITH ROBERT R. LIVINGSTON AND ROBERT FULTON, FOR THE EXCLUSIVE NAVIGATION OF VESSELS, BY STEAM OR FIRE, FOR A LIMITED TIME, ON THE WATERS OF SAID STATE, AND WITHIN THE JURISDICTION THEREOF 18 (1811) (No. 23819), microformed on Archive of Americana, Early American Imprints, Series II: Shaw-Shoemaker, 1801-1819 (Readex, NewsBank, Inc).
284. 22 ANNALS OF CONG. 584 (1811) (statement of Rep. William Burwell).
285. Id. at 696 (statement of Rep. William T. Barry).
286. Id. at 720-21 (statement of Rep. Richard Johnson).
287. Either the reporter or Crawford is referring to the federal government and mistakenly referred to the people. This is clear from the full text.
288. 22 ANNALS OF CONG. 751, 753 (statement of Rep. William Crawford). Note the use of Madison's argument in his original speech against the Bank. See supra notes 161-67 and accompanying text.
289. 22 ANNALS OF CONG. 182-83 (statement of Sen. William Giles).
290. Id. at 301-02.
291. 1 AMERICAN STATE PAPERS: M ISCELLANEOUS 480 (Joseph Gales ed., 1834).
292. Id.
293. 19 ANNALS OF CONG. 251 (statement of Sen. James Lloyd).
294. Id.
295. See THE TRIAL OF CYRUS B. DEAN, FOR THE MURDER OF JONATHAN ORMSBY AND ASA MARSH, BEFORE THE SUPREME COURT OF JUDICATURE OF THE STATE OF VERMONT, AT THEIR SPECIAL SESSIONS, BEGUN AND HOLDEN AT BURLINGTON, CHITTENDEN COUNTY, ON THE 23D OF AUGUST, A.D. 1808. REVISED AND CORRECTED FROM THE MINUTES OF THE JUDGES 47 (Burlington, Samuel Mills 1808), available at The Making of Modem Law: Trials 1600-1926, No. Q4200252612 (Thomson Gale). The court stated: We learn from the eleventh and twelfth articles of the first amendment to the Constitution of the United States . . . [then quotes the Ninth and Tenth Amendments]. If then, Congress have power to intermeddle with the soil within a State's jurisdiction - to say who should, or rather who should not hold or possess it, this power must have been expressly delegated to the government of the United States. Id.
296. State v. Antonio, 2-3 S.C.L. (1 Brev.) 605, 605, 609, 612-13, 615 (1816).
297. U.S. CONST. art. I, § 8, cl. 6 ("Congress shall have power . . . [t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States . . . .").
298. Antonio, 2-3 S.C.L. (1 Brev.) at 609-10.
299. Id. (internal citation omitted).
300. From Judge Nott's dissent in this case, it appears the Ninth Amendment was the primary clause relied on to support concurrent jurisdiction: The advocates for a concurrent jurisdiction derive no support from the amendment of the constitution which has been relied on. It does not say that the powers not expressly delegated, &c., shall be reserved; but that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people; and whether by express or necessary implication, the effect is the same. Id. at 618 (Nott, J., dissenting).
301. This monopoly would be the subject of a great deal of litigation. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). In North River Steam Boat Co. v. Livingston, 1 Hopk. Ch. 170 (N.Y. Ch. 1824), Livingston argued that neither the Ninth nor Tenth Amendment reserved powers or rights to the states, but only to "the people." Thus, the state had no right to interfere with his ferry operations from one place to another in New York waters. See id. at 182-84. The court ignored his argument, ruling instead that his ferry run was protected under the holding of Gibbons v. Ogden, since it involved stops on both the New York and New Jersey sides of the water. Id. at 227-28.
302. Livingston v. Van Ingen, 9 Johns. 507, 507 (N.Y. 1812).
303. Id. at 515 (quoting U.S. CONST. art. I, § 8, cl. 8).
304. Thomas Emmet argued a number of important cases in state and federal court, including the Supreme Court, between 1815 and 1824. See WHITE, supra note 212, at 204-14. The culmination of his legal career was his argument before the Supreme Court in Gibbons v. Ogden. Id. at 210-11.
305. According to Emmet: In the year 1789, certain amendments to the constitution were proposed; and of the articles adopted, the ninth and tenth were, "that the enumeration in the constitution of certain rights, shall not be construed to deny or disparage others retained by the people." That "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." The convention of this state adopted the constitution with the explanation given by General Hamilton, who was a member, that no powers were conferred on congress but such as were explicitly given by the constitution. Livingston, 9 Johns, at 550.
306. Chief Justice of the Pennsylvania State Supreme Court (1806-1827), William Tilghman was a federalist midnight justice who lost his seat with the repeal of the Judiciary Act. Farmers' & Mechs' Bank v. Smith, 3 Serg. & Rawle 63, 68 (Pa. 1817).
307. TAYLOR, supra note 25, at 46. Thomas Jefferson called Taylor's book "the most logical retraction of our governments to the original and true principles of the constitution creating them, which has appeared since the adoption of that instrument." Letter from Thomas Jefferson to Spencer Roane (June 27, 1821), in THE WRITINGS OF THOMAS JEFFERSON 189 (Paul Leicester Ford ed., 1899).
308. Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820).
309. See id. at 1-4. For a more complete discussion, see Lash, The Lost Jurisprudence, supra note 1, at 613-22.
310. Houston, 18 U.S. at 49 (Story, J., dissenting). In the actual quote, Story refers to the Ninth as the "eleventh" amendment, reflecting an early custom of referring to the first ten amendments according to their placement on an original list of twelve proposed amendments. Our Ninth was eleventh on that list.
311. THE WRITINGS OF JOHN MARSHALL, LATE CHIEF JUSTICE OF THE UNITED STATES, UPON THE FEDERAL CONSTITUTION 560-97 (Boston, James Munroe & Co. 1839).
312. It would not undermine the conclusions of this Article if there are such individual-rights uses of the Ninth Amendment during this period. Again, the federalist Ninth Amendment would be understood to apply to the denial or disparagement of any right, individual or collective. The extensive pairing of the Ninth and Tenth Amendments as federalist provisions, however, is impossible to ignore.
313. See Lash, The Lost Jurisprudence, supra note 1, at 605.
314. For a discussion of primary semantic versus secondary implied meanings, particularly in regard to the Ninth Amendment, see generally Lash, A Textual-Historical Theory, supra note 1.
315. See Kurt T. Lash, James Madison's Celebrated Report of 1800: The Transformation of the Tenth Amendment, 74 GEO. WASH. L. REV. 165, 194 (2006) [hereinafter Lash, Madison's Report].
316. See Edmund Randolph, The Constitutionality of the Bank Bill (Feb. 12, 1791),
317. reprinted in H. JEFFERSON POWELL, THE CONSTITUTION AND THE ATTORNEYS GENERAL 4 (1999) (claiming that chartering a national bank would violate the Tenth Amendment). In a forthcoming Article, I explain how last minute changes to the language of the Tenth Amendment inserted a principle of popular sovereignty which itself could be read as implying strict construction of federal power.
318. See generally Kurt T. Lash, The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty, and "Expressly" Delegated Power, 83 NOTRE DAME L. REV. (forthcoming May 2008), available at http://papers.ssrn.com/so13/papers. cfm?abstract_id=1000087.
319. James Madison, Report on the Alien and Sedition Acts, in 6 WRITINGS OF MADISON, supra note 28, at 341. The full tide of Madison's Report is "Report of the Committee to whom were referred the Communications of various States, relative to the Resolutions of the last General Assembly of this State, concerning the Alien and Sedition Laws." Id.
320. See Lash, Madison's Report, supra note 262, at 182-86.
321. Id. at 182-83.
322. See generally Lash, The Lost Jurisprudence, supra note 1.
323. See Barnett, The Ninth Amendment, supra note 8, at 65.
324. Id. at 69.
325. See sources cited and discussion supra Part V.A.
326. See supra Part V.A.2.
327. See RALPH KETCHAM, JAMES MADISON: A BIOGRAPHY 399 ( 1990).
328. James Madison, Virginia Resolutions Against the Alien and Sedition Acts (Dec. 21, 1789), in 6 WRITINGS OF MADISON, supra note 28, at 326.
329. Id. at 331, 326.
330. Id. at 330-31.
331. Had the Resolutions been produced anywhere but on the floor of the Assembly, the members would have likely been prosecuted under the very Act they opposed.
332. See Letter from James Madison to Thomas Jefferson (Dec. 29, 1798), in 6 WRITINGS OF MADISON, supra note 28, at 328-29.
333. See Answers of the Several State Legislatures, in 4 ELLIOT'S DEBATES, supra note 59, at 532-39. According to Christian Fritz, the rebukes came from Federalist majorities in other states and masked considerable agreement among dissenters in those states.
334. See CHRISTIAN G. FRITZ, AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA'S CONSTITUTIONAL TRADITION BEFORE THE 1 CIVIL WAR 202 (2007).
335. The defensive posture of the Report is established in its opening paragraphs. After lightiy objecting to the tone of some of the objections to the Virginia Resolutions, Madison concedes a defense is in order: The committee have deemed it a more useful task, to revise with a critical eye, the resolutions which have met with this disapprobation; to examine fully the several objections and arguments which have appeared against them; and to enquire whether there be any errors of fact, of principle, or of reasoning, which the candour of the General Assembly ought to acknowledge and correct. James Madison, Report on the Alien and Sedition Acts, in 6 WRITINGS OF MADISON, supra note 28, at 342.
336. See Barnett, The Ninth Amendment, supra note 8, at 64.
337. James Madison, Virginia Resolutions Against the Alien and Sedition Acts (Dec. 21, 1789), in 6 WRITINGS OF MADISON, supra note 28, at 326, 328.
338. Id.
339. In fact, the Resolutions themselves distinguish earlier disputes over broad constructions of federal power from the current objections to the Alien and Sedition Acts. See id. at 327.
340. According to Madison's Report: [5.] That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the "Alien and Sedition Acts," . . . the first of which exercises a power nowhere delegated to the Federal Government and which, by uniting legislative and judicial powers to those of [the] executive, subvert the general principles of free government, as well as the particular organization and positive provisions of the Federal Constitution; and the other of which acts exercises, in like manner, a power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto,-a power, which more than any other, ought to produce universal alarm, because it is levelled [sic] against that right of freely examining public characters and measures, and of free communication among the people diereon, which has ever been jusdy deemed the only effectual guardian of every other right. Id. at 327-29.
341. I have explored this story elsewhere in depth. See generally Lash, Madison's Report, supra note 262.
342. See supra Part IV.E.
343. See supra Part V.
344. See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) ("[W]henever any Form of Government becomes destructive of [unalienable rights], it is the Right of the People to alter or to abolish it. . . ."); U.S. Const, art. V (providing for Constitutional amendments).
345. In a recently published paper, I provide a comprehensive theory of the Ninth Amendment that reconciles the text of the Ninth, Tenth, and Fourteenth Amendments and presents an enforceable theory of judicial review. See generally Lash, A Textual-Historical Theory, supra note 1.
346. U.S. CONST. amend. XIV, § 1.
347. See AMAR, supra note 7, at 215-30 (arguing that some but not all of the first eight amendments were meant to be incorporated); CURTIS, supra note 31, at 219-20 (arguing that all eight were meant to be incorporated). See generally Kurt T. Lash, Two Movements of a Constitutional Symphony: Akhil Reed Amur's The Bill of Rights, 33 U. RICH. L. REV. 485 (1999) (suggesting the possibility of incorporated common law economic rights).
348. See Lash, The Lost Jurisprudence, supra note 1, at 673. In fact, courts originally cited the Ninth Amendment in support of rejecting a theory of total incorporation. See id. at 675.
349. See generally id.
350. See id. at 639.
351. See CONG. GLOBE, 42d Cong., 1st Sess. App. 84 (1871) (statement of Rep, Bingham) (arguing that the Privileges or Immunities Clause applies the protections of the first eight amendments against states);
352. see also John Choon Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967, 1009-22 (1993). Yoo points out that during the nineteenth century state constitutions adopted provisions echoing the language of the federal Ninth Amendment. Although I think this is important evidence that the language of the Ninth Amendment could be viewed in support of individual rights, these state constitutional provisions cannot trump the extensive express testimony regarding the public understanding of the federal clause itself. Unlike provisions like the Free Exercise and Establishment Clauses that appear to have been embraced as individual rights provisions by the Civil War, no such transformation appears to have occurred with the Ninth Amendment.
353. See Lash, The Lost Jurisprudence, supra note 1, at 643-52.
354. BARNETT, supra note 1, at 66.
355. Even Barnett appears to realize the possibility that the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment do not protect the same set of rights. See Barnett, The Ninth Amendment, supra note 8, at 16 (conceding that the Ninth Amendment might protect both individual and collective rights).
356. See, e.g., Brief for the Petitioners, Gonzales v. Raich, 545 U.S. 1 (2005) (No. 03-1454).
357. See, e.g., Brief for Respondents, Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241).
358. See, e.g., Brief of Respondent Al Gore, Jr., Bush v. Gore, 531 U.S. 98 (2000) (No. 00-949).