A textual-historical theory of the ninth amendment

Stanford Law Review

Volumn 60, Issue 4, 2008, Pages 895-936

  Lash, Kurt T ^a  

^a Loyola Law School Los Angeles   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 42349116098     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (216)

1. Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. 249-55 (1987) (statement of Judge Robert H. Bork).
2. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. CONST. amend. IX.
3. See RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004) [hereinafter BARNETT, RESTORING THE LOST CONSTITUTION];
4. Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 TEX. L. REV. 1 (2006) [hereinafter Barnett, Ninth Amendment];
5. Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 TEX. L. REV. 597 (2005) [hereinafter Lash, Lost Jurisprudence];
6. Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 TEX. L. REV. 331 (2004) [hereinafter Lash, Original Meaning]. At least one major constitutional law textbook has reworked its discussion of the Ninth Amendment to take into consideration recent historical evidence regarding the Ninth.
7. See PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS 152-53 (Paul Brest, Sanford Levinson, Jack M. Balkin, Akhil Reed Amar & Reva B. Segal eds., 5th ed. 2006).
8. See Lash, Lost Jurisprudence, supra note 3 (discussing the role of the Ninth Amendment in the creation of current state law doctrine, slavery, the constitutionality of the New Deal, and the scope of incorporation doctrine);
9. Lash, Original Meaning, supra note 3 (discussing the role of the Ninth Amendment in delaying the approval of the Bill of Rights, the first Bank Bill, and the Second Bank of the United States).
10. See CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS 9-10 (1995) ("Very little effort has been devoted to doctrinal argument for the simple reason that a majority of the Supreme Court has never relied upon the Ninth Amendment as the basis for any decision.");
11. BENNETT B. PATTERSON, THE FORGOTTEN NINTH AMENDMENT 27 (1955) ("There has been no direct judicial construction of the Ninth Amendment by the Supreme Court of the United States of America. There are very few cases in the inferior courts in which any attempt has been made to use the Ninth Amendment as the basis for the assertion of a right.");
12. Randy E. Barnett, Introduction: James Madison's Ninth Amendment, in 1 THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT vii (Randy E. Barnett ed., 1989) ("For all but the last quarter of a century the amendment lay dormant, rarely discussed and justifiably described as 'forgotten' in the one book devoted to it.");
13. Raoul Berger, The Ninth Amendment, 66 CORNELL L. REV. 1, 1 (1980) ("Justice Goldberg rescued [the Ninth Amendment] from obscurity in his concurring opinion in Griswold v. Connecticut. . . .");
14. Russell L. Caplan, The History and Meaning of the Ninth Amendment, 69 VA. L. REV. 223, 223-24 (1983) ("After lying dormant for over a century and a half, the [N]inth [A]mendment to the United States Constitution has emerged from obscurity to assume a place of increasing, if bemused, attention. . . . Ninth [A]mendment analysis has proceeded in three stages. In the first stage, which lasted until 1965, the amendment received only perfunctory treatment from courts and commentators.").
15. See Lash, Lost Jurisprudence, supra note 3.
16. Id. at 688.
17. CONFEDERATE CONST, art. VI, § 5 (1861) (emphasis added).
18. 381 U.S. 479, 484, 487-93 (1965) (Goldberg, J., concurring).
19. 410 U.S. 113, 120, 122, 129 (1973).
20. For example, libertarian scholar Randy Barnett concedes that the Ninth Amendment may well have protected local majoritarian (collective) rights in addition to individual natural rights. See Barnett, Ninth Amendment, supra note 3, 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.");
21. id. at 21,79 (further conceding that the Ninth Amendment may have originally protected collective rights). Barnett's theory of the Ninth Amendment, however, addresses only that aspect of the Ninth Amendment implicating individual natural rights.
22. See Caplan, supra note 5;
23. Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 COLUM. L. REV. 1215 (1990).
24. See, e.g., Griswold, 381 U.S. at 492 (Goldberg, J., concurring): Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. . . . While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties.
25. See also Barnett, Ninth Amendment, supra note 3, at 14 (criticizing Carolene Products footnote four, United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938), for limiting due process incorporation to textually enumerated rights).
26. As this Article will make clear, although the primary semantic (literal) meaning of the text is irrelevant to interpretations of other enumerated rights, the secondary or implied meaning of the Ninth may guide interpretations of other rights. See infra note 46 and accompanying text.
27. See Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999).
28. See, e.g., Barnett, Ninth Amendment, supra note 3, at 79 (rejecting an interpretation of "the Ninth Amendment as protecting, at least in part or perhaps even entirely, the collective rights of 'the people' as embodied in their state governments").
29. U.S. CONST, amend. IX.
30. Most originalists today seek not the original intentions of the framers, but the original public meaning of the text. As described by Lawrence Solum, an originalist judge should: make a good faith effort to determine the original meaning, where original meaning is understood to be the meaning that (i) the framers would have reasonably expected (ii) the audience to whom the Constitution is addressed (ratifiers, contemporary interpreters) (iii) to attribute to the framers, (iv) based on the evidence (public record) that was publicly available. Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. PA. J. CONST. L. 155, 185 (2006).
31. For a helpful example of an interlocking use of originalism and textualism, see Amar, supra note 15. Amar's particular approach stresses the need to harmonize similar terms and phrases used in related passages in the Constitution. I follow the same approach in this Article.
32. See KEITH E. WHITTINGTON, C ONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW 50-61 (1999).
33. See id.
34. I wish to thank Larry Solum for first raising with me the important distinction between semantic textual meaning and implied textual meaning. For a brief explanation of implied meanings or "implicature," see Stanford Encyclopedia of Philosophy, lmplicature (May 6, 2005), http://plato.stanford. edu/entries/implicature.
35. WILLIAM PERRY, THE ROYAL STANDARD ENGLISH DICTIONARY 224 (1st Am. ed., Worcester, Isaiah Thomas 1788), microformed on Early American Imprints, 1st series, No. 21385 (NewsBank, Inc.);
36. see also JOHN ENTICK, ENTICK'S NEW SPELLING DICTIONARY 150 (Wilmington, Peter Brynberg 1800), microformed on Early American Imprints, 1st series, No. 37375 (NewsBank, Inc.) ("a number or counting over").
37. See James Madison, Speech in Congress Proposing Constitutional Amendments, June 8,1789, in WRITINGS 437, 448-49 (Jack N. Rakove ed., 1999).
38. See LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS 28-30 (1999) (discussing how the Anti-Federalists used the inclusion of restrictions on federal power in the Constitution to argue for a bill of rights).
39. See Madison, supra note 24, at 448-49.
40. Subsequent amendments might change the scope of the Ninth, but nothing in the original text or history precludes application of the Ninth's rule of construction in reference to rights enumerated in later amendments.
41. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998).
42. 32 U.S. (7 Pet.) 243, 247-50 (1833).
43. The second was the Eleventh Amendment.
44. U.S. CONST. art. I., § 8, cl. 18.
45. U.S. CONST. amend. I.
46. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 776 n.14 (2d ed. 1988) ("It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.").
47. This single focus on constitutional interpretation might seem anomalous to us today, but at the time methods of interpretation were of critical concern. Today, constitutional treatises present interpretive methodology as a side (and apparently unresolvable) issue. During the early decades of the Constitution, however, constitutional treatises spent a great deal of time exploring the basic principles of constitutional interpretation. See, e.g., JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (Carolina Academic Press 1987) (1833);
48. St. George Tucker, A View of the Constitution of the United States, in 1 BLACKSTONE'S COMMENTARIES app. 140-339 (St. George Tucker ed., Phila., William Young Birch & Abraham Small 1803). Two years after the Bill of Rights was ratified, another amendment was added to the Constitution that also declared a rule of constitutional interpretation. According to the Eleventh Amendment: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST, amend. XI (emphasis added). In fact, the issue of proper constitutional interpretation loomed far greater in the minds of the Founders than any particular enumerated power or right. The Federalists, for example, believed that proper interpretation of enumerated powers obviated the need for a list of particular rights.
49. See, e.g., THE FEDERALIST NO. 84, at 513-14 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"). Those who criticized the lack of a Bill of Rights did not so much disagree with the Federalists on substantive rights as they feared that proper interpretation of the Constitution would be ignored without a list of rights declaring the proper interpreted scope of federal power - a list added "for greater caution."
50. 32 U.S. (7 Pet.) 243, 247-50 (1833).
51. Id. at 250.
52. The historical evidence suggests that the Ninth Amendment had dual purposes: (1) preventing the disparagement of unenumerated rights and (2) limiting the construction of federal power. See Kurt T. Lash, The Inescapable Federalism of the Ninth Amendment (Loyola Law School Los Angeles Legal Studies, Paper No. 2006-3, 2006), available at http://ssrn.com/abstract=953010;
53. see also Lash, Original Meaning, supra note 3.
54. See Madison, supra note 24, at 448-49.
55. According to a contemporary dictionary by Samuel Johnson, "to disparage" meant "to treat with contempt; to lessen; to disgrace in marriage." See SAMUEL JOHNSON, A SCHOOL DICTIONARY 53 (New Haven, Edward O'Brien 1797), microformed on Early American Imprints, 1st series, No. 30640 (NewsBank, Inc.). Other contemporary dictionaries contained similar definitions, generally defining the term as cheapening or lessening in comparison with something else.
56. See, e.g., PERRY, supra note 23, at 203 ("to treat with contempt; to lessen");
57. THOMAS SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE 211 (5th ed., Phila., William Young 1789), microformed on Early American Imprints, 1st series, No. 45588 (NewsBank, Inc.) (defining "to disparage" as to "injure by union with something inferior in excellence"). Usage in newspapers and sermons generally used the term as meaning "to insult."
58. See, e.g., Letter from Alexander Hamilton to the Vice President of the United States and President of the Senate (Jan. 20, 1795), in 1 AMERICAN STATE PAPERS, FINANCE 320, 337 (Walter Lowrie & Walter S. Franklin eds., D.C., Gales & Seaton 1834), available at http://memory.loc.gov/ammem/amlaw/lawhome.html ("It is in vain to disparage credit, by objecting to its abuses.");
59. Letter from Alexander Hamilton to The Honorable Speaker of the House of Representatives (Feb. 13, 1793), in id. at 202, 209 ("It has been alleged, to disparage the management under the present . . . .");
60. Miscellanies, THE WORCESTER MAGAZINE, July 17, 1788, at 1 ("And least of all does it become [a man] to disparage the [female] sex.");
61. Of Imprecations, BOSTON GAZETTE & COUNTRY J., May 5, 1788, at 4, microformed on Early American Newspapers Series 1-3 (NewsBank, Inc.) ("[I]ll men never gain credit but disparage themselves [through their use of oaths and insults].");
62. Roger Viets, Rector of Digby, A Sermon on the Duty of Attending the Public Worship of God (Apr. 19, 1789), microformed on Early American Imprints, 1st series, No. 22223 (NewsBank, Inc.) ('"Tis as easy to commend our neighbor as to disparage him"). All of these uses (insult, lessen, cheapen by inferior comparison) carry the connotation of diminishment.
63. See, e.g., Ashcroft v. ACLU, 542 U.S. 656 (2004) (applying strict scrutiny to laws regulating speech on the Internet on the basis of adult content);
64. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (explaining the doctrine and rationale behind applying strict scrutiny in the public forum).
65. This example is drawn from the discussion by Chief Justice John Marshall in Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 627-28 (1819).
66. Randy Barnett, for example, criticizes footnote four of United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938), for limiting the content of the substantive Due Process Clause to just those incorporated rights that are listed in the text of the Constitution.
67. See BARNETT, supra note 3, at 254 ("[T]he pure Footnote Four approach is undercut by the original meaning of both the Ninth and Fourteenth Amendments.");
68. id. ("Also inconsistent with the Ninth Amendment is the third and current Footnote Four-Plus approach that elevates some unenumerated rights to the exalted status of 'fundamental' while disparaging the other liberties of the people as mere 'liberty interests.'");
69. Casey L. Westover, Structural Interpretation and the New Federalism: Finding the Proper Balance Between State Sovereignty and Federal Supremacy, 88 MARQ. L. REV. 693, 707 (2005) ("Of course, there is no 'right to privacy' provision in the Bill of Rights or elsewhere in the Constitution, but, as Justice Douglas rightly pointed out, that cannot end the analysis - '[t]he Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."");
70. see also Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 848 (1992) (citing the Ninth Amendment in support of a right to procure an abortion under the Fourteenth Amendment); Roe v. Wade, 410 U.S. 113, 152 (1973) (citing the Ninth Amendment in support of a woman's unenumerated due process right to obtain an abortion);
71. Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (Goldberg, J., concurring) (suggesting that the Ninth supports reading unenumerated rights into the Due Process Clause).
72. See Lash, Original Meaning, supra note 3, at 401-09 (discussing the state-law approach to natural rights in Colder v. Bull, 3 U.S. (3 Dall.) 386 (1798),
73. and Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810)).
74. But see Barnett, Ninth Amendment, supra note 3, at 14, 77 (arguing that Carolene Products footnote four violates the interpretive principle of the Ninth).
75. As I discuss later, there may be an implied meaning of the Ninth that affects the scope of enumerated rights, but such an implied secondary meaning depends on the primary semantic meaning.
76. Randy Barnett, for example, links the Ninth to concerns about individual natural rights, and relies on this reading to support a similar reading of the Privileges or Immunities Clause. This is implicit in his argument that the incorporation doctrine of Carolene Products footnote four (which involves an interpretation of the Fourteenth Amendment's Due Process Clause) violates the principles of the Ninth Amendment.
77. See Barnett, Ninth Amendment, supra note 3, at 14, 77.
78. See, e.g., WESLEY NEWCOMB HOHFELD, SOME FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING, AND OTHER LEGAL ESSAYS 23-64 (Walter Wheeler Cook ed., 1919) (introducing a typology of rights which remains influential in contemporary legal and political theory).
79. See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (referring to the unalienable rights of "Life, Liberty and the pursuit of Happiness);
80. see also JOHN LOCKE, (SECOND) TREATISE ON GOVERNMENT (C.B. Macpherson ed., Hackett Publishing Co. 1980) (1690).
81. See Madison, supra note 24, at 448-49 (speaking of the positive rights secured under the proposed Bill of Rights such as trial by jury).
82. 1 ANNALS OF CONG. 760 (1789) (Joseph Gales ed., 1834) (statement of Rep. Benson) (discussing the unenumerated individual right of a man to "wear his hat if he pleased" or "go to bed when he thought proper").
83. See Madison, supra note 24, at 441 (proposing an amendment declaring "that the people have the indubitable, unalienable, and indefeasible right to reform or change their government").
84. See ARTICLES OF CONFEDERATION art. II ("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.").
85. See id.
86. Declaration of the New York Convention (July 26, 1788), in 1 THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT, supra note 5, at 356.
87. See generally MASSEY, supra note 5;
88. Barnett, Ninth Amendment, supra note 3;
89. Suzanna Sherry, The Ninth Amendment: Righting an Unwritten Constitution, 64 CHI.-KENT L. REV. 1001(1988).
90. See, e.g., James Wilson, Remarks in the Pennsylvania Ratifying Convention (Nov. 28,1787), in 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 388 (1976) ("In all societies, there are many powers and rights, which cannot be particularly enumerated.").
91. Professor Caplan argues that retained rights are those protected under the state constitutions. See Caplan, supra note 5. The historical evidence, however, suggests a much broader conception of retained rights.
92. See infra notes 47-52 and accompanying text. At this point I wish only to point out that the text does not include Caplan's limitation.
93. See EMMERICH DE VATTEL, THE LAW OF NATIONS, OR, PRINCIPLES OF THE LAW OF NATURE: APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS 53, 54 (Northampton, Mass. 1805) (1758) (describing the natural rights of nations).
94. See BARNETT, RESTORING THE LOST CONSTITUTION, supra note 3;
95. MASSEY, supra note 5.
96. According to contemporary dictionaries, "to retain" meant "to hold in custody," PERRY, supra note 23, at 438, or simply "to keep," SHERIDAN, supra note 39, at 501.
97. Madison, supra note 24, at 448-49.
98. See John Witte, Jr., "A Most Mild and Equitable Establishment of Religion ": John Adams and the Massachusetts Experiment, 41 J. CHURCH & ST. 213 (1999).
99. See James Madison, Report on the Alien and Sedition Acts, January 7, 1800, in WRITINGS, supra note 24, at 608. Despite its title, Madison's Report actually focused on the controversial Virginia Resolutions of 1798.
100. See id. at 608. ("The committee have deemed it a more useful task to revise with a critical eye the resolutions which have met with this disapprobation."). For a discussion of the report and its relevance to debates over the Ninth Amendment,
101. see Lash, supra note 37.
102. See Madison, supra note 63, at 610-11 (explaining and defending the claim in the Virginia Resolutions of 1798 that the Allen and Sedition Acts violated the rights of the states).
103. The Sedition Act involved an enumerated right (freedom of speech), but retained unenumerated rights would work in the same way. All rights retained from the federal control would be left to the control of the people in the several states.
104. See Barnett, Ninth Amendment, supra note 3, at 16 (conceding the possibility that the Ninth protected collective rights).
105. This is precisely how the Supreme Court approached claims of natural rights in cases such as Colder v. Bull, 3 U.S. (3 Dall.) 386 (1798).
106. See Lash, Original Meaning, supra note 3, at 403;
107. see also DE VATTEL, supra note 58, at 55 ("A nation then has a right to perform what actions it thinks fit, both when they do not concern the proper and perfects rights of any other [nation], and when it is bound to it only by an internal without any perfect external obligation. If it makes an ill use of its liberty, it offends; but others ought to suffer it to do so, having no right to command it to do otherwise. ... It is therefore necessary, on many occasions, that nations should suffer certain things to be done, that are very unjust and blamable in their own nature, because they cannot oppose it by open force, without violating the liberty of some particular state, and destroying the foundation of natural society."). The work of de Vattel was well known at the time of the Founding and was frequently cited by early constitutional theorists such as St. George Tucker.
108. See, e.g., Tucker, supra note 34, at app. 151 (linking the work of de Vattel with the principles of the Ninth and Tenth Amendments).
109. See Amar, supra note 15.
110. Madison, supra note 24, at 448-49.
111. The result becomes even more absurd when one considers the possibility of retained collective rights, such as the right to regulate education on a local level. This kind of collective right cannot logically be retained from state control.
112. U.S. CONST, amend. X.
113. For a discussion of the separate and distinct roles of the Ninth and Tenth Amendments, see infra Part III.A.
114. Letter from James Madison to Spencer Roane (Sept. 2,1819), in THE MIND OF THE FOUNDER: SOURCES OF THE POLITICAL THOUGHT OF JAMES MADISON 359, 362 (Marvin Meyers ed., rev. ed. 1981) [hereinafter THE MIND OF THE FOUNDER] (emphasis added).
115. See Amendments Proposed by the New York Convention (July 26, 1788), in CREATING THE BILL OF RIGHTS, at 21-22;
116. see also 1 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS 329 (Jonathan Elliot ed., 2d ed., Philadelphia, J.B. Lippincott Co. 1891).
117. Campbell v. Morris, 3 H. & McH. 535, 554-55 (Md. 1797);
118. see Calder v. Bull, 3 U.S. (3 Dall.) 386, 387 (1798) ("It appears to me a self-evident proposition, that the several State Legislatures retain all the powers of legislation, delegated to them by the State Constitutions; which are not EXPRESSLY taken away by the Constitution of the United States.");
119. see also Douglass' Adm'r v. Stevens, 2 Del. Cas. 489, 502 (1819) ("By the Constitution of the United States all power, jurisdiction, and rights of sovereignty, not granted by that instrument, or relinquished, are retained by the several states.").
120. One of the most hotly contested issues in constitutional interpretation in the early decades of the Constitution regarded whether the Constitution was a compact between the people of the individual states or a document establishing a single, national, and sovereign people. Early constitutional treatise writers such as St. George Tucker embraced the former, while nationalists like Joseph Story and John Marshall embraced the latter. For a general discussion of the competing positions, see Kurt T. Lash, "Tucker's Rule ": St. George Tucker and the Limited Construction of Federal Power, 47 WM. & MARY L. REV. 1343 (2006). All sides in this debate, however, believed that all nondelegated powers, jurisdiction, and rights were left to the control of the people in the individual states.
121. Compare Tucker, supra note 34, with McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) (Marshall, C.J.).
122. See generally G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-1835 (1988) (discussing the debate between compact theorists and nationalists like Story and Marshall).
123. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (majority and dissenting opinions presenting conflicting views regarding the nature of the "people of the United States").
124. 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 nondelegated 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 74, at 295-96 (complaining about the language of the Tenth Amendment), with Letter from Edmund Randolph to George Washington (Dec. 6, 1789), in 5 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 56, at 223 ("The twelfth [the 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.").
125. Letter from James Madison to Spencer Roane (Sept. 2, 1819), supra note 73, at 362;
126. see also JAMES SULLIVAN, OBSERVATIONS UPON THE GOVERNMENT OF THE UNITED STATES OF AMERICA 22 (Boston, Samuel Hall 1791) ("Sovereignty must by its very nature be absolute and uncontrolable by any civil authority, with respect to the objects to which it extends. A subordinate sovereignty is nonsense.: A subordinate uncontrolable sovereignty is a contradiction in terms: But there may be a political sovereignty, limited as to the objects of its extension: It may extend to some things, but not to others, or be vested for some purposes, and not for others.").
127. For additional Founding-era examples of references to "the people" on a state level, see SULLIVAN, supra note 80, at 37 ("As individuals retain all the powers under a free government, which are not surrendered by the form of their constitution, so all the powers, which existed in the governments of the several states before the establishment of the general government, are yet held by them, excepting those which the people have taken back, and surrendered by that system.");
128. Letter from James Madison to Spencer Roane, supra note 80, at 362 ("Within a single state possessing the entire sovereignty, the powers given to the government by the People are understood to extend to all the acts whether as means or ends required for the welfare of the community, and falling within the just range of government.").
129. James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791), in WRITINGS, supra note 24, at 480, 489.
130. Id. at 490.
131. JOHN PAGE, ADDRESS TO THE FREEHOLDERS OF GLOUCESTER COUNTY 9 (Richmond, John Dixon 1799). Page was a member of Congress from 1789 to 1797 and Governor of Virginia from 1802 to 1805. Library of Congress, Congressional Biographical Directory, http://bioguide.congress.gov. 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 have been well aware of Madison's opposition to the bank-indeed, the men regularly corresponded.
132. PAGE, supra note 84, at 13.
133. Id. at 14.
134. Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in 5 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 56, at 219.
135. Glasgow's Lessee v. Smith, 1 Tenn. (1 Overt.) 144, 166 (1805) (citing the Ninth and Tenth Amendments).
136. Tucker, supra note 34, at app. 154.
137. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 20-21 (1820) (Story, J., dissenting).
138. See Lash, Lost Jurisprudence, supra note 3;
139. Lash, supra note 37.
140. Even the strongest proponent of a libertarian reading of the Ninth Amendment concedes that the historical evidence supports a federalist reading of the Ninth and Tenth Amendments. See Barnett, Ninth Amendment, supra note 3, at 5.
141. THE FEDERALIST NO. 45, at 292 (James Madison) (Clinton Rossiter ed., 1961) ("The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.").
142. It is possible to read the Tenth Amendment in a manner that would preclude such a broad construction of federal power. I explore the historical evidence supporting such a reading in a forthcoming article. 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).
143. See Lash, Lost Jurisprudence, supra note 3.
144. For a small sample of contemporary scholarship addressing the original meaning of the Fourteenth Amendment, see AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY (2005);
145. AMAR, THE BILL OF RIGHTS, supra note 28;
146. MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1990); as well as the work of John Harrison and Raoul Berger, among others.
147. In my own work, I have argued that the Fourteenth Amendment should be interpreted as having incorporated the Free Exercise and Establishment Clauses of the First Amendment, but not the Ninth and Tenth Amendments. See Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 ARIZ. ST. L.J. 1085 (1995);
148. Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 NW. U. L. REV. 1106 (1994).
149. See Kurt T. Lash, Two Movements of a Constitutional Symphony: Akhil Reed Amar's The Bill of Rights, 33 U. RICH. L. REV. 485 (1999) (book review).
150. See Lash, Lost Jurisprudence, supra note 3, at 673-74. In fact, courts originally cited the Ninth Amendment to support rejecting a theory of total incorporation.
151. See id. at 675.
152. See id. at 639-42.
153. John Yoo points out that state constitutions during the nineteenth century adopted provisions echoing the language of the federal Ninth Amendment. See John Choon Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 967 (1993). Although I think this is important evidence that the language of the Ninth could be viewed to support individual rights, these state constitutional provisions cannot trump the extensive express testimony regarding the public understanding of the federal clause itself. Unlike the Free Exercise and Establishment Clauses, which appear to have been embraced as individual rights provisions by the Civil War, no such transformation appears to have occurred with the Ninth Amendment.
154. See Lash, Lost Jurisprudence, supra note 3, at 643-52.
155. See, e.g., Capitol Square Review & Advisor Bd. v. Pinnette, 515 U.S. 753 (1995) (ruling that the Establishment Clause should not be so broadly construed as to prohibit private religious speech in a public forum).
156. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (finding that education is not a "fundamental right" that requires heightened scrutiny under the Equal Protection Clause).
157. See United States v. Lopez, 514 U.S. 549 (1995) (invalidating the Gun-Free School Zones Act).
158. See United States v. Morrison, 529 U.S. 598 (2000) (invalidating portions of the Violence Against Women Act);
159. City of Boerne v. Flores, 521 U.S. 507 (1997) (invalidating portions of the Religious Freedom Restoration Act).
160. James Madison, Speech in Congress Opposing the National Bank, February 2, 1791, in WRITINGS, supra note 24, at 480, 489.
161. 521 U.S. 507(1997).
162. 529 U.S. 598 (2000).
163. See Morrison, 529 U.S. at 617-18;
164. Lopez, 514 U.S. at 583 (Kennedy, J., concurring). For a general discussion of the Rehnquist Court's reliance on the Tenth Amendment in its federalism decisions, see Kurt T. Lash, James Madison's Celebrated Report of1800: The Transformation of the Tenth Amendment, 74 GEO. WASH. L. REV. 165 (2006).
165. Lash, supra note 109.
166. See Lash, Lost Jurisprudence, supra note 3.
167. Id. at 708-13.
168. As I will argue in a forthcoming paper, the last-minute addition of "or to the people" to the Tenth Amendment may have been understood to imply the need for strict construction of federal power according to the principles of popular sovereignty. See Lash, supra note 94.
169. See, e.g., New York v. United States, 505 U.S. 144, 156-57 (1992) ("The Tenth Amendment likewise restrains the power of Congress, but this limit is not derived from the text of the Tenth Amendment itself .... Instead, the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States.").
170. Printz v. United States, 521 U.S. 898 (1997);
171. see Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 288-93 (2000);
172. H. Geoffrey Moulton, Jr., The Quixotic Search for a Judicially Enforceable Federalism, 83 MINN. L. REV. 849, 899 (1999);
173. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903, 927-28 (1994).
174. Trustees of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 627-29 (1819).
175. This fits within the semantic meaning of the Ninth, for a conclusion that federal power is otherwise unconstrained contains the unstated premise that unenumerated rights do not have the same constraining effect as enumerated rights. In this way, reading federal power as having no other constraints except those enumerated in the Constitution denies or disparages other rights retained by the people.
176. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824).
177. For a discussion of the Marshall Court's repeated refusal to address the Ninth despite its being raised by parties before the Court, see Lash, Lost Jurisprudence, supra note 3, at 604-09.
178. See United States v. Carolene Prods. Co., 304 U.S. 144,152 n.4 (1938) (rejecting the unenumerated right to contract, but suggesting that there may be room for stricter scrutiny of rights listed in the Bill of Rights);
179. see also W. Va. Bd. of Educ. v. Bamette, 319 U.S. 624, 639 (1943) (suggesting that the Court should apply strict scrutiny in cases involving the incorporation of rights specifically listed in the Bill of Rights).
180. See Barnett, Ninth Amendment, supra note 3, at 14.
181. See AMAR, supra note 28, at 164.
182. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546 (1985).
183. James Madison, Veto Message, March 3, 1817, reprinted in THE MIND OF THE FOUNDER, supra note 73, at 307.
184. Letter from James Madison to Spencer Roane (May 6, 1821), in THE MIND OF THE FOUNDER, supra note 73, at 363.
185. Id. at 359.
186. Id. at 360.
187. For a helpful discussion of the distinction between constitutional interpretation and constitutional construction, see WHITTINGTON, supra note 20, at 7-14.
188. Id.
189. Id.
190. Madison, supra note 82, at 489.
191. See Memorandum from Roger Sherman to James Madison (Feb. 4, 1791), in 13 THE PAPERS OF JAMES MADISON 382 (Charles F. Hobson & Robert A. Rutland eds., 1981) ("The only question that remains is-Is a Bank a proper measure for effecting these purposes? And is not this a question of expediency rather than of rights?").
192. Letter from James Madison to Spencer Roane (May 6, 1821), supra note 125, at 365.
193. See United States v. Lopez, 514 U.S. 49, 558 (1995).
194. City of Boerne v. Flores, 521 U.S. 507, 519-20 (1997).
195. Story here refers to the "eleventh amendment," reflecting an early terminology which listed the provisions of the Bill of Rights in terms of their placement on an original list of twelve proposed amendments. The Ninth and Tenth were the eleventh and twelve articles on the original list. See Lash, Lost Jurisprudence, supra note 3, at 614-15. Even absent this historical convention, it is clear from the text that Story is, in fact, referring to the Ninth. See Houston v. Moore, 18 U.S. (5 Wheat.) 1, 21 (1820) (Story, J., dissenting) (explaining, in the same discussion, that "what is not taken away by the Constitution of the United States, must be considered as retained by the States or the people").
196. Houston, 18 U.S. at 20 (Story, J., dissenting) (emphasis added) (footnotes omitted).
197. Id. at 4-6 (majority opinion).
198. U.S. CONST., art. I, § 8, cl. 16.
199. Houston, 18 U.S. at 4 (stating that Houston argued that "the constitutional power of Congress over the militia, is exclusive of State authority").
200. At this point in the online Westlaw transcription of the case there is an error: "What those powers are must other. Nor has Harvard College any surer title than constitutions." The text quoted above is taken from the United States Reports and contains no noticeable errors.
201. Houston, 18 U.S. at 3 (Story, J., dissenting) (emphasis added).
202. James Madison's argument regarding the need to expressly enumerate great and important powers was acknowledged by Alexander Hamilton in his defense of the Bank.
203. See Alexander Hamilton, Opinion on the Constitutionality of the Bank, in 8 PAPERS OF ALEXANDER HAMILTON 63, 119 (Harold C. Cyrettt ed., 1965). The same rule was pressed by litigants in McCulloch v. Maryland and implicitly accepted by John Marshall in his opinion, though without citing the Ninth Amendment as the textual expression of the rule.
204. See 17 U.S. (4 Wheat.) 316, 373-74,411 (1819).
205. 505 U.S. 144 (1992).
206. 521 U.S. 898 (1997).
207. Id. at 918-19 (quoting THE FEDERALIST No. 39 (James Madison)).
208. Id. at 928.
209. Id. at 909.
210. The same rule would apply to interpretation of federal power to abrogate state sovereign immunity under the doctrine of the Eleventh Amendment. Caleb Nelson, forexample, has suggested just this kind of limitation on federal jurisdictional power, though he attributes the rule to an independent limitation on the scope of federal power.
211. See Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV. 1559, 1640 (2002).
212. Letter from James Madison to Spencer Roane (Sept. 2, 1819), supra note 73, at 365.
213. United States v. Lopez, 514 U.S. 549, 567-68 (1995).
214. Letter from James Madison to Spencer Roane (Sept. 2, 1819), supra note 73, at 365.
215. See City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
216. See Tucker, supra note 34, at app. 154.