TWO CONCEPTIONS OF THE
NINTH AMENDMENT
RANDY E. BARNETT*
The Ninth Amendment has been largely
ignored by the Supreme Court of the
THE RIGHTS-POWERS CONCEPTION OF THE NINTH
AMENDMENT
The rights-powers conception stipulates
that the rights "retained by the people" are nothing other than the
exact converse of the powers granted to the national government. This view was
put forward in 1980 by Raoul Berger1 and most recently
by Charles Cooper in his article, "Limited Government and Individual
Liberty: The Ninth Amendment's Forgotten Lessons."2 As Cooper explains:
"A ninth amendment claim Against federal
action. . . is determined by the extent of the federal
government's enumerated powers. . . . "3
Far from being a "forgotten lesson,"
however, the rights-powers conception has been explicitly used by the Supreme
Court to interpret the Ninth Amendment. As Justice Reed wrote in the 1947 case
of United Public Workers v. Mitchell:
------- FOOTNOTES -------
*
Visiting Scholar, Northwestern
I.
See Berger, The Ninth Amendment, 66 CORNELL L.
REV. 1 (1980).
2.
Cooper, Limited Government and Individual
Lessons, 4J. Law & POL. 63 (1987).
3.
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[*30]
The powers granted
by the Constitution to the Federal Government are subtracted from the totality
of sovereignty originally in the states and the people. Therefore, when objection
is made that the exercise of a federal power infringes upon rights reserved by
the Ninth and Tenth Amendments, the inquiry must be directed toward the granted
power under which the action of the
There are three
serious problems with this interpretation of the Ninth Amendment.
First, this interpretation treats the Ninth
and Tenth Amendments as exactly the same. The Tenth Amendment reads:
The powers not
delegated to the
The idea that
animates the rights-powers conception that powers not delegated are reserved is
clearly expressed here. If the only intention of the Framers was to state the
theory of enumerated powers, the Tenth Amendment was entirely sufficient to the
task. There was absolutely no need for another amendment written confusingly in
terms of "rights" retained by the people to express exactly the same
idea.
The confusion between the Ninth and Tenth
Amendments is manifested in Justice Reed's reference to "those rights, reserved
by the Ninth and Tenth Amendments... ,"6 The Tenth Amendment, of course,
does not speak of rights at all, but rather speaks of reserved
"powers." And, in his article, Charles Cooper states that "[t]he
ninth amendment does not specify what rights it protects other than by its
reference to the enumerated powers of the federal government."7 The Ninth Amendment,
of course, does not refer to enumerated powers at all. It is the Tenth
Amendment that speaks of "powers not delegated to the
The second problem with the
"rights-powers conception" flows from its claim that there can never
be a conflict between a constitutional right and a delegated power. If this is
correct,
------- FOOTNOTES -------
4.
330
5.
U.S. CONST. amend. X.
6.
330
7.
Cooper, .cupra note 2, at 80 (emphasis added).
------- END FOOTNOTES -------
[*31]
then the Ninth Amendment has absolutely no constitutional
role. Any claim by an individual or state that the national government had
exceeded its enumerated powers would rely entirely upon the provisions
enumerating the powers of the national government (to show the absence of a
power) and the language of the Tenth Amendment (to show that those powers not
delegated are reserved).
The fact that there would be no occasion to
use the Ninth Amendment is not the problem. After all, there has been no
occasion to enforce the rule requiring the President to be at least thirty-five
years old, either. The problem is that a rights-powers conception deprives the
Ninth Amendment of any potential application. It does not allow for even a
hypothetical set of facts that would implicate the Ninth Amendment. Of course,
it is possible that the Congress approved and the States ratified an amendment
that was meant to be inapplicable to any conceivable circumstance. However, we
cannot prefer such an interpretation of an expressed constitutional enactment
if one that contemplates a potential role is also available.
Finally, the rights-powers conception of
constitutional rights must apply to enumerated as well as unenumerated
rights. According to a rights-powers analysis, by delegating a particular power
to the national government, the people necessarily ceded to the general
government any rights they previously had that might conflict with such a
power. According to this view, the Bill of Rights merely clarified certain of
the retained rights and changed nothing. As Raoul Berger
states: "Thus viewed, the Bill of Rights added nothing, but was merely declaratory."8
Therefore, even an enumerated right should never constrain an enumerated
power.9
It should come as no surprise that a
rights-powers conception is so broad as to deny effect
to enumerated as well as unenumerated rights. The
rights-powers conception is based on the argument made by some Federalists such
as James Wilson and Alexander Hamilton that it was unnecessary to have any
enumerated rights because the national government was one of limited and
enumerated powers. When this argument was made, the issue of unenumerated rights had yet to arise.
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8.
Berger, supra note 1, at 6 (footnote omitted).
9.
Charles Cooper's discussion of the First Amendment appears to adopt this
interpretive method. See Cooper, supra note 2. at
74-75.
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[*32]
Yet the rights-powers argument was not
universally accepted by the Framers. When, for example, Thomas Jefferson vigorously
objected to this argument in a letter to James Madison,10
Ironically, the rights-powers conception
has been applied only to the Ninth and Tenth Amendments, thereby neutering the
very provisions that were inserted to respond to the concerns expressed by
Federalists. In contrast, enumerated rights have been used to limit in some
fashion the exercise of delegated powers. As the Court stated in the 1951 case
of Dennis v.
The question with
which we are concerned here is not whether Congress has such a power, but
whether the means which it has employed conflict with the First and Fifth
Amendments to the Constitution.13
Once it is conceded that enumerated rights
can constrain the exercise of delegated powers, however, it must be explained
why a fundamentally different conception of constitutional rights applies to
the "retained" rights of the Ninth Amendment. This is particularly
awkward in the face of the Ninth Amendment dictate that "[t]he enumeration
in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."14 Rendering the Ninth Amendment
functionless by applying a rights-power concep-
------- FOOTNOTES -------
10.
To say, as Mr. Wilson does that a bill of
rights was not necessary because all is
reserved in the case of the general government which is not given, while
in the particular ones all is given which is not reserved might do for the
Audience to whom it was addressed, but is surely gratis dictum, opposed by
strong inferences from the body of the instrument, as well as from the omission
of the clause of our present confederation which had declared that in expressed
terms.
Letter of Thomas Jefferson to James
Madison, (
Schwartz, The Bill
of Rights: A Documentary History 606-07 (1971).
11. Letter of James Madison to Thomas
Jefferson (
12. 341
13.
109, 112 (1959) ("Congress . . . must
exercise its powers subject to the . . . relevant limitations of the Bill of Rights.").
14. U.S. Const. amend.
IX.
-------- END FOOTNOTES -------
tion
only to the rights "retained by the people" surely disparages these
rights, if indeed it does not deny them altogether.
THE POWER-CONSTRAINT CONCEPTION OF THE
NINTH AMENDMENT
The idea that constitutional rights are
simply what is left over after the people have delegated powers flies in the
face of the amendments themselves. For example, it is simply impossible to find
a right to "a speedy and public trial, by an impartial jury,"15 a
right against double jeopardy or self incrimination16 or a right to be free
from "unreasonable searches and seizures"17 by closely examining the
limits of the enumerated powers of the national government. The reason for this
is that the delegated powers provisions limit the proper ends or scope of
federal powers, while these examples of enumerated rights limit the means by
which the federal government may use those powers that are within its proper
scope.
This insight points the way to a different
conception of enumerated and unenumerated constitutional
rights: the "power-constraint" conception. Madison explained that the
proposed amendments had not one, but two distinct purposes: "[T]he great
object in view is to limit and qualify the powers of Government, by excepting
out of the grant of power those cases in which Government ought not to act, or
to act only in a particular mode."18 One purpose is, then, "to limit. . . the powers of government, by excepting out of the
grant of power those cases in which Government ought not to act. . . ."
Another purpose is "to. . . qualify the powers of
Government, by excepting out of the grant of power those cases in which
Government ought . . . to act only in a particular mode." In other words,
a Bill of Rights was meant to constrain the powers of government in two ways-by
reinforcing the limitations on the delegated powers of government and by
placing additional restrictions on the means by which government may pursue its
delegated ends.
In explaining the second of these purposes,
------- FOOTNOTES -------
15.
U.S. Const. amend. VI.
16.
U.S. Const. amend. V.
17.
U.S. Const. amend. IV.
18.
1 Annals of Cong. 454 (J. Gales & W. Seaton eds. 1834) (Speech of
Rep. J. Madison) [hereinafter "
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[*34]
The General
Government has a right to pass all laws which shall be necessary to collect its
revenue; the means for enforcing the collection are within the direction of the
Legislature: may not general warrants be considered necessary for the purpose .
. . ? If there was reason for restraining the State Governments from exercising
this power, there is like reason for restraining the Federal Government.19
In addition to supporting the view that
constitutional rights were intended, to use Madison's term, "as actual
limitations"20 on the exercise of delegated powers, this example also
suggests that constitutional rights are especially important because the
open-ended language of the Necessary and Proper Clause21 heightens the chances
that the government may exercise a delegated power in a manner that infringes
upon the rights of the people. Even so strong a proponent of the Necessary and
Proper Clause as James Madison argued that it increased the need for
constitutional rights. "It is true," he told the House,
the powers of the
General Government are circumscribed, they are directed to particular objects;
but even if Government keeps within those limits, it has certain discretionary
powers with respect to the means, which may admit of abuse to a certain extent,
. . . because in the Constitution of the United States, there is a clause
granting to Congress the power to make all laws which shall be necessary and
proper for carrying into execution the powers vested in the Government of the
United States, or in any department or officer thereof. . . .22
This quote refutes the claim of Raoul Berger and Charles Cooper that constitutional rights
are defined solely by the enumeration of delegated powers.
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19.
20.
The exceptions here
or elsewhere in the constitution, made in favor of particular rights, shall not
be construed as to diminish the just importance of other rights retained by the
people, or as to enlarge the powers delegated by the constitution; but either
as actual limitations of such powers, or as inserted merely for greater
caution.
21. After enumerating specific powers of
Congress, the Constitution authorizes the Congress:
To make all Laws
which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested in this Constitution in
the Government of the
22.
------- END FOOTNOTES -------
[*35]
ary
powers with respect to the means, which may admit of abuse to a certain extent.
. . ." In short, in addition to reinforcing the limitations on delegated
power, constitutional rights are also intended to further restrict the means by
which the government may pursue its delegated ends.
Even where constitutional rights do simply
reinforce the limits of delegated powers, it is dangerously misleading to
characterize them as "redundant." Such a characterization implies
that constitutional rights automatically recede as the exercise of governmental
powers expands. Of course, if the government is held within its enumerated
powers, then constitutional rights will not be needed for this purpose. But if
the scope of governmental powers is improperly expanded, constitutional rights
do not simply recede into oblivion. Rather they serve the same function as the
backup safety mechanisms on airplanes. These so-called "redundant"
secondary systems are designed to prevent a crash if a primary system fails.
Just as redundancy is designed into airplanes for "greater
caution,"23 (to again borrow a phrase from
To change the analogy, when a ship begins
to sink, it would be a non sequitur to argue that one should not use lifeboats
and lifepreservers because the designers of the
ship's structure ardently believed such devices were entirely unnecessary. In
the same way, when the constitutional structure of enumerated powers no longer
effectively prevents violations of individual rights, it is a non sequitur to
object to the enforcement of enumerated and unenumerated
constitutional rights on the grounds that those who designed the structure of
the Constitution as the primary mechanism for protecting individual rights
believed that the enforcement of such rights would be unnecessary.
On the issue of whether a Bill of Rights is
needed to reinforce the limitations on federal power, history has proved the
Federalists wrong and the Antifederalists right. We
should be grateful to those who withheld their assent to the Constitution until they were assured that an expressed
recognition of consti-
------- FOOTNOTES -------
23. See supra note 20.
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[*36]
tutional
rights was forthcoming and to James Madison who succeeded in persuading a
reluctant House of Representatives to take up the issue.
We are now in a position to fully
appreciate
If a line can be
drawn between the powers granted and the rights retained, it would seem to be
the same thing, whether the latter to be secured by declaring that they shall
not be abridged, or whether the former shall not be extended. If no such line
can be drawn, a declaration in either form would amount to nothing.24
Contrary to both Raoul Berger and Charles Cooper, this statement does not
unambiguously support a rights-powers conception of constitutional rights.
Rather,
According to a power-constraint conception,
constitutional rights have two vital functions: (1) they place limits on the
means by which delegated powers can be exercised and (2) they provide a back-up
mechanism by which government may be held to its proper ends. In part of his
original version of what became the Ninth and Tenth Amendments,
The only question that remains is whether
the enumerated rights standing alone are adequate to either of these two
power-constraining tasks. The answer is as obvious today as it was to the
Framers.26 There is no telling in advance exactly how the powers authorized by
the Necessary and Proper Clause may be abused. And, once the scheme of
delegated powers is
------- FOOTNOTES -------
24. Letter of James Madison to George
Washington (
Schwartz, supra note 10, at 432.
25.
26.
The exceptions here or elsewhere in the
constitution, made in favor of particular rights, shall not be construed as to
diminish the just importance of other rights retained by the people
------- END FOOTNOTES -------
[*37]
eroded, there is no telling what rights the
national government may violate. Because he shared other Framers' beliefs that
the enumerated rights did not exhaust the rights of the people,
Trying to preserve limited government
without recourse to unenumerated rights retained by
the people is a project doomed to failure. Thanks to James Madison's Ninth
Amendment the Constitutional recognition of rights retained by the people
cannot be denied.
THE NINTH AMENDMENT AND NATURAL RIGHTS
What then is the relation between the Ninth
Amendment and natural rights? There is both a positive and a normative dimension
to this relationship.
First, as I said in my remarks at the 1986
Federalist Society Symposium at Stanford Law School,28 as a matter of positive
constitutional law, the Ninth Amendment, and therefore the Constitution as a
whole, assumes the validity of a philosophy of "first comes rights--then
comes government" and implicitly rejects a "government first--rights
second" philosophy. The Ninth Amendment speaks of rights that are
"retained by the people" which means that the people had these rights
prior to the formation of this government. It affirms the proposition that
governments are established to secure, not to create rights.29 If the view that people have rights independent of their
creation by government may fairly be called a philosophy of "natural
rights," then as a matter of positive law, the Ninth
------- FOOTNOTES -------
27. In Madison's words:
It has been objected
also against a bill of rights, that, by enumerating particular exceptions to
the grant of power, it would disparage those rights which were not placed in
that enumeration; and it might follow by implication, that those rights which
were not singled out, were intended to be assigned into the hands of the
General Government, and were consequently insecure. This is one of the most
plausible arguments I have ever heard urged against the admission of a bill of
rights into this system; but, I conceive, that it may be guarded against.
28. See Barnett, Are Enumerated
Constitutional Rights the Only Rights We Have?: The
Case of
Associational Freedom, 10 Harv. J.L. & Pub. Pol'y 101 (1987)
29. I have also pointed out, however, that
the Constitution does create certain "in-
stitutional"
rights as further safeguards against governmental abuse. See id. at 108-110.
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[*38]
Amendment, and
therefore the Constitution, assumes the legitimacy of a natural rights
philosophy.
Consequently, as a matter of positive law a
"government first--rights second" philosophy that ignores unenumerated rights provides a grossly distorted
interpretation of the Constitution. Such a view converts a partial list of
enumerated rights into what Stephen Macedo has
called, "islands surrounded by a sea of governmental powers"30 --
precisely the false interpretation that Hamilton and Wilson warned against.
Given their objective of limiting the power of government, had they shared a
"government first--rights second" philosophy, those who insisted on a
Bill of Rights would never have settled for the few rights that were
enumerated. Therefore, when evaluating legislation, at a minimum, we must look
to the kinds of unenumerated rights that were thought
to exist at the time of the framing.
There are at least three textual sources of
unenumerated rights. First, certain rights are
presupposed by provisions of the Constitution itself--for example, the rights
to life, liberty, and property, as well as the obligation of contracts. Second,
we may look to the rights that some state ratification conventions proposed be
added to the new Constitution. Third, we may look to philosophical writings of
the day. For example, James Wilson (an ardent opponent of enumerating rights)
devoted an entire chapter of his treatise to natural rights.31
Text alone is not enough, however. The
rule of law requires that legal rights be as internally consistent and coherent
as possible. This means that we cannot escape the task of devising a theory
that best explains the bulk of these rights and which tells
us which of them are valid and which are not. A good example of this kind of
approach is Richard Epstein's book on the Takings Clause of the Fifth Amendment.31
The claim that any legal system that strives for coherence must resort at some
level to theory should shock no one. After all, the "rights-powers conception"
of constitutional rights is itself just a theory offered to explain certain
passages of the Constitution.
The other dimension of the relation between
natural rights
------- FOOTNOTES -------
30.
S. Macedo, The New
Right v. The Constitution 32 (rev. ed. 1987).
31.
See J. Wilson, Of the Natural Rights of Individuals, in 2 The Works of James Wilson 307 (J. Andrews ed. 1896).
32.
R. Epstein, Takings: Private Property and The
Power of Eminent Domain (1985).
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[*39]
and the Ninth Amendment is normative and
concerns the legitimacy of legislation that results from the operation of
constitutional processes. Why is it that any legislation (to use a phrase from
Aquinas) binds a person "in conscience"33 today? The mere fact that
the individual cannot successfully resist the coercion of government does not explain
why a citizen or government official is bound in conscience to obey legislation
produced by constitutional processes, even if he or she could avoid a sanction.
Might does not explain right; nor does the fact that a
majority of some minority once cast a vote in favor of the Constitution.
If the Constitution imparts legitimacy on
legislation such that legislation commands an ongoing moral obligation of obedience,
it must be because the processes established by the Constitution are
sufficiently in sync with a background set of individual rights, rights that are
both procedural and substantive in nature, corresponding to what Lon Fuller
called the internal and external moralities of law.34 If this view of
constitutional legitimacy is correct, then the Ninth Amendment helps to keep
the institutions created by the Constitution in line with these background
rights. The Ninth Amendment enhances the legitimacy of legislation by
strengthening the link between enacted law that survives judicial review and
the imperatives of justice based on individual rights.
What about the fear that openly protecting unenumerated rights will lead to abuses by the judiciary?
For example, what would prevent judges from creating enforceable constitutional
(as opposed to statutory) welfare rights? While this is a genuine concern, I
suggest that the worst way to address the problem of judicial abuses is to deny
that courts may protect unenumerated rights, for this
would amount to a preemptive surrender of these rights to the far greater
threat of legislative or executive abuses. After all, it is Congress, not the
courts, that has created what it now refers to as "entitlements"
programs.
Instead, the problem of judicial abuse is
best addressed by strongly insisting upon three formal constraints on judicial
power that restrict the scope of all constitutional rights. First,
------- FOOTNOTES -------
33. T. AQUINAS, Summa Theologica
in 20 Great Books of the Western World 233 (1980).
34.
See L. Fuller, The Morality of Law 96-97 (rev. ed. 1969).
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[*40]
"substantive" constitutional rights are negative not
positive.35 They define protected domains of discretionary conduct with which
government may not interfere. "Procedural" constitutional rights may
be positive, but they limit the way that government not private citizens
exercises its proper powers.36 Second, in protecting these rights, judges may
exercise neither legislative nor executive powers. They ought not, for example, raise taxes or appropriate funds. Third,
judges have only the power to strike
down legislation or executive actions. Judges may only say "no" -- and
judicial negation is not legislation.
So-called constitutional welfare rights
would violate each of these constraints. They are positive in nature, require
the appropriation and expenditure of tax revenues, and cannot be implemented by
striking down legislation. Of course, when legislatures decide to dispense
benefits through administrative agencies or to provide government "services,"
judges are not creating entitlements de novo when they insist that such schemes
be administered in a manner that is consistent with principles of due process
and equal protection. This is the price we pay for using public as opposed to
private institutions to achieve social goals. Any such constitutional rights
are ultimately statutory in their origin.
Although the unenumerated
rights of the Ninth Amendment would have an important role to play even within
a government whose powers were strictly limited, until the day that we reestablish
this constitutional structure, our problem is not that judges protect too many unenumerated rights from governmental interference, but
that they protect all too few. While there are plausible reasons why some are
reluctant to extend judicial review to the rights retained by the people,37 the rights-powers conception of the Ninth Amendment is
not one of them. A power-constraint conception of constitutional rights best
explains what
------- FOOTNOTES -------
35. See Currie, Positive and Negative Constitutional
Rights, 53 U. Chi. L. Rev. 864 (1986).
36. See Barnett, Foreword: Four Senses of
the "Pub1ic-Private' Distinction, 9 Harv. J.L. & Pub. Pol’y 267 (1986)
(discussing the different meanings of the distinction between
"public" and "private" law).
37. Those wishing to read the seminal
scholarship on both sides of this issue should
see The Rights
Retained by the People: The History and Meaning of the Ninth Amendment (R.
Barnett ed. forthcoming). The latest round of the debate can be found in the
Symposium on Interpreting the Ninth Amendment, 64 Chi.-Kent L.Rev.
37-268 (1988).
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[*41]
rights-powers conception conceal what is actually at
issue: the merits of