LOYOLA LAW SCHOOL
(LOS ANGELES)



Legal Studies Paper No. 2004-24
Jan 2005



The Lost Jurisprudence of the Ninth Amendment


Professor Kurt Lash


















This paper can be downloaded without charge from the
Social Science Research Network (SSRN) electronic library at:
http://ssrn.com/abstract=615701


Volume 83, Number 3, February 2005

Articles

The Lost Jurisprudence of the Ninth Amendment

Kurt T. Lash*

It is widely assumed that the Ninth Amendment languished in constitutional obscurity
until it was resurrected by Justice Arthur Goldberg in the 1965 case, Griswold v. Connecticut .
In fact, the Ninth Amendment played a significant role in some of the most important
constitutional disputes in our nation's history, including the scope of exclusive versus
concurrent federal power, the authority of the federal government to regulate slavery, the
right of the states to secede from the Union, the constitutionality of the New Deal, and the
legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment.
The second of two articles addressing the lost history of the Ninth Amendment,
The Lost
Jurisprudence
takes a comprehensive look at the Ninth Amendment jurisprudence that
flourished from the early nineteenth to the mid-twentieth century. Though long assumed never
to have received significant attention from the Supreme Court, the first discussion and
application of the Ninth Amendment was, in fact, by Supreme Court Justice and constitutional
treatise author Joseph Story. In a passage unnoticed since the nineteenth century, Justice
Story interpreted and applied the Ninth Amendment precisely the way James Madison and the
state ratifying conventions intended--as a rule of construction preserving the retained right of
local self-government. Ignored by the framers of the Fourteenth Amendment, the Ninth
Amendment and its attendant rule of construction were deployed by courts throughout the
nineteenth and early twentieth centuries to limit the interpretation of federal powers and
rights. Ubiquitously paired with the Tenth Amendment, the Ninth suffered the same fate as the
Tenth at the time of the New Deal, when both were rendered mere "truisms" in the face of
expansive constructions of federal power. By 1965, the Ninth was assumed to exist in a
doctrinal and historical vacuum, an assumption that no one has questioned until now.

I. Introduction......................................................................................................................2
II.
Beginnings: The Ninth Amendment in Antebellum America ..........................................7
A.
The Federalist Reading of the Ninth Amendment ..................................................7
B. The
Unenumerated Rights Cases............................................................................8
C. Retaining
the
Concurrent Power of the States ......................................................13
D. Justice
Story
and
Houston v. Moore.....................................................................17
1. Houston
v. Moore .......................................................................................19
2.
The Influence of Story's Opinion ...............................................................26
3.
The Silence of Justice Story........................................................................33

* Professor of Law and W. Joseph Ford Fellow, Loyola Law School, Los Angeles. B.A.,
1989, Whitman College; J.D., 1992, Yale Law School. My thanks to Rick Hasen and Larry Solum
for their thoughts and suggestions. I am deeply endebted to my wife, Kelly, and my three children,
Katherine, Nathaniel, and Benjamin, whose patient love and support sustained me through this
extraordinary project.
2
Texas Law Review
[Vol. 83:___

4.
The Significance of Houston v. Moore .......................................................39
E.
The Ninth Amendment and "the Enumeration . . . of Certain Rights"..................41
F. Slavery..................................................................................................................42
G.
Summary: The Ninth Amendment from Founding to the Civil War ....................46
III. Reconstruction
and
the Ninth Amendment ....................................................................46
A.
The Ninth and Fourteenth Amendments...............................................................46
B.
The Rule of (Re)Construction ..............................................................................55
1.
The Legal Tender Cases..............................................................................56
2.
The Slaughterhouse Cases: Preserving the Rule of Construction ...............60
3. Hans
v.
Louisiana .......................................................................................64
C. Congressional
Power,
Individual Rights, and the Ninth Amendment, 1868�
1930......................................................................................................................66
1. The General Structure of Ninth Amendment Claims in the
Progressive Era ...........................................................................................66
2.
The Rule of Construction and Defining the Retained Rights of the
People .........................................................................................................69
3.
Mistaking the Tenth Amendment for the Ninth ..........................................72
4.
Distinguishing the Ninth from the First Eight Amendments.......................75
5.
The Ninth Amendment and Individual Rights ............................................76
IV. The New Deal Transformation of the Ninth Amendment ..............................................82
A.
The Rule in Transition..........................................................................................82
1.
The New Deal and the Ninth Amendment Prior to 1937 ............................82
2.
The New Deal and the Tenth Amendment Prior to 1937............................86
B. The
Rule
Abandoned............................................................................................90
1.
Rejecting the Individual Right to Local Self-Government..........................91
2.
The Triumph of Marshall's Opinion on the Bank of the United States.......95
3.
Principles Without a Rule of Construction: United Federal Workers
of America (CIO) v. Mitchell ....................................................................95
4.
The Ninth Amendment as a "Truism" ........................................................99
C.
The Last Days of the Historic Ninth Amendment .............................................. 103
1.
The Post-New Deal Ninth Amendment and Individual Rights ................. 103
2.
The Last Stand of the Traditional Ninth Amendment: Bute v. Illinois
and the Doctrine of Incorporation.............................................................106
V.
Griswold and the Birth of the Modern View of the Ninth Amendment ....................... 110
A. Bennett
Patterson's Book ................................................................................... 110
B. Griswold
v. Connecticut..................................................................................... 111
VI. Conclusion: Retaining the Space Between National Powers and National Rights ....... 115

I.
Introduction
It is widely assumed that the Ninth Amendment1 languished in
constitutional obscurity until it was resurrected by Justice Arthur Goldberg in
1965.2 In his concurring opinion in
Griswold v. Connecticut , Justice

1. "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.
2
. See EDWARD DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 64 (1957)
("There is no occasion for amazement when the fact comes to light that apparently there has never
been a case decided which turned upon the Ninth Amendment. It has been invoked by litigants only
ten times and in each instance without success."); CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH
AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS 9�10 (1995) [hereinafter
MASSEY, SILENT RIGHTS] ("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

2004]
The Lost Jurisprudence
3

Goldberg announced that "this court has had little occasion to interpret the
Ninth Amendment."3 Pointedly citing Bennett Patterson's 1955 book
The
Forgotten Ninth Amendment
, Goldberg announced that he had located only
three prior Supreme Court discussions of the Ninth Amendment, none of
which offered much help.4 There being no precedent to guide the Court,
Goldberg consulted what he believed was the original understanding of the

basis for any decision.");
id. at 224 n.17. ("Only seven Supreme Court cases prior to Griswold dealt
in any fashion with the Ninth Amendment."); 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."); PROCESSES OF CONSTITUTIONAL DECISIONMAKING 113 (Paul Brest et al.
eds., 4th ed. 2000) ("The title of Bennett Patterson's 1995 book, The Forgotten Ninth Amendment,
accurately captures the status of this provision of the Bill of Rights throughout most of our
constitutional history."); Eric M. Axler,
The Power of the Preamble and the Ninth Amendment: The
Restoration of the People's Unenumerated Rights
, 24 SETON HALL LEGIS. J. 431, 442 (2000)
("While the Amendment began as an important condition to the states' ratification of the
Constitution, it subsequently went unnoticed by the Supreme Court for 174 years."); 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) [hereinafter RIGHTS RETAINED BY THE PEOPLE] ("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."); 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 ."); id. at n.3. ("Prior to Griswold . . . the court had few occasions to probe the meaning
of the Ninth Amendment."); 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 ninth
amendment to the United States Constitution has emerged from obscurity to assume a place of
increasing, if bemused, attention. . . . Ninth Amendment analysis has proceeded in three stages. In
the first stage, which lasted until 1965, the amendment received only perfunctory treatment from
courts and commentators.");
id. at 224 n.5 ("During this first period there were only the most
glancing judicial and scholarly references to the ninth amendment, with no explicit construction of
the amendment by the Supreme Court in the seven cases that represent the sum total of the Court's
pronouncements on the amendment prior to 1965."); Knowlton H. Kelsey,
The Ninth Amendment of
the Federal Constitution
, 11 IND. L.J. 309, 319 (1936) ("There seems to be no case that decides the
scope of the Ninth Amendment even in part. In decisions where it is mentioned, it is either grouped
with the Tenth Amendment in decisions based upon or involving the latter, and hence concerning
reservation or denial of power, or it is merely classified as one of the first ten which are held to be
limitations on national and not on state power. No case has been found that uses the Ninth
Amendment as the basis for the assertion or vindication of a Right."); Mark C. Niles,
Ninth
Amendment Adjudication: An Alternative to Substantive Due Process Analysis of Personal
Autonomy Rights
, 48 UCLA L. REV. 85, 89 (2000) ("N]o Supreme Court decision, and few federal
appellate decisions, have relied on the Ninth Amendment for support."); Norman Redlich,
Are
There "Certain Rights . . . Retained by the People"?
, 37 N.Y.U. L. REV. 787, 808 (1962) ("The
Ninth Amendment has been mentioned in several cases but no decision has ever been based on it.")
(citing cases listed in PATTERSON,
supra at 27�35); Chase J. Sanders, Ninth Life: An Interpretive
Theory of the Ninth Amendment
, 69 IND. L.J. 759, 769 (1994) ("[U]ntil 1965, the Court mentioned
the Ninth Amendment in fewer than ten cases. In all but one of these, the references were brief and
passing."); Eugene M. Van Loan, III,
Natural Rights and the Ninth Amendment , 48 BYU L. REV. 1,
1 n.3 (1968) (citing only two pre-1900 cases, Van Loan concludes that "[i]n the few cases where
anything more than a cursory reference to the ninth appeared, it was lumped with the tenth, as an
innocuous rule of construction limiting the federal government to its delegated powers").
3
. Griswold , 381 U.S. at 490.
4
. Id. at 490 n.6.

4
Texas Law Review
[Vol. 83:___

Founders. After quoting Madison's speech introducing the Bill of Rights to
the House of Representatives and Joseph Story's
Commentaries , Goldberg
concluded that "[t]hese statements of Madison and Story make clear that the
framers did not intend that the first eight amendments be construed to
exhaust the basic and fundamental rights which the Constitution guaranteed
to the people."5 Although Justices Hugo Black and Potter Stewart dissented,
they agreed that the Ninth had been little used, and they derided their fellow
Justice's "recent discovery" of the Clause.6 Since
Griswold , a lively
scholarly debate has emerged over the meaning of the Ninth. All sides in this
debate believe that the Amendment received little judicial construction prior
to 1965.7
In fact, there is a surprisingly rich history of legal interpretation and
judicial application of the Ninth Amendment prior to
Griswold . Beginning
in 1789 and extending to 1964, the Ninth Amendment played a significant
role in some of the most important constitutional disputes in our nation's
history, including the ratification of the Bill of Rights, the constitutionality of
the Bank of the United States, the scope of exclusive versus concurrent
federal power, the authority of the federal government to regulate slavery, the
right of states to secede from the Union, the constitutionality of the New
Deal, and the legitimacy and scope of incorporation doctrine.
In the first of two articles on the lost history of the Ninth Amendment,
The Lost Original Meaning ,8 I presented previously missed or mislabeled
evidence regarding the adoption and early understanding of the Ninth
Amendment. Responding to calls from state conventions, including those
from his home state of Virginia, Madison's draft of the Ninth Amendment
expressed a rule of interpretation preventing the constructive enlargement of
enumerated federal power.9 Although the final draft used the language of
retained rights, Madison insisted that the provision continued to protect the

5
. Id. at 490.
6
. Id. at 518�19 (Black, J., dissenting). Justice Black noted:
My Brother Goldberg has adopted the recent discovery that the Ninth Amendment as
well as the Due Process Clause can be used by this Court as authority to strike down all
state legislation which this Court thinks violates "fundamental principles of liberty and
justice," or is contrary to the "traditions and (collective) conscience of our people."
Id. (citing PATTERSON, supra note 2, at 4).
7
. See supra note 2. Occasionally, some scholars acknowledge historical references to the
Ninth Amendment, but these references are dismissed as not really involving the Ninth
Amendment.
See PATTERSON, supra note 2, at 32 ("There are a number of cases which briefly
mention the Ninth Amendment by grouping it with the Tenth Amendment. However, these
decisions do not actually discuss the Ninth Amendment, but actually discuss the Tenth
Amendment."); Van Loan,
supra note 2, at 1 n.3 ("In the few cases where anything more than a
cursory reference to the ninth appeared, it was lumped with the Tenth, as an innocuous rule of
construction limiting the federal government to its delegated powers.").
8. Kurt T. Lash,
The Lost Original Meaning of the Ninth Amendment , 83 TEXAS L. REV. 331
(2004) [hereinafter Lash,
The Lost Original Meaning ].
9
. Id. at 360�62.

2004]
The Lost Jurisprudence
5

states from unduly broad interpretations of federal power.10 In a critical
speech before the House of Representatives, Madison linked the Ninth
Amendment to the demands of the state conventions and explained that the
purpose of the Ninth was to "guard[] against a latitude of interpretation"
while the Tenth Amendment "exclude[ed] every source of power not within
the constitution itself."11
This second Article,
The Lost Jurisprudence , takes up where the first
left off. It takes a comprehensive look at the Ninth Amendment
jurisprudence that flourished from the early nineteenth century to the mid-
twentieth century. This jurisprudence is divided into three periods: Founding
to Civil War, Reconstruction to the New Deal, and Post-New Deal to
Griswold v. Connecticut .
During the first of these periods, Founding to the Civil War, courts
interpreted the Ninth Amendment precisely along the lines anticipated by
James Madison and insisted upon by the state ratifying conventions. Instead
of being read as a source of individual rights, courts deployed the Ninth as a
tool for preserving state autonomy. Of particular concern was the degree to
which states could exercise concurrent authority over matters falling within
the scope of enumerated federal power. In a previously unrecognized
discussion of the Ninth Amendment, Justice Joseph Story described how the
Ninth mandates a limited construction of federal power in order to preserve
the concurrent powers of the states. Story's reading of the Ninth Amendment
echoed that of James Madison, and his opinion, though lost to us today,
remained influential for more than a century.
Given its role in preserving states' retained rights, the Ninth
Amendment inevitably became entangled with the struggle over the southern
institution of slavery. Both slave and free states attempted to use the Ninth
Amendment to defend local regulations regarding slavery. No one, however,
attempted to use the Ninth as a source of individual rights on behalf of the
enslaved. Given their common deployment application as states' rights
provisions, it is no surprise that John Bingham left both the Ninth and Tenth
Amendments off his list of privileges or immunities protected against state
action by the Fourteenth Amendment.
In the period from Reconstruction to the New Deal, courts and
commentators continued to cite the Ninth Amendment in conjunction with
the Tenth as one of the twin guardians of state autonomy. Instead of reading
the Ninth Amendment as foreshadowing the newly protected privileges or
immunities of United States citizens, courts applied the rule of construction
represented by the Ninth to
limit the interpretation of Fourteenth Amendment
rights. As the country moved into the new century and began to experiment
with greater centralized control of labor and industry, the Ninth and Tenth

10
. Id. at 361.
11. James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791),
in JAMES
MADISON: WRITINGS 489 (Jack N. Rakove ed., 1999).

6
Texas Law Review
[Vol. 83:___

Amendments continued to serve as barriers against the expansion of federal
power. So closely aligned were the Ninth and Tenth Amendments that courts
regularly combined their language and treated them as expressing a single
principle of limited federal power. More and more, the Tenth Amendment
was read to contain its own rule of construction, obviating the need to
separately analyze the Ninth. Nevertheless, in every case in which the Ninth
was discussed, courts continued to follow the Madisonian reading of the
Amendment.
In the third and final period discussed in this article, the New Deal to
Griswold , the traditional reading of the Ninth Amendment disappeared
during the dramatic reconfiguration of federal power that occurred after
1937. Although initially relied upon by courts in resistance to President
Roosevelt's attempts to regulate the national economy, both the Ninth and
Tenth Amendments were reduced to no more than truisms by Justice
Robert's "switch in time." Free from the restraining rule of construction
previously associated with the Ninth Amendment, the Supreme Court
expanded the scope of federal power without regard to the impact on state
regulatory autonomy.
The expansion of regulatory power at the time of the New Deal required
a concomitant reduction in the Court's previously broad interpretation of
liberty under the Due Process Clause. After 1937, the issue became how to
reconstruct that liberty in light of the New Deal Court's general deference to
the political process. In particular, having limited due process liberty to the
rights listed in the text of the Bill of Rights, the New Deal Court had to
decide whether all of the Bill of Rights should be incorporated against the
states. It was here that the traditional doctrine of the Ninth Amendment
made its last stand. Applying a rule of construction based on the Ninth and
Tenth Amendments, the Supreme Court initially resisted incorporation
claims in order to preserve the states' retained rights to establish local rules
of criminal procedure. As the Court gradually incorporated most of the Bill
of Rights, this final application of the traditional Ninth Amendment also
faded away.
By the time Bennett Patterson wrote his book,
The Forgotten Ninth
Amendment , in 1955, almost all traces of the traditional Ninth Amendment
had disappeared. James Madison's speeches and the Supreme Court's early
opinions dealing with the Ninth Amendment had long been lost, and the vast
jurisprudence of the Ninth Amendment was dismissed as really having to do
with the Tenth Amendment. Thus, when Justice Arthur Goldberg penned his
opinion in
Griswold v. Connecticut, the Ninth Amendment appeared to exist
in a doctrinal and historical vacuum.
This Article concludes by considering the possibility that, even if the
traditional understanding of the Ninth Amendment until now has been lost,
the rule of construction represented by the Ninth lives on. Although
generally associated with the Tenth Amendment, the federalism
jurisprudence of the contemporary Supreme Court echoes the same rule of

2004]
The Lost Jurisprudence
7

construction originally associated with the Ninth. Thus, when contemporary
courts rule in favor of state autonomy, whether in regard to commerce or
state authorized medicinal use of marijuana, they are echoing the voices of
countless judges who throughout our constitutional history have sought to
protect the retained right of the people to local self-government.
II. Beginnings: The Ninth Amendment in Antebellum America
A. The Federalist Reading of the Ninth Amendment
The reader is presumed to have already read the first of these two
articles on the lost history of the Ninth Amendment. However, because the
history presented in the first article plays an important role in understanding
the jurisprudence that this Article recovers, a brief review is in order.
The state conventions that insisted on adding a Bill of Rights
specifically suggested the addition of two separate amendments: One
declaring the principle of enumerated federal power with all nondelegated
power being reserved to the states, and the second declaring a rule of
construction limiting the interpretation of enumerated federal power.
Madison's proposed draft of the Bill of Rights included two provisions that
mirrored the amendments suggested by the state conventions: a declaration
of reserved nondelegated power and a rule of construction that prohibited the
undue extension of federal power and preserved the people's retained
rights.12 Ultimately, these would become our Ninth and Tenth Amendments.
The final draft of the Tenth Amendment added the words "or to the
people" but otherwise remained the same as Madison's original draft. The
final draft of the Ninth Amendment, however, dropped the extension of
power language while keeping the language of retained rights. Although
Madison insisted that the meaning of the Ninth Amendment had not changed,
the Virginia Assembly was not convinced and delayed its ratification of the
Bill of Rights due to its concern that the demand for a rule limiting the
interpretation of enumerated federal power had been ignored.13 Other states,
however, quickly ratified ten out of twelve proposed amendments, including
what we know as the Ninth and Tenth.
While the Bill remained pending in Virginia, James Madison delivered
a speech on the floor of the House of Representatives in which he explained
the origin and meaning of the Ninth and Tenth Amendments. According to
Madison, these amendments were intended to limit the federal government's
ability to interfere with matters belonging under local or state control,
including mining, agriculture, and commerce. The Ninth Amendment in
particular prohibited any "latitude of interpretation" unduly extending the
powers of the federal government into matters retained by the people of the

12. Lash,
The Lost Original Meaning , supra note 8, at 360.
13
. Id. at 371�75.

8
Texas Law Review
[Vol. 83:___

several states.14 Later that same year, Virginia abandoned its objections to
the Ninth Amendment and ratified what we know as the Bill of Rights.15
This history, recounted in the first article, reveals the origins of the
Ninth Amendment as a tool for limiting federal intrusion into matters
believed best left under local control. Both the Ninth and Tenth
Amendments guarded the principle of federalism by preserving the retained
right of the people to local self-government. The amendments, however,
differed in application. The Tenth Amendment ensured that the federal
government could exercise only those powers enumerated in the
Constitution, with all other powers generally reserved to the states. In
theory, however, enumerated federal power could be so broadly construed as
to allow the federal government to regulate all matters not specifically placed
out of bounds by the Bill of Rights. The Ninth Amendment addressed this
concern by ensuring that the rights enumerated in the Bill would not be
construed as the only limits on federal power. The effect of the provision, as
Madison explained in his letters and speeches, was to prevent any
interpretation of enumerated federal power that would allow federal authority
to extend into subjects left, as a matter of right, to the sovereign control of
the people of the several states.
Over time, the Tenth Amendment also came to be read as expressing a
rule of construction limiting the interpretation of federal power. No one
disputed Madison's federalist reading of the Ninth Amendment, however,
and both bench and bar continued to cite the Ninth as a federalism-based rule
of interpretation for more than one hundred years. Before exploring those
cases in depth, however, we should first consider the dog that did not bark:
judicial interpretation of the Ninth Amendment as a source of unenumerated
individual rights.
B. The Unenumerated Rights Cases
Nineteenth century cases discussing the Ninth Amendment as a source
of unenumerated rights are extremely rare.16 Prior to the Civil War, there
appear to have been only three attempts by litigants to raise such claims.17

14
. Id. at 384�93.
15
. Id. at 379�84.
16. I have found no clear evidence that any party even made such a claim before a state court
during this period. One possible exception is In re
Graduates , 11 Abb. Pr. 301, 322 n.4 (N.Y. Sup.
Ct. 1860), but the reference to the Ninth is obscure and made in passing.
17. One other possible unenumerated rights reference may be found in Justice Baldwin's circuit
court opinion in
Magill v. Brown , 16 F. Cas. 408 (C.C.E.D. Pa. 1833) (No. 8,952). In the midst of
his 44 page opinion, Justice Baldwin briefly refers to the "personal rights . . . protected by the 2d
and 3d clauses of section 9, art. 1, of the constitution, and the 9th amendment."
Id. at 428.
Although Baldwin describes the Ninth as protecting "personal rights," this is not inconsistent with a
federalist reading of the Ninth. St. George Tucker also referred to the Ninth as protecting personal
rights, but with a decidedly states' rights spin.
See Lash, The Lost Original Meaning , supra note 8,
at 396�97. In this regard, it is significant that Baldwin links the Ninth to restrictions on the federal
government in Article I, � 9 and
not to the restrictions on the states in Article I, � 10. Baldwin

2004]
The Lost Jurisprudence
9

All of these attempts were rejected by the courts. In 1799, an American
citizen named Jonathan Robins was accused of committing murder on the
high seas aboard a British war ship.18 Under a treaty with Great Britain,
Robins was to be extradited to Great Britain for prosecution.19 Robins fought
the extradition on the grounds that it denied him his constitutional right to
trial by jury.20 According to Robins's attorney, both the Ninth and Tenth
Amendments reserved to the people the right to trial by jury.21 The court
rejected the claim without specifically discussing the Ninth and Tenth
Amendments, instead summarily stating that "[t]he objections made to the
treaty's being contrary to the constitution, have been so often and so fully
argued and refuted, that I was in hopes no time would have been occupied on
that subject." 22
In
Holmes v. Jennison , a Canadian citizen, accused of a murder
committed in Canada, was arrested in Vermont.23 On his own initiative, the
Governor of Vermont directed the state court to deliver the prisoner to
Canadian authorities, despite the fact that there was no extradition treaty in
force between the United States and Great Britain, the sovereign authority
over Canada.24 In his argument before the Supreme Court, former Governor
C. P. Van Ness25 argued that the current Governor's unilateral action violated

himself was a controversial figure on the Court whose opinions were described by fellow Justice
Joseph Story as "so utterly wrong in principle and authority, that I am sure he cannot be sane." J.
Strory to J. Hopkinson, May 9, 1833, Hopkinson Papers,
reprinted in 3�4 G. EDWARD WHITE,
HISTORY OF THE SUPREME COURT, THE MARSHALL COURT AND CULTURAL CHANGE, 1815�35, at
298 (1988).
18. United States v. Robins, 27 F. Cas. 825, 826 (D.C.S.C. 1799) (No. 16, 175).
19
. Id.
20
. Id. at 828.
21. According to Robins' attorney:
[Natural rights] not given up, formed a sacred residuum in the hands of the people, and
which are unalienable by any act of legislation: that this was no visionary theory of
ancient writers, but is the true and modern ground of all social union: and it is fully
recognized in our free constitution; for by article 12th, of the amendments to our
constitution, it is declared, "that all 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." And the 11th section declares, "the enumeration in the constitution of
certain rights, shall not be construed to deny or disparage others retained by the
people."
Id. at 828�29.
22
. Id. at 832.
23. 39 U.S. (14 Pet.) 540, 540 (1840).
24
. Id. at 541�42.
25. When he was governor, Van Ness had been told by the U.S. State Department not to hand
over the prisoner because an extradition treaty was still under negotiation.
See CARL B. SWISHER,
HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE TANEY PERIOD, 1836�1864, at
175 (1974) (noting that Van Ness, "meticulous about the exercise of constitutional powers," refused
to honor extradition requests from the Governor of Canada, instead referring the request to
Secretary of State Henry Clay). Apparently, when the governorship changed hands, the new
governor was willing to extradite even without a federal treaty.
See id . (indicating that other
governors treated extradition requests as a matter of their own discretion).

10
Texas Law Review
[Vol. 83:___

the defendant's right to due process under the Fifth Amendment.26 Calling
on the Court to reverse its recent decision in
Baron v. Baltimore ,27 Van Ness
argued that the people retained inherent personal rights that should be
respected by all governments, state and federal.28 He distinguished the
retained rights of the Ninth Amendment from the reservation of powers in
the Tenth and argued that not only were such rights recognized in the Ninth
Amendment, but also that the Bill of Rights should be read as granting the
federal government power to protect these rights against state intrusion.29
The Court rejected this attempt to reverse
Baron and dismissed the case for
want of jurisdiction without discussing Van Ness's interpretation of the
Ninth and Tenth Amendments or his remarkable argument that the original
Bill of Rights was a source of federal regulatory power.30
Instead of viewing the Ninth as protecting unenumerated rights, the
Supreme Court during this period appeared to presumptively treat Ninth
Amendment claims as involving the proper interpretation of federal power.
In
Roosevelt v. Meyer , Meyer wished to pay a debt he owed Roosevelt in
notes issued by the United States.31 There being some question whether the
United States government had the power to issue such notes, the two parties
went to state court seeking a judgment regarding the validity of the notes.32
According to the record:

26
. Holmes , 39 U.S. at 555.
27
. Id.
28
. Id. at 556.
29. According to Van Ness:
But the distinction which I have endeavoured to establish between the limitations
of power and the declarations of rights, is adopted in the clearest manner in the
Constitution itself. The ninth article of the amendments declares, that "the enumeration
in the Constitution of certain rights, shall not be construed to deny or disparage others
retained by the people." And the tenth article provides, 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." Here we see that the framers of these
amendments had no idea of confounding the limitations of power, and the declarations
of rights; but treated each as distinct from the other. If the amendments had treated
only of the former, certainly the reservation, both to the states and to the people, in the
tenth article, would have answered every purpose. But the ninth article was deemed
necessary as it regarded the rights declared to exist, in order to prevent the people from
being deprived of others by implication, that might not be included in the enumeration.
It appears clear to my mind, then, that the provision in the Constitution to which I
have referred, instead of limiting the powers of the general government, directly calls
into action those powers for the protection of the citizen.
Id. at 557.
30. In all of the cases I have discovered that discussed the Ninth and Tenth Amendments, Van
Ness's argument was the sole attempt to distinguish rights under the Ninth from powers under the
Tenth.
But see John Choon Yoo, Our Declaratory Ninth Amendment , 42 EMORY L.J. 967, 1004�06
(1993) (discussing Van Ness's argument as evidence of an individual rights reading of the Ninth
Amendment).
31. 68 U.S. (1 Wall.) 512, 513 (1863).
32. The notes had been issued according to an 1862 act that declared the notes should be
"`lawful money and a legal tender in payment of all debts, public and private,' except duties on

2004]
The Lost Jurisprudence
11

[Roosevelt]
relied upon certain provisions in the Constitution of the
United States, namely Article I, section 8, clause 5, of the said
Constitution, and Articles 5, 9, and 10 of the amendments thereof, the
effect of which, as the said respondent
insisted , was, that the debt,
owing to the said respondent upon and by virtue of the bond and
mortgage mentioned in the submission of the case, could not be paid
against the will of the said creditor in anything but gold or silver
coin . . . .33
The highest court of New York ruled that the notes were valid legal
tender, and Roosevelt appealed to the United States Supreme Court. There,
Meyer argued that the appeal should be dismissed on the grounds that the
Supreme Court lacked jurisdiction to hear the case.34 Section 25 of the
Judiciary Act of 1789 granted the Supreme Court appellate jurisdiction
"where is drawn in question the construction of any clause of the
Constitution, or of a . . . statute of . . . the United States, and the decision is
against the title, right, privilege, or exemption specially set up or claimed by
either party under such clause of the said Constitution."35 According to
Meyer, because the state court had
upheld the validity of the Act, the
Supreme Court had no jurisdiction to hear the appeal.36 Although Roosevelt
had included the Fifth, Ninth, and Tenth Amendments in his original claim,
Meyer argued that these constitutional provisions were cited only in support
of Roosevelt's main argument that Congress had no power to issue the
notes.37 The Supreme Court agreed and dismissed the appeal for want of
jurisdiction.38 The Court thus treated Roosevelt's Ninth Amendment claim
not as an unenumerated right, but as a rule for construing federal power
under the Bankruptcy Clause.39

imports, and interest on the Federal debt."
Id. at 513 (emphasis omitted) (quoting Act of Feb. 25,
1862, ch. 33, � 1, 12 Stat. 345). The controversy over legal tender would continue after the civil
war.
See infra section III(B)(1) (discussing the Legal Tender Cases ).
33
. Roosevelt , 68 U.S. at 514�15.
34
. Id. at 515�16.
35
. Id. at 512�13 (alteration in original).
36
. Id. at 515.
37
. Id. at 515�16.
38
. Id. at 517.
39. Roosevelt himself apparently recognized the problem and thus focused on the Fifth
Amendment, not the Ninth, in his argument before the Supreme Court.
Id. at 516. In the post-Civil
War decision,
Trebilcock v. Wilson , 79 U.S. (12 Wall.) 687 (1871), the Supreme Court viewed the
denial of jurisdiction in
Roosevelt as error. Id. at 692�93. According to Justice Field in Trebilcock ,
the claim could be construed as involving the right to be paid in specie under a proper construction
of the Ninth and Tenth Amendments.
Id. at 693�94. This was a denial of right involving the
construction of the Fifth, Ninth, and Tenth Amendments and thus sufficient to satisfy the
jurisdiction requirements of Section 25 of the Judiciary Act.
Id. at 693. Trebilcock does not dispute
the
Meyer Court's view that the Ninth and Tenth can be used to determine the scope of federal
power; it only asserts that claims under the Fifth, Ninth, and Tenth Amendments raise rights
sufficient to trigger jurisdiction.

12
Texas Law Review
[Vol. 83:___

Finally, while riding circuit in New Hampshire only two years after
joining the Supreme Court, Justice Joseph Story decided
Society for the
Propagation of the Gospel v. Wheeler
.40 Wheeler involved a state law that
allowed tenants to recover the value of improvements. The claim was that
the law was:
[I]n contravention of the 2d, 3d, 12th, 14th and 20th articles of the bill
of rights, in the constitution of New Hampshire; and of the 10th
section of the first article, and the 9th article of the amendments, of the
constitution of the United States; and is also repugnant to natural
justice; and is therefore void.41
Justice Story dismissed the constitutional claim:
In respect also to the constitution of the United States, the statute in
question cannot be considered as void. The only article which bears on
the subject, is that which declares, that no state shall pass `any ex post
facto law, or law impairing the obligation of contracts.' There is no
pretence of any contract being impaired between the parties before the
court. The compensation is for a tort, in respect to which the
legislature have created and not destroyed an obligation. Nor is this an
ex post facto law within this clause of the constitution, for it has been
solemnly adjudged, that it applies only to laws, which render an act
punishable in a manner, in which it was not punishable, when it was
committed. The clause does not touch civil rights or civil remedies.
The remaining question then is, whether the act is contrary to the
constitution of New Hampshire.42
In this passage, Story ignores the Ninth Amendment claim, despite the
alleged violation of natural rights. Even though the case involved a claim of
natural justice, Story viewed the Ninth Amendment as having no "bear[ing]
on the subject."43 It is only after Story expressly moved from considering the
federal Constitution to issues of state law that he addressed "natural
justice."44 The implication is that, to Story, natural rights were a matter of
state law and not a judicially enforceable aspect of the federal Ninth
Amendment.45
The rarity and universal rejection of attempts to read the Ninth
Amendment as a source of libertarian rights tracks the original understanding
of the Ninth as a rule protecting the retained collective rights of the people of
the several states. It is not that the Founding generation rejected the idea of

40. 22 F. Cas. 756 (C.C.D.N.H. 1814) (No. 13,156).
41
. Id. at 766.
42
. Id. at 767 (internal citations omitted).
43
. See id.
44
. Id. at 767�68.
45. For a general discussion of how the original understanding of the Ninth Amendment relates
to the Founding-era understanding of natural rights, see Lash,
supra note 8, at 401�10.

2004]
The Lost Jurisprudence
13

individual natural rights. Far from it.46 But claims of natural rights were
presumptively matters of state law, distinct from the limitations on federal
power imposed by the Ninth Amendment.47 The initial application of the
Ninth would come not in support of libertarian rights, but in support of the
concurrent powers of state government.
C. Retaining the Concurrent Power of the States
In all other cases not falling within the classes already mentioned, it
seems unquestionable that the states retain concurrent authority with
Congress, not only upon the letter and spirit of the eleventh
amendment of the constitution, but upon the soundest principles of
general reasoning.48
A critical issue in the early republic was determining the nature of
federal power. If deemed exclusive, this would preclude state authority over
any matter within the potential reach of the federal government. For
example, federal authority to regulate interstate commerce had the potential
to deny the states authority to regulate
any matter touching commercial
affairs. Because it was a hotly contested issue during the ratification debates,
Alexander Hamilton in
The Federalist Papers sought to placate antifederalist
concerns by limiting exclusive federal authority to "three cases":
[Ind] The principles established in a former paper teach us that the
states will retain all
pre-existing authorities which may not be
exclusively delegated to the federal head; and that this exclusive
delegation can only exist in one of three cases: where an exclusive
authority is, in express terms, granted to the Union; or where a
particular authority is granted to the Union and the exercise of a like
authority is prohibited to the States; or where an authority is granted to
the Union with which a similar authority in the States would be utterly
incompatible.49
Under Hamilton's approach, much depends on the third case and how
one arrives at the conclusion that state power is "utterly incompatible" with
federal authority. Those advocating the maximum degree of state autonomy
argued for strict construction of federal power in cases involving matters
traditionally under state control. In 1803, for example, St. George Tucker
wrote that state governments "retain every power, jurisdiction and right not
delegated to the United States, by the constitution, nor prohibited by it to the
states."50 According to Tucker, the principles of the Ninth and Tenth

46
. See Lash, The Lost Original Meaning , supra note 8, at 401�10 (discussing judicial
recognition and protection of natural rights as a matter of state law).
47
. Id.
48. Houston v. Moore, 18 U.S. (5 Wheat) 1, 49 (1820) (Story, J., dissenting).
49. THE FEDERALIST No. 82, at 492 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
50. 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

14
Texas Law Review
[Vol. 83:___

Amendments required that "the powers delegated to the federal government,
are, in all cases, to receive the most strict construction that the instrument
will bear, where the rights of a state or of the people, either collectively, or
individually, may be drawn in question."51
In the early 1800s, other courts echoed Tucker's view that the Ninth and
Tenth Amendments called for a narrow construction of federal power. In
1816, South Carolina courts were faced with the question whether states have
the authority to prosecute persons passing counterfeit federal coins.52
Although the Constitution expressly empowers the federal government to
punish counterfeiters,53 it was not clear whether this express enumeration
should be interpreted to prohibit the states from punishing persons
passing
counterfeit coins. Writing for the South Carolina Supreme Court, Judge
Grimke noted that the Constitution does not expressly grant Congress the
power to punish persons passing counterfeit coins.54 Applying a rule of
construction based on the Ninth and Tenth Amendments, Judge Grimke
concluded that this, then, was a power retained by the states:
[I]t does not appear that the power of punishing persons for passing
counterfeit coin, knowing it to be counterfeit, was either expressly
given to the Congress of the United States, or divested out of the
individual States. Now the 9th section of the amendments to the
constitution, as agreed to by the several States, and which has now
become a component part of the constitution, declares, that the
enumeration in the constitution of certain rights, shall not be construed
to deny or disparage others retained by the people; and in the 10th
section of the same, it is further provided, that the powers not
delegated to the United States by the constitution, nor prohibited by it
to the State, are reserved to the States, respectively, or to the people.
When we examine the powers conceded by the individual states, we
find no enumeration of this power given to Congress, and when we
review the powers denied to the individual States, we discover no
mention whatever of their being divested of this power. The individual
States were in possession of this power before the ratification of the
constitution of the United States; and if there is no express declaration
in that instrument, which deprives them of it, they must still retain it,
unless they should be divested thereof by construction or
implication.55

FEDERAL GOVERNMENT OF THE UNITED STATES; AND THE COMMONWEALTH OF VIRGINIA 141 (St.
George Tucker ed., Augustus M. Kelley 1969) (1803) [hereinafter TUCKER, BLACKSTONE'S
COMMENTARIES].
51
. Id. at 154.
52. State v. Antonio, 3 S.C.L. (1 Brev.) 562 (1816).
53. 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.").
54
. Antonio , 3 S.C.L. (1 Brev.) at 567�68.
55 . Id.

2004]
The Lost Jurisprudence
15

Grimke read the Ninth and Tenth Amendments as applying to powers
exercised by the states prior to the adoption of the Constitution.56 If such
powers are not expressly granted to the federal government or divested from
the states, then under the Ninth Amendment, enumerated federal power
should be interpreted in a manner retaining such rights to the states. Other
courts repeated this idea of retained state power. In
Livingston v. Van Ingen ,
the state of New York had granted a ferry monopoly to Robert Livingston
and Robert Fulton57 by virtue of their "new and advantageous" mode of
transportation.58 A competitor claimed that granting such monopolies was an
exclusive power of the federal government under its enumerated powers to
"promote the progress of science and useful arts" and to regulate interstate
commerce.59 Livingston's counsel Thomas A. Emmet60 responded that the
federal government had only such power as was expressly granted and that
all other powers were reserved to the states under the Ninth and Tenth
Amendments.61

56. 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 578 (Nott, J., dissenting).
57. 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 Steamboat 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.
58. 9 Johns. 507, 508 (N.Y. 1812).
59
. Id. at 515.
60. Thomas Emmet argued a number of important cases in state and federal court, including the
Supreme Court, between 1815 and 1824.
See 3�4 WHITE, supra note 17, at 204�14. The
culmination of his legal career was his argument before the Supreme Court in
Gibbons v. Ogden .
Id. at 210�11; see also infra note 112 and accompanying text.
61. 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�51.

16
Texas Law Review
[Vol. 83:___

The highest court of New York, under the leadership of Chancellor
Kent, upheld the monopoly.62 Judge, and later Supreme Court Justice, Smith
Thompson concurred in an opinion based on the Tenth Amendment, but used
language that combined the Ninth (retained rights) and Tenth (nondelegated
powers):
It is an undeniable rule of construction, applicable to the constitution
of the United States, that all powers and rights of sovereignty,
possessed and enjoyed by the several states, as independent
governments, before the adoption of the constitution, and which are
not either expressly, or by necessary implication, delegated to the
general government, are retained by the states.63
As the nineteenth century progressed, the need to define the line
between exclusive and concurrent federal power was diminished somewhat
by court decisions that narrowed the scope of federal power to regulate
interstate commerce.64 For example, in 1863 the Supreme Court of Indiana
ruled that Congress had no authority to regulate intrastate commerce, thereby
obviating the issue of concurrent state power over the same activity.65 Once
again, the court's interpretation of the scope of federal power was informed
by principles expressed in the Ninth and Tenth Amendments:
In the case at bar, it may, for the sake of the argument, be conceded,
that Congress not only possesses the power, but the exclusive right, to
regulate commerce among the several States, including the pilotage of
vessels engaged in said commerce; and still the facts, so far as the
record shows them, do not make a case falling strictly within the
principle of the points thus conceded, because not involved. And why?
The ninth amendment to the Constitution is as follows: "The
enumeration in the Constitution of certain rights, shall not be
construed to deny or disparage others retained by the people," and
tenth: "The powers not delegated to the
United States by the
Constitution, nor prohibited by it to the States, are reserved to the

62
. Id. at 590.
63
. Id. at 565. Judge Thompson goes on:
This has been the uniform understanding of the ablest jurists, ever since the formation
of that government; and it is a rule indispensably necessary, in order to preserve
harmony in the administration of the different governments, and prevent that collision
which a partial consolidation is peculiarly calculated to produce. This was the object
contemplated and intended to be secured by the tenth article of the amendments of the
constitution, which declares, 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. If, then, the grant of the right or privilege claimed by the appellants,
would, before the adoption of the constitution, have been a legitimate exercise of state
sovereignty, it would, I think, under the rule of construction which I have suggested, be
a strained interpretation of that instrument, to say such sovereignty has been thereby
surrendered by the state.
Id.
64
. See infra notes 300�326 and accompanying text.
65. Barnaby v. State, 21 Ind. 450, 452�53 (1863).

2004]
The Lost Jurisprudence
17

States respectively, or to the people." The power conferred upon
Congress to regulate commerce, it will not, we suppose, in view of
these provisions, be contended, give jurisdiction over the navigable
waters of a State, except as regards intercourse with other States of the
Union, or with a foreign country.66
In other cases, however, the conflict between state and federal
jurisdiction would be unavoidable. Those cases forced a determination of the
degree to which state power ran concurrent with federal authority--an issue
which called for the application of the Ninth Amendment.
D. Justice Story and Houston v. Moore
The tandem application of the Ninth and Tenth Amendments illustrated
in the previous cases was repeated throughout the nineteenth century, with
both clauses generally read as related expressions of state autonomy.67 Given
the Ninth Amendment's role in preserving local autonomy, it is not
surprising to find it generally paired with the Tenth. Occasionally, however,
issues arose that seemed particularly suited for application of one or the other
amendments. The Alien and Sedition Act controversy, for example, was
particularly subject to a Tenth Amendment critique because Congress sought
to exercise a nonenumerated power.68 The construction of enumerated
powers, on the other hand, seems particularly suited for the application of the
Ninth Amendment. Although the Tenth reserves nondelegated powers to the
states, the issue of concurrent state power involves matters concededly within
Congress's delegated powers. The issue is the degree to which that
enumerated power denies or disparages the existence of concurrent state
authority. Accordingly, in one of the Supreme Court's most influential
opinions on the exclusivity of enumerated federal power, it was the Ninth,
not the Tenth, that informed the Court's interpretation of the Constitution.
Joseph Story's dissenting opinion in
Houston v. Moore contains the
earliest discovered discussion of the Ninth Amendment by a Supreme Court
Justice. Although written in dissent, Justice Story's analysis was influential

66
. Id.
67. In
State v. Brearly , counsel for the state argued that jurisdiction to issue writs of habeas
corpus against the U.S. military was a power retained by the states under the Ninth and Tenth
Amendments. 5 N.J.L. 639, 643 (N.J. 1819). Though Judge Southard concluded that some matters
are within the exclusive jurisdiction of the federal courts, he further explained:
There are other questions, where the state and federal courts both have jurisdiction.
They are such as existed and were the subjects of state cognizance and judicial notice
before the formation of the general government, and are given to the
United States , but
altogether without words of exclusion used in application to the state. They are
possessed by the federal courts because expressly given; they are retained by the states
upon the impregnable ground that they have never been surrendered.
Id. at 644; see also Henry Bickel Co. v. Wright's Adm'x, 202 S.W. 672, 674 (Ky. 1918) ("[T]he
ninth and tenth amendments reserve to the states all powers not expressly delegated.").
68. For a discussion of Tenth Amendment objections to the Alien and Sedition Act, see Lash,
The Lost Original Meaning , supra note 8, at 410�13.

18
Texas Law Review
[Vol. 83:___

for the next one hundred years. It was cited by later Supreme Court justices
and many state and federal courts as they continued to struggle with the line
between state and federal power. In the countless articles and treatises
discussing the Ninth Amendment, however, not one discusses Story's
analysis of the Ninth Amendment in
Houston . Despite the importance of the
case,69 it is not hard to understand why it was missed: Justice Story referred
to the Ninth as the "eleventh amendment."70 This is not a mistake. James
Madison also referred to the Ninth as the Eleventh in his letters and in his
speech on the Bank of the United States.71 This usage reflects an early
convention which referred to the first ten amendments according to their
position on the original list of twelve.72 In 1803, St. George Tucker
published his treatise on the American Constitution, in which he referred to
the Ninth and Tenth Amendments as "Articles 11 and 12."73 The same year
Story wrote his opinion in
Houston , John Taylor published Construction
Construed
, in which he referred to the Ninth and Tenth Amendments as the
"eleventh and twelfth."74 As late as 1833, the Supreme Court referred to the
Seventh Amendment as the Ninth--its place on the original list.75 Over time,
the convention changed and "Articles Three through Twelve" became known
as the Bill of Rights and were renumbered One through Ten. This change in
convention, however, has had the effect of obscuring Justice Story's
important discussion of the Ninth Amendment in
Houston . Rescued from

69
. Houston and its progeny account for roughly 25% of the Supreme Court's total
jurisprudence on the Ninth Amendment. The case receives significant attention in G. Edward
White's
History of the Supreme Court . See 3�4 WHITE, supra note 17, at 535�41. Although at one
point White quotes Story's reference to the "eleventh amendment," White does not discuss whether
Story was referring to the Ninth.
Id. at 572.
70. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 49 (1820) (Story, J., dissenting).
71. James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791),
in
WRITINGS,
supra note 11, at 489.
72
. See, e.g. , Letter from James Madison to George Washington (Dec. 5, 1789), in THE
COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES AND ORIGINS 661 (Neil H. Cogan
ed., 1997) [hereinafter THE COMPLETE BILL OF RIGHTS] (referring to the Ninth Amendment as the
"eleventh").
73
. See TUCKER, BLACKSTONE'S COMMENTARIES, supra note 50, at 151, 154.
74. JOHN TAYLOR, CONSTRUCTION CONSTRUED AND CONSTITUTIONS VINDICATED 46
(Leonard W. Levy ed., Da Capo Press 1970) (1820). According to Taylor:
The eleventh amendment prohibits a construction by which the rights retained by the
people shall be denied or disparaged; and the twelfth reserves to the state respectively
or to the people the powers not delegated to the United States, not prohibited to the
states. The precision of these expressions is happily contrived to defeat a construction,
by which the origin of the union, or the sovereignty of the states, could be rendered at
all doubtful.
Id. (emphasis omitted).
75. Livingston v. Moore, 32 U.S. (7 Pet.) 469, 551 (1833) (referring to the current Seventh
Amendment as the "ninth Article of the amendments of the constitution of the United States");
see
also
Ex parte Burford, 7 U.S. (3 Cranch) 448, 451 (1806) (referring to the Fourth Amendment as
the "6th article of the amendments to the constitution").

2004]
The Lost Jurisprudence
19

obscurity,76 Story's opinion stands as the Supreme Court's first and most
relied upon discussion of the Ninth Amendment as an independent principle
of constitutional law.77
1. Houston v. Moore .--Houston involved a state prosecution for failure
to perform federal militia duty.78 Pennsylvania law provided that "every
non-commissioned officer and private, who shall have neglected or refused
to serve when called into actual service," would be courtmartialed by the
state and punished according to the federal militia law of 1795.79 In 1814,
President Madison instructed the Governor of Pennsylvania to supply
militiamen for the war against Great Britain. Houston, a private enrolled in
the Pennsylvania militia, refused to join up with his detachment and was
prosecuted and fined according to state law.80 Houston's defense was that
Pennsylvania law in this instance was "contrary to the constitution of the
United States," particularly Article I, Section 8, Clauses 15 and 16 of the
Constitution, which grants Congress authority over the militia.81 According
to Houston, federal power over the militia was "exclusive of state authority,"
and thus the states had no concurrent power to create courts martial and
impose penalties for violating federal militia law, even when Congress had
failed to create its own courts martial.82

76
. Houston v. Moore actually has been hiding in plain sight. In addition to being cited on the
issue of concurrent state power,
Houston has long been a part of discussions regarding militias and
the Second Amendment.
E.g. , Michael A. Bellesiles, The Second Amendment in Action , 76 CHI.-
KENT L. REV. 61, 99 n.319 (2000); J. Norman Heath,
Exposing the Second Amendment: Federal
Preemption of State Militia Legislation
, 79 U. DET. MERCY L. REV. 39, 39�40 (2001); David B.
Kopel,
The Supreme Court's Thirty-Five Other Gun Cases: What the Supreme Court Has Said
About the Second Amendment
, 18 ST. LOUIS U. PUB. L. REV. 99, 183 (1999) (calling Story's
citation to the "fifth" amendment a "typo" but not mentioning his citing the "eleventh"). Other
language by Story in
Houston regarding the Court's lack of power to expand the Constitution has
also been cited in discussions of the power of the Supreme Court.
See, e.g. , Raoul Berger, New
Theories of "Interpretation": The Activist Flight From the Constitution
, 47 OHIO ST. L.J. 1, 9
(1986) ("Understandably, Justice Story emphasized, `we are not at liberty to add one jot of power to
the national government beyond what the people have granted by the constitution.'").
77. Although Story's reference to the Ninth has been obscured, the case itself continues to be
cited by the Supreme Court.
See, e.g. , Tafflin v. Levitt, 493 U.S. 455, 458�59 (1990).
78. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 49 (1820). For an excellent discussion of
Houston 's underlying facts from a non-Ninth Amendment point of view, see David B. Kopel, The
Second Amendment in the Nineteenth Century
, 1998 B.Y.U. L. REV. 1359, 1379�84.
79
. Houston , 18 U.S. at 58.
80
. Id. at 2.
81
. Id. at 47. Clause 15 allows Congress "[t]o provide for calling forth the Militia to execute
the Laws of the Union, suppress Insurrections and repel Invasions." U.S. CONST. art. I, � 8, cl. 15.
Clause 16 allows Congress "[t]o provide for organizing, arming, and disciplining, the Militia, and
for governing such Part of them as may be employed in the Service of the United States, reserving
to the States respectively, the Appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress." U.S. CONST. art. I, � 8, cl. 16.
82
. Houston , 18 U.S. at 4.

20
Texas Law Review
[Vol. 83:___

In response, the state argued that concurrent state power should be
assumed on the grounds of state sovereignty. Citing the New York court's
decision in
Livingston v. Van Ingen ,83 Houston's lawyer declared:
The necessity of a concurrent jurisdiction in certain cases results from
the peculiar division of the powers of sovereignty in our government;
and the principle, that all authorities of which the states are not
expressly devested in favour of the Union, or the exercise of which, by
the states, would be repugnant to those granted to the Union, are
reserved to the states, is not only a theoretical consequence of that
division, but is clearly admitted by the whole tenor of the
constitution.84
Writing for a splintered majority, Justice Bushrod Washington ruled that
Congress had not provided federal courts with exclusive jurisdiction in these
kinds of matters and upheld Houston's conviction.85 Justice Story dissented
on the ground that federal militia law applicable to this case contemplated a
federal--not a state--court martial.86 In his opinion, Story articulated
principles of construction for determining whether federal power was
concurrent or exclusive. He began by stating the importance of the case to
issues of state sovereignty:
Questions of this nature are always of great importance and delicacy.
They involve interests of so much magnitude, and of such deep and
permanent public concern, that they cannot but be approached with
uncommon anxiety. The sovereignty of a state in the exercise of its
legislation is not to be impaired, unless it be clear that it has
transcended its legitimate authority; nor ought any power to be sought,
much less to be adjudged, in favour of the United States, unless it be
clearly within the reach of its constitutional charter.87
Story then noted that a constitutional grant of power does not necessarily
deny states concurrent authority over the same subject. His reasoning here
deserves to be presented in full:
The constitution containing a grant of powers in many instances
similar to those already existing in the state governments, and some of
these being of vital importance also to state authority and state
legislation, it is not to be admitted that a mere grant of such powers in

83. 9 Johns. 507, 508 (N.Y. 1812).
84
. Houston , 18 U.S. at 8.
85
. Id. at 28. In his opinion, Justice William Johnson found no reason for the case to have been
heard by the Court; the state prosecution was ancillary to federal law--not in conflict with it--and
the United States had not complained.
Id. at 33 (Johnson, J., concurring). Johnson did not believe
Houston was subject to federal law at all prior to his reaching the "place of rendezvous."
Id. at 36
(Johnson, J., concurring).
86
. Id. at 68�69 (Story, J., dissenting). In his dissent, Story had "the concurrence of one of my
brethren."
Id. at 76 (Story, J., dissenting). The Justice most likely to have concurred was Chief
Justice John Marshall.
See 3�4 WHITE, supra note 17, at 537. [cu pending--white]
87
. Id. at 48 (Story, J., dissenting).

2004]
The Lost Jurisprudence
21

affirmative terms to Congress, does,
per se , transfer an exclusive
sovereignty on such subjects to the latter. On the contrary, a
reasonable interpretation of that instrument necessarily leads to the
conclusion that the powers so granted are never exclusive of similar
powers existing in the states, unless where the constitution has
expressly, in terms, given an exclusive power to Congress, or the
exercise of a like power is prohibited to the states, or there is a direct
repugnancy or incompatibility in the exercise of it by the states.[88]
The example of the first class is to be found in the
exclusive legislation
delegated to Congress over places purchased by the consent of the
legislature of the state in which the same shall be, for forts, arsenals,
dock-yards, &c.; of the second class, the prohibition of a state to coin
money or emit bills of credit; of the third class, as this court have
already held, the power to establish an uniform rule of naturalization,
and the delegation of admiralty and maritime jurisdiction. In all other
cases not falling within the classes already mentioned, it seems
unquestionable that the states retain concurrent authority with
Congress
, not only upon the letter and spirit of the eleventh
amendment of the constitutio
n, but upon the soundest principles of
general reasoning. There is this reserve, however, that in cases of
concurrent authority, where the laws of the states and of the Union are
in direct and manifest collision on the same subject, those of the
Union being `the supreme law of the land,' are of paramount
authority, and the state laws, so far, and so far only, as such
incompatibility exists, must necessarily yield.
Such are the general principles by which my judgment is guided in
every investigation on constitutional points. I do not know that they
have ever been seriously doubted. They commend themselves by their
intrinsic equity, and have been amply justified by the opinions of the
great men under whose guidance the constitution was framed, as well
as by the practice of the government of the Union. To desert them
would be to deliver ourselves over to endless doubts and difficulties;
and probably to hazard the existence of the constitution itself.89
The context of the discussion initially makes Story's reference to the
Eleventh Amendment puzzling. The Eleventh Amendment restricts the
jurisdiction of federal courts to hear claims by individuals against states.90 In
this passage, however, Story is not discussing federal court jurisdiction, but
the proper construction of federal legislative power. This, as we have seen,
raises issues under the Ninth but not the Eleventh Amendment. The
reference makes sense, however, if Story is understood to be using the early

88. To this extent, Story appears to track Hamilton's argument in
Federalist 82 . See supra note
49.
89
. Houston , 18 U.S. at 48�50 (Story, J., dissenting) (second and third emphasis added)
(footnotes omitted).
90. U.S. CONST. amend. XI.

22
Texas Law Review
[Vol. 83:___

convention of referring to provisions in the Bill of Rights according to their
position on the originally proposed list of amendments.91 Read this way, the
passage not only makes sense, it becomes a textbook case for how to apply
the Ninth Amendment's rule of construction.
One of the original purposes of the Ninth Amendment was to prevent
the Bill of Rights from being construed to suggest that congressional power
extended to all matters
except those expressly restricted.92 As Joseph Story
would later write in his
Commentaries on the Constitution :
[The Ninth Amendment] was manifestly introduced to prevent any
perverse, or ingenious misapplication of the well known maxim, that

91. Additional evidence that Story is using the early convention comes later in his opinion
when he refers to the Second Amendment as the "Fifth."
See Houston , 18 U.S. at 52�53 (Story, J.,
dissenting) ("The fifth amendment to the constitution, declaring that `a well regulated militia being
necessary to the security of a free State, the right of the people to keep and bear arms shall not be
infringed,' may not, perhaps, be thought to have any important bearing on this point."). This
reference clearly indicates that Story is using some different method of numbering the amendments,
but this particular passage raises a mystery of its own. If Story were using the early convention, he
would have referred to the Second as the Fourth Amendment. The fact that he calls it the Fifth
raises the possibility of transcription error. In fact, some commentators have referred to Story's
Fifth Amendment reference in this case as a "typo."
See Kopel, supra note 76, at 183 (calling
Story's citation to the "fifth" amendment a "typo," but not mentioning Story's reference to the
"eleventh"). But if the "fifth" was a transcription error, this calls into question whether his
"eleventh amendment" reference also was in error. This, however, is not likely. The reference to
the "fifth" makes no sense unless this was a case of transposing an intended reference to the Fourth
(now our Second) into a reference to the "fifth." The terms "Fourth" and "Fifth" are closely enough
related to explain the error. Story's references to the eleventh amendment, however, need no such
explanation. It makes perfect sense in the context of the discussion (other courts also believed
issues of concurrent state power raised Ninth Amendment issues), and it fits with the common
convention described in the text. In fact, viewing his references to the Eleventh under the
convention helps to explain the mistaken reference to the "fifth." Additional support for the view
that his reference to the "fifth" but not his reference to the "eleventh," was a mistake, is seen in how
this passage was treated in later court decisions. Story's reference to the eleventh amendment is
quoted in briefs to the Supreme Court, and by Supreme Court Justices themselves, in later cases
without correction or any indication that the reference is mistaken.
See infra notes 108�151.
Lawyers before the Court in
Gibbons v. Ogden , 22 U.S. (9 Wheat) 1, 130�31 (1824), for example,
quoted Story's reference to the Eleventh Amendment, at a time when Justice Story was on the
bench. Story rejected their claim in that case, but neither he nor the litigants indicated that the
reference was mistaken in any way. The reporter's reference to the "fifth"
Amendment in Houston ,
on the other hand, is never quoted again by any litigant or any court--state or federal.

92. In his speech introducing draft amendments to the House of Representatives, Madison
addressed concerns regarding the addition of a Bill of Rights:
It has been objected also against a bill of rights, that, by enumerating particular
exceptions to the grant of power, it would disparage those rights which were not placed
in that enumeration; and it might follow by implication, that those rights which were
not singled out, were intended to be assigned into the hands of the general government,
and were consequently insecure. This is one of the most plausible arguments I have
ever heard urged against the admission of a bill of rights into this system; but, I
conceive, that may be guarded against. I have attempted it, as gentlemen may see by
turning to the last clause of the 4th resolution.
James Madison, Speech in Congress Proposing Constitutional Amendments,
reprinted in
WRITINGS,
supra note 11, at 448�49. The "last clause of the 4th resolution" referred to by Madison
was an early draft of the Ninth Amendment.
See Lash, The Lost Original Meaning , supra note 8, at
360 (detailing the drafting history of the Ninth Amendment).

2004]
The Lost Jurisprudence
23

an affirmation in particular cases implies a negation in all others; and

converso
, that a negation in particular cases implies an affirmation in
all others. The maxim, rightly understood, is perfectly sound and safe;
but it has often been strangely forced from its natural meaning into the
support of the most dangerous political heresies. The amendment was
undoubtedly suggested by the reasoning of the Federalist on the
subject of a general bill of rights.93
In
Houston , the defendant was attempting just such a "political heresy."
One of Houston's arguments was that the sole power of the states to regulate
on matters involving the militia was contained in the "reservation" clause of
Article I, Section 8, Clause 16.94 That clause, after granting Congress power
to organize and discipline the militia, reserved to the states "the Appointment
of the officers, and the Authority of training the Militia according to the
discipline prescribed by Congress."95 According to Houston, this reservation
implied that all power not expressly reserved to the states was exclusively in
the hands of Congress.96 Story rejected this argument, applying the rule of
construction he believed declared by the Ninth Amendment:
It is almost too plain for argument, that the power here given to
Congress over the militia, is of a limited nature, and confined to the
objects specified in these clauses; and that in all other respects, and for
all other purposes, the militia are subject to the control and
government of the State authorities. Nor can the reservation to the
States of the appointment of the officers and authority of the training
the militia according to the discipline prescribed by Congress, be
justly considered as weakening this conclusion. That reservation
constitutes an exception merely from the power given to Congress `to
provide for organizing, arming, and disciplining the militia;' and is a
limitation upon the authority, which would otherwise have developed
upon it as to the appointment of officers.
But the exception from a
given power cannot, upon any fair reasoning, be considered as an
enumeration of all the powers which belong to the States over the
militia.
[97] What those powers are must depend upon their own
constitutions; and what is not taken away by the Constitution of the
United States, must be considered as retained by the States or the
people
. The exception then ascertains only that Congress have not, and
that the States have, the power to appoint the officers of the militia,
and to train them according to the discipline prescribed by Congress.

93. 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES � 1898
(Fred B. Rothman & Co. 1991) (1833) [hereinafter STORY, COMMENTARIES (1991 reprinting)].
94
. Houston , 18 U.S. at 4�6.
95. U.S. CONST. art. I, � 8, cl. 16.
96
. Houston , 18 U.S. at 4 (stating that Houston argued that "the constitutional power of
Congress over the militia, is
exclusive of State authority").
97. 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.

24
Texas Law Review
[Vol. 83:___

Nor does it seem necessary to contend, that the power `to provide for
organizing, arming, and disciplining the militia,' is exclusively vested
in Congress. It is merely an affirmative power, and if not in its own
nature incompatible with the existence of a like power in the States, it
may well leave a concurrent power in the latter.98
This previously unnoticed text, marred by a transcription error in the
online Westlaw version,99 deserves a place alongside Madison's speech on
the Bank of the United States in terms of the historical understanding of the
Ninth Amendment. Having announced that determining the scope of
exclusive federal power must be guided by the letter and spirit of the Ninth
Amendment, Story then applies the rule of construction he describes in
Commentaries as mandated by the Ninth. That rule forbids construing a
reservation of rights to suggest that all other rights are surrendered. In this
case, the enumeration of certain rights--the state's right to appoint officers--
must not be construed to deny or disparage other rights retained by the
states--the right to create courts martial.
Story's opinion in
Houston describes the Ninth Amendment as limiting
the interpreted scope of federal power in order to preserve state regulatory
autonomy. This echoes James Madison's description of the Ninth as
"guarding against a latitude of interpretation" of federal power to the injury
of the people's retained rights.100 Federal power is thus prevented from
intruding into matters retained by the people who remain free to delegate that
power to their state government as they see fit.101 James Madison nominated
Joseph Story to the Supreme Court. Thus, when Story notes that his "general
principles . . . have been amply justified by the opinions of the great men
under whose guidance the constitution was framed," one cannot help but
think of Story's patron.102
As we shall see, courts throughout the nineteenth century echoed
Story's federalist reading of the Ninth Amendment, generally pairing it with

98
. Houston , 18 U.S. at 51�52 (Story, J., dissenting). Note that in this passage Story links the
principles expressed by the Ninth and Tenth Amendments. The Ninth limits the construction of
federal power (in this case as not exclusive), while the Tenth reserves all nondelegated power to the
states.
99
. See supra note 97.
100. James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791),
reprinted
in WRITINGS, supra note 11, at 489.
101. In his
Commentaries , Story wrote:
Being an instrument of limited and enumerated powers, it follows irresistibly, that what
is not conferred, is withheld, and belongs to state authorities, if invested by their
constitutions of government respectively in them; and if not so invested, it is retained
BY THE PEOPLE, as a part of their residuary sovereignty.
JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 712 (Carolina
Academic Press 1987) (1833) [hereinafter STORY, COMMENTARIES (1987 reprinting)].
102. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 50 (1820) (Story, J., dissenting).

2004]
The Lost Jurisprudence
25

the Tenth.103 In
Houston , however, Story cites the Ninth Amendment alone
as the constitutional basis for his rule of construction limiting the scope of
federal authority. The issue in
Houston was the degree to which the
enumerated power of the federal government displaced the power of the
states to establish courts martial. This was not an issue of individual rights,
but one of competing (or concurrent) powers. The fact that Story believed
the "letter and spirit" of the Ninth Amendment applied in such a situation
indicates that Story, like Madison, viewed the retained rights of the Ninth
Amendment through a federalist lens. The Ninth limited the extension of
enumerated federal power into areas of local concern retained by the people
as a matter of right. To Story, constraining federal power (as opposed to
guarding particular rights) was the central purpose of the Ninth.104 Most
strikingly, and uniquely among constitutional treatise writers, the chapter in
Story's Commentaries on the Ninth Amendment is titled "Non-Enumerated
Powers ."105 The title aptly describes his approach in Houston , where the
Ninth was used to preserve the nonenumerated power of the states to
concurrently discipline the militia. As we shall see, Story may have come to
regret his opinion in
Houston , especially as it appeared to conflict with the
Marshall's Court's broad interpretations of federal power.106 Nevertheless,

103. In the 1835 Tennessee case,
State v. Foreman , the state of Georgia passed an act allowing
state courts jurisdiction over certain crimes committed within the Cherokee nation. In an attempt to
escape prosecution, the defendant argued that federal treaties with the Cherokee denied state courts
jurisdiction to hear such cases even when the crimes were committed within the state's borders.
The state responded that if this were the correct reading of the federal treaties, those treaties would
be void under the Ninth and Tenth Amendment:
The states, by empowering the executive, with the advice and consent of the senate, to
make treaties, did not surrender into their hands a power which could annihilate the
states; for if by a treaty with the Indians, or any other nation, the treaty-making power
can deprive the states of one attribute of sovereignty (not expressly surrendered), it can
deprive them of all; and if jurisdiction, in express terms, were guaranteed to the
Indians, and the right taken from the states, by the treaty, it would be void, because the
exercise of this branch of jurisdiction is not one of the enumerated powers parted with
by the states, but is, in fact, reserved to them by the 9th and 10th amendments to the
Constitution.
A treaty the subject-matter of which violates the Constitution, or surrenders to other
powers the individual and reserved rights of the states, is a nullity.
Argument of George S. Yerger, State v. Foreman, 16 Tenn. (8 Yer.) 543 app. at 560�61 (1835).
The state of Georgia thus believed that states had both "reserved powers and rights" under the Ninth
and Tenth Amendments. The state court concluded the treaty allowed state court jurisdiction
without discussing the Ninth or Tenth Amendments.
Id. at 334�37.
104. In his
Commentaries , Story recounted the debates over adding a Bill of Rights and the
Federalists' warning that doing so "might even be dangerous, as by containing exceptions from
powers not granted it might give rise to implications of constructive power." 1 STORY,
COMMENTARIES (1991 reprinting),
supra note 93, at 277.
105. 3 STORY, COMMENTARIES (1991 reprinting),
supra note 93, at 751. The chapter heading
for Story's discussion of the Tenth Amendment is "Powers Not Delegated."
See id. at 753. The
same chapter headings are used in the one-volume abridged version of the Commentaries which
Story prepared almost at the same time as the three-volume work. STORY, COMMENTARIES (1987
reprinting),
supra note 101, at 711, 713.
106
. See infra notes 125�128 and accompanying text.

26
Texas Law Review
[Vol. 83:___

Story never disavowed or modified in any way his original analysis of the
Ninth Amendment in
Houston v. Moore .
2. The Influence of Story's Opinion.-- Story's reading of the Ninth
amendment in
Houston echoed that of St. George Tucker who also read the
Ninth (which he too referred to as the "Eleventh") as expressing a rule of
construction limiting the interpreted scope of federal power. In his 1803
edition of
Blackstone's Commentaries , Tucker wrote that under the Ninth
and Tenth Amendments, "the powers delegated to the federal government,
are, in all cases, to receive the most strict construction that the instrument
will bear, where the rights of a state or of the people, either collectively, or
individually, may be drawn into question."107 This strict construction of
enumerated federal power came under fire as Chief Justice John Marshall
sought to establish a far broader reading of federal authority.
a. Gibbons v. Ogden .-- Four years after Houston was decided,
lawyers before the Supreme Court quoted significant portions of Story's
opinion in one of the most important cases regarding federal power in the
nineteenth century,
Gibbons v. Ogden .108 Gibbons involved yet another
dispute over New York's grant of a steam navigation monopoly to Robert
Fulton and Robert Livingston. The New York courts having previously
upheld the monopoly in cases such as
Livingston v. Van Ingen, 109 the
monopoly now was challenged on the ground that it interfered with
Congress's exclusive power to regulate interstate commerce.110 The case,
according to G. Edward White, has been "acknowledged as the high point of
advocacy on the Marshall Court."111 Thomas A. Emmet112 represented
Fulton and Livingston and their assignee, Aaron Ogden. In his lengthy
argument before the Court, Emmet claimed that states retained concurrent
power to regulate commerce and cited Tucker's Ninth and Tenth
Amendment based rule of construction,113 (now) Justice Thompson's opinion
in
Livingston v. Van Ingen ,114 and Story's opinion in Houston v. Moore .115
According to Emmet, concurrent state power to regulate commerce must give

107. TUCKER, BLACKSTONE'S COMMENTARIES,
supra note 50, at 154.
108. 22 U.S. (9 Wheat.) 1, 130�31 (1824).
109. 9 Johns. 507, 561 (N.Y. 1812).
110
. Gibbons , 22 U.S. at 17.
111. 3�4 WHITE,
supra note 17, at 211.
112. Emmet's name is misspelled in the United States Reports.
See Gibbons , 22 U.S. at 79.
113
. Id. at 86.
114
. Id. Thompson was appointed to the Supreme Court in 1823. Due to his daughter's death,
Thompson did not join the Court until February 10, 1824, the day after the arguments in
Gibbons
had concluded.
See Norman R. Williams, Gibbons, 79 N.Y.U. L. Rev. 1398, 1429�30 (2004); see
also
1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 607 (1928); David
P. Currie,
The Constitution in the Supreme Court: State and Congressional Powers , 1801�1835 , 49
U. CHI. L. REV. 887, 944 n.399 (1982).
115
. Gibbons , 22 U.S. at 86.

2004]
The Lost Jurisprudence
27

way only in cases involving a direct conflict between state and federal
regulation.116 On this point, Emmet quotes that portion of Justice Story's
opinion in
Houston that refers to the "11th Amendment."117 There is no
indication that Emmet believed that Story's reference to the Eleventh was in
error,118 and there is no attempt by Emmet to link the passage to his
discussion of the Tenth Amendment several pages earlier in his brief.119 As
in
Houston , this is a freestanding Ninth Amendment argument in favor of a
limited reading of federal power. Nor is it surprising that Emmet picked up
on Story's Ninth Amendment argument--Emmet had made the same
argument himself before the New York courts
prior to Story's opinion in
Houston , relying then on Tucker's Ninth and Tenth Amendment-based rule
of construction.120 Nor was Emmet's reading idiosyncratic. His co-counsel
Thomas Oakley also referred to Story's eleventh amendment passage in
Houston .121 Although his argument in Gibbons regarding the Tenth
Amendment has been recognized, scholars have completely missed Thomas
Emmet's reliance on the Ninth.122
In striking down the state monopoly, Chief Justice John Marshall did
not directly address either the Ninth or Tenth Amendments. Instead, he
rejected Ogden's argument that Congress lacked power to grant Gibbons a
coasting license and went on to rule that the state monopoly was in direct
conflict with the federal license and thus invalid under the Supremacy
Clause.123 Rather than grapple with Emmet's Ninth Amendment argument,

116
. Id. at 130�31. Emmet made a similar argument in North River Steamboat Co. v.
Livingston :
What, then is this trade which congress can regulate? It is that carried on from within
the geographical limits of one state to within those of another. It has no relation to the
trade or contracts between individuals. How can congress regulate the trade and
intercourse between man and man, even though they should reside in different states or
countries? Its regulations can only act on commerce as a mass, carried on between two
tates or nations. This trade thus defined together with foreign trade, is all that it belongs
to congress to regulate; the rest remains to the states, under the domination of internal
trade, and which it is not therefore necessary to define. It includes all that is not taken
by the constitution out of the general mass of commerce. It belongs to the states
individually, not because the constitution has given it to them--for that instrument
gives nothing whatsoever to the states--but because it appertains to sovereign power,
and has not been delegated to congress; and the grants of power which are made to
congress, so far as they may interfere with the rights of states, are to receive the
strictest construction.
1 Hopk. Ch. 170, 217�18 (N.Y. Ch. 1824) (citing TUCKER, BLACKSTONE'S COMMENTARIES,
supra
note 50, at 154).
117
. Gibbons , 22 U.S. at 130�31.
118. Emmet could have, for example, paraphrased the passage without quoting.
119
. Id. at 87.
120
. See supra note 116.
121
. Gibbons , 22 U.S. at 41 n.a.
122
. See, e.g. , Currie, supra note 114, at 944 n.396. I have not discovered any scholarly
reference to Emmet's Ninth Amendment argument or to his quoting Story's opinion from
Houston .
123
. Gibbons , 22 U.S. at 240. Justice Story was on the Court at the time of Gibbons , but wrote
no opinion. Even if Story still held the views he announced in
Houston , he would have agreed with

28
Texas Law Review
[Vol. 83:___

or his colleague's opinion in
Houston , Marshall simply denied there was any
provision in the Constitution which restricts the interpretation of enumerated
power:
This instrument contains an enumeration of powers expressly granted
by the people to their government. It has been said, that these powers
ought to be construed strictly.[124] But why ought they to be so
construed? Is there one sentence in the constitution which gives
countenance to this rule? In the last of the enumerated powers, that
which grants, expressly, the means for carrying all others into
execution, Congress is authorized "to make all laws which shall be
necessary and proper" for the purpose. But this limitation on the
means which may be used, is not extended to the powers which are
conferred; nor is there one sentence in the constitution, which has been
pointed out by the gentlemen of the bar, or which we have been able
to discern, that prescribes this rule.125
In his earlier opinion in
McCulloch v. Maryland , Marshall similarly ignored
the Ninth Amendment despite its key role in James Madison's original
argument against the Bank.126 In
Gibbons, Marshall once again ignores the
Ninth, despite Emmet's reference to the Ninth and Justice Story's opinion in
Houston .127 Instead, Marshall announced that Congress' power to regulate
commerce is "complete in itself, may be exercised to its utmost extent, and
acknowledges no limitations, other than are prescribed in the constitution."128
What was implicit in
McCulloch was now express in Gibbons : The powers of
the federal government were to be construed as having no limits beyond
those expressly "prescribed in the constitution." The conflict between
Marshall's rule of construction and the language and purpose of the Ninth

the result in
Gibbons ; Story believed that the federal commerce power was exclusive. See David P.
Currie,
The Constitution in the Supreme Court: Contracts and Commerce, 1836�1864 , 1983 DUKE
L.J. 471, 476.
124. This is probably a reference to St. George Tucker's argument regarding "strict
construction."
125
. Gibbons , 22 U.S. at 187�88. Marshall continues in a passage that also seems directed at
Tucker's argument:
Powerful and ingenious minds, taking, as postulates, that the powers expressly granted
to the government of the Union, are to be contracted by construction, into the
narrowest possible compass, and that the original powers of the States are retained, if
any possible construction will retain them, may, by a course of well digested, but
refined and metaphysical reasoning, founded on these premises, explain away the
constitution of our country, and leave it, a magnificent structure, indeed, to look at, but
totally unfit for use. They may so entangle and perplex the understanding, as to obscure
principles, which were before thought quite plain, and induce doubts where, if the mind
were to pursue its own course, none would be perceived. In such a case, it is peculiarly
necessary to recur to safe and fundamental principles to sustain those principles, and
when sustained, to make them the tests of the arguments to be examined.
Id. at 222.
126
. See Lash, The Lost Original Meaning , supra note 8, at n.405.
127. An opinion Marshall most likely joined.
See supra note ___.
128
. Gibbons , 22 U.S. at 196.

2004]
The Lost Jurisprudence
29

Amendment is striking. Despite the Ninth's declaration that enumerated
restrictions on power are not to be read as exhaustive, Marshall reads them in
just such a manner. In fact, during his entire tenure on the Supreme Court,
Marshall never once referred to the Ninth Amendment, despite repeated
references to it by bench and bar as a rule prohibiting expansive readings of
federal power.
b. New York v. Miln.--Although John Marshall declined to
address the Ninth Amendment, other Justices were not so reticent. When
serving on New York's highest court, future Supreme Court Justice Smith
Thompson had given a sympathetic ear to Thomas Emmet's Ninth
Amendment arguments in
Livingston v. Van Ingen .129 In New York v.
Miln
,130 Justice Thompson adopted those arguments as his own. Miln
involved a New York statute which required ship captains to furnish local
authorities with a list of all passengers being brought into the state. The
Supreme Court upheld the state law,131 with Justice Story dissenting on the
grounds that this was a regulation of commerce belonging exclusively to the
federal government.132 In his concurrence, Justice Thompson disagreed with
Story's view of state power in the case and quoted Story's own words in
Houston in support of concurrent state power to regulate commerce:
[Concurrent state power] is fully recognised by the whole court, in the
case of Houston v. Moore. . . . Mr. Justice Story, who also dissented
from the result of the judgment, is still more full and explicit on this
point. The constitution, says he, containing a grant of powers, in many
instances similar to those already existing in the state governments;
and some of these being of vital importance also to state authority and
state legislation, it is not to be admitted, that a mere grant of such
powers, in affirmative terms, to congress, does,
per se , transfer an
exclusive sovereignty on such subjects to the latter. On the contrary, a
reasonable interpretation of that instrument necessarily leads to the
conclusion that the powers so granted are never exclusive of similar
powers existing in the states; unless [citing exceptions] . . . . In all
other cases, not falling within the classes already mentioned, it seems
unquestionable that the states retain concurrent authority with
congress; not only upon the letter and spirit of the eleventh
amendment of the constitution, but upon the soundest principle of
reasoning.133
In his earlier
Van Ingen opinion, then-Judge Thompson cited the Tenth
Amendment in support of his view of concurrent state power.134 In
Miln ,

129
. See supra note 63 and accompanying text.
130. New York v. Miln, 36 U.S. (11 Pet.) 102 (1837).
131
. Id. at 143.
132
. Id. at 161 (Story, J., dissenting).
133
. Id . at 150�51 (Thompson, J., concurring).
134
. See supra note 63 and accompanying text.

30
Texas Law Review
[Vol. 83:___

however, Justice Thompson says nothing about the Tenth Amendment,
despite its role in the opinions of other Justices.135 Instead, Justice
Thompson is content to let Story's construction of the Ninth Amendment
suffice as textual grounding for the proper rule of interpretation.136
c. Prigg v. Pennsylvania .-- Other Justices, as well as high ranking
executive officials, also embraced Story's reading of the Ninth Amendment
in
Houston . In Prigg v. Pennsylvania , the Supreme Court struck down
Pennsylvania's personal liberty law of 1826 on the grounds that it interfered
with the enforcement of the federal Fugitive Slave Act and the Constitution's
Fugitive Slave Clause.137 In defense of the law, Pennsylvania's Attorney
General, Ovid F. Johnson, argued that federal law should not be read to
displace all state regulation on the subject of fugitive slaves. In support of
his argument, Johnson quotes Story's position in
Houston :
Supposing the power to pass laws on the subject of fugitive slaves to
be concurrent, the learned counsel on the other side contended that it
had been exercised by Congress; that the whole ground of legislation
was provided for; that the right of the states was thereby superseded,
and that the act of Assembly of Pennsylvania was absolutely void. To
all these positions, he would answer, in addition to what had already
been advanced, that Congress had not covered the whole ground; . . . .
He could not, on this branch of the case fortify his argument with
stronger reason or authority than by quoting the words of Mr. Justice
Story, in the case of
Houston v. Moore . On this basis, he did not fear
to let it rest. "The constitution, containing a grant of powers in many
instances similar to those already existing in the state governments,
and some of these being of vital importance also to state authority and
state legislation, it is not to be admitted that a mere grant of such
powers in affirmative terms to Congress, does, per se, transfer an
exclusive sovereignty on such subjects to the latter. On the contrary, a
reasonable interpretation of that instrument necessarily leads to the
conclusion that the powers so granted are never exclusive of similar
powers existing in the states, unless where the Constitution has
expressly in terms given an exclusive power to Congress, or the
exercise of a like power is prohibited to the states, or there is a direct

135. Both Justice Barbour's opinion for the Court and Justice Baldwin's individual opinion,
taken from his
Constitutional Views , reference the Tenth Amendment. See Miln , 36 U.S. at 132;
HENRY BALDWIN, A GENERAL VIEW OF THE ORIGIN AND NATURE OF THE CONSTITUTION AND
GOVERNMENT OF THE UNITED STATES, 181�97 (photo. reprint 2000) (1837).
136. In his dissent, Story does not disavow his earlier opinion in
Houston , but argues that
Gibbons established the exclusive power of Congress to regulate matters affecting interstate
commerce.
Miln , 36 U.S. at 154�56 (Story, J., dissenting). For a discussion of Story's "silence" in
Miln , see infra subpart II(D)(3).
137. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 612 (1842) ("The [Fugitive Slave Clause]
manifestly contemplates the existence of a positive unqualified right on the part of the owner of the
slave, which no state law or regulation can in any way qualify, regulate, control, or restrain.").

2004]
The Lost Jurisprudence
31

repugnancy or incompatibility in the exercise of it by the states." And
also, "In all other cases not falling within the classes already
mentioned, it seems unquestionable, that the states retain concurrent
authority with Congress, not only on the letter and spirit of the
eleventh amendment of the Constitution, but upon the soundest
principles of general reasoning."138
In his opinion striking down the Pennsylvania law, Justice Story did not
dispute the Attorney General's reading of
Houston . Instead, Story argued
that the power to regulate on the subject of fugitive slaves was exclusively
federal in nature. Here, Story referred not to his own opinion in
Houston , but
to Chief Justice Marshall's formulation in
Sturges v. Crowninshield that
"[w]herever the terms in which a power is granted to Congress, or the nature
of the power require, that it should be exercised exclusively by Congress, the
subject is as completely taken from the state legislatures, as if they had been
forbidden to act."139
Although Story did not repute (or even acknowledge) his earlier
approach in
Houston , his reasoning seemed to weaken Houston 's
presumption of concurrent state power. In a separate opinion, Justice Peter
Daniel noted the departure. Although concurring in the judgment, Daniel
nevertheless felt "constrained to dissent from some of the principles and
reasonings which that majority in passing to our common conclusions, have
believed themselves called on to affirm."140 Arguing that states had
concurrent power to regulate on the subject of fugitive slaves, Justice Daniel
quoted Story's passage in
Houston v. Moore , including Story's statement
regarding the "eleventh amendment."141
d. Smith v. Turner .-- Justice Daniel would find another occasion to
quote Story's
Houston dissent in Smith v. Turner ,142 one of the so-called
Passenger Cases.143 In
Smith , the Supreme Court struck down a state tax on
incoming sea passengers,144 drawing a dissent from Justice Daniel. Daniel
began his analysis of the Constitution by announcing two principles: First,

138
. Id. at 600�01. Johnson later cites the Tenth Amendment in support of the Pennsylvania
law.
See id. at 602 ("These cases are clearly left to the guardianship of the states themselves. The
tenth article of the amendments to the constitution assures this right; and self-respect, if not self-
protection, demands its exercise.").
139
. Id. at 622 (quoting Sturges v. Crowinshield, 17 U.S. (4 Wheat.) 122, 193).
140
. Id. at 650 (Daniel, J., concurring).
141
. Id. at 654 (Daniel, J., concurring). Daniel misquotes Story, but not in a manner that
undermines the point. Daniel states: "In all other cases not falling within the classes already
mentioned, it seems unquestionable that the states retain concurrent authority with Congress, not
only under the eleventh amendment of the Constitution, but upon the soundest principles of general
reasoning."
Id. Daniel drops Story's language regarding the "letter and spirit." See supra text
accompanying note 89.
142. 48 U.S. (7 How.) 283, 498 (1849) (Daniel, J., dissenting).
143. The other case was
Norris v. City of Boston , 45 Mass. (4 Met.) 282 (1842).
144
. Smith , 48 U.S. at 409.

32
Texas Law Review
[Vol. 83:___

under the Tenth Amendment, Congress has only delegated power, and
second, those powers are subject to a limiting rule of construction.145
Rejecting statements in an earlier case by Justice Baldwin that federal power
over commerce was exclusive,146 Daniel invoked Justice Story's opinion in
Houston :
In opposition to the opinion of Mr. Justice Baldwin, I will place the
sounder and more orthodox views of Mr. Justice Story upon this claim
to exclusive power in Congress, as expressed in the case of Houston v.
Moore with so much clearness and force as to warrant their insertion
here, and which must strongly commend them to every constitutional
lawyer. The remarks of Justice Story are these:--"Questions of this
nature are always of great importance and delicacy . . . ."147
Daniel proceeds to quote this entire section of Story's opinion,
including Story's reference to the "eleventh amendment."148 Justice Daniel
then remarks that "[h]ere, indeed, is a commentary on the Constitution
worthy of universal acceptation."149 No one in the majority responded to
Daniel's point regarding the "clearness and force" of Story's opinion in
Houston , nor did they dispute Story's interpretation of the Ninth
Amendment.150 Instead, Justice Grier simply defended his decision to
invalidate the state law against criticism that he had engaged in a
latitudinarian interpretation of federal power.151

145
. Id. at 496 (Daniel, J., dissenting). According to Daniel:
1st. Then, Congress have no powers save those which are expressly delegated by the
Constitution and such as are necessary to the exercise of powers expressly delegated.
2d. The necessary auxiliary powers vested by art. 1, sec. 8, of the Constitution cannot
be correctly interpreted as conferring powers which, in their own nature, are original,
independent substantive powers; they must be incident to original substantive grants,
ancillary in their nature and objects, and controlled by and limited to the original grants
themselves.
Id. (citations omitted). To these, he adds a third principle: "The question, whether a law be void for
its repugnancy to the Constitution, ought seldom, if ever, to be decided in the affirmative in a
doubtful case."
Id. Justice Daniel's second point seems related to James Madison's argument in his
speech on the Bank of the United States. According to Madison, unenumerated "necessary and
proper" powers (ancillary powers) should not include "great and important powers." Important
powers such as these required their own specific enumeration.
See Lash, The Lost Original
Meaning
, supra note 8, at 389.
146
. Smith , 48 U.S. at 498. (Daniel, J., dissenting) (referring to Groves v. Slaughter , 40 U.S.
(15 Pet.) 449, 511 (1841).
147
. Id. at 498 (quoting Houston v. Moore, 18 U.S. (5 Wheat.) 1, 48 (1820) (Story, J.,
dissenting)).
148. In this instance, Daniel's quotation is correct.
149
. Smith , 48 U.S. at 499 (Daniel, J., dissenting).
150. Story's tenure on the Court ended with his death in 1845.
151
. Smith , 48 U.S. at 459. According to Grier:
The Constitution of the United States, and the powers confided by it to the general
government, to be exercised for the benefit of all the States, ought not to be nullified or
evaded by astute verbal criticism, without regard to the grand aim and object of the
instrument, and the principles on which it is based. A constitution must necessarily be
an instrument which enumerates, rather than defines, the powers granted by it.
While

2004]
The Lost Jurisprudence
33

Given that
Houston included the Supreme Court's first discussion of the
Ninth Amendment penned by no less a Justice than Joseph Story and that it
was quoted in its entirety by later litigants and Supreme Court justices,152 it
seems surprising that this interpretation of the Ninth Amendment has gone so
long unnoticed. In fact, Story's approach to concurrent state powers has
remained influential throughout the history of the Supreme Court. Numerous
state and federal courts have cited it in cases struggling to define the line
between state and federal power, and the Supreme Court itself continues to
favorably cite
Houston in cases involving questions of concurrent state
power.153 Over time, however,
Houston 's connection to the Ninth
Amendment has been forgotten. Ironically, the sad fate of Story's opinion in
Houston v. Moore may have been welcomed by Story himself.
3. The Silence of Justice Story .--
In his
View of the Constitution of the United States , Tucker had read the
Ninth and Tenth Amendments as together creating a rule of strict
interpretation regarding the construction of federal power.154 According to
Tucker:
As [a federal compact] it is to be construed strictly, in all cases where
the antecedent rights of a
state may be drawn in question [citing the
12th Amendment]; as a social compact it ought likewise to receive the
same strict construction, wherever the right of personal liberty, of
personal security, or of private property may become the subject of
dispute; because every person whose liberty or property was thereby
rendered subject to the new government, was antecedently a member
of a civil society to whose regulations he had submitted himself, and
under whose authority and protection he still remains, in all cases not
expressly submitted to the new government. [citing the 11th and 12th
Amendments]. The few particular cases in which he submits himself

we are not advocates for a latitudinous construction , yet "we know of no rule for
construing the extent of such powers other than is given by the language of the
instrument which confers them, taken in connection with the purpose for which they
are conferred."
Id. (emphasis added).
152. Story's reference to the Eleventh Amendment was cited in other courts as well.
See
Commonwealth v. Nickerson, 128 N.E. 273, 276 (Mass. 1920);
In re Booth, 3 Wis. 1, 75�76 (1854)
(Crawford, J., dissenting); Crow v. State, 14 Mo. 237, 326�27 (1851) (Napton, J., dissenting) In
Crow , Judge Napton prefaced his quote of Story's Eleventh Amendment by noting:
The general rule on this subject has been aptly and forcible expressed by Judge Story,
in Houston v. Moore and as that distinguished jurist has not been supposed to have any
disposition to enlarge the powers of the States at the expense of any just right of the
federal government, I prefer to adopt his views, expressed in his own language, as the
basis of further investigation.
Crow , 14 Mo. at 326�27 (citation omitted).
153
. See Tafflin v. Levitt, 493 U.S. 455, 458�59 (1990) (citing Justice Washington's opinion in
Houston v. Moore ).
154. TUCKER, BLACKSTONE'S COMMENTARIES,
supra note 50, at 151.

34
Texas Law Review
[Vol. 83:___

to the new authority, therefore, ought not to be extended beyond the
terms of the compact, as it might endanger his obedience to that state
to whose laws he still continues to owe obedience; or may subject him
to a double loss, or inconvenience for the same cause.155
When Story cited the Eleventh Amendment as a federalist rule of
construction in
Houston , he did so in a legal context in which both bench and
bar would have been familiar with Tucker's similar federalist construction of
the "Eleventh."156 Tucker's reading was not controversial and, as the last
section showed, it was warmly embraced by states' rights advocates in the
years that followed.
But Tucker's strict construction of federal power was directly at odds
with the broad interpretation of federal power pressed by John Marshall in
cases like
McCulloch v. Maryland and, especially, Gibbons v. Ogden . In
Gibbons , despite the Ninth Amendment argument raised by Thomas Emmet,
Marshall nevertheless declared "nor is there one sentence in the constitution"
that called for a strict construction of federal power.157 Perhaps because
Story's use of the Ninth in
Houston conflicted with Marshall's absolute
statement in
Gibbons , it fell into disfavor among those supporting Marshall's
nationalist reading of the Constitution.
Treatise writers William Rawle and James Kent published their
respective works on American constitutional law after the Supreme Court
issued its opinion in
Gibbons . Like other constitutional treatises written in
the 1820s and early 1830s, those of Rawle and Kent were more nationalist in
their interpretations of federal power than were earlier works like those of St.
George Tucker.158 Both writers acknowledged Story's earlier opinion in
Houston, but both omitted his reference to the Ninth Amendment. For
example, in his
View of the Constitution , William Rawle paraphrased Story's
language in
Houston in his discussion of the concurrent jurisdiction of state
courts,159 but he omits Story's specific reference to the "eleventh
amendment."160 Similarly, in his 1826
Commentaries on American Law ,

155
. Id. Randy Barnett cites Tucker's rule of strict construction regarding federal interference
with personal rights in support of an unenumerated natural rights reading of the Ninth Amendment.
See BARNETT, RESTORING THE LOST CONSTITUTION, supra note 2, at 241�42. As the above shows,
Tucker placed both the Ninth and Tenth Amendments in a decidedly federalist context. Tucker
could not possibly have been referring to individual natural rights if the Ninth was meant to prevent
interference with, or adding to, an individual's prior obligations to the state.
156. According to Saul Cornell, Tucker's Commentaries was "an instant publishing success"
and "became the definitive American edition of Blackstone until midcentury." SAUL CORNELL,
THE OTHER FOUNDERS 263 (1999).
157. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 187�88 (1824).
158
. See White, supra note __, at 86�95.
159. WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA
205 (photo. reprint 2003) (2d ed. 1829).
160. Using language that tracks Story's language in
Houston almost verbatim, Rawle writes:
The Constitution containing a grant of powers in many instances similar to those
already existing in the state governments, and some of these being of vital importance

2004]
The Lost Jurisprudence
35

James Kent cited Story's opinion in
Houston and described it as having
"defined with precision the boundary line between the concurrent and
residuary powers of the states, and the exclusive powers of the union."161
Kent then closely paraphrased Story's actual opinion in
Houston , but omitted
Story's reference to the Ninth.162 James Kent and Joseph Story had begun
corresponding with one another in 1819,163 and Story later praised this
particular section of Kent's
Commentaries (which, in turn, praised Story).164
Whatever the reasons for Kent's failure to include Story's reference to the
Ninth, it would not have gone unnoticed by Story. Most likely, Story
approved of the omission, because he himself ultimately abandoned the idea
that the Ninth Amendment played any role in restricting the interpretation of
federal power.
When Joseph Story published his
Commentaries on the Constitution in
1833, he dedicated the work "to the Honorable John Marshall," whose
"expositions of constitutional law enjoy a rare and extraordinary authority.
They constitute a monument of fame far beyond the ordinary memorials of

to state authority and state legislatures, a mere grant of such powers, in affirmative
terms to congress, does not
per se transfer an exclusive sovereignty on such subjects to
the latter.
On the contrary, the powers so granted would not be exclusive of similar powers
existing in the states, unless the Constitution had expressly given an exclusive power to
congress, or the exercise of a like power were prohibited to the states, or there was a
direct repugnancy or incompatibility in the exercise of it by the states. . . .
In all other cases not falling within these classes the states retain concurrent
authority. [Here, Rawle omits Story's reference to the Eleventh Amendment.]

There is this reserve, however, that in cases of concurrent authority where the laws
of the states and of the United States are in direct and manifest collision on the same
subject, those of the United States being the supreme law of the land are of paramount
authority, and the state laws so far, and so far only, as such incompatibility exists must
necessarily yield [citing
Houston v. Moore , 5 Wheat. 48. Per Story, J.].
Id. at 204�05. In addition to omitting Story's reference to the Ninth Amendment, Rawle also
omitted the Ninth and Tenth Amendments from his description of constitutional restrictions on the
federal government.
Id. at 135. The omission of the Ninth Amendment from this list is significant
because Rawle believed the restrictions of the first eight amendments also bound the states.
See id.
at 135�36;
see also AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION
145 (1998) (discussing Rawle). Rawle apparently read both the Ninth and Tenth Amendments in a
federalist light. Although Rawle's work is known for its defense of secession, Rawle shared
Marshall's nationalist approach to federal power. For example, Rawle indirectly criticizes Tucker's
strict construction of federal power,
see RAWLE, supra note 159, at 31 ("A strict construction,
adhering to the letter, without pursuing the sense of the composition, could only proceed from a
needless jealousy, or rancorous enmity."), and he expressly praises Marshall's opinion in
Gibbons .
Id. at 82.
161. JAMES KENT,
Lecture XVIII , in 1 COMMENTARIES ON AMERICAN LAW 365 (1826).
162
. Id. at 366 ("In all other cases, the states retain concurrent authority with Congress [Kent
omits Story's reference to the Eleventh Amendment], except where the laws of the states and of the
union are in direct and manifest collision on the same subject . . . .").
163. 3�4 WHITE,
supra note 17, at 105.
164. 1 STORY, COMMENTARIES (1991 reprinting),
supra note 93, at 424 n.1 (noting that, after
citing
Gibbons , "Mr. Chancellor Kent has given this whole subject of exclusive and concurrent
power a thorough examination; and the result will be found most ably stated in his learned
Commentaries, Lecture 18").

36
Texas Law Review
[Vol. 83:___

political and military glory."165 In addition to refuting states' rights theories
such as those advanced by James Madison and Thomas Jefferson in their
Virginia and Kentucky Resolutions,166 Story spends considerable time
refuting Tucker's "strict construction" theory of federal power. Tucker
himself had based his arguments on the writings of Vattel, and the Ninth and
Tenth Amendments.167 Story strongly criticizes Tucker's reliance on Vattel
and the Tenth Amendment,168 but he says nothing about Tucker's reliance on
the Ninth. Instead, Story treats Tucker's Ninth Amendment-based "social
compact" argument as if it were based on
nothing at all .169
As the proper alternative to Tucker's strict construction approach, Story
presents Chief Justice Marshall's formulation of federal power in
McCulloch
and
Gibbons . First, Story presents an extended quote from Gibbons
including Marshall's assertion that there is not a single sentence in the
Constitution that suggests a limited reading of federal power.170 Story then
goes on to adopt Marshall's reasoning in
McCulloch , which construes the
enumeration of rights in Article I, Section 9 to suggest an otherwise broad
degree of federal power--despite the obvious conflict with the clear demand
of the Ninth Amendment.171 Having established the proper approach to
federal power, Story next addressed the concurrent powers of the states. In
Houston , Story suggested that a limited reading of exclusive federal power
was supported by the letter and spirit of the "eleventh amendment." In his
Commentaries , Story paraphrases his opinion in Houston , but, as had Rawle
and Kent, he omits his reference to the Ninth Amendment.172 Story does not
modify or correct the earlier reference, he simply does not repeat it, despite
numerous citations to the very page in
Houston that includes the reference.
Having committed himself to Marshall's view that there is no text
suggesting a limited reading of federal power, Story embarks on a lengthy
discussion of the variety of ways state power must give way before federal
authority. Following Marshall's lead in
McCulloch and Gibbons , Story's

165
. Id. at iii.
166
. See, e.g. , id. at 287 n.1, 289 n.1.
167. TUCKER, BLACKSTONE'S COMMENTARIES,
supra note 50, at 151.
168. 1 STORY, COMMENTARIES (1991 reprinting),
supra note 93, at 393.
169
. See id. at 396. Story states:
When it is said, that the constitution of the United States should be construed strictly,
viewed as a social compact, whenever it touches the rights of property, or of personal
security, or liberty, the rule is equally applicable to the state constitutions in the like
cases. The principle, upon which this interpretation rests,
if it has any foundation , must
be, that the people ought not to be presumed to yield up their rights of property or
liberty, beyond what is the clear sense of the language and the objects of the
constitution.
Id. (emphasis added).
170
. Id. at 401�02.
171
. Id. at 413�15. For a discussion of how Marshall's approach in McCulloch conflicts with
the Ninth Amendment, see Lash,
The Lost Original Meaning , supra note 8, at 417�22.
172. 1 STORY, COMMENTARIES (1991 reprinting),
supra note 93, at 421�22.

2004]
The Lost Jurisprudence
37

interpretation of federal power is unfettered by any restrictive rule of
construction, much less by the Ninth Amendment. In essence, Story argues
that states retain only those powers that are left over after a proper
interpretation of federal power.173 This is a restatement of the Tenth
Amendment and, in fact, Story asserts that his rules "are confirmed by the
positive injunctions of the tenth amendment."174 The critical issue, of course,
involved determining what constitutes a reasonable interpretation of federal
power--a subject James Madison and St. George Tucker believed was
addressed by the Ninth Amendment. Not only did Story avoid addressing
Tucker's Ninth Amendment argument when criticizing Tucker's rules of
interpretation, he remained silent regarding his own use of the Ninth in
Houston as a rule of construction.
Despite these omissions, remnants of Story's earlier federalist reading
of the Ninth still can be found in his
Commentaries . Story places his
discussion of the Ninth Amendment in a chapter entitled "Non-Enumerated
Powers."175 When one considers the common contemporary description of
the Ninth Amendment as guarding unenumerated
rights ,176 Story's title is
startling. It shows that Story agreed with Madison that preserving retained
rights amounts to the same thing as preserving local power against undue
federal intrusion. It also explodes the myth that the Ninth deals only with
rights while the Tenth deals only with powers.177 If nothing else, Story's
heading should put to rest that erroneous categorical assumption. Given
Story's nationalist approach to federal power, his description of the Ninth

173
. Id. at 431�33.
174
. Id. at 433. In his section on the Tenth Amendment, Story cites, among other cases,
Houston v. Moore and the page in that case containing the "eleventh amendment" passage. The cite
is out of place; it has nothing to do with the specific proposition discussed in the text (involving the
decision to not add the word "expressly" to the Tenth Amendment), and its inclusion remains
obscure. One could argue that this cite raises the possibility that the
Houston reference to the
"eleventh amendment" was a mistaken reference to the Tenth. I believe this is unlikely, however,
for a number of reasons. First, the cite itself makes no sense, even in terms of the Tenth
Amendment discussion to which it is linked. Second, Story cites to this specific page in
Houston
repeatedly in his
Commentaries . See, e.g., id. at 424 n.2, 428 n.2. Despite these numerous citations,
however, Story never once suggests that the page contains an error. Moreover, neither lawyers nor
courts believed the passage contained any error, for they quoted it in briefs and judicial opinions.
The fact that the passage was embraced by others and never corrected by Story suggests that it did
not contain an obvious error. It did, however, contain an application of the Ninth Amendment that
Story no longer advocated.
175. 3 STORY, COMMENTARIES (1991 reprinting),
supra note 93, at 751. The chapter heading
for Story's discussion of the Tenth Amendment is "Powers Not Delegated."
See id. at 753. The
same chapter headings are used in the one-volume abridged version of the Commentaries that Story
prepared almost at the same time as the three-volume work. STORY, COMMENTARIES (1987
reprinting),
supra note 101, at 711, 713.
176
. See, e.g. , THE COMPLETE BILL OF RIGHTS, supra note 72, at 627 (labeling the chapter on
the Ninth Amendment as "Unenumerated Rights Clause").
177. This point seems well established by Madison's description of the Ninth Amendment in
his speech on the Bank of the United States.
See Lash, The Lost Original Meaning , supra note 8, at
387�90. Story's chapter heading for the Ninth simply makes the point as clear as is historically
possible.

38
Texas Law Review
[Vol. 83:___

takes on even greater significance as, in effect, an admission against interest.
Story shared John Marshall's broad interpretation of congressional power
and he had no incentive to describe any clause in the Constitution as limiting
federal authority if the issue was in doubt. If anything, one would expect a
nationalist like Story to try and minimize the impact of the Ninth
Amendment on federal power and, in fact, this may have been Story's intent.
Although Story indicates that the role of the Ninth is to preserve the
non-enumerated powers of the states, he says nothing about the Ninth serving
as a rule for construing
federal power. Instead, he appears to treat the Ninth
as a mere restatement of principles declared by the Tenth Amendment. In
the index to his Commentaries under the heading "Rights Reserved to the
States and People," Story refers the reader to his discussion of the Ninth
and
Tenth Amendments.178 Under the heading "Reserved Powers and Rights of
the People," Story refers the reader to the same amendments.179 Clearly,
Story believed that the the Ninth and Tenth Amendments expressed related
principles of limited federal authority. Story was unwilling, however, to
follow his earlier approach in
Houston and read the Ninth as constraining the
interpreted scope of enumerated federal power.
The tension between his words in
Houston and his later nationalist
interpretation of the Constitution was noticed by his colleagues on the bench,
who in cases like
Miln and Prigg quoted Story's own words in Houston as a
remonstrance against his nationalist vision of federal power. Still, in his
judicial opinions, Story remained silent. He neither corrected nor modified
his earlier view of the "eleventh amendment" nor did he address Ninth
Amendment-based readings of the Constitution like those proposed by St.
George Tucker. Like Marshall, Story chose to ignore the Ninth Amendment,
rather than debate its meaning.
Although later courts continued to cite Story's opinion in
Houston , they
often echoed his
Commentaries and omitted his language regarding the

178. 3 STORY, COMMENTARIES (1991 reprinting),
supra note 93, at 774.
179
. Id. at 773. A similar collapsing of the Ninth and Tenth Amendments can be found in Peter
Du Ponceau's,
A Brief View of the Constitution of the United States 44�45 (1834). Treating the
Ninth as if it were a single clause with the Tenth, Du Ponceau remarks:
The enumeration in the constitution of certain rights, is not to be construed to deny or
disparage others retained by the people; and 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. This article differs from a similar one in the
confederation in this, that the word
expressly is here left out, which leaves room for
implied powers, without the admission of which the constitution could not be carried
into effect.
Id. Like Story, Du Ponceau treats the Ninth as no more than a declaration of the enumerated powers
theory of federal power. Also like Story, and as is generally found in the treatises of the late 1820s
and 30s, Du Ponceau minimizes the impact of both the Ninth and Tenth Amendments on federal
power. As did all treatise writers of antebellum America, however, Du Ponceau assumed the Ninth
was linked to the Tenth as a statement regarding the limited powers of the federal government.

2004]
The Lost Jurisprudence
39

"eleventh amendment."180 As the convention for referring to the Bill of
Rights changed, Story's earlier reference to the eleventh amendment became
ever more obscure. In time, Story's opinion in
Houston came to be
associated with principles underlying the Tenth Amendment.181 For
example, in the 1843 Michigan case,
Harlan v. People ,182 Judge Felch wrote
his own version of Story's opinion, replacing the "eleventh amendment" with
the Tenth. After citing Story's opinion in
Houston , Judge Felch wrote:
And it is affirmed, by the same authorities, that a mere grant of power
in affirmative terms, does not,
per se, transfer an exclusive
sovereignty on such subjects to the Union. In all cases not falling
within either of the classes already mentioned, the states retain either
the sole power, or a power which they may exercise concurrently with
congress. This results not only from the general principles on which
the Union is founded, but is within the letter of the tenth article of the
amendments to the constitution, which declares 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."183
This passage is taken straight from Story's opinion; Felch simply
changed "letter and spirit of the eleventh amendment" to "the letter of the
tenth."184 Felch either believed Story made a mistake, or he agreed with
Story's later position that the issue was best considered through the lens of
the Tenth. In either event, Story's reference to "the eleventh" and its
significance to the early understanding of the Ninth Amendment was,
literally, erased.
4. The Significance of Houston v. Moore. -- Although long forgotten as
an opinion dealing with the Ninth Amendment, Justice Story's opinion in
Houston v. Moore is significant for a number of reasons. Judges and scholars
seeking the original meaning of the Ninth Amendment have often turned to
the views of James Madison and Joseph Story.185 Until now, however, the

180
. E.g. , United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 548 n.30 (1944);
Norfolk & W.R. Co. v. Commonwealth, 24 S.E. 837, 838 (Va. 1896); Helm v. First Nat'l Bank of
Huntington, 43 Ind. 167, 169 (1873).
181
. See Keller v. U.S., 213 U.S. 138, 145 (1909) (quoting a different passage from Story's
opinion in
Houston v. Moore and associating his reasoning with the Tenth Amendment). The story
of how the Tenth Amendment came to replace the Ninth as a rule of construction deserves a
separate treatment.
See Kurt T. Lash, Madison's Celebrated Report: The Roots of Federalism and
the Transformation of the 10th Amendment (Jan. 14, 2005) (manuscript on file with the author).
182. 1 Doug. 207 (Mich. 1843).
183
. Id. at 211.
184. Compare Story's opinion in
Houston v. Moore , 18 U.S. (5 Wheat.) 1, 49 (1820).
185
. E.g ., Griswold v. Connecticut, 381 U.S. 479, 489�90 (1965) (Goldberg, J., concurring).
Scholarly references to Madison and Story in works discussing the Ninth Amendment are
ubiquitous. For only a few such examples, see LEONARD LEVY, ORIGINS OF THE BILL OF RIGHTS
244, 246�60 (1999) (discussing Story and Madison); MASSEY, SILENT RIGHTS,
supra note 2, at
146�47, 168 nn.172�73 (discussing Madison and Story); THOMAS B. MCAFFEE, INHERENT RIGHTS,

40
Texas Law Review
[Vol. 83:___

views of these Founding-era figures remained critically incomplete.

Although his
Commentaries linked the Ninth to the Tenth Amendment as a
statement of principle,
Houston v. Moore suggests Justice Story's original
views on how the Ninth Amendment actually should be applied. Written
within the lifetime of those who drafted and ratified the Clause, Story's
opinion illuminates the general understanding of the Ninth Amendment in
the period immediately following its adoption. Story's reading of the Ninth
was not contradicted by any other Justice and his specific analysis of the
Ninth Amendment was quoted by Supreme Court justices and the finest
lawyers in the United States. Moreover, no other account of the Ninth
Amendment was proposed by any Justice on the Court at the time or for the
next one hundred and fifty years--a phenomenon which strongly suggests
that Story's opinion presented the commonly accepted view of the Ninth as a
federalism-based rule of construction, even if the application of that rule was
sporadic. Indeed, Story and Marshall's later reluctance to even acknowledge
the Ninth makes sense if it was widely regarded as a rule supporting state
autonomy. Finally, because Story's opinion in
Houston adopts the
Madisonian reading of the Ninth Amendment--a reading itself based on
proposals from the state conventions--
Houston v. Moore establishes a link
between the state conventions, Madison's interpretation of the Ninth
Amendment, and the common understanding of the Ninth in the period
following its adoption.186 This approach viewed the Ninth as actively
limiting the construction of delegated federal power in the service of state
autonomy.
Houston v. Moore also illustrates how the Ninth Amendment could be
closely related to the Tenth and yet still retain an independent role in
constitutional interpretation.
Houston did not examine whether enumerated
federal power existed. The issue was whether concededly delegated federal
power should be construed in a manner that disparaged the concurrent rights
of the states. Answering this question required a rule of interpretation, and it
is the Ninth, not the Tenth, which expressly provides such a rule. The
ultimate fate of
Houston v. Moore , however, raises an intriguing possibility.
Scholars have often dismissed historical references to the Ninth Amendment
because they believed that such references really were about the Tenth.187
Judge Felch's rewriting of Story's
Houston analysis in Harlan v. People
suggests that the opposite may be true: Past cases that refer to the Tenth
Amendment may really be about the Ninth.

THE WRITTEN CONSTITUTION, AND POPULAR SOVEREIGNTY: THE FOUNDERS' UNDERSTANDING 79
(2000) (discussing Madison); Randy E. Barnett,
Introduction: James Madison's Ninth Amendment ,
in 1 THE RIGHTS RETAINED BY THE PEOPLE, supra note 2, at 1 (discussing Madison); Knowlton H.
Kelsey,
The Ninth Amendment of the Federal Constitution , in 1 RIGHTS RETAINED BY THE PEOPLE,
supra note 2, at 102�03 (discussing Story).
186
. See generally Lash, The Lost Original Meaning , supra note 8.
187
. See, e.g. , PATTERSON, supra note 2, at 32.

2004]
The Lost Jurisprudence
41

As the rest of this Article explains, later courts did not share the
Marshall Court's reluctance to cite and rely on the Ninth Amendment.
Marshallian nationalism was eventually replaced by decidedly states' rights
oriented interpretations of the Constitution. Marshall's approach to the Ninth
and Tenth Amendments would return, however, in the constitutional
upheaval known as the New Deal.188
E. The Ninth Amendment and "the Enumeration . . . of Certain Rights"
Just as the principle of state autonomy suggested a limited reading of
enumerated federal power, that same principle supported a limited reading of
constitutional restrictions on the
states . John Marshall himself, prior to his
opinions in
McCulloch and Gibbons , acknowledged the role of federalism in
interpreting the provisions in Article I, Section 10. For example, in
Trustees
of Dartmouth College v. Woodward
, Chief Justice Marshall wrote of the need
to limit the potential scope of the Impairment of Contract Clause in order to
avoid interfering with the "internal concerns of a state."189 He noted:
[E]ven marriage is a contract, and its obligations are affected by the
laws respecting divorces. That the clause in the constitution, if
construed in its greatest latitude, would prohibit these laws. Taken in
its broad, unlimited sense, the clause would be an unprofitable and
vexatious interference with the internal concerns of a state, would
unnecessarily and unwisely embarrass its legislation, and render
immutable those civil institutions, which are established for purposes
of internal government, and which, to subserve those purposes, ought
to vary with varying circumstances. . . .
The general correctness of these observations cannot be controverted.
That the framers of the constitution did not intend to restrain the states
in the regulation of their civil institutions, adopted for internal
government, and that the instrument they have given us, is not to be so
construed, may be admitted.190
Even as ardent a nationalist as John Marshall believed that the framers
intended a limited construction of constitutional rights in order to avoid
"restrain[ing] the states in the regulation of their civil institutions." Although
Marshall does not cite the Ninth Amendment, his approach follows both the
letter and spirit of the Ninth by limiting the construction of an enumerated
power or right--in this case, freedom from impaired contracts--to preserve
other rights retained by the people, such as local control of civil institutions.
Later courts recognized the relation between Marshall's words in
Dartmouth

188
. See infra section IV(B)(2).
189. 17 U.S. (4 Wheat.) 518, 628 (1819).
190
. Id. at 627�28.

42
Texas Law Review
[Vol. 83:___

and the rule of construction expressed by the Ninth Amendment and they
cited
Dartmouth accordingly.191
Antebellum courts generally were not as reluctant as John Marshall to
recognize the Ninth Amendment as limiting the construction of enumerated
rights against the states. In
Anderson v. Baker ,192 the Supreme Court of
Maryland declined to give an expansive reading to Article I, Section 10's
prohibition of ex post facto laws, citing as justification the Ninth and Tenth
Amendments:
Prohibitions on the States, are not to be enlarged by construction. To
do so, would violate the spirit and object of the 9th and 10th
amendments to the Constitution of the United States, viz.: "The
enumeration in the Constitution of certain rights, shall not be
construed to deny or disparage others retained by the people. 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." These were intended to prevent argumentative
implications of power not delegated; to exclude any interpretation by
which other powers should be assumed beyond those which are
granted.193
The idea that the Ninth Amendment and its attendant rule of
construction limited the scope of rights-bearing provisions as well as power-
granting provisions would prove particularly significant in the next great
period of constitutional law, when courts had to reconcile the federalism
principles of the Founding with the individual rights provisions of the
Fourteenth Amendment.194
F. Slavery
I shall support the Amendts. proposed to the Constitution that any
exception to the powers of Congress shall not be so construed as to
give it any powers not
expressly given, & the enumeration of certain
rights shall not be so construed as to deny others retained by the
people--& the powers not delegated by this Constn. nor prohibited by
it to the States, are reserved to the States respectively; if these
amendts. are adopted, they will go a great way in preventing Congress
from interfering with our negroes after 20 years or prohibiting the

191
. See George v. Bailey, 274 F. 639, 640�44 (W.D.N.C. 1921); see also infra notes 323�326
and accompanying text.
192. 23 Md. 531 (1865). The case upheld the right of a state to alter its constitution to impose
restrictions on the franchise (a test oath in this case) against a claim that this violated the ex post
facto restriction in Article I, Section 10.
Id. at 624�25.
193
. Id. at 624.
194
. See infra notes 273�288 and accompanying text.

2004]
The Lost Jurisprudence
43

importation of them. Otherwise, they may even within the 20 years by
a strained construction of some power embarrass us very much.195
As a rule of construction preserving the autonomy of the states, the
Ninth Amendment was caught up in the struggle over slavery from its very
beginning. Throughout the antebellum period, courts struggled to find what
Madison referred to as the "just equilibrium" between national and local
powers.196 Cases decided by the nationalist Marshall court, such as
Martin v.
Hunters' Lessee
,197 were resisted by some state courts as violating the
balance established by the Ninth and Tenth Amendments. In
The Ohio ,198 for
example, future Chief Justice of the Ohio Supreme Court, T.W. Bartley,
relied on the Ninth and Tenth Amendments in an opinion rejecting the
authority of the Supreme Court to review state court opinions:
We may here promise, that it is a settled rule of interpretation, founded
on sound reason, that every written instrument conferring limited and
expressly defined powers must be strictly construed; and that to
warrant the exercise of special authority thus delegated, the grant of it,
must appear affirmatively and distinctly to be within the terms of the
prescribed limits. If this rule be important in any instance, it is so in its
application to the written constitution of a government of limited and
expressly defined powers. If the exercise of doubtful authority,
derived by vague and far-fetched construction and implication, be
warranted or allowed, a written constitution will be of but little
consequence as a restraint upon ambition and cupidity. The rigid
application of the strict rule of construction above mentioned, is also
authoritatively required by the ninth or tenth additional amendatory
articles of the constitution, declaring that the powers not expressly
delegated, are reserved, and that the enumeration of certain rights in
the constitution shall not be construed to deny or disparage those
retained. Without this express requirement of a strict construction, the
constitution would not have been adopted by the states.199
In 1856, having been elevated to Chief Justice of the Ohio Supreme
Court, Bartley repeated his view that the Ninth Amendment protected the
right of the states to maintain the peculiar institution of slavery. In
Anderson
v. Poindexter
, the Ohio Supreme Court ruled that slaves automatically

195. Letter from William L. Smith to Edward Rutledge (Aug. 10, 1789),
in CREATING THE
BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 273 (Helen
E. Veit et al. eds., 1991) [hereinafter CREATING THE BILL OF RIGHTS].
196. Letter from James Madison to Spencer Roane (May 6, 1821),
in WRITINGS, supra note 11,
at 773.
197. 14 U.S. (1 Wheat.) 304 (1816).
198. Stunt v. The Steamboat Ohio, 3 Ohio Dec. Reprint 362 (Hamilton Dist. Ct. 1855).
199
. Id. at 365�66. Although Bartley's decision was reversed on appeal, see The Ohio v. Stunt,
10 Ohio St. 582, (Ohio 1856), the next year, Judge Bartley joined the Ohio Supreme Court as Chief
Justice and issued the same opinion in dissent.
See Piqua Bank v. Knoup , 6 Ohio St. 342, 347�48
(Ohio 1856) (Bartley, C.J., dissenting).

44
Texas Law Review
[Vol. 83:___

became free once they set foot on the free soil of Ohio.200 Concurring in the
judgment, Bartley disagreed with the reasoning of the Court which he
believed was overly dismissive of state rights:
Having guaranteed to the people of each state inviolability in their
rights of private property, and security in their domestic tranquility;
having declared that the powers enumerated in the constitution should
not be construed to deny or disparage the rights retained by the people;
and having guaranteed the sovereignty and independence of each state,
subject only to the powers delegated to the confederacy, [the people of
the several states] recognized the relation of master and servant,
secured the return of fugitives from servitude.201
Bartley thus adopts the Madisonian reading of the Ninth which prohibits the
construction of federal power to the injury of the people's retained rights--
rights which Bartley believed included the right to chattel slavery.
Although Bartley invoked the Ninth Amendment on behalf of slavery,
state autonomy was a two-way street. In
Mitchell v. Wells , the Supreme
Court of Mississippi ruled that a former slave who had been freed in Ohio
had no enforceable rights in Mississippi courts.202 In his dissent, Judge
Handy criticized the majority's refusal to recognize the rights of Ohio
citizens and raised the Ninth and Tenth Amendments as establishing the
reserved "rights and powers" of the people of the several states:
The 9th and 10th amendments to the Constitution of the United States
reserve to the people of the several States the rights and powers not
enumerated in that instrument, and delegated to the confederacy, nor
prohibited to the States; and the right of an inhabitant or subject of any
State, not enumerated, remains as a sovereign power reserved to the
State, and to be exercised by those entitled to her protection according
to the principles applicable to the relations of independent nations.203
Protecting state autonomy, however, inexorably led to the legal
entrenchment of slavery. In
Willis v. Jolliffee , a certain E.W. took one of his
slaves, Amy, and her seven children to Ohio with the intention of setting
them free.204 His will dictated that his estate was to be executed in trust for
Amy and her children.205 Tragically, E.W. died the moment he arrived with
Amy and her children at the wharf in Cincinnati.206 Not having yet been
freed, Amy remained a slave under South Carolina law and, according to the
trial court, Amy could not inherit E.W.'s estate.207 The opinion cited a

200
. See Anderson v. Poindexter, 6 Ohio St. 622, 631 (1856).
201
. Id. at 686 (Bartley, C.J., concurring) (emphasis omitted).
202. Mitchell v. Wells, 37 Miss. 235, 264 (1859).
203
. Id. at 283�84.
204. Willis v. Jolliffee, 32 S.C. Eq. (11 Rich. Eq.) 447, 450�51 (1860).
205
. Id. at 448.
206
. Id. at 450.
207
. Id. at 491.

2004]
The Lost Jurisprudence
45

number of constitutional provisions, including the Ninth and Tenth
Amendments, in support of its conclusion that the Constitution anticipated
state recognition of slavery as a "property" right.208
Supreme Court Justice John Campbell took a similar view in his
concurring opinion in
Dred Scott v. Sandford .209 In Dred Scott , the Supreme
Court struck down the Missouri Compromise on the ground that Congress
had no authority to ban slavery from the territories. One of the issues in the
case was the scope of power delegated by the provision permitting Congress
"to dispose of and to make all needful rules and regulations respecting the
territory or other property belonging to the United States."210 The
Government argued that "all" meant
all and that it "include[d] all subjects of
legislation in the territory."211 Campbell's response was that such a
construction of congressional power would destroy the concept of limited
enumerated power expressed by the Ninth and Tenth Amendments.
According to Campbell:
The people were assured by their most trusted statesmen `that the
jurisdiction of the Federal Government is limited to certain
enumerated objects, which concern all members of the republic,' and
`that the local or municipal authorities form distinct portions of
supremacy, no more subject within their respective spheres to the
general authority, than the general authority is subject to them within
its own sphere.' Still, this did not content them. Under the lead of
Hancock and Samuel Adams, of Patrick Henry and George Mason,
they demanded an explicit declaration that no more power was to be
exercised than they had delegated. And the ninth and tenth
amendments to the Constitution were designed to include the
reserved
rights of the States
, and the people, within all the sanctions of that
instrument, and to bind the authorities, State and Federal, by the
judicial oath it prescribes, to their recognition and observance. Is it
probable, therefore, that the supreme and irresponsible power, which
is now claimed for Congress over boundless territories, the use of
which cannot fail to react upon the political system of the States, to its
subversion, was ever within the contemplation of the statesmen who
conducted the counsels of the people in the formation of this
Constitution?212

208
. Id. at 477. The decision was reversed on appeal without a discussion of either the Ninth or
Tenth Amendments.
Id. at 517.
209. 60 U.S. (19 How.) 393 (1856).
210
. Id. at 509.
211
. Id. at 600.
212
. Id. at 511 (Campbell, J. concurring). Although Chief Justice Taney's lead opinion in Dred
Scott discussed constitutional protection of unenumerated property rights protected under the Due
Process Clause of the Fifth Amendment, Taney did not cite the Ninth Amendment in support of
these unenumerated rights.
Id. at 450. Only Justice Campbell raised the Ninth Amendment and did
so only in regard to the scope of enumerated federal power.

46
Texas Law Review
[Vol. 83:___

G. Summary: The Ninth Amendment from Founding to the Civil War
The jurisprudence of the Ninth Amendment in the antebellum period is
both plentiful and consistent. Following the approach of James Madison,
courts at all levels read the Ninth Amendment as a rule of construction
preserving the right to local self-government. Generally deployed in tandem,
both the Ninth and Tenth Amendments were understood to express related
principles of state autonomy. Although related, the amendments were not
redundant; the Ninth played a unique role in limiting the construction of
enumerated powers and rights. It was not a passive declaration of
enumerated power, but an active substantive restriction on the interpretation
of federal power.
Although bench and bar were in general agreement regarding the
meaning of the Ninth Amendment, influential Justices such as John Marshall
ignored the Ninth in major cases interpreting the scope of federal power.
Marshall in particular discounted the idea that any provision in the
Constitution suggested a substantive limit on the construction of enumerated
federal authority. Marshall never articulated an alternate reading of the
Ninth; he simply ignored it. Judicial opinions that did address the Ninth,
however, read it in line with Justice Story's analysis in
Houston v. Moore .
As had Madison in his speech on the Bank of the United States, Justice Story
in his
Houston dissent applied the Ninth as a federalist rule of construction.
Although Story later seemed to reduce the Ninth Amendment to a
restatement of principles declared by the Tenth, this in itself is telling. The
initial dispute over the Ninth Amendment was not between federalist and
libertarian readings of the Clause, but between passive and active federalist
rules of construction. The Madisonian view, shared by St. George Tucker,
Justice Smith Thompson, and advocates like Thomas Emmet, read the Ninth
as an active federalist constraint on the interpretation of federal power.
Although initially sharing this view, Justice Story ultimately adopted the
more nationalist views of James Kent and John Marshall and presented the
Ninth in his Commentaries as a passive restatement of the federalist principle
of enumerated power. Despite this disagreement, however, every court and
every scholar who addressed the Ninth Amendment in the first great period
of constitutional law read the Ninth in
pari materia with the Tenth as one of
the twin guardians of federalism. As the nineteenth century progressed, it
would be the original Madisonian understanding of the Ninth and Tenth that
would prevail, at least until the dawn of the New Deal.
III. Reconstruction and the Ninth Amendment
A. The Ninth and Fourteenth Amendments
The struggle over slavery and a bloody Civil War gave rise to a new
birth of freedom, one that dramatically altered the original balance of power
between the federal government and the states. Whereas the original Bill of

2004]
The Lost Jurisprudence
47

Rights applied only to the federal government, the Fourteenth Amendment
introduced significant new restrictions on the states and bound them to
respect the "privileges or immunities" of citizens of the United States.213
Although the Supreme Court has interpreted the Due Process Clause to
incorporate most of the provisions in the Bill of Rights,214 contemporary
constitutional historians suggest that the Privileges or Immunities Clause is
more likely to have been the intended vehicle of incorporation.215
If, in fact, the framers of the Fourteenth Amendment intended to
incorporate the Bill of Rights, this signaled a changed understanding of the
nature of the Bill itself.216 For example, the First Amendment's
Establishment Clause was originally intended not only to prevent federal
religious establishment, but also to
protect state religious establishments
from federal interference.217 If the Fourteenth Amendment was intended to

213
. See U.S. CONST. amend. XIV, � 1.
214
. See infra notes 469�485 and accompanying text (discussing the Ninth Amendment and the
doctrine of incorporation).
215
. E.g. , AMAR, supra note 160, at 181�214; MICHAEL KENT CURTIS, NO STATE SHALL
ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 2 (1986). Earlier scholarship
had generally been skeptical regarding any intent to incorporate the Bill of Rights.
E.g. , Raoul
Berger,
Incorporation of the Bill of Rights: Akhil Amar's Wishing Well , 62 U. CIN. L. REV. 1
(1993); Charles Fairman,
Does the Fourteenth Amendment Incorporate the Bill of Rights? The
Original Understanding
, 2 STAN L. REV. 5, (1949); Lino A. Graglia, " Interpreting the
Constitution
" : Posner on Bork , 44 STAN. L. REV. 1019, 1033�34 (1992). Although my own work
tends to support the conclusions of Curtis and Amar,
see, e.g. , Kurt T. Lash, The Second Adoption
of the Establishment Clause: The Rise of the Nonestablishment Principle
, 27 ARIZ. ST. L.J. 1085
(1995) [hereinafter Lash,
The Second Adoption of the Establishment Clause ]; Kurt T. Lash, The
Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth
Amendment
, 88 NW. U. L. REV. 1106 (1994) [hereinafter Lash, The Second Adoption of the Free
Exercise Clause
], this Article does not address the merits of the incorporation argument. Instead,
this Part focuses on the issue of whether the Ninth Amendment was understood in a manner that
made it as likely to be considered a "privilege or immunity" of United States citizens as the rights
listed in the first eight amendments.
A separate issue involves whether the Privileges or Immunities Clause was understood to protect
unenumerated individual rights. A good argument can be made that it was intended to do so.
See
AMAR,
supra note 160, at 280; Kurt T. Lash, Two Movements of a Constitutional Symphony: Akhil
Reed Amar's
The Bill of Rights, 33 U. RICH. L. REV. 485, 492 (1999) [hereinafter Lash, Two
Movements of a Constitutional Symphony
]. If so, then an originalist interpretation of the
Constitution must reconcile the Ninth and Fourteenth Amendments and determine the degree to
which the Fourteenth altered the original protections of the Ninth. I can only partially address these
issues; a complete analysis requires a separate article.
216. Professor Akhil Amar suggests the Bill of Rights underwent a process of "refined
incorporation" through which some, but not all, of the liberties in the original Bill were absorbed
into the Fourteenth, thereby changing their focus from protecting federalism to safeguarding
individual liberty.
See AMAR, supra note 160, at 215�30.
217
. See Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment , 101 YALE L.J.
1193, 1201 (1992) (suggesting that one of the original purposes of the Bill of Rights was to protect
existing freedoms of the state as well as individuals, such as the freedom of the states to establish
churches); Daniel O. Conkle,
Toward a General Theory of the Establishment Clause , 82 NW. U. L.
REV. 1113, 1132 (1988) (claiming that at the time of the adoption of the First Amendment, six
states continued to maintain or authorize established religions); Kurt T. Lash,
Power and the Subject
of Religion
, 59 OHIO ST. L.J. 1069, 1099�1100 (1998) ("There is a general consensus among legal

48
Texas Law Review
[Vol. 83:___

incorporate the Establishment Clause against the states, this would mean that
nonestablishment had come to be understood as a national freedom and not
just a jurisdictional rule of federalism.218
Recently, a number of constitutional scholars have argued that similar
transformations occurred in regard to a number of liberties listed in the Bill
of Rights. Michael Kent Curtis, for example, has traced the growing calls for
freedom of speech against state action that were triggered by widespread
suppression of abolitionist speech.219 Akhil Amar has examined how drafters
of the Fourteenth Amendment believed, contrary to Supreme Court
precedent, that the liberties listed in the first eight amendments as a matter of
natural right should be protected against abridgment by the states.220 In my
own work, I have argued that, by the time of Reconstruction, certain
principles of religious liberty came to be understood as privileges or
immunities.221
It is possible that the Ninth Amendment similarly evolved during the
antebellum period. Even if originally understood as limiting federal power in
the service of state autonomy, by 1868 the common understanding of the
Ninth could have changed. If the rule of construction of the Ninth
Amendment was understood as a personal rights guarantee at the time of the
adoption of the Fourteenth Amendment, then the new understanding of the
Clause is as capable of being incorporated against the states as is freedom of
speech or any other personal freedom listed in the Bill of Rights. In fact, at
least two members of the Reconstruction Congress apparently read the Ninth
in this manner.222

historians that at least one of the purposes of the Establishment Clause was to protect state religious
establishments from federal interference." (footnote omitted)).

218
. See Lash, The Second Adoption of the Establishment Clause , supra note 215, at 1105. But
see generally STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL
PRINCIPLE OF RELIGIOUS FREEDOM (1995).
219. MICHAEL KENT CURTIS, FREE SPEECH, "THE PEOPLE'S DARLING PRIVILEGE,"
STRUGGLES FOR FREEDOM OF EXPRESSION IN AMERICAN HISTORY 194�215 (2000); CURTIS,
supra
note 215, at 30�31.
220
. See AMAR, supra note 160, at 181�87.
221. Lash,
The Second Adoption of the Establishment Clause , supra note 215, at 1151�52;
Lash,
The Second Adoption of the Free Exercise Clause , supra note 215, at 1146�49.
222. In an 1866 speech, Senator James Nye noted:
In the enumeration of natural and personal rights to be protected, the framers of the
Constitution apparently specified everything they could think of--"life," "liberty,"
"property," "freedom of speech," "freedom of the press," "freedom in the exercise of
religion," "security of person," &c.; and then, lest something essential in the
specifications should have been overlooked, it was provided in the ninth amendment
that "the enumeration in the Constitution of certain rights should not be construed to
deny or disparage other rights not enumerated." This amendment completed the
document. It left no personal or natural right to be invaded or impaired by construction.
All these rights are established by the fundamental law.
CONG. GLOBE, 39th Cong., 1st Sess. 1072 (1866). John Yoo quotes this passage and concludes that
"[t]his statement shows that the Reconstruction Congress adopted the antebellum interpretation of
the Ninth Amendment among the states as a guarantee of minority civil rights, not of majoritarian

2004]
The Lost Jurisprudence
49

Some Ninth Amendment scholars have made an argument along these
lines. Professor John Yoo, for example, concedes the original federalist
understanding of the Bill of Rights, including the Ninth Amendment.
Between the Founding and the Civil War, however, a number of states
adopted provisions in their state constitutions that mirror the language of the
federal Ninth Amendment. Yoo argues that these state constitutional
provisions, which limit the powers of the
state , suggest a new understanding
of the language and meaning of the Ninth Amendment.223
Although it is possible that the common understanding of the Ninth
Amendment in 1868 rendered it an appropriate candidate for incorporation,
the bulk of historical evidence makes it more likely that the Ninth
Amendment, like the Tenth, was not understood to protect individual rights
from state action. To begin with, even those historians who support
incorporation in general do not believe that the Tenth Amendment was
incorporated by the Fourteenth Amendment.224 As a clause expressly
protecting states' rights, incorporating the Tenth
against the states is
logically impossible. But, as the last Part has shown, the Ninth Amendment
was read in
pari materia with the Tenth consistently throughout the
antebellum period. From the controversy over the Bank of the United States,

political ones." Yoo,
supra note 30, at 1026. As the last Part shows, however, the common
antebellum understanding of the Ninth was as a federalism-based rule of construction. Moreover, if
Nye's views represented those of the 39th Congress, then the framer of Section 1 of the Fourteenth
Amendment, John Bingham, almost certainly would have included the Ninth on his list of privileges
or immunities. He did not do so. This is not to deny that other members might have shared Nye's
interpretation. See, for example, the 1872 speech by Senator Sherman that refers to the Ninth as a
source of unenumerated rights in support of congressional power to pass the 1875 Civil Rights Act.
CONG. GLOBE, 42d Cong., 2d Sess. 843 (1872). But, finding some interpretations along these lines
is not surprising. Even in the antebellum period, some attempts were made to read the Ninth as a
source of unenumerated rights.
See supra note 17 and accompanying text. Alongside these
sporadic attempts to read the Ninth in this manner, however, are far more numerous statements on
(and applications of) the Ninth as a federalist rule of construction. In fact, other members of the
Reconstruction Congress continued to follow the antebellum understanding of the Ninth and Tenth
as twin guardians of state autonomy.
See CONG. GLOBE, 39th Cong., 1st Sess. 2467 (1866)
(recording a statement by Rep. Boyer, during the debates about a constitutional amendment to deny
voting rights for those who aided the Confederacy, in which Boyer points to the Ninth and Tenth
Amendments as prohibiting the Federal government from "trampl[ing] upon" the southern States by
disenfranchising the large majority of their voting population). In sum, in the antebellum period the
public may have come to read the first eight amendments as expressing individual, not collective,
rights. There is no evidence such a transformation of public opinion occurred in regard to the
federalist nature of the Ninth and Tenth Amendments. Although some members of the
Reconstruction Congress may have read the Ninth to protect individual rights, the framers of the
Fourteenth Amendment apparently did not. Nor is there any evidence that the public who ratified
the Fourteenth Amendment broadly understood the Ninth to express libertarian rights applicable
against the states.
223. Yoo,
supra note 30, at 1009; see also AMAR, supra note 160, at 280 (describing the
adoption of "baby Ninth Amendments" by several states before 1867 and suggesting that "[w]hat
began as a federalism clause intertwined with the Tenth Amendment soon took on a substantive life
of its own, as a free-floating affirmation of unenumerated rights").
224
. E.g. , AMAR, supra note 160, at 280; Amar, supra note 217, at 1197; Yoo, supra note 30, at
1023�24.


50
Texas Law Review
[Vol. 83:___

to the struggle over exclusive federal power, to Campbell's concurrence in
Dred Scott , the Ninth and Tenth Amendments were understood as joint
expressions of state autonomy. States' rights theorists like St. George Tucker
and John Taylor had expressly linked the Ninth and Tenth Amendments as
dual expressions of federalism.225 William Rawle, in his
A View of the
Constitution
, listed and discussed the first eight amendments as the
Constitution's "Declaration of Rights,"226 which Rawle believed were
applicable to both federal and state governments.227 Neither the Ninth nor
the Tenth, however, made Rawle's list of rights.
In fact, by 1868, these two amendments were regularly distinguished
from the first eight. The Confederate Constitution, for example, adopted the
first eight amendments word for word, but placed the Ninth and Tenth in a
separate section and reworded the Ninth to reflect the common understanding
of the Clause: "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."228 Nor was this a special construction of the southern
states.229 Abolitionists, for example, had long called for a reevaluation and a
broadening of individual liberty,230 but they ignored the Ninth Amendment as
either a source of rights or as textual support for additional individual
rights.231 If the Ninth had been considered even indirect support for
individual rights against the states, then its omission from abolitionist
arguments is inexplicable. Of all people in antebellum America, abolitionists

225
. E.g. , TAYLOR, supra note 74, at 46; TUCKER, BLACKSTONE'S COMMENTARIES, supra note
50, at app. 307�08; Lash,
The Lost Original Meaning , supra note 8, at 396�99.
226. RAWLE,
supra note 159, at 120.
227 . See id . ("A declaration of rights, therefore, properly finds a place in the general
Constitution, where it equalizes all and binds all.").
228. C.S.A. CONST. art. VI, � 5 (1861),
reprinted in 3 SOURCES AND DOCUMENTS OF UNITED
STATES CONSTITUTIONS: NATIONAL DOCUMENTS 1826�1900, at 125, 137 (Donald J. Musch &
William F. Swindler eds., 1985). John Yoo believes that adding the language "of the several states"
to the Ninth Amendment in the Confederate Constitution is indirect proof of an individual rights
reading of the federal Ninth Amendment.
See Yoo, supra note 30, at 1008. However, as the last
Part showed, state courts had already read the federal Ninth in exactly the same way.
229. John Marshall himself used the same formulation when discussing the people's reserved
powers. In
Sturges v. Crowninshield , Marshall wrote:
When the American people created a national legislature, with certain enumerated
powers, it was neither necessary nor proper to define the powers retained by the states.
These powers proceed, not from the people of America, but from the people of the
several states; and remain, after the adoption of the constitution, what they were before,
except so far as they may be abridged by that instrument.
17 U.S. 122, 193 (1819). According to Marshall, the Tenth Amendment reserved nondelegated
powers to the States or to "the people of the several states."
Id. Presumably, the same reasoning
would apply to the people's retained rights under the Ninth. Rights were retained not to the people
of America, but to the people of the several states.
230
. See AMAR, supra note 160, at 161 ("Beginning in the 1830's, abolitionist lawyers
developed increasingly elaborate theories of natural rights, individual liberty, and higher law . . . .").
231
. See Sanford Levinson, Constitutional Rhetoric and the Ninth Amendment , 64 CHI.-KENT
L. REV. 131, 144 (1988) (noting that the Ninth Amendment was not cited as a restriction on state
power by radical antislavery lawyers).

2004]
The Lost Jurisprudence
51

had the greatest incentive to use every possible constitutional argument
available in the cause against slavery. In fact, abolitionists relied on the
Declaration of Independence, natural law, biblical exegesis, common law, as
well as a libertarian reading of most of the Bill of Rights;232 they relied on
almost everything
except the Ninth Amendment.233 Similarly, judicial
decisions such as
Calder v. Bull ,234 Fletcher v. Peck ,235 and Terret v.
Taylor
236--decisions that explored the existence of enforceable natural
rights--never raised the Ninth Amendment as a potential source of
unenumerated rights.237 Instead, slave owners from the beginning saw the
Ninth as protecting the states' right to maintain slavery.238 Even the drafter
of Section 1 of the Fourteenth Amendment, John Bingham, distinguished the
Ninth and Tenth from the first eight amendments in regard to privileges or
immunities protected by the Fourteenth Amendment.239 Other members of
the 39th Congress also described the personal rights protected by the
Fourteenth Amendment to be expressed in the first eight amendments.240
The Ninth and Tenth Amendments, on the other hand, were cited in
support of the right of the states to secede from the Union. On December 31,
1860, only a few days after South Carolina voted to secede, Louisiana
Senator and future Confederate Secretary of War, Judah P. Benjamin, rose to
address the Senate.241 Laying out the case for secession, Senator Benjamin
recounted the debates over the ratification of the Constitution.242 Benjamin
reminded the Senate that proponents of ratification in states like New York
and Virginia had "failed until they proposed to accompany their ratifications

232
. See AMAR, supra note 160, at 161, 239 (pointing out that abolitionists developed
elaborate, declaratory theories of natural rights, individual liberty, and higher law starting in the
1830s and that federalism and majoritarianism were replaced by libertarianism as the "dominant,
unifying theme of the First Amendment's freedoms" by the 1860s).
233. For examples of abolitionists citing only the first eight amendments, see WILLIAM M.
WIECEK, THE SOURCES OF ANTISLAVERY CONSTITUTIONALISM IN AMERICA, 1760�1848, at 267
(1977) (quoting Gerrit Smith).
234. 3. U.S. (3 Dall.) 386 (1798).
235. 10 U.S. (6 Cranch) 87 (1810).
236. 13 U.S. (9 Cranch) 43 (1815).
237
. See Levinson, supra note 231, at 144. Although these cases did not raise the Ninth as a
source of unenumerated rights, Justice Chase's opinion in
Calder appears to adopt the rule of
construction represented by the Ninth Amendment.
See Lash, The Lost Original Meaning , supra
note 8, at 403.
238
. See Letter from William L. Smith to Edward Rutledge (Aug. 10, 1789), in CREATING THE
BILL OF RIGHTS,
supra note 195 (suggesting that if the Ninth and Tenth amendments were adopted,
"[T]hey [would] go a great way in preventing Congress from interfering with our negroes after 20
years or prohibiting the importation of them").
239. CONG. GLOBE, 39th Cong., 1st Sess. 1089 (1866) (statement of Rep. Bingham).
240
. See CONG. GLOBE, 39th Cong., 1st Sess. 2467 (1866) (statement of Rep. Boyer); CONG.
GLOB., 39th Cong., 1st Sess. 2765�66 (1866) (statement by Sen. Howard);
see also AMAR, supra
note 160, at 226 ("[B]oth Bingham and Howard seemed to redefine `the Bill of Rights' as
encompassing only the first eight rather than ten amendments . . . . ").
241. CONG. GLOBE, 36th Cong., 2d Sess. 212 (1860) (statement of Rep. Benjamin).
242
. Id. at 214.

52
Texas Law Review
[Vol. 83:___

with amendments that should prevent its meaning from being perverted, and
prevent it from being falsely construed."243 The "false construction" to
which Benjamin referred was one that consolidated the states into a single
national government--an interpretation prevented by the adoption of the
Ninth and Tenth Amendments:
So, sir, we find that not alone in these two conventions, but by the
common action of the States, there was an important addition made to
the Constitution by which it was expressly provided that it should not
be construed to be a General Government over all the people, but that
it was a Government of States, which delegated powers to the General
Government. The language of the ninth and tenth amendments to the
Constitution is susceptible of no other construction:
"The enumeration in the Constitution of certain rights shall not
be construed to deny or disparage others retained by the people."
"The powers not delegated to the United States.[ . . .]"244
Right up until the adoption of the Fourteenth Amendment, the Ninth
continued to be linked with the Tenth as one of the twin guardians of
federalism. For example, in 1863, in the midst of a violent national struggle
over fundamental rights, the Indiana Supreme Court cited the Ninth
Amendment in an opinion rejecting a claim that the federal government had
exclusive jurisdiction over navigable waters within a state:
In the case at bar, it may, for the sake of the argument, be conceded,
that Congress not only possesses the power, but the exclusive right, to
regulate commerce among the several States, including the pilotage of
vessels engaged in said commerce; and still the facts, so far as the
record shows them, do not make a case falling strictly within the
principle of the points thus conceded, because not involved. And why?
The ninth amendment to the Constitution is as follows: "The
enumeration in the Constitution of certain rights, shall not be
construed to deny or disparage others retained by the people," and
tenth: "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."245
Even states whose constitutions were amended to add provisions
mirroring the Ninth Amendment continued to read the federal Ninth in
conjunction with the Tenth. In 1865, for example, the Supreme Court of
Maryland declined to give an expansive reading to the federal Constitution's
ban on ex post facto laws, on the grounds that "prohibitions on the states, are

243
. Id. Benjamin continued, "[A]nd in two of the States especially--the States of Virginia and
New York, the ratification was preceded by a statement of what their opinion of its true meaning
was, and a statement that, on that construction, and under that impression, they ratified it."
Id.
244
. Id.
245. Barnaby v. State, 21 Ind. 450, 452 (1863).

2004]
The Lost Jurisprudence
53

not to be enlarged by construction."246 This interpretive rule was required
according to the "spirit and object of the 9th and 10th Amendments."247
Only a few years earlier, Maryland had added a provision to its Declaration
of Rights which mirrored the federal Ninth Amendment.248 However the
Maryland state court might have interpreted its own version of the Ninth, it is
clear that adding such a provision to the state constitution had no effect on
the court's understanding of the
federal Ninth Amendment.
Instead of modifying their readings of the Ninth Amendment in the
direction of libertarian rights, judicial opinions in the 1860s emphasized the
links between the Ninth and Tenth Amendments. In the 1864 case
Philadelphia & Railroad Co. v. Morrison , a federal court considered a
challenge to Congress's power to issue notes as legal tender.249 Although he
withdrew from the case and left the judgment to circuit-riding Supreme Court
Justice Grier,250 Judge Cadwalader published an opinion in which he
emphasized the federalism-based goal of the Ninth and Tenth Amendments:
In determining the application of the incidental power of legislation,
the ninth and tenth amendments of the constitution must be
considered. The ninth provides that the enumeration in the constitution
of certain rights shall not be construed to deny or disparage others
retained by the people; the tenth provides that the powers not
delegated by the constitution, to the United States, nor prohibited by it
to the states, are reserved to the states respectively or to the people.
These two amendments, whether their words are to be understood as
restrictive or declaratory, preclude everything like attribution of
implied residuary powers of sovereignty, or ulterior inherent rights of
nationality, to the government of the United States. Therefore the
constitution confers no legislative powers except those directly
granted, and those which may be appropriate as incidental means of
executing them.
. . . .
. . . That the amendments were thus intended for security against
usurpations of the national government only, and not against
encroachments of the state governments, may be considered a truism.

246. Anderson v. Baker, 23 Md. 531, 624 (1865). The case upheld the right of a state to alter
its constitution to impose restrictions on the franchise (a test oath in this case) against a claim that
this violated the ex post facto restriction in Article I, Section 10.
Id. at 624�25.
247
. Id.
248. "This enumeration of rights shall not be construed to impair or deny others retained by the
people." MD. CONST. DECL. OF RIGHTS art. 42 (1851).
But see Yoo, supra note 30, at 1009
(arguing that Maryland's adoption of such a provision suggests a different reading of the federal
Ninth).
249. 19 F. Cas. 487 (C.C.E.D. Pa. 1864) (No. 11,089). The issue would not be resolved until
the
Legal Tender Cases . See infra notes 262�271 and accompanying text.
250. Justice Grier avoided the issue of congressional power by ruling that the Act authorizing
the payment of particular debts in U.S. notes did not include the particular debt at issue.
Philadelphia & R.R. , 19 F. Cas. at 492.

54
Texas Law Review
[Vol. 83:___

But recurrence to historical facts which explain constitutional truisms,
cannot be too frequent, if they are in danger of being overlooked in
calamitous times, or of being crowded out of memory by any
succession of appalling events.251
Interpretation of the Ninth Amendment during Reconstruction tracks the
same interpretation of the Ninth Amendment at the time of the Founding.
Although there is some evidence that, by the 1860s, that during the 1860s,
the first eight amendments came to be understood as representing privileges
or immunities of United States citizens, when it comes to the Ninth
Amendment, this evidence disappears. Instead, it seems that both the Ninth
and Tenth Amendments fell outside the public's understanding of the
personal freedoms expressed in the Fourteenth Amendment. On this matter,
the drafters of the Confederate Constitution and John Bingham are in
agreement.
On the other hand, there is evidence that the Privileges or Immunities
Clause was understood to protect more than just the first eight amendments252
and may have included unenumerated common law rights such as those listed
by Justice Bushrod Washington in
Corfield v. Coryell .253 Akhil Amar,254
Randy Barnett,255 and others256 argue that the Privileges or Immunities
Clause may include much that unenumerated rights advocates believe is
protected under the Ninth. If so, then perhaps whatever the original meaning
of the Ninth, unenumerated personal rights are now protected against state
action under the Fourteenth Amendment.257
Nevertheless, the Ninth Amendment's continued existence in the
Constitution carries implications for any interpretation of the Fourteenth. As
a rule of construction, the Ninth Amendment prohibits the enumeration of
any rights from being construed in a manner that denies or disparages the
retained rights of the people. In 1791, this applied not only to the
enumerated Bill of rights, but also to the Ex Post Facto and Contract Clauses
of Article I, Section 10. As a matter of popular sovereignty, any rights added
by the people through the adoption of the Fourteenth Amendment would
trump any state autonomy
originally protected under the Ninth and Tenth

251
. Id. at 489�91. Cadwalader cites Livingston for the proposition that the Ninth Amendment,
as well as the rest of the Bill of Rights, does not apply against the states. This is a correct citation to
Livingston 's holding that the "ninth article" or Seventh Amendment does not apply against the
states. Contrary to some assertions,
Livingston did not make a mistake; nor did Cadwalader in
citing to it.
252. AMAR,
supra note 160, at 174�80.
253. 6 F. Cas 546, 51�52 (C.C.E.D. Pa. 1823) (No. 3,230).
254. AMAR,
supra note 160, at 280.
255. BARNETT, RESTORING THE LOST CONSTITUTION,
supra note 2, at 66�68.
256. Trisha Olson,
The Natural Law Foundation of the Privileges or Immunities Clause of the
Fourteenth Amendment , 48 ARK. L. REV. 347, 421 (1995); Christopher J. Schmidt, Revitalizing the
Quiet Ninth Amendment: Determining Unenumerated Rights and Eliminating Substantive Due
Process
, 32 U. BALT. L. REV. 169, 177�78 (2003).
257
. See AMAR, supra note 160, at 281�82.

2004]
The Lost Jurisprudence
55

Amendments. However, there is no evidence that the Fourteenth
Amendment either repealed or completely reconstructed the originally
federalist Ninth and Tenth Amendments. The courts in the post-Civil War
period therefore faced the task of reconciling or synthesizing the older
restrictions of the Ninth and Tenth Amendments with the newly adopted
rights contained in the Fourteenth.258
B. The Rule of (Re)Construction
The Ninth Amendment declared a rule of construction that the Founders
believed was inherent in the very character of a nation comprised of both
national and state governments. Were the states organized around a single
government, this might suggest a different approach to constitutional
interpretation. As Attorney General Edmund Randolph explained in the
controversy over the Bank of the United States, constitutions generally
should receive a more liberal interpretation than statutes, for "[t]he one
comprises a summary of matter, for the detail of which numberless laws will
be necessary; the other is the very detail."259 The United States, however,
was comprised of two kinds of governments, each with its own constitution.
Under this kind of system, the presumption of liberal construction had to be
modified: [W]hen we compare the modes of construing a state and the
federal constitution, we are admonished to be stricter with regard to the
latter, because there is a greater danger of error in defining partial than
general powers.260
Similarly, James Madison believed that latitudinarian constructions of
federal power threatened to overwhelm the balance of power between the
federal government and the states:
It is of great importance as well as of indispensable obligation, that the
constitutional boundary between them should be impartially
maintained. Every deviation from it in practice detracts from the
superiority of a Chartered over a traditional Govt. and mars the
experiment which is to determine the interesting Problem whether the
organization of the Political system of the U.S. establishes a just
equilibrium; or tends to a preponderance of the National or the local
powers.261
The evil of slavery and a catastrophic Civil War, however, threw into
question the "just equilibrium" that obtained prior to 1868. The Thirteenth,
Fourteenth, and Fifteenth Amendments each imposed significant new

258. Bruce Ackerman refers to this as an act of "intergenerational synthesis."
See 1 BRUCE
ACKERMAN, WE THE PEOPLE: FOUNDATIONS 113 (1991).
259. Edmund Randolph, The Constitutionality of the Bank Bill (Feb. 12, 1791),
reprinted in H.
JEFFERSON POWELL, THE CONSTITUTION AND THE ATTORNEYS GENERAL 4 (1999).
260
. Id. at 5.
261. Letter from James Madison to Spencer Roane (May 6, 1821),
in WRITINGS, supra note 11,
at 773.

56
Texas Law Review
[Vol. 83:___

restrictions on the autonomy of the states. The question for the courts
following the adoption of the Reconstruction Amendments was whether the
character of the nation had changed so much as to remove the presumptions
underlying the Founding rule of construction. The answer to this question
would determine the fate of the Ninth and Tenth Amendments.
In two critical sets of cases, both decided within four years of the
adoption of the Fourteenth Amendment, the Supreme Court considered
competing visions of federal power. In the first of these, the
Legal Tender
Cases
, the Court came close to abandoning the principle of limited
enumerated powers. However, in
The Slaughterhouse Cases , the Court
returned to its pre-Civil War rule of construction and limited the reach of
both Congress and the federal courts. In doing so, the Supreme Court
signaled that the principles underlying the Ninth and Tenth Amendments had
not been repealed. Reconstruction had to be reconciled with the Founding.
1. The Legal Tender Cases.-- A recurring controversy throughout the
nineteenth century was whether the federal government had power to issue
paper money. Although states were forbidden from issuing legal tender,262 it
was not clear whether issuing paper money was a power delegated to the
federal government. In almost back-to-back opinions, the Supreme Court
swung from invalidating to upholding federal power in this area. In the first
case to reach the Supreme Court,
Hepburn v. Griswold , Chief Justice Salmon
P. Chase narrowly construed federal power and invalidated Congress's
attempt to issue paper money.263 In the
Legal Tender Cases , a new majority
of the Court led by Justice Strong reversed
Hepburn .264 Relying on
Marshall's broad articulation of federal power in
McCulloch , Strong echoed
Marshall's construction of federal power and maintained that Congress had

262
. See U.S. CONST. art. I, � 10, cl. 1.
263. 75 U.S. (8 Wall.) 603, 614 (1870). Justice Chase held that the Tenth Amendment was
intended "to restrain the limited government established under the Constitution from the exercise of
powers not clearly delegated or derived by just inference from powers so delegated."
Id. Stretching
federal power to conduct war to include the power to issue legal tender, wrote Chase, "proves too
much":
It carries the doctrine of implied powers very far beyond any extent hitherto given to it.
It asserts that whatever in any degree promotes an end within the scope of a general
power, whether, in the correct sense of the word, appropriate or not, may be done in the
exercise of an implied power.
Id. at 617. Chase further rejected the idea that the Constitution leaves it to Congress to determine
whether a particular action is sufficiently related to an enumerated end. According to Chase:
[This] would convert the government, which the people ordained as a government of
limited powers, into a government of unlimited powers. It would confuse the
boundaries which separate the executive and judicial from the legislative authority. It
would obliterate every criterion which this court, speaking through the venerated Chief
Justice in the case already cited, established for the determination of the question
whether legislative acts are constitutional or unconstitutional.
Id. at 618.
264. 79 U.S. (12 Wall.) 457, 457 (1870).

2004]
The Lost Jurisprudence
57

"the right to employ freely every means, not prohibited, necessary for its
preservation, and for the fulfillment of its acknowledged duties."265
Strong went even further than Marshall, however, and argued that
Congress had power beyond those expressly or even impliedly authorized by
the text of the Constitution. Remarkably, Strong based his argument in part
on the implications arising from the addition of the Bill of Rights. Strong's
reasoning on this point is presented in full, as it is perhaps the strongest
"reverse-Ninth Amendment" analysis ever produced by the Supreme Court:
And here it is to be observed it is not indispensable to the existence of
any power claimed for the Federal government that it can be found
specified in the words of the Constitution, or clearly and directly
traceable to some one of the specified powers. Its existence may be
deduced fairly from more than one of the substantive powers expressly
defined, or from them all combined. It is allowable to group together
any number of them and infer from them all that the power claimed
has been conferred. Such a treatment of the Constitution is recognized
by its own provisions. This is well illustrated in its language
respecting the writ of habeas corpus. The power to suspend the
privilege of that writ is not expressly given, nor can it be deduced
from any one of the particularized grants of power. Yet it is provided
that the privileges of the writ shall not be suspended except in certain
defined contingencies. This is no express grant of power. It is a
restriction. But it shows irresistibly that somewhere in the
Constitution power to suspend the privilege of the writ was granted,
either by some one or more of the specifications of power, or by them
all combined.
And, that important powers were understood by the
people who adopted the Constitution to have been created by it,
powers not enumerated, and not included incidentally in any one of
those enumerated, is shown by the amendments.
The first ten of these
were suggested in the conventions of the States, and proposed at the
first session of the first Congress, before any complaint was made of a
disposition to assume doubtful powers. The preamble to the
resolution submitting them for adoption recited that the "conventions
of a number of the States had, at the time of their adopting the
Constitution, expressed a desire, in order to prevent misconstruction or
abuse of its powers, that further declaratory and
restrictive clauses
should be added."
This was the origin of the amendments, and they
are significant. They tend plainly to show that, in the judgment of
those who adopted the Constitution, there were powers created by it,
neither expressly specified nor deducible from any one specified
power, or ancillary to it alone, but which grew out of the aggregate of
powers conferred upon the government, or out of the sovereignty
instituted.
Most of these amendments are denials of power which had
not been expressly granted, and which cannot be said to have been

265
. Id. at 533�34.

58
Texas Law Review
[Vol. 83:___

necessary and proper for carrying into execution any other powers.
Such, for example, is the prohibition of any laws respecting the
establishment of religion, prohibiting the free exercise thereof, or
abridging the freedom of speech or of the press.266
The passage is a clear example of what the letter and spirit of the Ninth
Amendment were designed to prevent--construing the addition of the Bill of
Rights to imply the existence of unenumerated federal power.267 Marshall, of
course, had used a similar argument in
McCulloch 268 and, like Marshall in
that case, Justice Strong remains silent about the Ninth Amendment. Instead,
by flipping the rule of construction represented by the Ninth on its head,
Strong articulated a principle irreconcilable with both the Ninth and Tenth
Amendments.
Calvin Massey has used the
Legal Tender Cases to refute a federalist
reading of the Ninth Amendment: If the Ninth was understood to prevent this
kind of implied extension of federal power, someone surely would have
raised Ninth Amendment objections to Strong's opinion. Yet, according to
Massey, "[N]either Justice Strong nor any of his cohorts even alludes to the
Ninth Amendment."269 But Massey is not correct. One of Strong's cohorts,
Justice Stephen Field argued that Strong's approach violated the rule of
construction demanded by the state ratification conventions and expressed by
the Ninth Amendment. Field's reference to the Ninth has gone unnoticed
before now due to the fact that Field refers the reader to Joseph Story's
description of the Ninth Amendment in his Commentaries. Although
lawyers and courts at the time would have understood Justice Field's
reference to � 1861 of Story's Commentaries, the significance of this
reference has escaped contemporary scholars.
Because Justice Field's opinion is yet another lost Supreme Court
opinion discussing the Ninth Amendment, this section of his opinion is
presented in its full context:
The position that Congress possesses some undefined power to do
anything which it may deem expedient, as a resulting power from the
general purposes of the government, which is advanced in the opinion
of the majority, would of course settle the question under
consideration without difficulty, for it would end all controversy by
changing our government from one of enumerated powers to one
resting in the unrestrained will of Congress.
"The government of the United States," says Mr. Chief Justice
Marshall, speaking for the court in
Martin v. Hunter's Lessee , "can
claim no powers which are not granted to it by the Constitution, and

266
. Id. at 534�35 (first and third emphasis added).
267
. See MCAFEE, supra note 185, at 170�72 (noting that the Ninth Amendment should prevent
this kind of argument).
268
. See Lash, The Lost Original Meaning , supra note 8, at 414�17.
269
. E.g. , MASSEY, SILENT RIGHTS, supra note 2, at 86.

2004]
The Lost Jurisprudence
59

the powers actually granted must be such as are expressly given or
given by necessary implication." This implication, it is true, may
follow from the grant of several express powers as well as from one
alone, but the power implied must, in all cases, be subsidiary to the
execution of the powers expressed. The language of the Constitution
respecting the writ of habeas corpus, declaring that it shall not be
suspended unless, when in cases of rebellion or invasion, the public
safety may require it, is cited as showing that the power to suspend
such writ exists somewhere in the Constitution; and the adoption of
the amendments is mentioned as evidence that important powers were
understood by the people who adopted the Constitution to have been
created by it, which are not enumerated, and are not included
incidentally in any of those enumerated.
The answer to this position is found in the nature of the Constitution,
as one of granted powers, as stated by Mr. Chief Justice Marshall. The
inhibition upon the exercise of a specified power does not warrant the
implication that, but for such inhibition, the power might have been
exercised. In the Convention which framed the Constitution a
proposition to appoint a committee to prepare a bill of rights was
unanimously rejected, and it has been always understood that its
rejection was upon the ground that such a bill would contain various
exceptions to powers not granted, and on this very account would
afford a pretext for asserting more than was granted. [Citing "Journal
of the Convention, 369; Story on the Constitution, �� 1861, 1862, and
note."] In the discussions before the people, when the adoption of the
Constitution was pending, no objection was urged with greater effect
than this absence of a bill of rights, and in one of the numbers of the
Federalist, Mr. Hamilton endeavored to combat the objection. After
stating several reasons why such a bill was not necessary, he said: "I
go further and affirm that bills of rights, in the sense and to the extent
they are contended for, are not only unnecessary in the proposed
Constitution, but would even be dangerous. They would contain
various exceptions to powers not granted, and on this very account
would afford a colorable pretext to claim more than were granted. 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? I will not contend that such a provision would
confer a regulating power, but it is evident that it would furnish to
men disposed to usurp a plausible pretence for claiming that power.
They might urge, with a semblance of reason, that the Constitution
ought not to be charged with the absurdity of providing against the
abuse of an authority which was not given, and that the provision
against restraining the liberty of the press afforded a clear implication
that a right to prescribe proper regulations concerning it was intended
to be vested in the National government. This may serve as a
specimen of the numerous handles which would be given to the

60
Texas Law Review
[Vol. 83:___

doctrine of constructive powers by the indulgence of an injudicious
zeal for bills of right."
When the amendments were presented to the States for adoption they
were preceded by a preamble stating that the conventions of a number
of the States had, at the time of their adopting the Constitution,
expressed a desire "in order to prevent
misconception or abuse of its
powers, that further declaratory and restrictive clauses should be
added."
Now, will any one pretend that Congress could have made a law
respecting an establishment of religion, or prohibiting the free exercise
thereof, or abridging the freedom of speech, or the right of the people
to assemble and petition the government for a redress of grievances,
had not prohibitions upon the exercise of any such legislative power
been embodied in an amendment?
How truly did Hamilton say that had a bill of rights been inserted in
the Constitution, it would have given a handle to the doctrine of
constructive powers. We have this day an illustration in the opinion of
the majority of the very claim of constructive power which he
apprehended, and it is the first instance, I believe, in the history of this
court, when the possession by Congress of such constructive power
has been asserted.270
Justice Field's reference to "�� 1861, 1862, and note" from Story's
Commentaries refers to Story's description of the Ninth Amendment and its
role in preventing the enumeration of certain constitutional rights from being
construed to suggest otherwise unlimited federal power. Justice Strong relied
on just such a construction, and Justice Field reminds the reader that this is
forbidden by the Ninth Amendment, as Story himself explains in his
Commentaries . Field also reconstructs the story of the Bill of Rights
presented in the first of these two articles: the Ninth Amendment arose in
response to calls from the state conventions that amendments be added
preventing "misconception or abuse" of federal power. Justice Field's
reference to Story's description of the Ninth Amendment is important not
only because it presents yet another Supreme Court Justice who viewed the
Ninth as limiting the scope of federal power, but it also indicates that the
Ninth continued to be read as a federalist rule of construction in the period
immediately following the adoption of the Fourteenth Amendment.271
2. The Slaughterhouse Cases: Preserving the Rule of Construction .--If
the holding of
Hepburn was short lived,272 so too was the broad rule of

270
. Legal Tender Cases , 79 U.S. at 664�66 (Field, J., dissenting).
271. This section of Field's opinion refers only to the "constructive powers" doctrine and its
conflict with the expectations of the state conventions. It does not involve any discussion of
individual rights.
Id.
272
. See supra notes 262�265 and accompanying text.

2004]
The Lost Jurisprudence
61

construction announced by Justice Strong in the
Legal Tender Cases . Only
two years later, in the
Slaughterhouse Cases ,273 the Supreme Court returned
to the rule of construction reflected in pre-Civil War discussions of the Ninth
and Tenth Amendments.
Perhaps emboldened by the Court's broad reading of federal power in
the
Legal Tender Cases , the plaintiffs in the Slaughterhouse Cases declared
that the Fourteenth Amendment had "obliterated" the "confederate features
of the government" and had "consolidated the several `integers' into a
consistent whole."274 The purpose of the Fourteenth, they argued, was "to
establish through the whole jurisdiction of the United States ONE PEOPLE, and
that every member of the empire shall understand and appreciate the fact that
his privileges and immunities cannot be abridged by State authority."275 It
was "an act of Union, an act to determine the reciprocal relations of the
millions of population within the bounds of the United States--the numerous
State governments and the entire United States administered by a common
government."276
Justice Samuel Miller, however, rejected the idea that the Fourteenth
Amendment had consolidated the several states into a single common
government in which all privileges and immunities were controlled at the
national level.277 According to Justice Miller, the Reconstruction
Amendments' core purpose was to establish the freedom of former slaves
and their scope should be interpreted with that in mind.278 If the Court were
to adopt the plaintiffs' position, then under Section 5 of the Fourteenth
Amendment, Congress "may also pass laws in advance, limiting and
restricting the exercise of legislative power by the States, in their most
ordinary and usual functions, as in its judgment it may think proper on all
such subjects."279 This would "fetter and degrade the State governments by
subjecting them to the control of Congress, in the exercise of powers
heretofore universally conceded to them of the most ordinary and
fundamental character."280 According to Justice Miller, the Court should not
interpret any constitutional provision in a manner that "radically changes the
whole theory of the relations of the State and Federal governments to each
other and of both these governments to the people . . . in the absence of
language which expresses such a purpose too clearly to admit of doubt."281

273. 83 U.S. (16 Wall.) 36 (1872).
274
. Id. at 52�53.
275
. Id. at 53.
276
. Id.
277
. Id. at 78.
278
. Id. at 71�72.
279
. Id. at 78.
280
. Id.
281
. Id. Justice Miller concludes: "We are convinced that no such results were intended by the
Congress which proposed these amendments, nor by the legislatures of the States which ratified
them."
Id.

62
Texas Law Review
[Vol. 83:___

Justice Miller's rule for interpreting the Constitution echoes the
antebellum theory of federal and state relations--a theory originally
expressed in the Ninth and Tenth Amendments. But the United States had
just endured a Civil War, a war in which the claims of state autonomy were
decidedly rejected by the victors. According to the plaintiffs in the
Slaughterhouse Cases , however appropriate a state-protective rule of
construction might have been prior to the Civil War, we were now a wholly
national people and the Reconstruction Amendments should be construed
accordingly. Justice Miller recognized the force of this argument, but
nevertheless maintained that the Reconstruction Amendments had not
completely erased the constitutional principle of federalism:
The adoption of the first eleven amendments to the Constitution so
soon after the original instrument was accepted, shows a prevailing
sense of danger at that time from the Federal power. And it cannot be
denied that such a jealousy continued to exist with many patriotic men
until the breaking out of the late civil war. It was then discovered that
the true danger to the perpetuity of the Union was in the capacity of
the State organizations to combine and concentrate all the powers of
the State, and of contiguous States, for a determined resistance to the
General Government.
Unquestionably this has given great force to the argument, and added
largely to the number of those who believe in the necessity of a strong
National government.
But, however pervading this sentiment, and however it may have
contributed to the adoption of the amendments we have been
considering, we do not see in those amendments any purpose to
destroy the main features of the general system. Under the pressure of
all the excited feeling growing out of the war, our statesmen have still
believed that the existence of the State with powers for domestic and
local government, including the regulation of civil rights--the rights
of person and of property--was essential to the perfect working of our
complex form of government, though they have thought proper to
impose additional limitations on the States, and to confer additional
power on that of the Nation.
But whatever fluctuations may be seen in the history of public opinion
on this subject during the period of our national existence, we think it
will be found that this court, so far as its functions required, has
always held with a steady and an even hand the balance between State
and Federal power, and we trust that such may continue to be the
history of its relation to that subject so long as it shall have duties to
perform which demand of it a construction of the Constitution, or of
any of its parts.282

282
. Id. at 82.

2004]
The Lost Jurisprudence
63

Justice Miller believed that federalism had survived the Civil War and,
echoing Madison,283 he believed that it was the Court's duty to preserve a
balance between state and federal power through the application of a rule of
construction that limited the scope of federal authority. In this case, it meant
limiting the scope of the Reconstruction Amendments. The
Slaughterhouse
Cases
are an example of the Court refusing to construe enumerated rights so
broadly as to transfer to the national government power to control general
matters of local self-government. In the absence of clear language requiring
such a construction, Justice Miller believed that the Court must limit its
interpretation of constitutional rights as well as unenumerated powers.
Although the
Slaughterhouse Cases did not expressly mention the Ninth
Amendment, its reasoning clearly adopts the pre-Civil War understanding of
the Ninth Amendment's rule of construction, as later courts would
recognize.284
Justice Miller's opinion in the
Slaughterhouse Cases has been criticized
in contemporary scholarship for failing to identify and enforce the intended
meaning of the Privileges or Immunities Clause, reducing that Clause instead
to a redundant statement of pre-existing national rights.285 In fact, there is
significant evidence that the Privilege or Immunities Clause was intended to
embrace at the very least the freedoms listed in the first eight amendments to
the Constitution and perhaps fundamental common law rights as well.286
Justice Miller's attempt to read "privileges
and immunities" as wholly
unrelated to "privileges
or immunities" is at best weak. But Miller's attempt
to synthesize the Founding Amendments with those of Reconstruction
deserves to be taken seriously.287 Federalism was not merely an idea
animating the Founding era, to be shrugged off with the adoption of the
Reconstruction Amendments. Federalism was textually enshrined in the
Constitution through the adoption of the Ninth and Tenth Amendments (and,
Miller appears to suggest, through the adoption of the Eleventh Amendment
as well). Absent an express repeal of these constitutional provisions, it was
the Court's duty to synthesize the document as a whole, preserving what
remained of the past while giving meaning to the people's new articulation of
fundamental law. Justice Miller may have given short shrift to the desires of
the framers of the Fourteenth Amendment, but his effort to reconcile the
Founding and Reconstruction is an endeavor--however flawed--to interpret
the document as a whole.

283. Letter from James Madison to Spencer Roane (May 6, 1821),
in WRITINGS, supra note 11,
at 773 (discussing the need to maintain a "just equilibrium" between federal and state power).
284
. E.g. , United States v. Moore, 129 F. 630 (C.C.N.D. Ala 1904); see also infra notes 353�
357 and accompanying text.
285
. E.g. , LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1303�11 (3rd ed. 2000).
286
. See generally Lash, Two Movements of a Constitutional Symphony , supra note 215, at 485.
287
. See ACKERMAN, supra note 258, at 113.

64
Texas Law Review
[Vol. 83:___

The Court remained solidly in the camp of James Madison and not
Justice William Strong (or John Marshall), for the remainder of the
nineteenth century and into the twentieth. Had the Supreme Court continued
to follow Strong's reasoning in the
Legal Tender Cases , the Ninth and Tenth
Amendments most likely would have withered on the vine. Instead, by
embracing the same rule of strict construction advocated by James Madison,
St. George Tucker, and Joseph Story in
Houston v. Moore , the next several
decades proved quite hospitable to the twin guardians of federalism.288
3. Hans v. Louisiana .-- According to Justice Miller, "The adoption of
the
first eleven amendments to the Constitution so soon after the original
instrument was accepted, shows a prevailing sense of danger at that time
from the Federal power."289 In fact, the Ninth and Eleventh Amendments
share language unique among any other provisions in the federal
Constitution. Consider the language of the Eleventh: "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."290
Both the Ninth and Eleventh Amendments declare a rule for construing
the Constitution. Under the contemporary assumption that the Ninth has to
do with individual rights, while the Eleventh seems to deal with states rights,
the similarity of language between the Ninth and Eleventh appears to be no
more than a coincidence. Once one understands the Ninth as expressing a
principle of state autonomy, the Ninth and Eleventh Amendments seem
closely related. For example, notice that the Eleventh Amendment does not
remove a power originally granted. Instead, the Eleventh announces that the
previous grant of judicial power in Article III shall not be construed in a
particular way. The Eleventh was adopted in response to the Supreme

288
. See, e.g. , The Civil Rights Cases, 109 U.S. 3, 14�15 (1883) (linking a limiting rule of
construction to the Tenth Amendment).
289. The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 82 (1873) (emphasis added). Miller was
not the first to group the Eleventh with the original Bill of Rights. Madison himself linked the
Ninth, Tenth, and Eleventh Amendment to the same rule of construction prohibiting latitudinous
constructions of federal power. Writing to Spencer Roane in regard to the Supreme Court's
decision in
Cohens v. Virginia , 19 U.S. (6 Wheat.) 264 (1821), Madison lamented the Court's
failure to consider the Constitution's own directions regarding the construction of federal judicial
power:
On the question relating to involuntary submissions of the States to the Tribunal of the
Supreme Court, the Court seems not to have adverted at all to the expository language
when the Constitution was adopted; nor to that of the Eleventh Amendment, which
may as well import that it was declaratory, as that it was restrictive of the meaning of
the original text.
Letter from James Madison to Spencer Roane (May 6, 1821),
in WRITINGS, supra note 11, at 776.
The "expository language" Madison referred to was that of the Ninth and Tenth Amendments.
See
Lash,
The Lost Original Meaning , supra note 8, at 428�29.
290. U.S. CONST. amend. XI.

2004]
The Lost Jurisprudence
65

Court's decision in
Chisolm v. Georgia 291 amidst a public outcry against
allowing out-of-state citizens to haul states into federal court for the payment
of debts. If, as it now appears, the purpose of the Ninth was to prevent
latitudinarian constructions of federal power to the injury of the states, then
the purpose of the Eleventh was to declare erroneous one such perceived
latitudinarian construction. It is almost as if the Eleventh Amendment could
be placed immediately after the Ninth with the prefatory words "for
example" added to the beginning of the Clause. If this sounds far fetched,
consider the Court's 1890 decision in
Hans v. Louisiana .292
In
Hans , the Supreme Court ruled that states could not be sued in
federal court by their own citizens without the consent of the state.293 Long
considered an important Eleventh Amendment case, Justice Joseph Bradley's
opinion actually addresses the proper construction of the federal courts'
enumerated powers under Article III. Justice Bradley begins by noting that
the Eleventh Amendment by its terms does not apply to the case.294
However, Bradley then points out that the context in which the Eleventh was
adopted is important because it shows that the country agreed with Justice
Iredell's dissent in
Chisolm ,295 a dissent Bradley believed reflected the proper
construction of the Constitution.296 Turning to the issue before the Court in
Hans --whether a state may be sued in federal court by one of its own
citizens without its consent--Bradley concluded that allowing such a suit
would repeat
Chisolm 's erroneous construction of Article III:
The letter [of Article III] is appealed to now, as it was then, as a
ground for sustaining a suit brought by an individual against a state.
The reason against it is as strong in this case as it was in that. It is an
attempt to strain the Constitution and the law to a construction never
imagined or dreamed of.297
Prior to the Eleventh Amendment, of course, there was only one
provision in the Constitution prohibiting expansive judicial constructions of
federal power: the Ninth Amendment. The people's response to
Chisolm , as
Bradley saw it, was to add a provision expressly adopting the strict
construction of Article III that was supposed to apply in the first place. Is it
really a coincidence, then, that the language in the Eleventh echoes the
language in the Ninth? Exploring the full relationship between the Ninth and
Eleventh Amendments requires separate treatment.298 For now, it is worth

291. 2 U.S. (2 Dall.) 419 (1793) (holding that an action of assumpsit will lie against a state
even when it is brought by a citizen of a different state).
292. 134 U.S. 1 (1890).
293
. Id. at 17, 20.
294
. Id. at 10.
295
. Id. at 12.
296
. Id.
297
. Id. at 15.
298. A treatment I hope to provide in an upcoming article.

66
Texas Law Review
[Vol. 83:___

pointing out that the rule of construction deployed in
Hans echoes the rule of
construction used in the
Slaughterhouse Cases . The rule may have been
erroneously applied in both situations. It suggests, nevertheless, a
relationship between the Ninth, Tenth, and Eleventh Amendments that until
now has been insufficiently explored.299
C. Congressional Power, Individual Rights, and the Ninth Amendment,
1868�1930.
Surely one of the most important and significant of all those powers
reserved was the right of each state to determine for itself its own
political machinery and its own domestic policies.300
1. The General Structure of Ninth Amendment Claims in the
Progressive Era.-- Federalism having survived Reconstruction, both the
Ninth and Tenth Amendments flourished in the period prior to the New Deal.
Cited repeatedly by individuals and states, the Ninth Amendment continued
to be applied in tandem with the Tenth as an expression of limited federal
power and retained local autonomy.301 Challenges based on the Ninth and
Tenth Amendments were brought against federal regulation of prostitution,302
drugs,303 unfair trade practices,304 and bribery.305 Some plaintiffs went so far

299. Some scholars have noted the relationship between these amendments.
See Akhil Reed
Amar,
Of Sovereignty and Federalism , 96 YALE L.J. 1425, 1483 n.234 (1987) (arguing that a "neo-
Federalist reading" of the Ninth Amendment "clarifies important connections . . . among the Ninth,
Tenth, and Eleventh Amendments"). Professor Amar's account of the Ninth Amendment focuses
on the popular sovereignty aspects of the clause and does not address the application of the Ninth as
a federalist rule of construction.
300. Hawke v. Smith, 126 N.E. 400, 403 (Ohio 1919).
301. For example, in
United States v. Ferger , 256 F. 388 (S.D. Ohio 1918), the court declared:
The principle that our federal government is one of enumerated powers is universally
admitted. The powers possessed by the national government are only such as have
been delegated to it. The states have all powers but such as they have surrendered,
which is but stating what the Constitution declares in article 9:
"The enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people."
And in article 10:
"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 states have not surrendered, and therefore retain, their power to enact laws to
prevent and punish such acts as these defendants are charged with, and have not
delegated to the Congress the power to pass laws to prevent and punish acts, however
immoral, which have no relation whatever to the subjects-matter included within any
of the powers delegated. "In the American constitutional system, the power to establish
the ordinary regulations of police has been left with the individual states, and cannot be
assumed by the national government," says Judge Cooley.
Id. at 390�91 (citations omitted).
302. Hoke v. United States, 227 U.S. 308, 319�20 (1913).
303. United States v. Charter, 227 F. 331, 332 (N.D. Ohio 1915).
304. T.C. Hurst & Son v. FTC, 268 F. 874, 875�86 (E.D. Va. 1920).

2004]
The Lost Jurisprudence
67

as to claim the Ninth and Tenth Amendments invalidated the ratification of
national prohibition under the Eighteenth Amendment.306 Although these
cases held in favor of federal power, no court disputed the reading of the
Ninth and Tenth Amendments as mutual declarations of limited federal
power and retained state autonomy.307
More successfully, states used the Ninth and Tenth Amendments to
limit federal preemption of state law308 and to narrow the construction of
enumerated restrictions placed upon the states in Article I, Section 10. For
example, Iowa courts concluded that both the federal and the state
impairment of contract clauses should receive a limited construction in light
of the Ninth and Tenth Amendments' preservation of the state police power
to respond to economic emergencies.309 In
Oregon R. & Navigation Co. v.

305. Dropps v. United States, 34 F.2d 15 (8th Cir. 1929).
306
. See, e.g. , United States v. Sprague, 44 F.2d 967, 984 (D.N.J. 1930); United States v.
Panos, 45 F.2d 888, 890 (N.D. Ill. 1930) (describing such arguments as "absurd").
307
. See, e.g. , State v. C.C. Taft Co., 167 N.W. 467, 468 (Iowa 1918) (involving an argument
by the state that the Ninth and Tenth Amendments reserve to the states the right to regulate goods
not traveling in interstate commerce); McCabe's Adm'x v. Maysville & B.S.R. Co., 124 S.W. 892,
893 (Ky. Ct. App. 1910) (involving a claim that a federal removal statute violated the Ninth and
Tenth Amendment, which the court rejected without discussing the Amendments); Dickson v.
United States, 125 Mass. 311 (1878) (rejecting a claim that the Ninth and Tenth Amendments
required a strict construction of federal power to the extent that the federal government could not
take land granted to it in a will, but not disputing the general principle).
308
. See, e.g. , In re Estate of Hansen, 155 Misc. 712 (N.Y. Sup. Ct. 1935) (concluding that
federal treaties should be construed in conformance with the Ninth and Tenth Amendments to
preserve state authority to appoint legal representatives for the minor children of foreign nationals).
According to the court:
When the State of New York concurred in creating the power "to make Treaties" (U. S.
Const. art. II, � 2), it ceded to the President, acting with the advice and consent of two-
thirds of the Senate, only so much of its presumably unbounded sovereignty as was
thought necessary for the welfare of the Union in respect of interstate and international
matters; and under the Ninth and Tenth Amendments, as the recipient of that treaty-
making power took in the right of another, the delegated power is deemed not to extend
any further than the general terms of that grant fairly imply in view of the object to be
thereby attained.
Id. at 713.
309
. See Des Moines Joint Stock Land Bank v. Nordholm, 253 N.W. 701 (Iowa 1934). In
Nordholm , the state of Iowa had extended the time for redeeming foreclosed upon property. Id. at
703. This was challenged as a violation of, among other things, the federal impairment of contracts
clause and its state analogue.
Id. According to the court:
Regardless of the declaration in the Constitution of the United States that the state shall
pass no law impairing the obligation of contracts, there nevertheless is reserved to the
states their police power and the power to sustain their sovereignty and government
and their existence as states. Such police power "is an exercise of the sovereign right
of the government to protect the lives, health, morals, comfort, and general welfare of
the people, and is paramount to any rights under contracts between individuals."
. . . .
What power, then, is reserved under the contract clause of the state Constitution? The
Ninth Amendment to the Constitution of the United States provides: "The enumeration
in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people." And Amendment 10 to the Constitution of the United States
continues with the following reservation: "The powers not delegated to the United

68
Texas Law Review
[Vol. 83:___

Campbell , Oregon's railroad rate regulations were challenged as an
unconstitutional interference with interstate commerce and as violations of
equal protection and due process of law.310 Federal District Judge Wolverton
dismissed the equal protection and due process claims, concluding that the
rates were reasonable.311 Determining whether the enumerated commerce
power precluded state rate regulation required a return to first principles:
By the ninth article of amendment to the Constitution it is declared
that:
"The enumeration in the Constitution of certain rights shall not
be construed to deny or disparage others retained by the people."
And by the tenth article:
"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."
Thus is indicated, as strongly as could be, that the Constitution of the
United States is but a delegation of powers, which powers, together
with the implied powers that attend those that are express, necessary to
a practical and efficient exercise thereof, constitute all that the general
government has, or can presume to exercise. All primarily to the
people, as they are the repository of all power, political and civil. The
whole lawmaking power out of this repository of power is committed
to the several state Legislatures, except such as has been delegated to
the federal government or is withheld by express or implied
reservation in the state Constitutions.312

States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people." Section 25, article 1, of the state Constitution declares:
"This enumeration of rights shall not be construed to impair or deny others, retained by
the people."
Id. at 705�10 (citations omitted). Interestingly, it appears that the court believed the Ninth and
Tenth Amendments suggested a limited reading of rights provisions in both the federal and state
constitutions. This would be an example of reading the rule of construction into judicial
interpretation of enumerated state constitutional powers and rights.
310. 173 F. 957, 966 (C.C.D. Or. 1909).
311
. Id. at 991.
312 . Id. at 978�79. The court concluded that, under the Ninth and Tenth Amendments, the state
retained the power to set rates for intrastate commerce.
Id. at 979. Similarly, in Shealy v. Southern
Railway Co
., 120 S.E. 561, 563 (S.C. 1924), the South Carolina Supreme Court held that federal
transportation laws did not preempt the ability of the state to require railroads to erect "passenger
sheds" at stops serving both in state and out-of-state passengers. In his concurrence, Judge
Memminger wrote:

Also we should bear in mind the general rule of construction, that where an act permits
of two constructions, one of which will lead to constitutional difficulties, and the other
will render the act valid, the court should adopt the latter.

Article 9 of the Amendments of the United States Constitution provides that the
renunciation in the Constitution of certain rights shall not be construed to deny or
disparage others retained by the people. And article 10 of the Amendments provides

2004]
The Lost Jurisprudence
69

Questions involving the balance of power between the states and the
federal government in regulating railroads occurred repeatedly during this
period. Determining the scope of federal commerce power in this area--and
whether federal statutes preempted state authority--raised issues addressed
by the Ninth and Tenth Amendments. In
People v. Long Island Railroad , the
court issued an injunction preventing the railroad from raising its rates for
intrastate travel beyond rates authorized by state law.313 The railroad argued
that its rates were authorized by the federal Interstate Commerce
Commission, and that any state regulation to the contrary was preempted by
federal law.314 According to Judge Benedict, allowing federal regulation of
intrastate travel would unconstitutionally intrude upon powers reserved to the
states under the Ninth and Tenth Amendments:
Article 10 of these amendments reads as follows:
"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."
Article 9 provides that:
"The enumeration in the Constitution of certain rights shall not
be construed to deny or disparage others retained by the people."
If the original form of our government had been other than it was, the
need of these provisions would not have arisen. . . .
Under this Constitution, the powers of government over all the states
were vested in the general or federal government, and at the same time
the powers of government over each state, in so far as they were not
delegated either expressly or by necessary implication to the federal
government were reserved to the states themselves.315
According to Benedict, if the federal government can regulate such matters
of local concern, "what becomes of state sovereignty?"316
2. The Rule of Construction and Defining the Retained Rights of the
People.-- In his speech discussing the origins and meaning of the Ninth
Amendment, James Madison referred to the states' presumptively retained

that the powers not delegated to the United States by the Constitution, nor prohibited
by it to the states, are reserved to the states.
Id. at 568.
313. 185 N.Y.S. 594, 611 (N.Y. Spec. Term 1920). The case was reversed by the state appellate
court on the basis that the lower court lacked jurisdiction. People v. Long Island R.R., 186 N.Y.S.
589 (N.Y. App. Div. 1921). The court's reversal was announced orally "[w]ithout passing on the
merits of any question presented."
Id.
314
. Long Island R.R. , 185 N.Y.S. at 599.
315
. Id. at 609.
316 . Id. at 610.

70
Texas Law Review
[Vol. 83:___

rights to regulate agriculture, manufacture, and commerce.317 As the
industrial age exponentially increased the nature and scope of the national
economy, the Court conceded that these presumptively local activities
occasionally raised legitimate federal concerns, but, once again, limited
construction of federal power to activities that directly or substantially
affected interstate commerce.318
In
Hammer v. Dagenhart , for example, the Court invalidated the
Keating-Owen Child Labor Act, which barred goods made by children from
interstate commerce.319 Writing for the Court, Justice Day noted that
delegated federal power "was not intended to destroy the local power always
existing and carefully reserved to the States in the Tenth Amendment to the
Constitution."320 Justice Day then quoted Marshall's opinion in
Dartmouth
College
, which forbade construing the Constitution in a manner that would
"restrain the states in the regulation of their civil institutions, adopted for
internal government."321 According to Justice Day, preserving the reserved
powers of the states limited the Court's interpretation of enumerated federal
power:
The maintenance of the authority of the States over matters purely
local is as essential to the preservation of our institutions as is the
conservation of the supremacy of the federal power in all matters
entrusted to the Nation by the Federal Constitution.
In interpreting the Constitution it must never be forgotten that the
Nation is made up of States to which are entrusted the powers of local
government. And to them and to the people the powers not expressly
delegated to the National Government are reserved. The power of the
states to regulate their purely internal affairs by such laws as seem
wise to the local authority is inherent and has nevere been surrendered
to the general government. [citing
New York v. Miln ; The
Slaughterhouse Cases
] . . . To sustain this statute would not be in our
judgment a recognition of the lawful exertion of congressional
authority over interstate commerce, but would sanction an invasion by
the federal power of the control of a matter purely local in its

317
. See James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791),
reprinted in WRITINGS, supra note 11, at 485.
318
. See, e.g. , Houston, E. & W. Tex. Ry. v. United States, 234 U.S. 342, 355 (1914) (allowing
Congress to regulate "in all matters having such a close and substantial relation to interstate
commerce that it is necessary or appropriate to exercise the control for the effective government of
that commerce"); Champion v. Ames, 188 U.S. 321, 360 (1903) (permitting Congressional limits on
private contracts "which directly and substantially" impact interstate commerce"); United States v.
E.C. Knight Co., 156 U.S. 1, 33 (1895) (allowing regulation of activity that "affects, not
incidentally, but directly, the people of all the States").
319. 247 U.S. 251, 276 (1918).
320
. Id. at 274. The Court cited, among other sources, "Cooley's Constitutional Limitations
(7th Ed.) p. 11."
Id.
321
. Id. at 274�75 (quoting Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.)
518, 629 (1819)) (citations omitted).

2004]
The Lost Jurisprudence
71

character, and over which no authority has been delegated to Congress
in conferring the power to regulate commerce among the States.322
Although Justice Day's opinion in
Hammer focused on the Tenth
Amendment, other courts cited
Dartmouth College and Hammer as
expressing principles embraced by the Ninth and Tenth Amendments. In
George v. Bailey , for example, a federal court considered whether Congress
could enact essentially the same law invalidated in
Hammer , this time
justified as an exercise of Congress's enumerated power to tax.323 After
beginning its analysis of the Child Labor Tax by repeating the interpretive
rules of both
Hammer v. Dagenhart and Dartmouth College ,324 District Judge
Boyd rejected the government's argument that the Court should defer to
Congress's power to tax and spend, pointing, for support, to the Ninth and
Tenth Amendments:
The position taken by the counsel for the defendant does not appeal to
the court here as being based upon sound reason or intelligent
construction. The Tenth Amendment to the Constitution reads as
follows:
"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."
From time to time the courts have been called on to construe the
meaning of this amendment, and almost without exception it has been
held that the powers of the national government are limited to those
delegated. This construction is fortified by the Ninth Amendment,
which reads as follows:
"The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people."
This amendment must be construed to mean that, in framing the
Constitution, the sovereign people of the several states ceded to the
general government certain designated powers, leaving all other rights
and powers, such as are necessary to maintain our dual system of
government, to the states respectively and to the people.325
To allow the commerce power to reach any matter affecting commerce
would, from a Madisonian perspective, destroy the concept of enumerated
power and alter the character of our constitutional government.326 The

322
. Id. at 275�76.
323. 274 F. 639, 640�41 (W.D.N.C. 1921).
324
. Id. at 640�41 (citations omitted).
325
. Id. at 644. Although the Supreme Court reversed the decision in Bailey on standing
grounds,
see Bailey v. George, 259 U.S. 16, 19�20 (1922), it later invalidated the Child Labor Tax
at issue in
Bailey on the grounds that it exceeded federal power under Hammer v. Dagenhart . See
Child Labor Tax Case, 259 U.S. 20, 44 (1922).
326
. See James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791),
reprinted in WRITINGS, supra note 11, at 485.

72
Texas Law Review
[Vol. 83:___

purpose of the Ninth Amendment was to prevent expansive interpretations of
federal power in a manner that disparaged the people's retained right to
manage certain affairs free from federal interference. For all the criticism
nineteenth century courts have received for failing to recognize the true
nature of commerce, the critics have failed to recognize the constitutional
mandate that drove the need to maintain a distinction between national and
local matters.
3. Mistaking the Tenth Amendment for the Ninth.-- The ubiquitous
pairing of the Ninth and Tenth Amendments suggests a kind of "collapsing"
in the common understanding of the Clauses. Almost always cited as paired
expressions of limited enumerated federal power, it often was not clear
whether the Ninth and Tenth played separate roles or whether both supported
the rule of construction. At the Founding, of course, a limited construction
of federal power was considered an inherent aspect of a government of
enumerated powers.327 State conventions such as those in North Carolina
and Virginia insisted on adding an express rule of construction only "for
greater caution."328 If this rule of construction was an inherent constitutional
norm, then the rule could be applied independently329 or in conjunction with
either the Ninth or Tenth Amendments.330
But tandem citations to the Ninth and Tenth Amendments in cases
applying the rule of construction effectively masked the rule's particular link
to the Ninth Amendment.331 In his speech on the Bank of the United States,
Madison clearly distinguished the separate roles of the Ninth and Tenth
Amendments.332 But it was Madison's Tenth Amendment-based report on
the Alien and Sedition Act which became famous,333 not his speech on the
Bank of the United States and its increasingly obscure references to the

327
. See Letter from James Madison to Spencer Roane (Sept. 2, 1819), in WRITINGS, supra
note 11, at 734; Edmund Randolph, The Constitutionality of the Bank Bill (Feb. 12, 1791),
reprinted in THE CONSTITUTION AND THE ATTORNEYS GENERAL 7�9 (1999); TUCKER,
BLACKSTONE'S COMMENTARIES,
supra note 50, at 142�43.
328
. See, e.g. , Amendments Proposed by the Virginia Convention (June 27, 1788), reprinted in
CREATING THE BILL OF RIGHTS,
supra note 195, at 21 (concerning Virginia's seventeenth proposed
amendment);
see also Lash, The Lost Original Meaning , supra note 8, at 357.
329. In
Dartmouth College , the rule was applied independently. Trustees of Dartmouth College
v. Woodward, 17 U.S. (4 Wheat.) 518, 627�28 (1819).
330. In
Hammer , the rule was cited in conjunction with the Tenth Amendment. Hammer v.
Dagenhart, 247 U.S. 251, 275�76 (1918). In
George v. Bailey , the rule was cited in conjunction
with both the Ninth and Tenth Amendments. George v. Bailey, 274 F. 639, 644 (W.D.N.C. 1921).
331. This same masking occurs if the Ninth and Tenth are presented as representing the
principle of enumerated power.
See , e.g. , Henry Bickel Co. v. Wright's Adm'x, 202 S.W. 672, 674
(Ky. Ct. App. 1918) ("[T]he ninth and tenth amendments reserve to the states all powers not
expressly delegated.").
332. James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791),
reprinted
in WRITINGS, supra note 11, at 480.
333
. See Lash, The Lost Original Meaning , supra note 8, at 410�13; see also Lash, Madison's
Celebrated Report,
supra note 181.

2004]
The Lost Jurisprudence
73

"eleventh" and "twelfth" amendments. Therefore, it is not surprising that
some Supreme Court Justices linked Madisonian arguments regarding
latitudinarian construction to the Tenth Amendment in cases involving the
construction of enumerated federal power. In
Lambert v. Yellowley , for
example, the Supreme Court narrowly upheld a provision in the National
Prohibition Act against a claim that it exceeded Congress's powers under the
Eighteenth Amendment.334 In dissent, Justice George Sutherland opened his
opinion by declaring a rule of construction that he believed was established
by the Tenth Amendment:
The general design of the federal Constitution is to give to the federal
government control over national and international matters, leaving to
the several states the control of local affairs. Prior to the adoption of
the Eighteenth Amendment, accordingly, the direct control of the
manufacture, sale and use of intoxicating liquors for all purposes was
exclusively under the police powers of the states; and there it still
remains, save insofar as it has been taken away by the words of the
Amendment. These words are perfectly plain and cannot be extended
beyond their import without violating the fundamental rule that the
government of the United States is one of delegated powers only and
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."335
To Justice Sutherland, the Eighteenth Amendment was an exception to the
general power of the states and should therefore be read in a limited manner.
He rooted this rule of construction in the Court's prior decision in
Hammer
and in James Madison's 1800 Report on the Virginia Resolutions:
Congressional legislation directly prohibiting intoxicating liquor for
concededly medical purposes . . . does not consist with the letter and
spirit of the Constitution, and viewed as a means of carrying into
effect the granted power is in fraud of that instrument, and especially
of the Tenth Amendment. The words of Mr. Madison are pertinent:
"Nor can it ever be granted that a power to act on a case when it
actually occurs, includes a power over all the means that may tend to
prevent the occurrence of the case. Such a latitude of construction
would render unavailing every practical definition of particular and
limited powers."336

334. 272 U.S. 581, 595 (1926).
335
. Id. at 597 (Sutherland, J., dissenting) (citations omitted) (emphasis removed).
336 . Id. at 603�04 (Sutherlord, J., dissenting) (quoting Madison's 1800 Report) (emphasis
deleted). Sutherland continues:
The effect of upholding the legislation is to deprive the states of the exclusive power,
which the Eighteenth Amendment has not destroyed, of controlling medical practice
and transfer it in part to Congress. It goes further, for if Congress can prohibit the
prescription of liquor for necessary medical purposes as a means of preventing the
furnishing of it for beverage purposes, that body, by a parity of reasoning, may prohibit
the manufacture and sale for industrial or sacramental purposes, or, indeed, as the most

74
Texas Law Review
[Vol. 83:___

To Justice Sutherland, Madison's rule against latitudinarian
constructions of federal power was derived from the Tenth Amendment.
Other Supreme Court Justices agreed. In a dissenting opinion joined by
Oliver Wendell Holmes, (soon to be Chief) Justice Edward Douglass White
objected to latitudinarian constructions of the commerce clause as violating
the principles of the Tenth Amendment.337 In fact, Madison did believe the
Tenth worked along with the Ninth in limiting federal authority. Since
Madison's 1800 Report, however, states' rights advocates tended to focus on
the Tenth Amendment as the
primary , though not exclusive, provision
limiting the construction of enumerated federal power.
Ninth Amendment scholars often dismiss tandem references to the
Ninth and Tenth Amendments as irrelevant to understanding the historical
application of the Ninth under the assumption that such references are really
about the Tenth Amendment.338 Given the pattern of citing the Ninth and
Tenth Amendments as expressing a single principle of limited power, and
given the numerous opinions applying Madison's rule of construction in
conjunction with the Tenth Amendment, this assumption is understandable.
As a matter of original understanding and constitutional text, however, it is
the Ninth, not the Tenth, that deals with constructions of enumerated

effective possible means of preventing the traffic in it for beverage purposes, may
prohibit such manufacture and sale altogether, with the result that, under the pretense
of adopting appropriate means, a carefully and definitely limited power will have been
expanded into a general and unlimited power. "The purposes intended must be attained
consistently with constitutional limitations and not by an invasion of the powers of the
states. This court has no more important function than that which devolves upon it the
obligation to preserve inviolate the constitutional limitations upon the exercise of
authority, federal and state, to the end that each may continue to discharge,
harmoniously with the other, the duties entrusted to it by the Constitution."
Id. at 604 (quoting Hammer v. Dagenhart, 247 U.S. 251 (1918)).
337. N. Sec. Co. v. United States, 193 U.S. 197, 364�411 (1904) (White, J., dissenting).
According to Justice White:
I think the ownership of stock in a state corporation cannot be said to be in any sense
traffic between the states or intercourse between them. The definition continues: "It
describes the commercial intercourse between nations and parts of nations." Can the
ownership of stock in a state corporation, by the most latitudinarian construction, be
embraced by the words "commercial intercourse between nations and parts of
nations?" . . . .
But if the question be looked at with reference to the powers of the Federal and state
governments,--the general nature of the one and the local character of the other, which
it was the purpose of the Constitution to create and perpetuate, it seems to me evident
that the contention that the authority of the National Government under the commerce
clause gives the right to Congress to regulate the ownership of stock in railroads
chartered by state authority is absolutely destructive of the Tenth Amendment to the
Constitution, which provides 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."
Id. at 369�70 (White, J., dissenting).
338
. See, e.g. , PATTERSON, supra note 2, at 32 (noting that a number of cases briefly mention
both the Ninth and Tenth Amendments but only discuss the Tenth).

2004]
The Lost Jurisprudence
75

power.339 As a textual matter, cases deploying an interpretive rule against
latitudinarian construction of enumerated federal power are really discussing
Ninth Amendment principles. Thus, an irony: Tandem references to the
Ninth and Tenth, which scholars have dismissed as mistaking the Ninth
Amendment for the Tenth, appear to have correctly cited the Ninth in support
of the federalism-based rule of construction. On the other hand, cases that
cite the Tenth Amendment alone as a rule of construction limiting the
interpretation of enumerated federal power have cited the Tenth for
principles textually expressed by the Ninth. Justice Sutherland's citing of
Madison's Tenth Amendment-based arguments in a case involving
enumerated federal power is one example of this "Ninth Amendment
reading" of the Tenth. Another is Judge Felch's rewriting of Justice Story's
opinion in
Houston v. Moore in which he replaces Story's reference to the
Ninth with a misquoted reference to the Tenth.340 Having recovered the
historical roots of the Ninth and Tenth Amendments, it appears that the
common reading of tandem citations to these two amendments is incorrect.
To the extent that these cases involve limited construction of enumerated
federal power, they are really about the
Ninth , not the Tenth Amendment.
4. Distinguishing the Ninth from the First Eight Amendments.-- Not
only was the Ninth Amendment consistently linked to the Tenth, but both of
these Amendments often were omitted from general discussions regarding
the rest of the Bill of Rights.341 In
Brown v. Walker , Justice Henry Brown
wrote that "the object of the first eight amendments to the constitution was to
incorporate into the fundamental law of the land certain principles of natural
justice which had become permanently fixed in the jurisprudence of the
mother country."342 When the Supreme Court first began to construe the Due

339. The fact that the Tenth does not by its terms control the construction of federal power was
occasionally pointed out by the Supreme Court itself.
See Missouri v. Holland, 252 U.S. 416, 433�
34 (1920) ("The treaty in question does not contravene any prohibitory words to be found in the
Constitution. The only question is whether it is forbidden by some invisible radiation from the
general terms of the Tenth Amendment.").
340. See
supra notes 182�184 and accompanying text.
341. For example, in his
Treatise on the Limitations of Police Power in the United States ,
Christopher G. Tiedeman wrote:
The principle constitutional limitations, which are designed to protect private rights
against the arbitrary exercise of governmental power, and which therefore operate to
limit and restrain the exercise of police power, are the following:--[Amendments 1�8,
14, and 15] . . . Here are given only the provisions of the Federal constitution, but they
either control the action of the States, as well as of the United States, or similar
provisions have been incorporated into the bills of rights of the different State
constitutions, so that the foregoing may be considered to be the chief limitations in the
United States upon legislative interference with natural rights.
CHRISTOPHER G. TIEDEMAN, TREATISE ON THE LIMITATIONS OF POLICE POWER IN THE UNITED
STATES 13�15 (1886).
342. 161 U.S. 591, 648 (1985);
see also Holden v. Hardy, 169 U.S. 366, 382 (1898) ("[T]he
first eight amendments to the Constitution were obligatory only upon congress."); Maxwell v. Dow,
176 U.S. 581, 607�08 (1900) (Harlan, J. dissenting) (referring to the first ten amendments as the

76
Texas Law Review
[Vol. 83:___

Process Clause of the Fourteenth Amendment to include certain freedoms
listed in the Bill of Rights, the discussion generally, and sometimes
expressly, involved only the first eight amendments.343 On a number of
occasions, the Supreme Court described the Bill of Rights as including only
the first eight amendments.344 In
Palko v. Connecticut , for example, Justice
Benjamin Cardozo characterized arguments in favor of total incorporation of
the Bill of Rights as applying only to the first eight amendments.345 This
distinction between the first eight amendments and the Ninth and Tenth
echoes the same distinction made by Fourteenth Amendment framers such as
John Bingham.346 The distinction would become even more apparent in
opinions citing the Ninth and Tenth Amendments in support of arguments
opposing the full incorporation of the first eight amendments.347
5. The Ninth Amendment and Individual Rights.-- Between the Civil
War and the New Deal, a few cases discussed the Ninth Amendment as a
source of unenumerated rights.348 In
Roman Catholic Archbishop v. Baker ,

Bill of Rights, but quoting only the first eight amendments, which he characterized as "privileges
and immunities enumerated in these amendments belong[ing] to every citizen of the United
States").
343. For example, in the Supreme Court case,
Eilenbecker v. District Court of Plymouth
County , 134 U.S. 31 (1890), Justice Miller noted:
The first three of these assignments of error, as we have stated them, being the first and
second and fourth of the assignments as numbered in the brief of the plaintiffs in error,
are disposed of at once by the principle often decided by this court, that the
first eight
articles of the amendments
to the Constitution have reference to powers exercised by
the government of the United States, and not to those of the states.
Id. at 34 (emphasis added); see also Ohio ex rel. Lloyd v. Dollison, 194 U.S. 445, 447 (1904)
(quoting the above statement from
Eilenbecker ).
344
. See, e.g. , Bolln v. Nebraska, 176 U.S. 83, 87 (1900) ("The argument of the plaintiff in
error in this connection is that, by these acts, the people of Nebraska adopted the Constitution of the
United States, and thereby the first eight amendments containing the bill of rights became
incorporated in the constitution of the State.").
345. 302 U.S. 319, 323 (1937). According to Justice Cardozo:
We have said that in appellant's view the Fourteenth Amendment is to be taken as
embodying the prohibitions of the Fifth. His thesis is even broader. Whatever would be
a violation of the original bill of rights (Amendments I to VIII) if done by the federal
government is now equally unlawful by force of the Fourteenth Amendment if done by
a state. There is no such general rule.
Id. ; see also HORACE EDGAR FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT 94 (1908)
(concluding that the "Congress, the House and the Senate, had the following objects and motives in
view for submitting the first section of the Fourteenth Amendment to the States for ratification: 1.
To make the Bill of Rights (the first eight amendments) binding upon, or applicable to, the States").
346. See
supra note 239 and accompanying text.
347
. See infra notes 469�485 and accompanying text; see also Felix Frankfurter, Memorandum
on "Incorporation" of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment ,
78 HARV. L. REV. 746, 746 (1965) (limiting his discussion to cases involving the first eight
amendments).
348. I have found five state cases involving attempts to read the Ninth Amendment as a source
of independent rights. This compares to no state cases in the antebellum period. In federal court
during this same period there was only one such claim. This compares with two such claims in
federal court during the antebellum period. The state cases might suggest a growing sense of the

2004]
The Lost Jurisprudence
77

the Oregon Supreme Court invalidated a local ordinance prohibiting the
building of a school in a residential district.349 In doing so, the Oregon court
declared that the "right to own property is an inherent right"350 and suggested
that this was one of the other rights referred to in the Ninth Amendment.351
Baker , however, was the exception. Instead, just as before the Civil War,
courts generally dismissed arguments that the Ninth Amendment was a
source of unenumerated rights.352
More frequently, courts relied on the Ninth in decisions
limiting the
construction of enumerated federal rights. In
United States v. Moore , for
example, the federal court dismissed a federal indictment for conspiring to
interfere with a citizen's right to establish a miners' union on the grounds
that the indictment exceeded federal power.353 The federal government

Ninth as a plausible source of individual rights at the state level. As this section points out,
however, every court but one that considered the matter dismissed the Ninth Amendment claim.

349. 15 P.2d 391, 393, 396 (Ore. 1932).
350
. Id. at 395.
351. According to the court:
It may be assumed that the adoption of the first ten amendments of the Constitution of
the United States, commonly called the Bill of Rights, specifically mentions only such
rights as to which there might have been a doubt, and so that the people should not be
misled, at the same time there was adopted, as a part of the Constitution, Amendment
9, which says: "The enumeration in the constitution of certain rights shall not be
construed to deny or disparage others retained by the people."
Id.
352
. See Fithian v. Centanni, 106 So. 321 (La. 1925) (ignoring a Ninth Amendment claim);
Cont'l Life Ins. & Inv. Co. v. Hattabaugh, 121 P. 81 (Idaho 1912) (ignoring a Ninth Amendment
claim); King v. State, 71 S.E. 1093 (Ga. 1911) (rejecting a Ninth Amendment rights claim in a
prosecution for usery); State
ex rel. Labauve v. Michel, 46 So. 430 (La. 1908) (rejecting a claim that
the Ninth Amendment establishes a right to change votes in a state primary);
see also Clay v. City
of Eustis, 7 F.2d 141 (S.D. Fla. 1925). According to the court in Eustis:
Section 24 of the Bill of Rights of the state Constitution and Amendment 9 of the
federal Constitution, which provides that the enumeration of certain rights shall not be
construed to deny others retained by the people, and the complainants claim that the
right to have a voice in local self-government and to be represented in taxation is one
of these rights reserved, and which has been violated by the two sections of the special
act. This position is not tenable under the decisions of the courts.
Id. at 142�43. In McLendon v. State , 60 So. 392 (Ala. 1912), the court ruled that a state law
providing a tax exemption for ex-confederate soldiers violated the equal protection clause of the
Fourteenth Amendment. Dissenting from the part of the majority opinion which ruled that the tax
exemption did not violate the state constitution, Judge Mayfield appears to adopt an unenumerated
rights reading of the Ninth Amendment:
Article 9 of the federal Constitution reads as follows: "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people." The equal right, with other citizens, to practice a noble and
worthy profession, or to pursue an honorable, lawful, and remunerative avocation, is
certainly one of the citizen's inalienable rights, as much so as those of life, liberty, or
property, which are specially enumerated.
Id. at 397. Finally, in 1932, a judge of the Territory of Hawaii appeared to seriously consider the
Ninth as a source of unenumerated rights, but ultimately declined to recognize an "inalienable" right
of estranged fathers to the custody of their children.
See In re Guardianship of Thompson, 32 Haw.
479, 485�86 (1932).
353. 129 F. 630, 634�36 (C.C.N.D. Ala. 1904).

78
Texas Law Review
[Vol. 83:___

claimed that it had power to prohibit such conspiracies as part of its power to
protect privileges or immunities under Section 5 of the Fourteenth
Amendment.354 The district court rejected this reading of the Fourteenth
Amendment on the grounds that, as declared in the Ninth and Tenth
Amendments, states retain the exclusive power to protect individuals from
private violence:
The last two of the ten amendments thus proposed provided that "the
enumeration in the Constitution of certain rights shall not be construed
to deny or disparage others retained by the people," and 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." It is quite apparent, therefore, that the protection of
certain rights of the citizen of a state, although he is by recent
amendments made a citizen of the United States and of the state in
which he resides, depends wholly upon laws of the state, and that as to
a great number of matters he must still look to the states to protect him
in the enjoyment of life, liberty, property, and the pursuit of
happiness.355
According to the district court, the Ninth and Tenth Amendments
counseled a limited reading of congressional power under the Fourteenth
Amendment. Whatever effect the Fourteenth Amendment had on state
power, when it came to private conspiracies, "recent amendments to the
Constitution have made no change in the power or duty of the general
government."356
Moore is an example of how courts increasingly deployed
the Ninth and Tenth Amendments in cases involving the construction of
asserted federal rights against state action. Although there are examples of
this prior to 1868,357 the adoption of the Fourteenth Amendment significantly
expanded the catalogue of constitutional rights that were protected against

354
. Id. at 635.
355
. Id. at 632. The court continues:
The Constitution of the United States, as we repeat, left the power and duty to protect
life, liberty, property, the pursuit of happiness, freedom of speech, the press, and
religious liberty, and the right to order persons and things within their borders, for the
protection of the health, lives, limbs, morals, and peace of citizens, save as the original
power of the states over them might be disturbed or destroyed by the specific grants of
power to the general government, where the Constitution found them-- in the
exclusive keeping and power of the state-- and denied the general government any
responsibility for or power over them. Rights like these do not arise from the
Constitution of the United States, and are in no wise dependent upon it. Provisions of
the Constitution which refer to rights like these are merely in recognition of rights
which existed before the government of the United States was formed, in abdication of
power in the general government to interfere with or invade them, and in some
instances intended as a breakwater against their invasion by state power.
Id. at 634�35.
356
. Id. at 635.
357 . See Anderson v. Baker, 23 Md. 531 (1865) (using the Ninth and Tenth Amendments in a
case limiting the construction of Article I, Section 10).

2004]
The Lost Jurisprudence
79

state action. Just as the Ninth and Tenth Amendments previously expressed
a rule for construing the scope of enumerated powers, they now also guided
the courts in interpreting the scope of enumerated rights. In
State v. Gibson ,
for example, the Indiana Supreme Court upheld a state antimiscegenation law
against a challenge under the Fourteenth Amendment and the Civil Rights
Act of 1866.358 In doing so, the court noted that the Founders intended that
powers not delegated to the federal government be retained by the states, and
that the Ninth and Tenth Amendments were adopted expressly for this
purpose:
The powers conferred on the general government are of a general and
national character, and none of them authorize or permit any
interference with, or control over, the local and internal affairs of the
state. The general government is one of limited and enumerated
powers, and it can exercise no power that is not expressly, or by
implication, granted. The people being the inherent possessors of all
governmental authority, it necessarily and logically resulted that all
powers not granted to the general government, or prohibited to the
state governments, were retained by the states and the people, but the
great, wise, and illustrious men who framed our matchless form of
government were so jealous of the right of local self-government that
they were unwilling to leave the question of the reserved powers to
implication and construction. Hence, within two years after the
adoption of the federal constitution, twelve amendments thereto were
submitted by Congress to the states for ratification, which were
ratified. The ninth and tenth amendments read as follows [quoting the
amendments in full]."359
States now used the Ninth and Tenth Amendments to maintain racial
segregation, just as southern states had previously used both amendments to
maintain local control of slavery.360
As a textual matter, the Ninth's rule of construction applies to any
provision in the Constitution that can be expanded into areas retained by the
people as aspects of local self-government. For example, in
State ex rel

358. 36 Ind. 389, 405 (1871).
359
. Id. at 396�97.
360
. See Bd. of Educ. of Ottawa v. Tinnon, 26 Kan. 1 (1881). In Tinnon , the plaintiffs claimed
a decision by a local school board to segregate public schools violated the Fourteenth Amendment.
In defense, the city argued that the rule of construction represented by the Ninth and Tenth
Amendments should limit the court's reading of the Fourteenth:
And viewing the apparent scope of the first section of the fourteenth amendment, it is
singular that any necessity existed for the adoption of the fifteenth amendment, as the
unlearned can scarcely conceive a broader and more comprehensive statement of equal
rights. But the jealousy of the people as against the possible encroachment of federal
power, had given birth to the ninth and tenth amendments, and to such salutary rule of
construction by the judiciary, that the adoption of the fifteenth amendment was vitally
necessary to remedy the evil still then existing; and in this amendment, for the first
time the term "color" appears in the federal constitution.
Id. at 12.

80
Texas Law Review
[Vol. 83:___

Mullen v. Howell , the Washington state legislature adopted a joint resolution
ratifying the proposed Eighteenth Amendment and submitted the issue to
state referendum, which voted in support of ratification.361 The use of a
referendum for ratifying a proposed constitutional amendment was
challenged as violating the ratification structure set out in Article V of the
Constitution.362 Writing for the Washington Supreme Court, Chief Justice
Chadwick rejected the argument on the ground that although Article V
speaks of ratifications by state
legislatures , this provision should not be read
so broadly as to interfere with the people's right to referendum--a right
reserved to the states under the Ninth and Tenth Amendments:
[T]he tenth amendment to the Constitution, [which states] that "the
powers not delegated to the United States . . . are reserved to the states
respectively, or to the people," . . . is a declaration that the people of
the several states may function their legislative power in their own
way, especially so when the Ninth Amendment, "The enumeration in
the Constitution of certain rights, shall not be construed to deny or
disparage others retained by the people," is regarded--for the right to
legislate directly or by representative bodies is a right assuredly
retained, and, being retained, may be exercised in the form and
manner provided by the people of a state. . . ."363
Other courts echoed this collective political rights reading of the Ninth
and Tenth Amendments. In
Hawke v. Smith ,364 the Ohio Supreme Court was
faced with the same issue presented in
Howell . According to the per curium
opinion, Article V's use of the term "legislature" included situations in which
the people of the state act in a "legislative capacity," and public referenda
were such instances.365 In his concurrence, Justice Wanamaker noted that
"each state was presumed to deal with its own domestic affairs--that is, state
affairs--in the manner best calculated to promote the safety and happiness of
the people of that state, according to the judgment of the people of that
state."366 Responding to the contention that this would "elevate the state
above the nation,"367 Wanamaker replied:
It must be remembered that we had state Constitutions before we had a
national Constitution, and that only by acting as states, through
representatives and delegates, was the national Constitution adopted,
first by the convention, and second by the states, and then it would not
have been adopted by the states but for the overwhelming assurance
that as soon as Congress would meet there should be proposed and

361. 181 P. 920, 921 (Wash. 1919).
362
. Id. at 922.
363
. Id. at 925�26.
364. 126 N.E. 400 (Ohio 1919).
365
. Id. at 402.
366
. Id. at 403 (Wanamaker, J., concurring).
367
. Id.

2004]
The Lost Jurisprudence
81

adopted, at the earliest practicable moment, a Bill of Rights
safeguarding the rights of the states and the people. In this behalf it is
significant to note articles 9 and 10:
Article 9: "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the
people."
Article 10: "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."
It must be remembered that in the early history of the nation,
especially at the time of the making of the national Constitution, the
doctrine of state's rights was in the ascendancy--that is, the states
were exceedingly jealous of their rights and powers as states and were
loath to surrender them--and therefore the imperative demand for the
reservation of all powers not delegated by the Constitution. Surely one
of the most important and significant of all those powers reserved was
the right of each state to determine for itself its own political
machinery and its own domestic policies, and it can scarcely be
claimed that it is within the power of any court to nullify or in any
wise alter the political machinery of a state, especially that which the
state has designed and designated as its lawmaking machinery.368
To Justice Wanamaker, the Founders adopted the Ninth and Tenth
Amendments in order to reserve the "right of each state to determine for
itself its own political machinery and its own domestic policies."369 This
being a retained right, it was not to be disparaged by an overly restrictive
reading of Article V.
The idea that the Ninth and Tenth Amendments preserved the retained
right of local self-government echoed throughout the cases decided between
Reconstruction and the New Deal. The rule of construction preserving this
right sometimes was deployed on its own, sometimes in association with the
Tenth Amendment, and sometimes in conjunction with both the Ninth and
Tenth Amendments. In a legal culture in which state autonomy was
presumed, perhaps it was not necessary to link the rule to the specific textual
mandate of the Ninth Amendment. The time would come, however, when
that legal culture would change.

368
. Id.
369
. Id.

82
Texas Law Review
[Vol. 83:___

IV. The New Deal Transformation of the Ninth Amendment
A. The Rule in Transition
1. The New Deal and the Ninth Amendment Prior to 1937. --
The only controversy that is here is between the humble citizen who
asserts his right to carry on his little business in a purely local
commodity and in a purely local fashion, without being arrested and
punished for a mythical, indirect effect upon interstate commerce.370
Following President Franklin Delano Roosevelt's election in 1932, state
and federal courts were obligated to struggle with the constitutionality of the
New Deal. Because the issue often involved construing the scope of federal
power, the Ninth Amendment was often called into play. In 1935, for
example, a New York court struck down provisions in the National Industrial
Recovery Act ("NIRA") because it violated the nondelegation doctrine.371
Concurring in the opinion, Judge Rhodes declared the Act exceeded federal
power as constructed under the Ninth and Tenth Amendments:
The Ninth Amendment to the Constitution of the United States
provides as follows: "
Reserved rights of people . The enumeration in
the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."
The Tenth Amendment to said Constitution is as follows: "
Powers not
delegated, reserved to States and people respectively
. 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 several states were separate and independent sovereignties at the
time of the adoption of the Federal Constitution, and thus they remain,
except in so far as certain powers have been delegated to the United
States by that Constitution. No state may lawfully be deprived of such
reserved powers except in the manner specified in such Constitution.
In no other way may the sovereignty of any state be impaired, except
by surrender from within or usurpation from without.372
With a single exception,373 federal court opinions discussing the Ninth
Amendment in the period from 1930 to 1936 focused on the constitutionality
of the New Deal. In
Amazon Petroleum Corp. v. Railroad Commission , the
plaintiff alleged that the National Industrial Recovery Act exceeded federal
power under the Tenth Amendment, violated "natural and inherent rights
contrary to the Ninth Amendment to the national Constitution," and

370. United States v. Lieto, 6 F. Supp. 32, 36 (N.D. Tex. 1934).
371. Darweger v. Staats, 278 N.Y.S. 87, 89 (N.Y. App. Div. 1935).
372
. Id. at 92 (Rhodes, J., concurring).
373 . See In re Guardianship of Thompson, 32 Haw. 479 (1932).

2004]
The Lost Jurisprudence
83

contravened nondelegation principles and various aspects of the Fourth,
Fifth, and Eighth Amendments.374 It is unclear whether the plaintiff's Ninth
Amendment claim involved the right to local government or instead referred
to unenumerated individual rights. To the federal district judge, however, the
rights at issue were those of the states. According to Judge Bryant, the
Secretary of the Interior had exceeded his power "to the prejudice of the
rights of the state over matters of purely local concern."375 Bryant continued,
"In interpreting the Constitution it must never be forgotten that the nation is
made up of states to which are entrusted the powers of local government.
And to them and to the people the powers not expressly delegated to the
national government are reserved."376
In
Hart Coal Corp. v. Sparks , a federal district court invalidated wage
and hours regulations issued by the National Administrator under the
NIRA.377 According to District Judge Dawson, the Ninth and Tenth
Amendments expressed principles that limited the construction of federal
power:
In considering this question, we must never forget that the national
government is one of delegated powers, and that Congress possesses
only such legislative powers as are expressly or by implication
conferred upon it by the people in the Constitution. Even though the
Ninth and Tenth Amendments to the Constitution had never been
adopted, it would be difficult, in the light of the history of the
Constitution, of its source, and of the objects sought to be
accomplished by it, to reach any other conclusion than that there is
reserved to the states or to the people all the powers and rights not
expressly or impliedly conferred upon the national government. But
the Ninth Amendment, which declares, "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or to
disparage others retained by the people," and the Tenth Amendment,
providing 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," put this matter beyond all
question. Therefore Congress does not have all legislative power. It
possesses only such legislative power as has been expressly or
impliedly conferred upon it.378

374. 5 F. Supp. 639, 644 (E.D. Tex. 1934).
375
. Id. at 649�50.
376
. Id. at 645. The Supreme Court, ultimately, would agree that the Act violated the
Constitution, but under the nondelegation doctrine, not the Ninth and Tenth Amendments. Panama
Ref. Co. v. Ryan, 293 U.S. 388, 392 (1935).
377. 7 F. Supp. 16, 28 (W.D. Ky. 1934).
378
. Id. at 21. The case would be reversed on appeal to the Sixth Circuit on grounds of
standing, with no discussion of, or disagreement with, the district court's analysis of the Ninth and
Tenth Amendments. Sparks v. Hart Coal Corp., 74 F.2d 697 (6th Cir. 1934);
see also United States
v. Gearhart, 7 F. Supp. 712, 716 (D. Colo. 1934) (dismissing a prosecution under the NIRA for
selling coal below a minimum price set by the federal government relying in part on the Ninth and

84
Texas Law Review
[Vol. 83:___

References to the right to local self-government occur in a number of
opinions in the years leading up to the New Deal. For example, in
United
States v. Lieto
, the district court dismissed a prosecution for violations of
maximum hour and minimum wage provisions set under the Code of Fair
Competition issued pursuant to the NIRA.379 The defendant claimed that the
prosecution violated the Fifth, Tenth, and Ninth Amendments. Without
expressly mentioning any of these amendments, Judge Atwell focused on the
individual's right to operate a local business free from federal interference:
"The only controversy that is here is between the humble citizen who asserts
his right to carry on his little business in a purely local commodity and in a
purely local fashion, without being arrested and punished for a mythical,
indirect effect upon interstate commerce."380
As they had from the beginning, courts preserved this right to local self-
government through the application of a rule of construction generally, and
sometimes expressly, associated with the Ninth Amendment. In
Acme, Inc.
v. Besson
, the federal district court of New Jersey invalidated the wage and
hour provisions promulgated under the NIRA.381 In coming to his
conclusion, Judge Fake interpreted "commerce" to exclude local
manufacturing.382 His conclusion was based in part on Supreme Court
precedent and in part on the interpretive rules of the Ninth Amendment:
There is still another source to which we may refer in sustaining the
foregoing definition, and that is the well-known historic fact that the
people of the original states were extremely reluctant in granting
powers to the federal government and
expressly laid down a rule of
constitutional construction in the Ninth Amendment,
wherein our
forefathers said: "The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by
the people." And then, further, in the Tenth Amendment, we find this
express limitation upon the federal government: "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."
In view of the foregoing, we have labored in vain to conclude that it
was the intent of the Constitution to pass to the Congress regulatory
authority over those local, intimate, and close relationships of persons
and property which arise in the processes of manufacture, even though
they may, in the broader sense, affect interstate commerce.383

Tenth Amendments.); Koch v. Zuieback, 194 F. Supp. 651, 656 (S.D. Cal. 1961) ("The Ninth and
Tenth Amendments, pertaining, respectively, to enumerated powers and powers reserved to the
states, contain no provisions relevant to the case at bar, and could not conceivably be construed to
authorize a suit for damages against an individual or federal official." ).
379. 6 F. Supp. 32, 36 (N.D. Tex. 1934).
380
. Id. at 36.
381. 10 F. Supp. 1, 6�7 (D.N.J. 1935).
382
. Id. at 6.
383
. Id. (emphasis added).

2004]
The Lost Jurisprudence
85

Again, the rule represented by the Ninth preserves the principle declared
by the Tenth. Reserving nondelegated power to the people of the several
states seems an empty promise if federal power can be so broadly interpreted
as to swallow the primary concerns of local government. As they had done
for more than a century, judges during the early years of the New Deal cited
the Ninth's rule of construction to preserve the principle of limited
enumerated federal power. In
United States v. Neuendorf , an Iowa district
court invalidated an attempt to regulate purely intrastate commerce under the
Agricultural Adjustment Act.384 In coming to its conclusion, the court cited
both the Ninth and Tenth Amendments385 and concluded that allowing the
federal government to regulate purely intrastate commerce would
"emasculate the intent of the Tenth Amendment to retain in and for the states
all powers not delegated to the national government."386 To the court, the
rule of construction prevented overbroad constructions of federal power in
order to protect rights or powers reserved to the states under the Tenth--in
particular, the right to local self-government.
Even as the Supreme Court began to reconsider its resistance to the New
Deal, the Ninth and Tenth Amendments continued to be cited as independent
constraints on the interpretation of federal power. In the 1936 case,
Ashwander v. Tennessee Valley Authority , the Supreme Court upheld

384. 8 F. Supp. 403, 406�07 (S.D. Iowa 1934).
385. According to the court:
The government of the United States is one of limited powers. The Tenth Amendment
to the Constitution expressly so declares: "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."
And Amendment 9 provides: "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people."
Id. at 405.
386
. Id. at 406. As Judge Watkins expressed it in the 1935 case, Duke Power Co. v.
Greenwood County , 10 F. Supp. 854 (D.C. S.C. 1935):
That the legislation in question does not come within the powers of Congress under
the commerce clause seems too well settled to require argument. If there could have
existed any doubt under the Constitution as originally adopted, that was effectually
removed by the subsequent and almost immediate adoption of the first ten
amendments, each in turn being a restriction upon federal power, and each
specifically
prohibiting the enactment of laws regarding matters affecting individual rights and
local self-government, . . .
the Ninth Amendment, declaring that "the enumeration in
the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people," and the Tenth Amendment, especially reserving to the states,
respectively, or to the people, all powers not delegated--and, I may add, not
specifically delegated--to the United States by the Constitution, nor prohibited by it to
the states.
Id. at 866 (emphasis added). In Duke Power , the court invalidated an attempt by the Public Works
Administrator to finance public works projects under the NIRA as beyond Congress's commerce
powers.
Id. at 868. The decision ultimately was vacated and remanded for a new trial by the
Supreme Court on grounds of mootness. Duke Power Co. v. Greenwood County, 299 U.S. 259, 866
(1936).

86
Texas Law Review
[Vol. 83:___

congressional authority to sell electricity generated by the Wilson Dam.387
According to Chief Justice Hughes, Congress had express authority under
Article IV, Section 3 to dispose of property acquired by the United States,
including electrical energy.388 Hughes then addressed the Ninth and Tenth
Amendment claims:
To the extent that the power of disposition is thus expressly conferred,
it is manifest that the Tenth Amendment is not applicable. And the
Ninth Amendment (which petitioners also invoke) in insuring the
maintenance of the rights retained by the people, does not withdraw
the rights which are expressly granted to the Federal Government.
The question is as to the scope of the grant and whether there are
inherent limitations which render invalid the disposition of property
with which we are now concerned.389
According to Hughes, the Tenth Amendment claim failed once it was
established that Congress was exercising an enumerated power. A separate
inquiry was then required for the Ninth Amendment claim, which Hughes
described as involving the scope of enumerated power and whether there
were inherent limitations on that power that would prevent the sale of
electricity to a local market. This reading of the Ninth Amendment
distinguishes it from the Tenth and echoes the description of the Ninth
provided by James Madison a century and a half before the New Deal. The
interpreted scope of federal power cannot extend up to the enumerated
restrictions in the Bill. Federal power is limited in itself and must not be
construed to deny or disparage the retained rights of the people. The
Ashwander court assumed that the rights retained by the people under the
Ninth Amendment involve the collective right to local regulation of
electricity, but contrasted that regulatory right with the regulatory rights of
the federal government. Hughes's opinion in
Ashwander presents one of the
clearest examples of Ninth Amendment rights being read to refer to the
collective rights of local self-government.
2. The New Deal and the Tenth Amendment Prior to 1937.-- By the
time of the New Deal, a substantial body of law limited congressional power
to regulate local commercial activities.390 As an alternative source of power,
proponents of progressive legislation made claims of federal authority
beyond those expressly enumerated in the Constitution. According to this
alternate view, it was the federal government's duty to promote the general
welfare, and this duty included broad authority to respond to the economic
emergency of the Great Depression. This was not so much an interpretation

387. 297 U.S. 288, 338 (1936).
388
. Id. at 330.
389
. Id. at 330�31.
390
. See generally notes 317�326 and accompanying text.

2004]
The Lost Jurisprudence
87

of an enumerated power--which would raise Ninth Amendment concerns;
rather, it was an assertion of inherent federal power to act in times of
emergency--which raised issues under the Tenth.
In
A.L.A. Schechter Poultry Corp. v. United States , the government
argued that its authority to regulate local labor conditions under the Live
Poultry Act "must be viewed in the light of the grave national crisis with
which Congress was confronted."391 Writing for the Court, Chief Justice
Hughes rejected this claim to unenumerated "emergency powers" as
conflicting with the Tenth Amendment:
Extraordinary conditions do not create or enlarge constitutional power.
The Constitution established a national government with powers
deemed to be adequate, as they have proved to be both in war and
peace, but these powers of the national government are limited by the
constitutional grants. Those who act under these grants are not at
liberty to transcend the imposed limits because they believe that more
or different power is necessary. Such assertions of extra-constitutional
authority were anticipated and precluded by the explicit terms of the
Tenth Amendment--"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."392
Having concluded that the unenumerated power claim violated the Tenth
Amendment, Hughes proceeded to consider whether any enumerated federal
power gave Congress the authority to regulate purely intrastate commerce.
The discussion at this point did not rely on the Tenth Amendment, but
instead deployed a rule of constitutional interpretation that mandated the
preservation of state regulatory autonomy:
In determining how far the federal government may go in controlling
intrastate transactions upon the ground that they "affect" interstate
commerce, there is a necessary and well-established distinction
between direct and indirect effects. . . . If the commerce clause were
construed to reach all enterprises and transactions which could be said
to have an indirect effect upon interstate commerce, the federal
authority would embrace practically all the activities of the people and
the authority of the State over its domestic concerns would exist only
by sufferance of the federal government. . . .
The distinction between direct and indirect effects of intrastate
transactions upon interstate commerce must be recognized as a
fundamental one, essential to the maintenance of our constitutional

391. 295 U.S. 495, 528 (1935).
392
. Id. at 528�29. Hughes was not completely consistent on this point. See Home Bldg. &
Loan Ass'n v. Blaisdell, 290 U.S. 398, 442�44 (1934) (arguing that the Constitution should be
interpreted in light of public need);
see also Kurt T. Lash, The Constitutional Convention of 1937:
The Original Meaning of the New Jurisprudential Deal
, 70 FORDHAM L. REV. 459, 479�80 (2001)
[hereinafter Lash,
The Original Meaning of the New Jurisprudential Deal ] (discussing Hughes's
interpretation of the Constitution in
Blaisdell ).

88
Texas Law Review
[Vol. 83:___

system.
Otherwise, as we have said, there would be virtually no limit
to the federal power, and for all practical purposes we should have a
completely centralized government. We must consider the provisions
here in question in the light of this distinction.393
In
Carter v. Carter Coal Co. ,394 the government similarly argued in
favor of unenumerated power to regulate for the common good. Once again,
the Court rejected the argument on the basis of the Tenth Amendment:
Replying directly to the suggestion advanced by counsel . . . to the
effect that necessary powers national in their scope must be found
vested in Congress, though not expressly granted or essentially
implied, this court said:
"But the proposition that there are legislative powers affecting
the Nation as a whole which belong to, although not expressed in
the grant of powers, is in direct conflict with the doctrine that this
is a government of enumerated powers. That this is such a
government clearly appears from the Constitution, independently
of the Amendments, for otherwise there would be an instrument
granting certain specified things made operative to grant other
and distinct things. This natural construction of the original body
of the Constitution is made absolutely certain by the Tenth
Amendment. This amendment, which was seemingly adopted
with prescience of just such contention as the present, disclosed
the widespread fear that the National government might, under
the pressure of a supposed general welfare, attempt to exercise
powers which had not been granted. With equal determination
the framers intended that no such assumption should ever find
justification in the organic act, and that if in the future further
powers seemed necessary they should be granted by the people in
the manner they had provided for amending that act."395
In
Carter Coal, when the Court turned to the interpretation of the
Commerce Clause, it was not the Tenth Amendment that was applied, but
instead the rule of construction from
Schechter :
[T]he [
Schechter ] opinion, . . . after calling attention to the fact that if
the commerce clause could be construed to reach transactions having
an indirect effect upon interstate commerce the federal authority
would embrace practically all the activities of the people, and the
authority of the state over its domestic concerns would exist only by
sufferance of the federal government, we said: "Indeed, on such a

393
. Schechter Poultry , 295 U.S. at 546�48; see also James Madison, Speech in Congress
Opposing the National Bank (Feb. 2, 1791),
reprinted in WRITINGS, supra note 11, at 486 (referring
to the "delicate doctrine of implication").
394. 298 U.S. 238 (1936).
395
. Id. at 293�94.

2004]
The Lost Jurisprudence
89

theory, even the development of the state's commercial facilities
would be subject to federal control."396
Although this left control of certain local matters to the states, the purpose
was not to protect the rights of states, but to preserve the separation of power
between state and federal governments. State regulatory autonomy was not
the states' to give away:
The determination of the Framers Convention and the ratifying
conventions to preserve complete and unimpaired state self-
government in all matters not committed to the general government is
one of the plainest facts which emerge from the history of their
deliberations. And adherence to that determination is incumbent
equally upon the federal government and the states. State powers can
neither be appropriated on the one hand nor abdicated on the other.397
Finally, in
United States v. Butler , the Supreme Court interpreted the
Tax and Spending Clause to authorize nonregulatory programs furthering the
general welfare.398 Attempts to convert this authority into an unlimited
power to
regulate for the general welfare, however, violated the Tenth
Amendment:
We are not now required to ascertain the scope of the phrase "general
welfare of the United States" or to determine whether an appropriation
in aid of agriculture falls within it. Wholly apart from that question,
another principle embedded in our Constitution prohibits the
enforcement of the Agricultural Adjustment Act. The act invades the
reserved rights of the states. It is a statutory plan to regulate and
control agricultural production, a matter beyond the powers delegated
to the federal government. The tax, the appropriation of the funds
raised, and the direction for their disbursement, are but parts of the
plan. They are but means to an unconstitutional end.
From the accepted doctrine that the United States is a government of
delegated powers, it follows that those not expressly granted, or
reasonably to be implied from such as are conferred, are reserved to
the states or to the people. To forestall any suggestion to the contrary,
the Tenth Amendment was adopted. The same proposition, otherwise
stated, is that powers not granted are prohibited. None to regulate
agricultural production is given, and therefore legislation by Congress
for that purpose is forbidden.399
Any attempt to go beyond enumerated powers, even in an emergency,
triggered the protections of the Tenth Amendment. When interpreting the

396
. Id. at 309.
397
. Id. at 295. One can hear echoes of James Madison's veto of the latitudinarian Internal
Improvements Bill: "the assent of the states . . . cannot confer the power."
See James Madison,
Veto Message to Congress (Mar. 3, 1817),
reprinted in WRITINGS , supra note 11, at 720.
398. 297 U.S. 1, 64�66 (1936).
399
. Id. at 68.

90
Texas Law Review
[Vol. 83:___

scope of enumerated power, the Court followed what it believed was an
interpretive imperative: Drawing a line between federal and state autonomy
was required both by the term "interstate commerce" and by the Tenth
Amendment's reservation of the power to regulate
intra state commerce to
the states.400 Although unlike lower federal courts, the Supreme Court did
not directly address the Ninth Amendment,401 it implicitly acknowledged that
preserving the principles of the Tenth required an additional rule of
construction. When the New Deal Court abandoned that rule, they also
abandoned the Ninth and Tenth Amendments as substantive limits on federal
power.
B. The Rule Abandoned
In the constitutional upheaval known as the New Deal Revolution of
1937,402 the doctrinal underpinnings which had informed judicial
understanding of the Ninth and Tenth Amendments for a century and a half
were swept away. A few months after his 1936 landslide election to a second
term of office, President Roosevelt announced his "Court Packing Plan."403
Whether in response to this threat to the Court's independence, or simply due
to a change of mind, Justice Roberts abruptly did an about face and voted to

400. Courts continued to follow this approach even as the Supreme Court was dismantling
Lochner 's legacy. See State v. Packard-Bamberger & Co., 2 A.2d 599 (N.J.D.C. 1938). Here the
New Jersey court limits Supreme Court precedents, such as
Nebbia v. New York , 291 U.S. 502
(1934), to apply only to statutes temporarily regulating prices and strikes down a state price control
statute as violating the common law property right to set your own price, citing the Ninth
Amendment in support of its decision.
Packard-Bamberger , 2 A.2d at 602�03. This limited
reading of
Nebbia was rejected by the Supreme Court a few years later in Olsen v. Nebraska ex rel.
Western Reference Bond Ass'n
, 313 U.S. 236 (1941). More frequently, claims were made that the
expansion of federal power violated the Ninth and Tenth Amendment's principle of limited
enumerated power--claims that initially received sympathetic treatment by the courts. In
Duke
Power Co. v. Greenwood County
, 19 F. Supp. 932, 945 (W.D.S.C. 1937), plaintiffs challenged the
building of a power plant financed by a federal loan under the National Industrial Recovery Act in
part because it "amounted in substance to an invasion of the powers reserved to the states and to the
people under the Ninth and Tenth Amendments to the Federal Constitution." According to the
court:
It is our view that it would be a violation of the Tenth Amendment to accomplish
federal regulation of the local intrastate transactions to a substantial degree and thus
displace state regulation even if this result was brought about through a loan and grant
agreement resulting in the building and operation of a municipally owned and federally
aided power plant. . . . There must be some limit to this power of expenditure. Without
enumerating them all, the most important limitation on this power immediately
suggests itself to us. The general welfare power may not be exercised to disturb the
balance between the states and the federal government which exists under our
constitutional system.
Id. at 950�52.
401
. See, e.g. , George v. Bailey, 274 F. 639, 644 (W.D.N.C. 1921).
402
. See BRUCE ACKERMAN, 2 WE THE PEOPLE: TRANSFORMATIONS 257 (1998); Lash, The
Original Meaning of the New Jurisprudential Deal , supra note 392, at 461.
403. Franklin D. Roosevelt, Reorganizing the Federal Judiciary, Radio Address (Mar. 9, 1937),
in S. Rep. No. 75-711, App. D, at 41 (1937).

2004]
The Lost Jurisprudence
91

uphold laws he had previously opposed as beyond federal power.404 His
"switch in time" signaled the beginning of the New Deal Revolution.405 In a
rapid succession of cases, the Supreme Court altered its interpretation of
liberty of contract,406 rejected the authority of federal courts to construe state
common law,407 abandoned nondelegation doctrine,408 and began to construct
a new framework for protecting the individual rights listed in the first eight
amendments.409 The last two provisions of the Bill of Rights, however, were
abandoned.410 For the next thirty years, not a single invocation of either the
Ninth or Tenth Amendments would be sucessfully brought in any federal
court.
1. Rejecting the Individual Right to Local Self-Government.-- After the
Supreme Court's decision in
Butler , which prohibited coercive exercises of
the federal power to tax and spend,411 a number of claims were brought
challenging New Deal legislation as coercive and in violation of the Ninth
and Tenth Amendments. As of 1936, these claims were dismissed without

404
. Compare Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936), with West Coast
Hotel Co. v. Parrish, 300 U.S. 379 (1937),
and NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1
(1937).
405. For a magisterial look at the New Deal and its constitutional implications, see ACKERMAN,
supra note 258; ACKERMAN, supra note 402. The restructuring of constitutional doctrine that
occurred around the time of the New Deal has spawned an enormous body of scholarly writing.
See
generally
Barry Friedman, The Birth of an Academic Obsession: The History of the
Countermajoritarian Difficulty
, Part Five , 112 YALE L.J. 153 (2002).
406. United States v. Carolene Prods. Co., 304 U.S. 144 (1938).
407. Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
408. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); Yakus v. United
States, 321 U.S. 414 (1944).
409
. Carolene Prods. , 304 U.S. at 152�53 n.4.
410. Harbingers of a new approach to the Ninth Amendment and the rule of construction first
arose in lower federal courts in 1936. In
Precision Castings Co. v. Boland , 13 F. Supp. 877
(W.D.N.Y. 1936), Roosevelt appointee, Judge Harlan Rippy, upheld a facial challenge to the Labor
Relations Act. The case involved Fourth, Fifth, and Seventh Amendment challenges by plaintiffs
targeted for investigation by the Labor Relations Board.
Id. at 879�80. The plaintiffs also raised
claims under "the Ninth and Tenth Amendments, in that Congress has attempted to legislate with
reference to powers expressly reserved to the states."
Id. at 880. Rejecting a facial challenge to the
Act, Judge Rippy noted that the Board had a statutory duty to establish a connection between the
unfair labor practices and interference with interstate commerce. It was premature to conclude they
would fail to do so, and the court had a duty to resolve all constitutional doubts in favor of the
government.
Id. at 881�82. Missing from the Court's analysis was the Supreme Court's decision in
Schechter , which presumed that Congress's commerce powers did not authorize regulation of local
labor conditions. Also missing was any mention of the Ninth or Tenth Amendments. Similarly, in
S. Buchsbaum & Co. v. Beman , 14 F.Supp. 444 (N.D. Ill. 1936), a federal district court rejected a
claim that the enforcement of the National Labor Relations Act was an unconstitutional regulation
of local labor conditions under the Fifth, Ninth, and Tenth Amendments. According to District
Judge Wilkerson, although it may be possible to interpret the Act as exceeding congressional power,
"Every possible presumption is in favor of the validity of the statute, and this continues until the
contrary is shown beyond a reasonable doubt."
Id. at 447. Once again, there was no discussion of
Schechter or the Ninth or Tenth Amendments as limits on the construction of federal power.
411
. See supra notes 398�401 and accompanying text.

92
Texas Law Review
[Vol. 83:___

discussion of either Amendment.412 By the Spring of 1937, it was clear the
Supreme Court had abandoned its earlier limited interpretation of federal
power. In
NLRB v. Jones & Laughlin Steel Corp ., Justice Roberts switched
sides in the dispute over the constitutionality of the New Deal and voted to
uphold the federal Labor Relations Act and its protection of the right to local
collective bargaining.413 Prior cases had held that local commercial activities
generally had no more than an indirect effect on interstate commerce.414 In
Jones & Laughlin , however, the Court abandoned that distinction, even while
claiming to remain faithful to the idea that the interpretation of enumerated
federal power must preserve the distinction between national and local
control.415
One month after
Jones & Laughlin , the Supreme Court upheld the
Social Security Act against a challenge that, among other things, the Act
"[coerced] the States in contravention of the Tenth Amendment or of
restrictions implicit in our federal form of government."416 Although Ninth
Amendment claims were raised in the lower court,417 Justice Cardozo's
opinion in
Steward Machine Co. v. Davis did not mention the Ninth.418
Instead, Justice Cardozo rejected the claim that the Act coerced the states in
violation of the Tenth Amendment in part because the state had not objected
to the Act.419 Cardozo thus abandoned the reasoning in
Carter Coal --and

412
. See Reconstruction Fin. Corp. v. Cent. Republic Trust Co., 17 F. Supp. 263, 290 (N.D. Ill.
1936) (stating that the creation of the Reconstruction Finance Corporation fell within Congress's
enumerated powers and that the assertion that its creation violated the Ninth and Tenth
Amendments "place[d] restrictions on the power of the national government which are not sustained
by either reason or authority"); Steward Mach. Co. v. Davis, 89 F.2d 207, 210 (5th Cir. 1937)
(upholding provisions of the Social Security Act and noting that although unemployment relief is
primarily a state matter, the federal treasury is also involved and that reasonable protection of the
treasury is "part of the general welfare in a constitutional sense").
413. 301 U.S. 1, 30 (1937).
414
. See supra notes 317�326 and accompanying text.
415. According to the Court:
Although activities may be intrastate in character when separately considered, if they
have such a close and substantial relation to interstate commerce that their control is
essential or appropriate to protect that commerce from burdens and obstructions,
Congress cannot be denied the power to exercise that control. Undoubtedly the scope
of this power must be considered in the light of our dual system of government and
may not be extended so as to embrace effects upon interstate commerce so indirect and
remote that to embrace them, in view of our complex society, would effectually
obliterate the distinction between what is national and what is local and create a
completely centralized government.
The question is necessarily one of degree.
Jones & Laughlin , 301 U.S. at 37 (citations omitted).
416
. Id. at 548.
417
. See Chas. C. Steward Mach. Co. v. Davis, 89 F.2d 207, 208 (5th Cir. 1937).
418. Cardozo may have obliquely referenced the Ninth Amendment claim when he
characterized the plaintiff's claim as involving "restrictions implicit in our federal form of
government."
Steward Mach. Co. , 301 U.S. at 585. This characterization echoes the Ashwander
Court's description of the Ninth Amendment as placing inherent limitations in our federal form of
government.
See supra note 389 and accompanying text.
419
. Steward Mach. Co. , 301 U.S. at 596.

2004]
The Lost Jurisprudence
93

that of James Madison--that the people have a right to decide certain matters
at a local level and that this right was not the state's to give away.420 Not
only did Cardozo implicitly reject the right of local self-government, he also
suggested that federal legislation in this case was justified because the states
had failed to respond to a national emergency.421
Other New Deal decisions expressly rejected a local self-government
reading of the Ninth and Tenth Amendments. In
Tennessee Electric Power
Co. v. Tennessee Valley Authority
, private power companies sued to
invalidate a federally financed dam project that resulted in the creation of
several hydroelectric plants.422 They claimed that the federal government's
sale of electricity in a local market violated the Ninth and Tenth
Amendments on the grounds that it would "result in federal regulation of the
internal affairs of the states, and will deprive the people of the states of their
guaranteed liberty to earn a livelihood and to acquire and use property
subject only to state regulation."423 Writing for the Court, Justice Roberts
concluded that mere federal participation in a local electricity market was not
an exercise of regulatory power and therefore could not constitute "federal
regulation of purely local matters reserved to the states or the people by the
Tenth Amendment."424 More broadly, Justice Roberts declared that even if
the Act did exceed federal authority under the Ninth and Tenth Amendments,
individuals had no standing to raise claims involving the rights of the states:
The sale of government property in competition with others is not a
violation of the Tenth Amendment. As we have seen there is no
objection to the Authority's operations by the states, and, if this were
not so, the appellants, absent the states or their officers, have no
standing in this suit to raise any question under the amendment. These
considerations also answer the argument that the appellants have a
cause of action for alleged infractions of the Ninth Amendment.425

420
. See James Madison, Veto Message to Congress (Mar. 3, 1817), reprinted in WRITINGS,
supra note 11, at 720 (stating that the consent of the states cannot confer power on the federal
government).
421. According to the Court:
The other [consequence of state failure to enact social security programs] was that in so
far as there was failure by the states to contribute relief according to the measure of
their capacity, a disproportionate burden, and a mountainous one, was laid upon the
resources of the Government of the nation.

The Social Security Act is an attempt to find a method by which all these public
agencies may work together to a common end. Every dollar of the new taxes will
continue in all likelihood to be used and needed by the nation as long as states are
unwilling, whether through timidity or for other motives, to do what can be done at
home.
Steward Mach. Co. , 301 U.S. at 588�89.
422. 306 U.S. 118, 119 (1939).
423
. Id. at 136.
424
. Id. at 142.
425
. Id. at 144.

94
Texas Law Review
[Vol. 83:___

To Justice Roberts, concluding that the plaintiffs lacked standing to
raise Tenth Amendment claims necessarily resolved the issue of standing
under the Ninth Amendment. Both Amendments involved the rights of the
states, not of individuals. Thus, neither amendment involved an enforceable
individual right to limited federal power--even in cases in which the federal
government had overstepped its authority.
States would fare no better in cases in which standing was granted. To
the New Deal Court, the Ninth and Tenth Amendments had no effect on the
construction of federal power. In
United States v. Darby , the Court declared
that it would uphold federal regulation of purely intrastate commerce if
Congress reasonably concluded that the activity in question affected
interstate commerce.426 According to Justice Harlan Stone:
Our conclusion is unaffected by the Tenth Amendment which
provides: "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 amendment states but a
truism that all is retained which has not been surrendered. There is
nothing in the history of its adoption to suggest that it was more than
declaratory of the relationship between the national and state
governments as it had been established by the Constitution before the
amendment or that its purpose was other than to allay fears that the
new national government might seek to exercise powers not granted,
and that the states might not be able to exercise fully their reserved
powers. From the beginning and for many years the amendment has
been construed as not depriving the national government of authority
to resort to all means for the exercise of a granted power which are
appropriate and plainly adapted to the permitted end.427
Although Justice Stone downplayed pre-1937 cases that suggested a
very different interpretation of federal power, his description of the Tenth
Amendment is literally correct. It was not the text of the Tenth Amendment
that limits federal construction of enumerated powers. It is the rule of
construction represented by the
Ninth Amendment that limits the interpreted
scope of federal power. Without such a limiting rule of construction, the
Tenth remains in place, but represents an ever diminishing set of reserved
state power as federal power expands. Justice Stone, however, did not
address the Ninth Amendment or the vast number of cases citing it in support
of a limiting rule of construction. Instead, he simply announced the
restoration of John Marshall's original vision of federal authority.428

426. 312 U.S. 100, 119 (1941).
427
. Id. at 123�24.
428
. Id. at 119. Bruce Ackerman refers to the New Deal Court's attempt to ground their
expansion of federal power in the "original meaning" of the Constitution as the "myth of
rediscovery." ACKERMAN,
supra note 258, at 43.

2004]
The Lost Jurisprudence
95

2. The Triumph of Marshall's Opinion on the Bank of the United
States.-- By the time the Supreme Court decided Wickard v. Filburn in
1941,429 not even the Tenth Amendment warranted discussion. Instead,
Justice Jackson followed the lead of
Darby and assumed the correctness of
Chief Justice Marshall's interpretation of federal power, noting without any
sense of irony that Marshall had "described the Federal commerce power
with a breadth never yet exceeded."430 Conceding that a number of cases
since Marshall's time had limited the scope of federal power, Jackson
pointed to more modern cases that had acknowledged the economic effects of
local activities:
The Court's recognition of the relevance of the economic effects in the
application of the Commerce Clause, exemplified by this statement,
has made the mechanical application of legal formulas no longer
feasible. Once an economic measure of the reach of the power granted
to Congress in the Commerce Clause is accepted, questions of federal
power cannot be decided simply by finding the activity in question to
be `production' nor can consideration of its economic effects be
foreclosed by calling them `indirect.'431
Once the Court accepted economic effects as the measure of federal
power, the fact that the regulated activity is local is irrelevant. Implicit in
Jackson's approach is the assumption that there is no independent
constitutional norm limiting federal power in cases involving an activity that
has the requisite economic effects. This was Marshall's approach, and the
Court quotes his statement in
Gibbons that "[t]he power of Congress over
interstate commerce is plenary and complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations other than are prescribed in
the Constitution."432
According to Justice Jackson, federal power extends to all activities
except those with enumerated limitations prescribed in the Constitution. In
effect, the only rights retained by the people are those expressly enumerated
in the Constitution--precisely the result Madison and other founders
believed they had prevented by adopting the Ninth Amendment.433
Following the lead of John Marshall in
McCulloch and Gibbons , this was
accomplished not by reinterpreting the Ninth Amendment, but by ignoring it.
3. Principles Without a Rule of Construction: United Federal Workers
of America (CIO) v. Mitchell
.-- Despite the dramatic reconfiguring of federal
power, courts throughout this period continued to read both the Ninth and
Tenth Amendments as federalism-based constraints on the scope of federal

429. 317 U.S. 111 (1942).
430
. Id. at 120.
431
. Id. at 123�24.
432
. Id. at 124.
433
. See generally Lash, The Lost Original Meaning , supra note 8, at 360�62.

96
Texas Law Review
[Vol. 83:___

power.434 For example, in
Woods v. Cloyd W. Miller Co. , the Supreme Court
upheld the Housing and Rent Act of 1947 under Congress's war powers.435
In doing so, however, the Supreme Court acknowledged that an overly broad
reading of federal war powers, even if kept within the limits of the rest of the
Bill of Rights, might nevertheless threaten the Ninth and Tenth Amendments:

We recognize the force of the argument that the effects of war under
modern conditions may be felt in the economy for years and years,
and that if the war power can be used in days of peace to treat all the
wounds which war inflicts on our society, it may not only swallow up
all other powers of Congress but largely obliterate the Ninth and the
Tenth Amendments as well. There are no such implications in today's
decision.436
The Court did not say such a reading would obliterate the Bill of Rights.
In fact, after disposing of the Ninth and Tenth Amendment argument, the
Court then went on to independently analyze whether the Act violated the
substantive protections of the Fifth Amendment.437 The implication was that

434. In 1939, the Supreme Court of Michigan used the Ninth and Tenth Amendments to
distinguish the enumerated powers of the federal government from the general police powers of the
state.
In re Brewster Street Housing Site in Detroit, 289 N.W. 493 (Mich. 1939). According to the
court:

Although it seems clear that all legislative powers not delegated through the
Constitution to the congress of the United States are reserved to the people, by reason
of the peculiar character of the government created by the Constitution it was thought
wise to establish and declare definite rules for the construction of that instrument, (1)
"The enumeration in the Constitution, of certain rights, shall not be construed to deny
or disparage others retained by the people" (Art. 9); and (2) "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" (Art. 10). The legislative power of the
several States stands upon a different footing. . . . There is a broad distinction,
therefore, between the rules which govern in construing the Constitution of the United
States and the Constitution of the State.
Id. at 500; see also Lovett v. United States, 66 F. Supp. 142, 149 (Ct. Cl. 1945) (Jones, J.,
concurring) ("The national government is one of delegated powers in all its branches. [According to
the Ninth and Tenth Amendments,] [a]ll powers not delegated remain with the states or with the
people."); United States v. W. Va. Power Co., 39 F. Supp. 540, 543�44 (S.D. W. Va. 1941)
(discussing plaintiff's Fifth, Ninth, and Tenth Amendment claims against a taking of property for
building a dam and deciding on Fifth Amendment grounds); Aponaug Mfg. Co. v. Fly, 17 F. Supp.
944, 945 (S.D. Miss. 1937) (discussing the plaintiff's argument that the Social Security Tax
violates, among other provisions, the Fifth, Ninth, and Tenth Amendments and dismissing on other
grounds);
In re Idaho Fed'n of Labor, 272 P.2d 707, 713�14 (Idaho 1954) (Taylor, J., dissenting)
(contrasting the state "Ninth Amendment" with the federal Ninth and Tenth and distinguishing the
roles of a federal and state constitution); Manning v. Davis, 201 P.2d 113, 115 (Kan. 1948) ("It is
well settled that under our theory of government all governmental power is vested in the people.
Normally, our Federal Constitution is looked upon as a grant of power, though it contains some
limitations upon the powers of the states. But it specifically provides: [for the Ninth and Tenth
Amendments]."); Harrington v. Indus. Comm'n of Utah, 88 P.2d 548, 554 (Utah 1939) (balancing
Congress's interstate commerce power against the Ninth and Tenth Amendments in upholding a
state worker's compensation statute).
435. 333 U.S. 138, 141 (1948).
436
. Id. at 143�44.
437
. Id. at 145 (analyzing an equal protection claim under the federal Due Process Clause).

2004]
The Lost Jurisprudence
97

exercising war powers in times of peace theoretically threatened the principle
of limited enumerated powers, with the Ninth and Tenth Amendments read
as particular guardians of that principle. The concern, however, was merely
theoretical.438 Without a rule of interpretation limiting the actual
construction of federal power, the expansion of federal power remained
without constitutional restraint beyond specific restrictions such as those
contained in the first eight amendments.439
Prior to the New Deal, the Ninth and Tenth Amendments generally were
read in conjunction with a rule of construction limiting the interpretation of
federal power. This rule ensured that enumerated power was interpreted in
light of the people's retained right to local self-government. Areas such as
local commercial activity were presumptively a matter reserved to the states,
and the construction of federal power was limited accordingly. After the
New Deal, particularly after decisions such as
Darby and Wickard ,
determining the scope of federal power was uncoupled from any
consideration of the retained rights of the states. Once a court established a
reasonable link between a legislative act and an enumerated power, Ninth
and Tenth Amendment claims necessarily failed.

438. One of the few cases applying the Ninth and Tenth Amendments with bite in this period
involved the lower court opinion of what ultimately would become a major separation of powers
decision by the Supreme Court. In
Youngstown Sheet & Tube Co. v. Sawyer , District Judge Pine
struck down Truman's executive order seizing the steel mills based on principles of enumerated
power as declared by the Ninth and Tenth Amendments. 103 F. Supp. 569, 573 (D.D.C. 1952).
According to Judge Pine:

This contention requires a discussion of basic fundamental principles of constitutional
government, which I have always understood are immutable, absent a change in the
framework of the Constitution itself in the manner provided therein. The Government
of the United States was created by the ratification of the Constitution. It derives its
authority wholly from the powers granted to it by the Constitution, which is the only
source of power authorizing action by any branch of Government. It is a government of
limited, enumerated, and delegated powers. The office of President of the United States
is a branch of the Government, namely, that branch where the executive power is
vested, and his powers are limited along with the powers of the two other great
branches or departments of Government, namely, the legislative and the judicial.
[citing the Ninth and Tenth Amendments]
Id. The Supreme Court affirmed without mentioning the Ninth or Tenth Amendments, but Justice
Black's majority opinion did track the reasoning of Judge Pine. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 587 (1952) ("It is clear that if the President had authority to issue the order
he did, it must be found in some provision of the Constitution.").
439
. See DUMBAULD, supra note 2, at 63�65 (speaking of the Ninth and Tenth in 1957 as mere
truisms).

98
Texas Law Review
[Vol. 83:___

Already implicit in lower federal court decisions,440 the Supreme Court
expressly adopted this toothless reading of the Ninth and Tenth Amendments
in
United Public Workers of America (C.I.O.) v. Mitchell .441 In Mitchell , a
group of federal employees challenged provisions of the Hatch Act that
prohibited government workers from engaging in certain political activities.
In addition to First and Fifth Amendment claims, the employees claimed the
Act was a "deprivation of the fundamental right of the people of the United
States to engage in political activity, reserved to the people of the United
States by the Ninth and Tenth Amendments."442 Writing for the Court,
Justice Reed ruled that the Ninth and Tenth Amendment claims required no
analysis of an independent right, but involved only questions of enumerated
federal power:
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 Union was taken. If granted power is
found, necessarily the objection of invasion of those rights, reserved
by the Ninth and Tenth Amendments, must fail.443
In some ways, Reed's approach tracks that of James Madison. Once
enumerated power is found, there can no longer be a claim under either the
Ninth or Tenth Amendments. What is missing from his account, however, is
the role of the Ninth Amendment in determining whether the federal
government had in fact been granted a particular power. Absent the
application of such a rule of construction, the only limits to federal power
were those rights or restrictions enumerated in the Constitution. Reed thus
echoes John Marshall's rejection of any independent restrictive rule of
construction.444
Ninth Amendment scholars have criticized Justice Reed's treatment of
the Ninth Amendment in
Mitchell . Calvin Massey, for example, argues that

440. As the Third Circuit put it in
Commonwealth & Southern Corporation v. Securities and
Exchange Commission , 134 F.2d 747 (3rd. Cir. 1943), "In view of our conclusion that the order
here complained of is within the commerce power Commonwealth's contention that the order
violates the Fifth, Ninth and Tenth amendments
necessarily fails." Id. at 753 (emphasis added).
The scope of federal power is determined independently of the Ninth and Tenth Amendments and,
once found, negates any Ninth or Tenth Amendment claim.
See United States v. City of Chester,
144 F.2d 415, 419 (3d Cir. 1944) (noting the plaintiffs' Ninth and Tenth Amendment claims, but
upholding federal action as falling within Congress's war powers without any further mention of the
Ninth or Tenth Amendments).
441. 330 U.S. 75 (1947)
442
. Id. at 83 n.12.
443
. Id. at 95�96. The Court went on to uphold the Act, triggering a dissent by Justice Black
who believed the plaintiff's First and Fifth Amendment rights had been violated.
Id. at 105, 109
(Black, J., dissenting). Black made no mention of either the Ninth or Tenth Amendment.
444
. See supra note 125 and accompanying text.

2004]
The Lost Jurisprudence
99

Reed's opinion rendered the Ninth "a mere declaration of a constitutional
truism, devoid of any independent content, effectively rendered its substance
nugatory and assigned to its framers an historically untenable intention to
engage in a purely moot exercise."445 Massey is correct, but his statement is
ironic. Reed's opinion does the same thing to the Tenth Amendment,
without triggering any objection from Massey or any other Ninth
Amendment critic of
Mitchell .446
What these criticisms miss is the clue embedded in
Mitchell regarding
the traditional meaning of the Ninth Amendment. Although criticized for
pairing the Ninth Amendment with the Tenth and confusing them both,
Reed's opinion in fact represents a modern example of a very old tradition
that read both clauses as twin guardians of the people's retained rights.
Justice Reed simply adopts a post-New Deal reading of the Tenth
Amendment. This itself is a clue that his reading of the Ninth Amendment
may also have been a creature of the New Deal Revolution.447 It is an
example of the diminished reading of both the Ninth and Tenth Amendments
that occurred in the constitutional upheaval of 1937.
4. The Ninth Amendment as a "Truism".--Mitchell 's reduction of the
Ninth Amendment to mere truism became the rule in later cases. In
United
States v. Painters Local Union No. 481
,448 a federal district court rejected a
"boilerplate" claim that included Ninth and Tenth Amendment claims,
noting:
[T]he contention that the Act violates the Ninth and Tenth
Amendments in that it invades rights reserved to the States is left
wholly without substance if, as I have held above, the grant of powers
to the Union under the Constitution includes either expressly or by
implication the power which the Congress has exercised in this
enactment. As was said in [
Mitchell ]:
"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 Union was taken. If granted
power is found, necessarily the objection of invasion of those

445. MASSEY, SILENT RIGHTS,
supra note 2, at 91.
446
. See Randy E. Barnett, Introduction: James Madison's Ninth Amendment , in 1 THE RIGHTS
RETAINED BY THE PEOPLE,
supra note 2, at 6�7 (criticizing Justice Reed's opinion for adopting the
"erroneous" rights-powers conception of the Ninth Amendment).
447
. But see Thomas B. McAffee, A Critical Guide to the Ninth Amendment , 69 TEMP. L. REV.
61, 64 n.14 (1996) (characterizing
Mitchell as presenting the "traditional understanding" of the
Ninth Amendment).
448. 79 F. Supp. 516 (D. Conn. 1948).

100
Texas Law Review
[Vol. 83:___

rights, reserved by the Ninth and Tenth Amendments, must
fail."449
Following the same approach in
Roth v. United States , the Supreme
Court dismissed First, Ninth, and Tenth Amendment claims that Congress
had no power to ban obscene materials from the United States mail.450
According to the Court, having concluded that obscene materials were not
protected under the First Amendment, the issue became one of federal power
to regulate the mail. Concluding that such power existed was enough to do
away with the Ninth and Tenth Amendment claims without further
discussion.451

A final example of the
Mitchell reading of the Ninth Amendment
occurred only one year before
Griswold v. Connecticut . In Heart of Atlanta
Motel, Inc. v. United States
, the Supreme Court upheld the federal Civil
Rights Act of 1964, which banned private discrimination in places of public
accommodation.452 The Act had been challenged as exceeding Congress's
power under the Commerce Clause and as a violation of the Fifth and
Thirteenth Amendments.453 There was no claim regarding the Ninth or Tenth
Amendments. The Supreme Court upheld the Act as a reasonable regulation
of commerce, citing, among other cases,
Gibbons , Darby , and Jones &
Laughlin
.454 In his concurrence, Justice Black quoted Marshall in Gibbons :

449
. Id. at 527; see also City of Detroit v. Div. 26 of Amalgamated Ass'n, 51 N.W.2d 228, 233
(Mich. 1952) (citing
Mitchell in rejecting a boilerplate Ninth and Tenth Amendment human rights
claim).
450. 354 U.S. 476, 479�94 (1957).
451
. Id. at 492�93. According to Justice William Brennan:
Roth's argument that the federal obscenity statute unconstitutionally encroaches upon
the powers reserved by the Ninth and Tenth Amendments to the States and to the
people to punish speech and press where offensive to decency and morality is hinged
upon his contention that obscenity is expression not excepted from the sweep of the
provision of the First Amendment that "
Congress shall make no law . . . abridging the
freedom of speech, or of the press . . . ." (Emphasis added.) That argument falls in
light of our holding that obscenity is not expression protected by the First Amendment.
We therefore hold that the federal obscenity statute punishing the use of the mails for
obscene material is a proper exercise of the postal power delegated to Congress by Art
I, � 8, cl. 7. In [
Mitchell ] this Court said:
" . . .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 Union was
taken. If granted power is found, necessarily the objection of invasion of those
rights, reserved by the Ninth and Tenth Amendments, must fail . . . ."
Id. (alteration in original) (footnotes omitted); see also Sunshine Book Co. v. Summerfield, 249
F.2d 114, 117�18 (D.C. Cir. 1957) (following the Supreme Court's decision in
Roth , the court
upheld federal power to ban obscene material from the mails against a Ninth and Tenth challenge).
452. 379 U.S. 241, 261�62 (1964).
453
. Id. at 243�44.
454
. Id. at 254�57.

2004]
The Lost Jurisprudence
101

At least since [
Gibbons ], decided in 1824 in an opinion by Chief
Justice John Marshall, it has been uniformly accepted that the power
of Congress to regulate commerce among the States is plenary,
"complete in itself, may be exercised to its utmost extent, and
acknowledges no limitations, other than are prescribed in the
constitution."455
In a companion case handed down the same day,
Katzenbach v.
McClung , the Court dismissed a similar challenge to the Civil Rights Act,
only this time the claim included alleged violations of the Ninth and Tenth
Amendments.456 According to Justice Clark, the decision in
Heart of Atlanta
"disposes of the challenges that the appellees base on the Fifth, Ninth, Tenth,
and Thirteenth Amendments."457
Heart of Atlanta , as mentioned, did not
contain any Ninth or Tenth Amendment claims.458 If the Ninth Amendment
protects individual rights, the Court's dismissal seems, at the very least,
unexplained. On the other hand, under the
Mitchell reading of the Ninth and
Tenth Amendments,
Katzenbach 's dismissal makes perfect sense. Under
Mitchell , once power is conceded, any claim under the Ninth and Tenth
Amendments automatically disappears. In
Heart of Atlanta , the Court had
established federal commerce power and thus answered any Ninth or Tenth
Amendment claim raised in
Katzenbach . The very brevity of the analysis in
Katzenbach suggests the potency of the Mitchell rule.
As the scope of the New Deal became clear, lower courts acquiesced to
the Supreme Court's rulings, but objected to the Court's abandonment of
limited federal power. In
Henry Broderick, Inc. v. Riley , the Washington
State Supreme Court dismissed a challenge to administrative decision
making under the Unemployment Compensation Act.459 In his concurrence,
Justice Millard conceded that recent precedents controlled the outcome, but
nevertheless quoted the "following apt challenging statements"460 from a
recent speech by Senator Pat McCarran lamenting the waning influence of
the Ninth and Tenth Amendments:
"The last two items in the Bill of Rights are of tremendous
importance. They are sentinels against overcentralization of
government, monuments to the wisdom of the constitutional framers
who realized that for the stable preservation of our form of
government, it is essential that local governmental functions be locally
performed.

455
. Id. at 271 (Black, J., concurring).
456. 379 U.S. 294, 298 n.1 (1964).
457
. Id.
458
. Heart of Atlanta did, on the other hand, involve Fifth and Thirteenth Amendment claims.
Heart of Atlanta, 379 U.S. at 244.
459. 157 P.2d 954, 963 (Wash. 1945)
460
. Id. at 964 (Millard, J., concurring).

102
Texas Law Review
[Vol. 83:___

The ninth amendment to the Constitution provides that `The
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.'
The tenth amendment to the Constitution provides 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'.
Many signs today seem to indicate that the wisdom of the philosophy
which guided the framing of these amendments is being forgotten."461

461
. Id. at 966 (Millard, J., concurring) (quoting an address entitled Our American
Constitutional Commonwealth--Is It Passing? , delivered by Honorable Pat McCarran, Senior
United States Senator from Nevada, at the commencement exercises of Georgetown University,
Washington, D.C., on Sept. 12, 1943). McCarran's lament was echoed by other courts.
See Walker
v. Gilman
, 171 P.2d 797 (Wash. 1946). Walker involved a challenge to damages awarded under the
federal Price Control Act. Despite misgivings about the constitutionality of the law, the
Washington court wrote that it was compelled to bow to the judgment of the Supreme Court that the
Act was constitutional.
Id. at 806. In his dissent, Justice Simpson quotes "the decision of the
superior court of Yakima county in the case of Kenyon v. Blackburn, written by Honorable N. K.
Buck, judge of the superior court of Yakima county."
Id. at 808 (Simpson, J., dissenting). In that
opinion, Judge Buck declared that judges do not take an oath to follow the decision of other courts.
Id. Judge Buck then cited the reservation of powers in the Ninth and Tenth Amendments:
It should be kept in mind that the first thing that the people did after adopting their
fundamental law was to insist upon making certain restrictions upon the power of
Congress so clear that no man could misunderstand. They intended that all general
power should remain with the people, and to that end adopted Articles IX and X of the
Amendments.
Article X has been quoted above. That language is so clear that no layman can
misunderstand it; but sometimes, by judicial interpretation, the inclusion of certain
powers or duties is construed to exclude all others. In order to avoid any such possible
curtailment of the rights of the people, the framers and adopters of the amendments
provided further in Article IX of those amendments: `The enumeration in the
Constitution of certain rights, shall not be construed to deny or disparage others
retained by the people.'
Id. at 809 (Simpson, J., dissenting); see also Looper v. Georgia, S. & Fla. Ry., 99 S.E.2d 101 (Ga.
1957). In
Looper , the Supreme Court of Georgia, in a unanimous opinion, strongly remonstrated
against recent Supreme Court rulings upholding forced payment of union dues by nonunion
members.
Id. at 103. Arguing that these decisions conflicted with the principles of the Ninth and
Tenth Amendments, the Georgia court limited the reach of the Supreme Court's decisions and ruled
that forced contribution to the ideological activities of the union violated the First and Fifth
Amendments:
Anyone familiar with the experiences of the thirteen original colonies under the
dictatorial powers of the King as expressed in the Declaration of Independence, the
reluctance of the States to surrender or delegate any powers to a general government as
evidenced by the Articles of Confederation, and the demonstrated need for more
powers in the area where jurisdiction was given the general government, will have no
difficulty in clearly understanding the meaning of the Constitution when it defines
those powers and by the Ninth and Tenth Amendment removes all doubt but that
powers not expressly conferred were retained by the States. . . . But claiming authority
under [the Commerce Clause] the Congress, with the sanction of the Supreme Court,
has projected the jurisdiction of the general government into every precinct of the
States and assumed Federal jurisdiction over countless matters, including the right to
work, which are remotely, if at all, related to interstate commerce. By this unilateral
determination of its own powers the general government has at the same time and in

2004]
The Lost Jurisprudence
103

Absent the interpretive restraint of a rule of construction, just as the
state conventions feared at the time of the Founding, federal power expanded
to the edge of specific restrictions.462 As Justice Stewart later would write,
expanding upon a quote from
Darby , "The Ninth Amendment, like its
companion the Tenth, . . . `states but a truism.'"463
C. The Last Days of the Historic Ninth Amendment
1. The Post-New Deal Ninth Amendment and Individual Rights.-- The
New Deal Revolution left unchanged the traditional rejection of the Ninth
Amendment as a source of independent personal rights.464 Although there

the same manner deprived its creators, the States, of powers they thought and now
believe they retained. But State courts, irrespective of contrary opinions held by their
own judges which by law are required to have had experience as practicing attorneys
before they can become judges of the law, must obey and accept the decisions of the
Supreme Court of the United States pertaining to interstate commerce.
Id. at 104.
462. It is no surprise that the Court's broadest development of the Dormant Commerce Clause
occurred at the same time it abandoned the Ninth and Tenth Amendments as substantive guardians
of the concurrent powers of the states.
E.g. , S.C. State Highway Dep't v. Barnwell Bros., Inc. 303
U.S. 177 (1938);
see also Paul G. Kauper, State Regulation of Interstate Motor Carriers , 31 MICH.
L. REV. 920, 925 (1933).
463. Griswold v. Connecticut, 381 U.S. 479, 529 (1965) (Stewart, J., dissenting).
464
. See Gernatt v. Huiet, 16 S.E.2d 587, 588 (Ga. 1941) (rejecting application of the Ninth
Amendment against the state with a citation, perhaps in error, to
Livingston v. Moore , 32 U.S. 469
(1833)); Twin Falls County v. Hulbert, 156 P.2d 319, 322 (Idaho 1945) (noting the plaintiff's
argument that application of the federal Price Control Act "is unconstitutional as an invasion of
state sovereignty, violative of the 9th and 10th Federal Amendments of the Federal Constitution"
but deciding the case on other grounds); Kape v. Home Bank & Trust Co., 18 N.E.2d 170, 171 (Ill.
1938) (rejecting the plaintiff's attempt to make the Ninth and Tenth Amendment argument in favor
of limited construction of bankruptcy law); State
ex rel. O'Riordan v. State Dep't of Corrections,
209 N.E.2d 267 (Ind. App. 1965) (rejecting individual rights claim for lack of jurisdiction);
Williams v. City of Wichita, 374 P.2d 578 (Kan. 1962) (making no mention of the Ninth
Amendment in holding that Kansas's 1945 Water Appropriation Act is constitutional other than
noting that the point was raised); Johnson v. Bd. of Comm'rs of Reno County, 75 P.2d 849, 857
(Kan. 1938) (rejecting, without discussion, an attempt to use the Ninth as a source of individual
rights against liquor regulation); People
ex rel. Hamportzoon Choolokian v. Mission of the
Immaculate Virgin, 90 N.E.2d 486 (N.Y. 1949) (rejecting the appellant's contention that the Ninth
Amendment gave him an absolute right to take his children with him to Soviet Armenia); Allen v.
S. Ry., 107 S.E.2d 125, 134 (N.C. 1959) (rejecting a Ninth amendment claim against forced
payment of union dues);
In re Templeton, 159 A.2d 725, 730 (Pa. 1960) (ignoring argument by
dissent that people have the inherent right to collectively protect themselves from violence);
Kirschke v. City of Houston, 330 S.W.2d 629, 634 (Tex. Civ. App. 1960) (rejecting individual
rights argument against takings claim);
see also Royal Standard Ins. Co. v. McNamara, 344 F.2d
240, 242 (8th Cir. 1965) (rejecting individual rights Ninth and Tenth claims regarding an insurer
opposing a military directive establishing insurance requirements for autos on a military base);
Ryan v. Tennessee, 257 F.2d 63, 64 (6th Cir. 1958) (rejecting an obscure Ninth Amendment claim);
Whelchel v. McDonald, 176 F.2d 260, 261 (5th Cir. 1949) (rejecting a Ninth Amendment challenge
to the make up of a military tribunal); Joint Anti-Fascist Refugee Comm. v. Clark, 177 F.2d 79, 82
(D.C. Cir. 1949) (holding that � 9(a) of the Hatch Act, which required the attorney general to
designate subversive organizations and provide a list of these organizations to the Loyalty Review
Board, was not rendered unconstitutional by the First, Fifth, Ninth, and Tenth Amendments); Zemel

104
Texas Law Review
[Vol. 83:___

does appear to be a marked increase in Ninth Amendment individual rights
claims in the period between 1937 and 1965, most of these claims cite the
Ninth and Tenth Amendments alongside a number of other constitutional
claims in a boilerplate fashion.465 In general, these claims appear to cite the

v. Rusk, 228 F. Supp. 65, 66 (D. Conn. 1964) (rejecting individual rights Ninth and Tenth claim);
Kirk v. State Bd. of Ed., 236 F. Supp. 1020, 1021 (D.C. Pa. 1964) (rejecting individual rights Ninth
claim); Suggs v. Bhd. of Locomotive Firemen and Engineermen, 219 F. Supp. 770 (M.D. Ga. 1960)
(remanding a case that included an allegation that mandatory union dues violated the First, Fifth,
Ninth, and Tenth Amendments for lack of a federal question); United States v. Int'l Union United
Auto. Aircraft and Agric. Implement Workers of Am., 138 F. Supp. 53, 55 (E.D. Mich. 1956)
(raising a Ninth Amendment claim, but deciding the case on other grounds);
Ex parte Orr, 110 F.
Supp. 153 (E.D. S.C. 1952) (denying writ of habeas corpus where appellant contended that his civil
rights under the Fifth, Sixth, Seventh, Eighth, and Ninth Amendments had been violated);
Ex parte
Sentner, 94 F. Supp. 77 (E.D. Mo. 1950) (declining to determine whether deportation proceeding
provisions of the Subversive Activities Control Board of 1950 violated the First, Fifth, Sixth, and
Ninth Amendments); United States v. Foster, 80 F. Supp. 479, 483 (S.D.N.Y. 1948) (holding that
the Smith Act did not violate the First, Fifth, Ninth, and Tenth Amendments);
Ex parte Kurth, 28 F.
Supp. 258, 263 (S.D. Cal. 1939) (rejecting the attempt to use the Ninth Amendment to establish an
international right of asylum).
465
. See Singer v. United States, 380 U.S. 24, 26 (1965) (rejecting the claim that the Fifth,
Sixth, Ninth, and Tenth Amendments are violated by placing conditions on the ability to waive trial
by jury, with no discussion of the Ninth Amendment); United States v. Congress of Indus. Orgs.,
355 U.S. 106, 109 (1948) (involving First, Ninth, and Tenth claims, decided on statutory grounds);
United States v. Painters Local Union No. 481, 172 F.2d 854, 856 (2d Cir. 1949) (raising Ninth and
Tenth claims but deciding on statutory grounds); United States v. Gates, 176 F.2d 78, 79 (2d Cir.
1949) (raising Ninth and Tenth claims, but deciding on other grounds); Inland Steel Co. v. NLRB,
170 F.2d 247, 255�56 (7th Cir. 1948) (discussing appellant's assertion that � 9(h) of the National
Labor Relations Act was a "violation of the First, Ninth and Tenth Amendments"); United States
ex
rel.
Birch v. Fay, 190 F. Supp. 105, 106 (S.D.N.Y. 1961) (rejecting individual rights claim and
treating it as "in essence" a Fourteenth Amendment due process claim); Nukk v. Shaughnessy, 125
F. Supp. 498, 502 (S.D.N.Y. 1954) (rejecting individual rights claim based on the Ninth and Tenth);
United States v. Candela, 131 F. Supp. 249, 250 (S.D.N.Y. 1954) (rejecting individual rights claim
based on the Ninth and Tenth); United States v. Fujimoto, 102 F. Supp. 890, 898 (D. Haw. 1952)
(rejecting claims based on First, Fifth, Sixth, Ninth, and Tenth Amendments); United States v.
Constr. & Gen. Laborers Local Union, 101 F. Supp. 869, 870 (W.D. Mo. 1951) (raising, but not
adressing, the Ninth and Tenth); Int'l Ass'n of Machinists v. Street , 108 S.E.2d 796, 804 (Ga.
1959) (rejecting claims based on the First, Fifth, Ninth, and Tenth Amendments); Int'l Ass'n of
Machinists v. Sandsberry, 277 S.W.2d 776, 780 (Tex. Civ. App. 1954) (dismissing First, Fifth,
Ninth, and Tenth challenges against a federally authorized strike by the union on grounds that there
is no state action).
A number of these boilerplate claims were made in the context of challenges to anti-Communism
era regulations.
See, e.g. , Slagle v. State of Ohio, 366 U.S. 259, 261�62 n.4, 264 (1961) (rejecting
boiler plate First, Ninth, and Tenth claims regarding the refusal to answer Communist questions but
granting the claim on other grounds); Int'l Ass'n of Machinists v. Street, 367 U.S. 740, 745 n.3
(1961) (involving First, Fifth, Ninth, and Tenth Amendment claims against the expenditure of union
dues for political activity); Hartman v. United States, 290 F.2d 460, 462, 470 (9th Cir. 1961)
(rejecting boiler plate First, Ninth, and Tenth claims regarding the refusal to answer Communist
questions); Wilkinson v. United States, 272 F.2d 783, 787 (5th Cir. 1960) (rejecting boiler plate
First, Ninth, and Tenth claims regarding the refusal to answer Communist questions); Barenblatt v.
United States, 252 F.2d 129, 134�36 (D.C. Cir. 1958) (rejecting boiler plate First, Ninth, and Tenth
claims regarding the refusal to answer Communist questions); Briehl v. Dulles, 248 F.2d 561, 566
(D.C. Cir. 1957) (rejecting boiler plate Ninth and Tenth claims regarding the refusal to grant a
passport due to failure to respond to allegation of communist association); United States v. Kamin,
136 F. Supp. 791, 793, 804 (D. Mass. 1956) (refusing to answer questions regarding Communist
associations and raising a Ninth Amendment claim, with the case decided on other grounds); United

2004]
The Lost Jurisprudence
105

Ninth and Tenth Amendments as general limitations on federal power.466 In
any event, prior to the 1960s, all but one of these claims failed.467 Not only
did courts reject Ninth Amendment individual rights claims, they also cited
the Ninth Amendment in support of decisions limiting expanded
interpretation of federal rights.468

States v. Stein, 140 F. Supp. 761, 767, 769 (S.D.N.Y. 1956) (rejecting individual rights and state
power challenge to federal Smith Act); Nat'l Mar. Union of Am. v. Herzog, 78 F. Supp. 146, 163�
77 (D.D.C. 1948) (upholding against First, Fifth, and Ninth Amendment challenges a provision in
the Labor Management Act denying to a labor union the privilege of being recognized as an
exclusive bargaining agent unless the officers thereof have filed affidavits denying membership in
or affiliation with the Communist Party); Sheiner v. State, 82 So.2d 657, 667�68 (Fla. 1955)
(rejecting a claim that disbarment for refusing to answer whether he was member of communist
party violates due process after the attorney invoked his rights under the "first, fourth, fifth, sixth,
eighth, ninth and tenth amendments to the constitution of the United States of America.");
Thompson v. Wallin , 93 N.Y.S.2d 274, 285 (N.Y. Sup. 1950) (ignoring Ninth and Tenth
Amendment challenges, but ruling in favor of teachers fired for being members of the Communist
Party);
In re Patterson, 302 P.2d 227, 228, 235 (Or. 1956 ) (denying the application of admission to
the bar of a person who was member of the Communist Party and who had refused to answer
questions before House Committee on grounds it violated the "First, Fourth, Fifth, Ninth and Tenth
Amendments of the Constitution of the United States."); Browning v. Slenderella Sys., 341 P.2d
859, 868 (Wash. 1959) (Mallery, J., dissenting) (arguing that the Ninth Amendment suggests an
individual right to exclude people from a private business accommodations on the basis of race);
State v. James, 221 P.2d 482, 488�501 (Wash. 1950 ) (rejecting a Ninth Amendment defense for
refusal to answer whether a member of communist party before a state legislative committee).
466. Some scholars at the time experimented with the idea that both the Ninth and Tenth
Amendments protected unenumerated personal rights.
See Redlich, supra note 2, at 808 (noting
"the strong historical argument that [the Ninth and Tenth Amendments] were intended to apply in a
situation where the asserted right appears to the Court as fundamental to a free society but is,
nevertheless, not specified in the Bill of Rights").
467
. See Colorado Anti-Discrimination Comm'n v. Case, 380 P.2d 34 (Colo. 1963) (upholding
the state's Fair Housing Act and citing the federal Ninth Amendment for the proposition that there
are inherent rights beyond those listed in the Constitution). The court notes that "[a] proper
construction of this single sentence [of the Ninth Amendment] entitles that provision to far greater
consideration in the definition of and the protection afforded to `inherent rights' than has heretofore
been recognized."
Id. at 40.
468
. See, e.g. , State v. Sprague, 200 A.2d 206, 209 (N.H. 1964) (rejecting a Ninth Amendment
property right claim against the application of state law forbidding racial discrimination in public
accommodations, and instead citing the Ninth in support of state police powers); In
State ex rel.
Hawkins v. Board of Control
, 93 So.2d 354 (Fla. 1957), the Florida Supreme Court observed:
In what appears to be a progressive disappearance of State sovereignty, it is interesting
to read certain decisions (among others) which the United States Supreme Court has
handed down in recent months. . . .
It is a "consummation devoutly to be wished" that the concept of "states' rights"
will not come to be of interest only to writers and students of history.
Id. at 357. In his concurrence, Chief Justice Terrell mocked the Supreme Court's recent equal
protection decisions and wrote sympathetically of state resistance to integration:
[States resisting integration] contend that since the Supreme Court has tortured the
Constitution, particularly the welfare clause, the interstate commerce clause, the Ninth
and Tenth Amendments, the provisions relating to separation of state and federal
powers, and the powers not specifically granted to the Federal government being
reserved to states, they have a right to torture the court's decision. Whatever substance
there may be to this contention, it is certain that forced integration is not the answer to
the question.
Id. at 361.

106
Texas Law Review
[Vol. 83:___

2. The Last Stand of the Traditional Ninth Amendment: Bute v. Illinois
and the Doctrine of Incorporation.-- The Lochner Court had interpreted the
Due Process Clause of the Fourteenth Amendment to include some of the
liberties listed in the Bill of Rights, such as freedom of speech,469 press,470
and the right to counsel,471 but resisted wholesale absorption of the Bill of
Rights into the Fourteenth Amendment.472 The New Deal Court not only
abandoned the nontextual Lochnarian liberty of contract,473 for a brief time it
considered abandoning Lochnarian textual rights such as freedom of speech
as well.474 For some years following the New Deal, courts cited the Ninth
and Tenth Amendments in support of their continued resistance to total
incorporation. In
Payne v. Smith , for example, the Washington Supreme
Court refused to incorporate the Fifth Amendment's right to indictment by
grand jury for infamous crimes.475 In doing so, the court invoked the Ninth
and Tenth Amendment's preservation of local rule regarding state court
procedures:
This clause in the Fourteenth Amendment leaves room for much of the
freedom which, under the Constitution of the United States and in
accordance with its purposes, was originally reserved to the states for
their exercise of their own police powers and for their control over the
procedure to be followed in criminal trials in their respective courts.
. . . The compromise between state rights and those of a central
government was fully considered in securing the ratification of the
Constitution in 1787 and 1788. It was emphasized in the `Bill of
Rights,' ratified in 1791. In the ten Amendments constituting such
Bill, additional restrictions were placed upon the Federal Government
and particularly upon procedure in the federal courts. None were
placed upon the states. On the contrary, the reserved powers of the
states and of the people were emphasized in the Ninth and Tenth
Amendments. The Constitution . . . sought to keep the control over
individual rights close to the people through their states.476

Resisting the expansion of incorporation doctrine on the basis of the
Ninth and Tenth Amendments was no anomaly. In
Payne, the Washington
Supreme Court was simply echoing the views of the Supreme Court of the
United States. In
Bute v. Illinois , the Supreme Court considered whether

469. Gitlow v. New York, 268 U.S. 652 (1925).
470. Near v. Minnesota
ex rel . Olson, 283 U.S. 697 (1931).
471. Powell v Alabama, 287 U.S. 45 (1932).
472. Palko v. Connecticut, 302 U.S. 319 (1937).
473. United States v. Carolene Prods., 304 U.S. 144 (1938).
474
. See Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 594 (1940) (upholding compelled flag
salutes in public schools),
rev'd , W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). For a
general discussion of the New Deal Court and the doctrine of incorporation, see Lash,
The Original
Meaning of the New Jurisprudential Deal
, supra note 392.
475. 192 P.2d 964, 966 (Wash. 1948).
476
. Id. at 967.

2004]
The Lost Jurisprudence
107

allowing a defendant in a noncapital criminal prosecution to represent
himself without inquiring into whether he desired or could afford an attorney
violated his rights under the Fourteenth Amendment.477 Because the Sixth
Amendment required such inquiry in federal court, the issue was whether this
rule was incorporated against the states. In a five�four decision, Justice
Harold Burton rejected the claim and provided an extended analysis of the
Ninth and Tenth Amendments and their role in interpreting the scope of the
Fourteenth Amendment's Due Process Clause.478 Because of the depth of his
analysis, and also because this case has not been discussed in any previous
Ninth Amendment scholarship,479 Justice Burton is quoted at length:
One of the major contributions to the science of government that was
made by the Constitution of the United States was its division of
powers between the states and the Federal Government. The
compromise between state rights and those of a central government
was fully considered in securing the ratification of the Constitution in
1787 and 1788. It was emphasized in the "Bill of Rights," ratified in
1791. In the ten Amendments constituting such Bill, additional
restrictions were placed upon the Federal Government and particularly
upon procedure in the federal courts. None were placed upon the
states. On the contrary, the reserved powers of the states and of the
people were emphasized in the Ninth and Tenth Amendments.
[quoting both amendments] The Constitution was conceived in large
part in the spirit of the Declaration of Independence which declared
that to secure such "unalienable Rights" as those of "Life, Liberty and
the pursuit of Happiness. . . . Governments are instituted among Men,
deriving their just powers from the consent of the governed, . . . ." It
sought to keep the control over individual rights close to the people
through their states. While there have been modifications made by the
States, the Congress and the courts in some of the relations between
the Federal Government and the people, there has been no change that
has taken from the states their underlying control over their local
police powers and state court procedures. They retained this control
from the beginning and, in some states, local control of these matters
long antedated the Constitution. The states and the people still are the
repositories of the "powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, . . . ." The underlying
control over the procedure in any state court, dealing with distinctly
local offenses such as those here involved, consequently remains in
the state. The differing needs and customs of the respective states and

477. 333 U.S. 640, 644 (1948).
478
. Id. at 650�53.
479. Despite its being among the most extended discussions of the Ninth and Tenth
Amendments by the Supreme Court, I have found only a single cite to
Bute in a discussion of the
Ninth amendment--an offhand mention in a footnote in a student note.
See Stephen Hampton,
Note,
Sleeping Giant: The Ninth Amendment and Criminal Law, 20 SW. U. L. REV. 349, 349 n.3
(1991).

108
Texas Law Review
[Vol. 83:___

even of the respective communities within each state emphasize the
principle that familiarity with, and complete understanding of, local
characteristics, customs and standards are foundation stones of
successful self-government. Local processes of law are an essential
part of any government conducted by the people. No national
authority, however benevolent, that governs over 130,000,000 people
in 48 states, can be as closely in touch with those who are governed as
can the local authorities in the several states and their subdivisions.
The principle of "Home Rule" was an axiom among the authors of the
Constitution. After all, the vital test of self-government is not so much
its satisfactoriness weighed in the scales of outsiders as it is its
satisfactoriness weighed in the scales of "the governed." While, under
the Constitution of the United States, the Federal Government, as well
as each state government, is at bottom a government by the people,
nevertheless, the federal sphere of government has been largely
limited to certain delegated powers. The burden of establishing a
delegation of power to the United States or the prohibition of power to
the states is upon those making the claim. This point of view is
material in the instant cases in interpreting the limitation which the
Fourteenth Amendment places upon the processes of law that may be
practiced by the several states, including Illinois. In our opinion this
limitation is descriptive of a broad regulatory power over each state
and not of a major transfer by the states to the United States of the
primary and pre-existing power of the states over court procedures in
state criminal cases.480
In
Bute , Justice Burton links the Ninth and Tenth Amendments with the
division of powers between the states and the federal government, and the
need to keep control over individual rights close to the people through their
states. Together, the Ninth and Tenth preserved the retained rights and
powers of the states and of the people. One of those retained rights was the
right to "Home Rule," or, as earlier courts had phrased it, the right of a state
"to determine for itself its own political machinery and its own domestic
policies."481 Preserving that right required a rule of construction. The Court
in
Bute applies such a rule, noting that the principles underlying the Ninth
and Tenth Amendment are "material in the instant cases in
interpreting the
limitation which the Fourteenth Amendment places upon the processes of
law that may be practiced by the several states."482
Even if the Supreme Court in a post-New Deal world no longer
deployed the Ninth and Tenth as substantive restrictions on Congress, under
Bute these Amendments continued to have a role in guiding the Court's

480
. Bute , 333 U.S. at 650�53 (alteration in original) (citations omitted).
481. Hawke v. Smith, 126 N.E. 400, 403 (Ohio 1919).
482
. Bute , 333 U.S. at 653 (emphasis added).

2004]
The Lost Jurisprudence
109

construction of enumerated rights.483 This, then, was the final synthesis of
the Founding, Reconstruction, and the New Deal: Although no longer
expressing substantive limits on the enumerated powers of Congress, the
Ninth and Tenth Amendments nevertheless limited Court's own expansion of
enumerated rights. Or, as the Ninth Amendment might put it: The
enumeration in this Constitution of certain rights, like those in the Fourteenth
Amendment, shall not be construed to deny or disparage other rights retained
by the people, such as the general right to local control of criminal procedure.
As the Supreme Court gradually incorporated almost all of the Bill of Rights,
including the criminal procedure provisions,484 this last remnant of the
historic reading of the Ninth Amendment faded from view.
Writing in the midst of the Warren Court's incorporation of criminal
procedure rights, a judge on the Ohio Court of Common Pleas wrote:

I believe that a majority of the justices of the Supreme Court of the
United States have, in recent years, erred grievously in finding, after
more than a century and a half, that their present concepts of the
provisions of the Bill of Rights of the Constitution of the United
States, in nearly every conceivable detail, are applicable to the
States. . . .
To me it seems that our history irrefutably establishes the fact that our
forefathers clearly understood that the States were to chiefly control
our daily affairs and that the national government was to be one of
delegated powers--not omnipotence. The grand design was to
preclude a tyrannical national government--not to create completely
impotent State governments. . . .
Yet time and again, in recent years, I perceive a majority of our
Supreme Court justices to have found some pretext for invalidating
state action, in the face of overwhelming proof of criminal acts, by
ignoring the 9th and 10th Amendments.485
More than just ignored, the Ninth Amendment and its history had been lost.

483. Limiting the impact of Supreme Court interference with the political process, state or
federal, was a theme running through much of the Supreme Court's New Deal Revolution
jurisprudence.
See Lash, The Original Meaning of the New Jurisprudential Deal , supra note 392, at
462�64.

484
. See, e.g. , Mapp v. Ohio, 367 U.S. 643 (1961) (incorporating the Fourth Amendment);
Gideon v. Wainwright, 372 U.S. 335 (1963) (incorporating the right to counsel contained in the
Sixth Amendment).
485. State v. Puckett, 201 N.E.2d 86, 89 (Ohio Ct. Com. Pl. 1964).

110
Texas Law Review
[Vol. 83:___

V. Griswold and the Birth of the Modern View of the Ninth Amendment
A. Bennett Patterson's Book
There has been no direct judicial construction of the Ninth
Amendment by the Supreme Court of the United States of America.486
Although Bennett Patterson's book,
The Forgotten Ninth Amendment ,
was not the first twentieth century work to focus on the Ninth,487 it has been
the most influential. Containing a rather cautionary prologue by the retired
Dean of Harvard Law School, Rosco Pound,488 Patterson's book was cited by
courts even prior to
Griswold v. Connecticut 489 and has been cited by almost
every significant work on the Ninth Amendment since 1965.490
In words that would go on to shape the debate over the Ninth
Amendment for years to come, Patterson announced that "[t]here has been no
direct judicial construction of the Ninth Amendment by the Supreme Court
of the United States of America" and that "[t]here are very few cases in the
inferior courts in which any attempt has been made to use the Ninth

486. PATTERSON,
supra note 2, at 27.
487. The first was an article by Knowlton H. Kelsey entitled
The Ninth Amendment of the
Federal Constitution . Kelsey, supra note 2. Kelsey argued that the Ninth Amendment supported
judicial enforcement of Lochnerian property rights.
See id. at 313.
488. Pound's introduction comes close to contradicting everything that follows. Against
Bennett's vision of broad judicial enforcement of unenumerated rights, Pound notes that "the states
have the attributes and powers of sovereignty so far as they have not been committed to the federal
government by the Constitution. So far as inherent rights are not committed to the federal
government, defining and securing them is left to the states or to be taken over by the people of the
United States by constitutional amendment." Roscoe Pound,
Introduction to PATTERSON, supra
note 2, at vi.
489
. See Colorado Anti-Discrimination Comm'n v. Case, 380 P.2d 34, 40 (Colo. 1962)
(upholding the state's Fair Housing Act and citing the federal Ninth Amendment and Patterson's
book for the proposition that there are inherent rights beyond those listed in the constitution).
But
see
Terry v. City of Toledo, 194 N.E.2d 877, 881�83 (Ohio App. 1963) (noting the Colorado court's
decision in
Case and its citation of Patterson's book, but, in canvassing similar claims against
housing acts around the country, concluding that "the cases are in complete confusion").
490. BARNETT, RESTORING THE LOST CONSTITUTION,
supra note 2, at 234 n.43; DUMBAULD,
supra note 2, at 63 n.10, 64 n.11; PROCESSES OF CONSTITUTIONAL DECISIONMAKING, supra note 2,
at 113; 1 RIGHTS RETAINED BY THE PEOPLE,
supra note 2, at 2 n.5; Raoul Berger, The Ninth
Amendment, as Perceived By Randy Barnett
, 88 NW. U. L. REV. 1508, 1516 n.58 (1994); Caplan,
supra note 2, at 223 n.6; James E. Fleming, Securing Deliberative Autonomy , 48 STAN. L. REV. 1,
51 n.300 (1995); Philip A. Hamburger,
Natural Rights, Natural Law, and American Constitutions ,
102 YALE L.J. 907, 908 n.3 (1993); Robert M. Hardaway et al.,
The Right to Die and the Ninth
Amendment: Compassion and Dying after
Glucksberg and Vacco, 7 GEO. MASON L. REV. 313, 348
n.314 (1999); JoEllen Lind,
Liberty, Community, and the Ninth Amendment , 54 OHIO ST. L.J. 1259,
1269 n.9 (1993); Thomas B. McAffee,
The Constitution as Based on the Consent of the Governed--
Or, Should We Have an Unwritten Constitution
, 80 OR. L. REV. 1245, 1267 n.101 (2001); Simeon
C.R. McIntosh,
On Reading the Ninth Amendment: A Reply to Raoul Berger , 28 HOW. L.J. 913, 933
n.66 (1985); Lawrence E. Mitchell,
The Ninth Amendment and the "Jurisprudence of Original
Intent"
, 74 GEO. L.J. 1719, 1720 n.7 (1986); Michael J. Perry, Brown , Bolling & Originalism: Why
Ackerman and Posner (Among Others) Are Wrong
, 20 S. ILL. U. L.J. 53, 73 n.85 (1995); Redlich,
supra note 2, at 805 n.7.

2004]
The Lost Jurisprudence
111

Amendment as the assertion of a right."491 Ultimately, Patterson identified
and briefly discussed five Supreme Court decisions and a few cases from
lower state and federal courts.492 Conceding that "[t]here are a number of
cases which briefly mention the Ninth Amendment by grouping it with the
Tenth Amendment," Patterson nevertheless decided that "these decisions do
not actually discuss the Ninth Amendment, but actually discuss the Tenth
Amendment."493 According to Patterson, these cases must have really been
about the Tenth and not the Ninth because they involved the construction of
federal power, not the protection of individual rights.494 Accordingly, he
neither discussed, nor even cited, any of these earlier decisions.
What it lacked in analysis, Patterson's book made up for in timing. The
first work to present the Ninth Amendment in a light acceptable to a post-
New Deal world,495 Patterson's book influenced discussion of the Ninth
Amendment for decades to come. Scholars and judges of every stripe
accepted Patterson's claim regarding a paucity of case law, as well as his
suggestion that past judicial opinions that cite both the Ninth and Tenth
Amendment are really about the Tenth and have nothing relevant to say
about the Ninth.
B. Griswold v. Connecticut
By the 1960s, the Supreme Court had shed its
Bute -era resistance to
broad incorporation of the Bill of Rights.496 Thus, when the Court decided
Griswold , it had already abandoned the last application of the Ninth
Amendment as a rule for limiting the interpretation of the Constitution.497
Still, even if no longer a substantive restriction on the Court's interpretation
of enumerated federal powers and rights, there remained one hundred and
fifty years of jurisprudence linking the purpose of the Ninth with the
principles of the Tenth. This link had been assumed by the Supreme Court
itself only a year prior to
Griswold in the Court's rejection of Ninth and
Tenth Amendment claims in
Katzenbach .498
In a concurring opinion that would trigger the modern debate over the
Ninth Amendment, Justice Arthur Goldberg simply asserted that this
jurisprudence did not exist. Writing only a month before the end of his short

491. PATTERSON,
supra note 2, at 27.
492. Patterson cites and briefly discusses the Supreme Court decisions in
Mitchell , Whelchel ,
Woods , Tennessee v. TVA , and " Aschwander ." Id. at 29�30.
493
. Id. at 32.
494
. Id.
495. Knowlton Kelsey's work was the first in the twentieth century to focus on the Ninth, but it
did so in a manner supporting the decisions of the
Lochner Court.
496
. See supra note 484 and accompanying text.
497. Between the time that Patterson published his book and 1965 when the Court decided
Griswold , some courts noted the relevance of his work to the issue of judicial enforcement of
unenumerated rights.
See, e.g. , supra note 489.
498
. See supra notes 448�456 and accompanying text.

112
Texas Law Review
[Vol. 83:___

tenure on the Supreme Court, Goldberg mused that the "Court has had little
occasion to interpret the Ninth Amendment."499 Citing the work of Bennett
Patterson,500 who himself had found at least five Supreme Court cases
mentioning the Ninth Amendment, Goldberg declared that "[a]s far as I am
aware, until today this Court has referred to the Ninth Amendment only in
[three cases:]
United Public Workers v. Mitchell , Tennessee Electric Power
Co. v. TVA,
and Ashwander v. TVA ."501 Not only did Justice Goldberg fail to
mention the Court's reference to the Ninth Amendment only a year previous
or the substantial discussion of the Ninth and Tenth in
Bute , he also failed to
cite all the Supreme Court cases actually listed in Patterson's book.502
Building on Justice Douglas's brief citation to the Ninth Amendment in
his lead opinion,503 Justice Goldberg argued that the Ninth Amendment
supported the idea that the liberty protected against state action by the
Fourteenth Amendment "is not restricted to rights specifically mentioned in
the first eight amendments."504 In support of this reading, Goldberg relied on
his understanding of history, particularly the works of James Madison and
Joseph Story.505 According to Goldberg, "The Amendment is almost entirely
the work of James Madison. It was introduced in Congress by him and
passed the House and Senate with little or no debate and virtually no change
in language."506 While it is understandable that Goldberg might miss
historical references to the "eleventh amendment" in Madison's bank speech
and Story's opinion in
Houston , it is inexplicable how Goldberg could
describe the passage of the Ninth Amendment as involving "virtually no
change in language." Literally half of the Amendment was erased by the
Select Committee, and this dramatic change in language from Madison's
original draft led Virginia to hold up ratification for two years.507
Nevertheless, confident of his grasp of the Amendment's history,
Goldberg argued that refusing to strike down a state law banning the
distribution of contraceptives to married couples because the claimed right
was not expressly mentioned in the Constitution would be "to ignore the
Ninth Amendment and to give it no effect whatsoever."508 Denying that he
was turning the Amendment on its head by applying it against the states,
Goldberg argued that his reading of the Ninth merely supported an

499. Griswold v. Connecticut, 381 U.S. 479, 490 (1965) (Goldberg, J., concurring).
500
. Id. at 490�91 n.6 (Goldberg, J., concurring) (citations omitted).
501
. Id.
502. Goldberg does cite
Mitchell , but, like Patterson, he does not cite the Mitchell Court's
express construction of the Ninth and Tenth Amendments.
Id.
503
. Id. at 484.
504
. Id. at 493 (Goldberg, J., concurring).
505
. Id. at 488�90 (Goldberg, J., concurring).
506
. Id. at 488 (Goldberg, J., concurring).
507
. See Lash, The Lost Original Meaning , supra note 8, at 371�75 (discussing the contentious
Virginia ratification process).
508
. Griswold , 381 U.S. at 491 (Goldberg, J., concurring).

2004]
The Lost Jurisprudence
113

interpretation of the Fourteenth as protecting more rights than just those
listed in the Constitution.509
In dissent, Justice Potter Stewart argued that the majority was wrong to
suggest the Ninth was more than a truism:
The Ninth Amendment, like its companion the Tenth, which this
Court held "states but a truism that all is retained which has not been
surrendered," was framed by James Madison and adopted by the
States simply to make clear that the adoption of the Bill of Rights did
not alter the plan that the
Federal Government was to be a government
of express and limited powers, and that all rights and powers not
delegated to it were retained by the people and the individual States.
Until today no member of this Court has ever suggested that the Ninth
Amendment meant anything else, and the idea that a federal court
could ever use the Ninth Amendment to annul a law passed by the
elected representatives of the people of the State of Connecticut would
have caused James Madison no little wonder.510
This is the New Deal vision of the Ninth Amendment. To Justice
Stewart, the Ninth and Tenth Amendment were unenforceable statements of
principle. This had been the general approach to both the Ninth and Tenth
Amendments since
Darby was decided in 1941. Although it was not true
that no other Justice had ever suggested a different meaning for the Ninth,
Stewart was correct to suggest that Madison would have been surprised by
Douglas's and Goldberg's use of the Ninth. But Madison also would have
been surprised by Stewart's preference that the Ninth not be used at all.
In his dissent, Justice Hugo Black derided Goldberg's "recent
discovery" of the Ninth Amendment, thus implicitly agreeing with Goldberg
that there had been little previous judicial construction of the Clause.511
Accusing the majority of returning to the discredited jurisprudence of the
Lochner Court,512 Black argued that "every student of history knows" the
purpose of the Ninth Amendment was "to assure the people that the
Constitution in all its provisions was intended to limit the Federal
Government to the powers granted expressly or by necessary implication."513
Black then noted the irony of using the Ninth to interfere with the right to
local self-government:
[F]or a period of a century and a half no serious suggestion was ever
made that the Ninth Amendment, enacted to protect state powers
against federal invasion, could be used as a weapon of federal power

509
. Id. at 493 (Goldberg, J., concurring).
510
. Id. at 529�30 (Stewart, J., dissenting) (citations omitted).
511
. Id. at 518 (Black, J., dissenting). Black had joined Douglas's dissent in Bute , probably on
the grounds of his long-stated advocacy of total incorporation.
512
. Id. at 522 (Black, J., dissenting).
513
. Id. at 520 (Black, J., dissenting).

114
Texas Law Review
[Vol. 83:___

to prevent state legislatures from passing laws they consider
appropriate to govern local affairs.514
A number of scholars have criticized Justice Black's dissent.515
According to John Hart Ely, "Black's response to the Ninth Amendment was
essentially to ignore it," and he accused Black of being inconsistent in his
refusal to follow "original understanding" even if "[he] didn't like where it
led."516 In light of evidence regarding the original meaning of the Ninth
Amendment discussed in the first of the two articles, and buttressed by one
hundred and fifty years of jurisprudence, it is clear that, of all the opinions in
Griswold , Justice Black's came the closest to the original meaning of the
Ninth. It is literally true that the Ninth Amendment was enacted to "protect
state powers against federal invasion."517 And the federalist structure of the
Ninth was not modified by the Fourteenth Amendment, whose framers
eschewed the Ninth Amendment as any kind of privilege or immunity. This
does not mean that the Court was wrong to discover and enforce a general
right to privacy. It does mean that of all the provisions in the Constitution to
draft in support of an expansive interpretation of the Fourteenth
Amendment's Due Process Clause, there could not be a less appropriate
choice than the Ninth Amendment.
Despite their disagreement over the outcome of the case, Justices
Goldberg and Stewart agreed on one critical matter regarding the Ninth
Amendment: Neither Justice wished to enforce the Clause. Justice Stewart
read the Ninth as no more than a truism.518 Justice Goldberg, despite his
belief that the Court had authority to enforce unenumerated rights,519
nevertheless declined to read the Ninth as a source of such rights.520 Even

514
. Id.
515
. See Rodney J. Blackman, Spinning, Squirreling, Shelling, Stiletting, and Other Stratagems
of the Supremes , 35 ARIZ. L. REV. 503, 513 (1993) ("[M]uch of Black's dissent appears to be
soaked in acid and blood."); Fleming,
supra note 490, at 52 ("Justice Black wrote that the Ninth
Amendment was adopted not to protect `unenumerated' rights but, `as every student of history
knows, to assure the people that the Constitution in all its provisions was intended to limit the
Federal Government to the powers granted expressly or by necessary implication.' The common
rejoinder is that every student of history knows that the
Tenth Amendment, not the Ninth , was
adopted for that purpose.") (quoting
Griswold , 381 U.S. at 520 (Black, J., dissenting)); Schmidt,
supra note 256, at 180 ("Justice Black refurbished, if not created, the textually inaccurate traditional
approach to Ninth Amendment jurisprudence . . . . [He] ignored the text of the Ninth
Amendment.").
516. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 38
(1980).
517
. Griswold , 381 U.S. at 520 (Black, J., dissenting).
518
. Id. at 530 (Stewart, J., dissenting).
519
. See id. at 492 (Goldberg, J., dissenting) ("[T]he concept of liberty [in the Due Process
Clause] . . . embraces the right of marital privacy though that right is not mentioned explicitly in the
Constitution.").
520
. See id. ("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."). In
fact, even the strongest present day proponents of an unenumerated rights position shy away from
calling for judicial enforcement of the Ninth Amendment.
See, e.g. , Brief of the Institute for Justice

2004]
The Lost Jurisprudence
115

though the Supreme Court has identified and enforced unenumerated rights,
it has never done so based on its reading of the Ninth Amendment.521 In
terms of its express application by the Supreme Court, the Ninth Amendment
has never recovered from the New Deal.
VI. Conclusion: Retaining the Space Between National Powers and
National Rights
The Ninth Amendment to the Constitution may be regarded by some
as a recent discovery and may be forgotten by others, but since 1791 it
has been a basic part of the Constitution which we are sworn to
uphold.522
The degree of local political autonomy depends on the amount of
"space" between national powers and national rights. As a rule of
interpretation limiting the constructive enlargement of federal authority, the
Ninth Amendment held back the encroaching tide of federal jurisdiction and,
along with the Tenth, maintained areas of local self-government. Without
this interpretive restraint, federal power threatened to expand right up to the
threshold of federal rights, thus leaving the Tenth Amendment no more than
a truism preserving a null set of "reserved" powers. From its adoption, the
Ninth Amendment was intended to prevent such an expansion of federal
power, and this is how the Ninth was applied for more than one hundred and
fifty years.
In two articles,
The Lost Original Meaning and The Lost Jurisprudence ,
we have followed the history of the Ninth Amendment from its inception to
its seeming demise at the hands of the New Deal Court. Rooted in calls from
state conventions for a rule of construction limiting the interpretation of
delegated authority, Madison's draft of the Ninth Amendment expressly
prohibited the constructive enlargement of federal power. In his speech on
the constitutionality of the Bank of the United States, Madison explained
how the Ninth was adopted to address the concerns of the state conventions,
and he linked its purpose to that of the Tenth Amendment. The Tenth limited
the government to enumerated powers, and the Ninth prohibited
latitudinarian interpretation of those powers to the injury of the states. The
Madisonian reading of the Ninth Amendment was echoed by Justice Story in
Houston v. Moore , the first Supreme Court discussion of the Ninth
Amendment. Story's reading of the Ninth Amendment as a rule of

an Amicus Curiae in Support of the Petitioners at *4 n.3, Lawrence v. Texas, 123 S.Ct. 2472 (2003)
(No. 02-102),
at 2003 WL 164140. ("Our police power analysis does not require the Court to
directly apply the Ninth Amendment."). This reluctance is ironic, given that one of the main
criticisms of a federalism-based reading of the Ninth Amendment is that it renders the Ninth
without effect.
521
. See Lawrence v. Texas, 539 U.S. 558, 578 (2003); Troxel v. Granville, 530 U.S. 57, 66
(2000); Roe v. Wade, 410 U.S. 113, 153 (1973) (all citing the Due Process Clause).
522
. Griswold , 381 U.S. at 491 (Goldberg, J., concurring).

116
Texas Law Review
[Vol. 83:___

construction preserving the retained rights of the states initiated a
jurisprudence that would last more than a century. It was only in the
aftermath of the New Deal restructuring of federal power that this
jurisprudence came to an end, rendering both the Ninth and the Tenth but
truisms.
The New Deal, however, is not the end of the story. John Ely once
described the Ninth Amendment as "that old constitutional jester."523
Perhaps so, for as much as we have been tricked into missing its history, we
may also have been tricked into missing its current use. Even if their source
has been forgotten, the principles enshrined by the Ninth Amendment
continue to inform the Supreme Court's construction of the Constitution.
Consider, for example, Chief Justice Rehnquist's opinion in
United States v.
Lopez
.524 Reviving the tradition of limiting the expansion of federal
commerce power into areas traditionally under state control, Rehnquist
wrote: "To uphold the Government's contentions here, we would have to pile
inference upon inference in a manner that would bid fair to convert
congressional authority under the Commerce Clause to a general police
power of the sort retained by the States."525 Compare this to Madison's
Ninth Amendment-based argument against the Bank of the United States:
If implications, thus remote and thus multiplied, can be linked
together, a chain may be formed that will reach every object of
legislation, every object within the whole compass of political
economy.
The latitude of interpretation required by the bill is condemned by the
rule furnished by the constitution itself.526
In
Alden v. Maine , the Supreme Court ruled that Congress's powers under
Article I could not be construed so broadly as to allow Congress to subject
nonconsenting states to private suits for damages in state courts.527 Although
generally read as an Eleventh Amendment case, Justice Kennedy's opinion
was based upon his reading of the retained rights of the states:
[A]s the Constitution's structure, its history, and the authoritative
interpretations by this Court make clear, the States' immunity from
suit is a fundamental aspect of the sovereignty which the States
enjoyed before the ratification of the Constitution, and
which they
retain today
(either literally or by virtue of their admission into the
Union upon an equal footing with the other States) except as altered

523. ELY,
supra note 516, at 33.
524. 514 U.S. 549 (1995)
525
. Id. at 567.
526. James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791),
reprinted
in WRITINGS, supra note 11, at 486.
527. 527 U.S. 706, 712 (1999).

2004]
The Lost Jurisprudence
117

by the plan of the Convention or certain constitutional
Amendments.528
This concept of limiting the construction of federal power (in
Alden ,
federal judicial power) in order to preserve the retained rights of the states
echoes every Ninth Amendment case from Justice Story's opinion in
Houston v. Moore to Justice Burton's opinion in Bute v. Illinois . All of these
opinions deploy a rule of construction in order to preserve the retained rights
and powers of the states. Although a number of scholars have criticized the
contemporary Court's federalism jurisprudence as unsupported by either text
or history,529 an appreciation of the original meaning and historic application
of the Ninth Amendment raises the possibility that it is grounded in both.530
The federalism jurisprudence of the current Supreme Court is generally
understood as based on the Tenth Amendment. This is reasonable, given that
the Court itself has linked its rule of construction to the Tenth.531 But in
many ways, ascribing the rule of construction in these cases to the Tenth
Amendment seems no different than Judge Felch rewriting Story's opinion in
Houston to make it refer to the Tenth rather than the Ninth Amendment. It is

528
. Id. at 713 (emphasis added).
529
. See Ashutosh Bhagwat, Affirmative Action and Compelling Interests: Equal Protection
Jurisprudence at the Crossroads , 4 U. PA. J. CONST. L. 260, 261 (2002) (describing the Rehnquist
Court's "nontextual federalism-jurisprudence" as an example of "judicial activism"); Peter M.
Shane,
Federalism's "Old Deal": What's Right and Wrong with Conservative Judicial Activism , 45
VILL. L. REV. 201, 209�10 (2000) (criticizing the federalism jurisprudence of the Rehnquist Court
on textual and historical grounds); Larry D. Kramer,
No Surprise. It's an Activist Court , N.Y.
TIMES, Dec. 12, 2000, at A33 (arguing that "conservative judicial activism is the order of the day");
Cass R. Sunstein,
Tilting the Scales Rightward , N.Y. TIMES, Apr. 26, 2001, at A23 (noting that "we
are now in the midst of a remarkable period of right-wing judicial activism").
See generally
STEPHEN E. GOTTLIEB, MORALITY IMPOSED: THE REHNQUIST COURT AND LIBERTY IN AMERICA
xi (2000) (arguing that the Rehnquist Court represents a "major revolution" in American judicial
thought); Herman Schwartz,
Introduction to THE REHNQUIST COURT: JUDICIAL ACTIVISM ON THE
RIGHT 19 (Herman Schwartz ed., 2002) (calling the Rehnquist Court's federalism doctrine "an
astonishing display of judicial activism not seen since the 1930's"); TINSLEY E. YARBROUGH, THE
REHNQUIST COURT AND THE CONSTITUTION (2000) (chronicling the doctrinal trends of
constitutional decision making at the Rehnquist Court).
530. Linking federalism jurisprudence to the Ninth Amendment not only grounds these cases in
constitutional text, it also suggests potential applications of the doctrine in a number of areas not
generally associated with only one side of the political aisle. For example, determining whether the
federal government may regulate intrastate noncommercial use of marijuana for medicinal purposes
seems particularly well suited to Ninth Amendment analysis because it involves the retained right of
the people to regulate medicine on a local level.
See Raich v. Ashcroft, 352 F.3d 1222 (9th Cir.
2003) (holding that the Controlled Substances Act as applied to medicinal marijuana users exceeded
Congress's commerce power). The plaintiffs in
Raich raised individual rights claims based on the
Ninth Amendment.
Id. at 1227. Ironically, the court declined to reach these claims and based its
ruling instead on a limited construction of federal power as suggested by cases like
Lopez and
Morrison . Id. at 1229. The irony, of course, is that this is a holding based upon the traditional
principles of the Ninth Amendment.
531
. See Alden , 527 U.S. at 713�14 ("Any doubt regarding the constitutional role of the States
as sovereign entities is removed by the Tenth Amendment, which, like the other provisions of the
Bill of Rights, was enacted to allay lingering concerns about the extent of national power.");
see
also
United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J., concurring); United States v.
Morrison, 529 U.S. 598, 648 (2000) (Souter, J., dissenting).

118
Texas Law Review
[Vol. 83:___

the Ninth, not the Tenth, that literally provides a rule of interpretation
limiting the construction of enumerated federal power in order to protect the
retained right of the people to local self-government.532 The idea that
contemporary courts would cite the Ninth Amendment in support of
federalism may seem farfetched. Nevertheless, should they choose to do so,
there is a substantial body of case law upon which they could rely.
My purpose in writing this Article and its companion has been to
recover history, not establish contemporary meaning. Even if these articles
have established the original meaning of the Ninth Amendment, there
remains the difficult issue of reconciling the original understanding of the
Ninth with the Fourteenth Amendment and the dramatic New Deal expansion
of federal power. It is possible, for example, that both the Ninth and Tenth
Amendments ceased to have any operative effect after the reconfiguration of
federal and state power that occurred in 1868 or, perhaps, in 1937. Perhaps
the Ninth
is but a truism. But before we too quickly consign the Ninth
Amendment to the dustbin of history, we would do well to recall the
prescient words of Justice Goldberg who reminded us that "since 1791 [the
Ninth] has been a basic part of the Constitution which we are sworn to
uphold."533 His words were truer than he knew, as we now can see in the
recovered jurisprudence of the Ninth Amendment.

532. The fact that these cases are related to the Tenth Amendment, but not actually based on its
text, has been noted by both Justices favoring and opposing the modern Court's federalism
jurisprudence.
See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 585 (1985)
(O'Connor, J., dissenting) ("The
spirit of the Tenth Amendment, of course, is that the States will
retain their integrity in a system in which the laws of the United States are nevertheless supreme.");
New York v. United States, 505 U.S. 144, 156�57 (1992) (O'Connor, J.) ("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.");
Morrison , 529 U.S. at 648 n.18 (2000) (Souter, J., dissenting) (pointing out that the majority's
"special solicitude for `areas of traditional state regulation'" was "founded not on the text of the
Constitution but on what has been termed the
spirit of the Tenth Amendment." (quoting Justice
O'Connor's dissent in
Garcia )).
533. Griswold v. Connecticut, 381 U.S. 479, 491 (1965) (Goldberg, J., concurring).