Volume 83, Number 2, December 2004

Articles

The Lost Original Meaning of the Ninth Amendment

Kurt T. Lash*

This Article presents previously missed or unrecognized evidence regarding the original
meaning of the Ninth Amendment. Obscured by the contemporary assumption that the Ninth
Amendment is about rights while the Tenth Amendment is about powers, the historical roots of
the Ninth Amendment can be found in the state ratification convention demands for a
constitutional amendment prohibiting the constructive enlargement of federal power. James
Madison's initial draft of the Ninth Amendment expressly adopted language suggested by the
state conventions, and he insisted that the final draft expressed the same rule of construction
desired by the states. The altered language of the final draft, however, prompted former
Virginia Governor Edmund Randolph to halt his state's efforts to ratify the Bill of Rights due
to his concern that the Ninth no longer reflected the demands of the state convention.
Antifederalists used Randolph's concerns to delay Virginia's, and thus the country's,
ratification of the Bill of Rights for two years. While ratification remained pending in
Virginia, Madison delivered a major speech in the House of Representatives explaining that
the origin and meaning of the Ninth Amendment in fact were rooted in the proposals of the
state conventions and that the Ninth guarded against a "latitude of interpretation" to the
injury of the states. Although the Ninth's rule of construction distinguishes it from the Tenth
Amendment's declaration of principle, Madison and other legal writers at the time of the
Founding viewed the Ninth and Tenth Amendments as twin guardians of our federalist
structure of government. Over time, the Tenth Amendment also came to be understood as
expressing a federalist rule of construction. The original federalist view of the Ninth
Amendment, however, remained constant and was repeated by bench and bar for more than
one hundred years.

I. Introduction.................................................................................................................. 333
II.
The Text and General Theories of the Ninth Amendment ........................................... 339
A. The
Text ............................................................................................................. 340
B. Theories
of
the
Ninth Amendment ..................................................................... 343
III. The Drafting of the Ninth Amendment ........................................................................ 348
A. The
Traditional Story ......................................................................................... 348
B.
The Call for a Rule of Interpretation .................................................................. 350
1.
Antifederalist Concerns about Constitutional Interpretation..................... 351

* Professor of Law and W. Joseph Ford Fellow, Loyola Law School, Los Angeles. B.A.,
1989, Whitman College; J.D., 1992, Yale Law School. The author thanks Theodore Seto, Rick
Hasen, Allan Ides, and David Leonard for their willingness to review and comment on drafts of this
project. Saul Cornell, Mike Rappaport, and Mark Scarberry also provided timely and helpful
suggestions. Finally, the author is particularly indebted to the friendship and insights of Lawrence
Solum who provided critical feedback at every stage.
332
Texas Law Review
[Vol. 83:331

2.
The Declarations and Proposals of the State Ratifying Conventions ........ 355
3.
Preventing the Constructive Extension of Federal Power ......................... 358
IV. The Drafting of the Ninth Amendment ........................................................................ 360
A. Madison's
Initial Draft ....................................................................................... 360
B. The
Select Committee ........................................................................................ 362
1. Sherman's
Draft
Bill of Rights ................................................................. 362
2.
The Altered Draft of the Select Committee .............................................. 368
3.
Popular Sovereignty and the Tenth Amendment ...................................... 369
C.
The Missing Virginia Ratification Debate.......................................................... 371
1.
The Letters of Hardin Burnley and James Madison.................................. 371
2. Edmund
Randolph's Complaint................................................................ 375
3. The
Virginia
Senate Report ...................................................................... 379
D.
Madison's Speech on the Constitutionality of the Bank of the United States..... 384
1.
Madison's Argument Regarding the Proper Rules of Constitutional
Interpretation............................................................................................. 387
2.
The Original Understanding of the State Conventions.............................. 391
3.
The Significance of the Bank Speech ....................................................... 392
V.
The Original Meaning of the Ninth Amendment ......................................................... 394
A.
A Federalism-Based Rule of Construction ......................................................... 394
B.
Applying the Ninth Amendment ........................................................................ 399
C.
Natural Rights and the Ninth Amendment.......................................................... 401
1. Calder
v. Bull............................................................................................ 403
2. Fletcher
v. Peck ........................................................................................ 406
3.
Society for the Propagation of the Gospel v. Wheeler .............................. 409
D.
The Rise of the Tenth Amendment as a Rule of Construction............................ 410
1.
The Alien and Sedition Acts and Madison's Report of 1800.................... 410
2.
The Tenth Amendment as a Rule of Construction .................................... 413
3.
Marshall v. Madison: McCulloch v. Maryland ......................................... 414
VI. Losing the History of the Ninth Amendment ............................................................... 422
VII. Epilogue ....................................................................................................................... 428
















2004]
The Lost Original Meaning
333

I.
Introduction
In the fall of 1789, former Virginia Governor Edmund Randolph
brought to a halt the Virginia Assembly's efforts to ratify the Bill of Rights
due to his concerns about the Ninth Amendment.1 State conventions
considering the ratification of the Constitution, including the convention in
Virginia, had insisted that an amendment be added to the document
controlling the "constructive enlargement" of federal power.2 Madison's
original draft of the Ninth Amendment expressly echoed these concerns.3
The final version of the Ninth, however, looked nothing like the version
proposed by Virginia and the other state conventions,4 and concerns about
the alteration led Randolph to oppose the ratification of both the Ninth and
Tenth Amendments.5 Because these two amendments were critical to
gaining support for the rest of the Bill, the entire Virginia ratification process
ground to a halt. Letters flew to James Madison telling him about the trouble
in Virginia, and Madison dutifully reported the events to President
Washington.6 Madison was baffled: The final draft of the Ninth
accomplished exactly what Virginia desired.7 Unconvinced, the Virginia
Assembly remained stalled, and the Antifederalists managed to exploit
Randolph's concerns about the Ninth and delay Virginia's (and thus the
country's) ratification of the Bill of Rights for two years.8 During that time,
Madison gave a major speech before the House of Representatives opposing

1. See Letter from Edward Carrington to James Madison (Dec. 20, 1789), in 5 DOCUMENTARY
HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1786�1870, at 228 (F. B.
Rothman 1998) (1901) [hereinafter 5 DOCUMENTARY HISTORY] (indicating that Randolph objected
to both the Ninth and Tenth Amendments); see also Letter from Edmund Randolph to George
Washington (Nov. 26, 1789), in 5 DOCUMENTARY HISTORY, supra, at 216 (discussing his support
of the rejection of both the Ninth and Tenth Amendments).
2. Amendments Proposed by the Virginia Convention (June 27, 1788), in CREATING THE BILL
OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 21 (Helen E. Veit
et al. eds., 1991) [hereinafter CREATING THE BILL OF RIGHTS].
3. James Madison, Speech in Congress Proposing Constitutional Amendments (June 8, 1789),
in JAMES MADISON, WRITINGS 443 (Jack N. Rakove ed., 1999) [hereinafter JAMES MADISON,
WRITINGS].
4. See infra notes 171�80 and accompanying text.
5. See Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 219 (noting the rejection of the Ninth and Tenth Amendments (referred
to as the Eleventh and Twelfth) by Randolph and predicting that the rejection will jeopardize the
adoption of the remaining amendments).
6. Letter from Hardin Burnley to James Madison (Nov. 5, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 214; Letter from James Madison to The President of the United States
(Nov. 20, 1789), in 5 DOCUMENTARY HISTORY, supra note 1, at 215.
7. See Letter from James Madison to George Washington (Dec. 5, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 221�22 (arguing that any distinction between retaining rights and
granting powers is "altogether fanciful").
8. See LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS 42�43 (1999) (describing the
struggle and ultimate ratification of the Bill of Rights in the Virginia Senate).
334
Texas Law Review
[Vol. 83:331

the creation of the Bank of the United States.9 In that speech, Madison
explained the meaning of the Ninth Amendment and its roots in the
declarations and proposals of state ratifying conventions.10 A few months
later, Virginia voted in favor of ratification, and the Bill of Rights was added
to the Constitution.11
This account cannot be found in any history of the Ninth Amendment.12
The events themselves are easily verified by consulting the original sources.
Those sources, however, are missing in major compilations of the documen-
tary history of the Ninth Amendment.13 The precursors to the Ninth
Amendment--the proposals submitted by the state ratification conventions
upon which Madison based his draft--are either not discussed,14 missing,15

9. James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791), in JAMES
MADISON, WRITINGS, supra note 3, at 480.
10. Id. at 88�90.
11. See Letter from George Washington to the Senate and House of Representatives (Dec. 30,
1791), in 5 DOCUMENTARY HISTORY, supra note 1, at 245 (sending confirmation of Virginia's vote
to ratify the Bill of Rights).
12. The following are major scholarly discussions of the Ninth Amendment. Although some
aspects of this history can be found in these works, none of them discusses the concerns of the
Virginia Assembly or recognizes that Virginia's concerns about the Ninth Amendment delayed the
ratification of the Bill of Rights. See RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION:
THE PRESUMPTION OF LIBERTY (2004) [hereinafter BARNETT, RESTORING THE LOST
CONSTITUTION]; ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF
THE LAW (1990); EDWARD DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY
(1957); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980);
CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH AMENDMENT AND THE CONSTITUTION'S
UNENUMERATED RIGHTS (1995); THOMAS B. MCAFFEE, INHERENT RIGHTS, THE WRITTEN
CONSTITUTION, AND POPULAR SOVEREIGNTY: THE FOUNDERS' UNDERSTANDING (2000);
BENNETT B. PATTERSON, THE FORGOTTEN NINTH AMENDMENT (1955); 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 (2000); Raoul Berger, The Ninth Amendment, 66 CORNELL L. REV. 1
(1980) [hereinafter Berger, The Ninth Amendment]; Russell L. Caplan, The History and Meaning of
the Ninth Amendment
, 69 VA. L. REV. 223 (1983); Knowlton H. Kelsey, The Ninth Amendment of
the Federal Constitution
, 11 IND. L.J. 309 (1936); Mark C. Niles, Ninth Amendment Adjudication:
An Alternative to Substantive Due Process Analysis of Personal Autonomy Rights
, 48 UCLA L.
REV. 85 (2000); Norman Redlich, Are There Certain Rights . . . Retained by the People?, 37 N.Y.U.
L. REV. 787 (1962); Chase J. Sanders, Ninth Life: An Interpretive Theory of the Ninth Amendment,
69 IND. L.J. 759 (1994); Suzanne Sherry, The Founders' Unwritten Constitution, 54 U. CHI. L. REV.
1127 (1987) [hereinafter Sherry, The Founders' Unwritten Constitution]; Eugene M. Van Loan III,
Natural Rights and the Ninth Amendment, 48 B.U. L. REV. 1 (1968).
13. For example, the Virginia debate is missing from two of the most relied upon compilations
of historical documents relating to the adoption of the Bill of Rights. See THE FOUNDERS'
CONSTITUTION (Philip B. Kurland & Ralph Lerner eds., 1987); THE COMPLETE BILL OF RIGHTS:
THE DRAFTS, DEBATES, SOURCES AND ORIGINS (Neil H. Cogan ed., 1997) [hereinafter THE
COMPLETE BILL OF RIGHTS]. For a discussion of Ninth Amendment omissions in these works, see
infra notes 300, 448, 453�56 and accompanying text.
14. In his most recent book, Restoring the Lost Constitution, Ninth Amendment scholar Randy
Barnett points out the importance of considering amendments proposed by the states in determining
the original meaning of the Constitution. BARNETT, RESTORING THE LOST CONSTITUTION, supra
note 12, at 68�69. Barnett does not, however, discuss any version of the Ninth Amendment
proposed by the states. Id. at 246�47. In his earlier two-volume collection of essays on the Ninth
Amendment, The Rights Retained by the People, Professor Barnett provided an appendix listing all
2004]
The Lost Original Meaning
335

or mislabeled16 throughout contemporary scholarship. Although letters
triggered by the debate in the Virginia Assembly have been discussed,17 no
work on the Ninth Amendment has investigated the debate itself.18
Madison's speech before the House of Representatives on the Bank of the
United States remains missing from major compilations of original sources
regarding the Ninth Amendment.19 Although some scholars have addressed
portions of this speech,20 Madison's discussion of the Ninth Amendment's
roots in the state convention proposals has been completely missed. Other

of the proposed amendments to the Constitution submitted by the state ratifying conventions. See 1
RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT 353
(Randy Barnett ed., 1989) [hereinafter RIGHTS RETAINED BY THE PEOPLE]. However, neither the
appendix nor Barnett's own essays in the collection identify which (if any) of the state proposals
relate to the Ninth Amendment.
15. Kurland and Lerner's The Founders' Constitution lists state convention proposals regarding
other provisions of the Bill of Rights, such as the First Amendment's Religion and Speech Clauses.
See, e.g., Debate in the North Carolina Ratifying Convention (July 30, 1788), in 5 THE FOUNDERS'
CONSTITUTION, supra note 13, at 89. No such proposals are listed for the Ninth Amendment. See
id. at 388 (listing the documents contained in the Ninth Amendment section).
16. Works that do link certain proposals to the Ninth Amendment often mislabel them,
erroneously treating provisions which refer to limited federal power as relating to the Tenth
Amendment, while labeling declarations of natural rights as relating to the Ninth. See infra Part VI.
17. Clues to the Virginia debate can be found in James Madison's correspondence with George
Washington and Virginia delegate Hardin Burnley. See infra section IV(C)(1). Most major works
on the Ninth Amendment acknowledge this correspondence, but they uniformly fail to investigate
the actual debate in the Virginia Assembly. E.g., BARNETT, RESTORING THE LOST CONSTITUTION,
supra note 12, at 269�71; LEVY, supra note 8, at 256�59; MCAFFEE, supra note 12, at 145�47.
18. In his book, Origins of the Bill of Rights, Leonard Levy notes Virginia's concerns about the
Ninth and Tenth Amendments, as well as Madison's puzzlement. LEVY, supra note 8, at 256�59.
However, Levy does not investigate the actual nature of Virginia's concerns, instead characterizing
their reasoning as "confused." Id. at 257. Levy appears to have based his analysis, as do the
authors cited previously, solely on the letters of James Madison and Hardin Burnley.
19. Neither Neil Cogan's The Complete Bill of Rights nor Kurland and Lerner's The Founders'
Constitution includes Madison's speech on the Bank of the United States in their sections dealing
with the Ninth Amendment. Cogan does not include the speech in any of his materials, while
Kurland and Lerner place portions of the speech in their section on the Necessary and Proper Clause
with Madison's specific reference to the Ninth Amendment edited out. See James Madison, The
Bank Bill, House of Representatives (Feb. 2, 1791), in 3 THE FOUNDERS' CONSTITUTION, supra
note 13, at 244�45. See generally THE COMPLETE BILL OF RIGHTS, supra note 13.
20. In his early work, Professor Randy Barnett argued that Madison's speech supports an
individual natural rights reading of the Ninth Amendment. His argument focuses on a single
sentence in Madison's speech where Madison stated that the bank monopoly "affects the equal
rights
of every citizen." See 2 RIGHTS RETAINED BY THE PEOPLE, supra note 14, at 15. David
Mayer has essentially echoed Barnett's argument. See David N. Mayer, The Natural Rights Basis of
the Ninth Amendment: A Reply to Professor McAffee
, 16 S. ILL. U. L.J. 313, 318�19 (1992)
(analyzing Madison's use of the Ninth and Tenth Amendments in the debate over the national bank
bill). In his most recent work, Randy Barnett does not expressly repeat the "equal rights" argument,
but nevertheless still appears to believe that Madison's speech supports an unenumerated individual
natural rights reading of the Ninth Amendment. See BARNETT, RESTORING THE LOST
CONSTITUTION, supra note 12, at 240. The evidence discussed in this Article, however, calls into
question this reading of Madison's speech. See infra section IV(B)(1).
336
Texas Law Review
[Vol. 83:331

scholarly works place Madison's speech in a context having nothing to do
with the Ninth Amendment, editing out his specific mention of the Ninth.21
The history of the Ninth Amendment has not been completely missed,
but it has been broken apart and scattered. Once the pieces of this historical
puzzle are properly labeled and brought together, a picture emerges which
suggests that it was no accident that the Ninth Amendment was placed along-
side the Tenth. Both provisions originally guarded the federalist structure of
the Constitution. The Tenth's declaration that all nondelegated and
nonprohibited powers are reserved to the states assures that the federal
government exercises only enumerated delegated powers. This declaration,
however, does not prevent expansive interpretations of enumerated federal
powers--interpretations which, if broad enough, would render meaningless
the Tenth's reservation of powers to the states (state power having been
supplanted by federal action). The danger of expansive interpretations of
federal power did not escape the members of the state ratifying conventions
who considered the original Constitution, and they insisted on adding a rule
of construction that limited the interpretation of enumerated federal power.
James Madison complied by drafting the Ninth Amendment. According to
Madison, the purpose of the Ninth Amendment was to "[guard] against a
latitude of interpretation" while the Tenth Amendment "exclud[ed] every
source of power not within the constitution itself."22
The first of two articles on the lost history of the Ninth Amendment,
The Lost Original Meaning, starts at the beginning. Part II considers the text
of the Ninth Amendment and the two general theories which have emerged
regarding its original meaning. Part III revisits the historical record and
focuses on the unique text of the Ninth Amendment that controls judicial
interpretation, or "construction," of the Constitution. The roots of this
provision are found in the writings of the Antifederalists who raised concerns
about federal courts engaging in "latitudinarian interpretations" of federal
power. These concerns were picked up by the state ratifying conventions,
many of which submitted proposed amendments to the Constitution
expressly prohibiting the constructive enlargement of federal power.

21. Kurland and Lerner in The Founders' Constitution place a large excerpt from Madison's
speech on the Bank Bill in materials relating to the Necessary and Proper Clause. 3 THE
FOUNDERS' CONSTITUTION, supra note 13, at 244�45. The excerpt does not include Madison's
reference to the Ninth Amendment. Compare id., with JAMES MADISON, WRITINGS, supra note 3,
at 489. The one constitutional law textbook to include substantial portions of Madison's speech on
the Bank Bill also omits Madison's reference to the Ninth Amendment. See PAUL BREST ET AL.,
PROCESSES OF CONSTITUTIONAL DECISIONMAKING 8�11 (4th ed. 2000). Gerald Gunther and
Kathleen Sullivan include a fairly extensive discussion of the bank controversy and excerpts from
the Jefferson-Hamilton debate, but make no mention of Madison's speech. See GERALD GUNTHER
& KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 97 (14th ed. 2001). Laurence Tribe follows
the same approach, citing the Jefferson-Hamilton debate, but failing to mention Madison's speech
or his reference to the Ninth Amendment. 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL
LAW 799 (3d ed. 2000).
22. JAMES MADISON, WRITINGS, supra note 3, at 489.
2004]
The Lost Original Meaning
337

Part IV focuses on James Madison and the drafting of the Ninth
Amendment. Fulfilling a promise to his own state convention, Madison's
draft of the Ninth Amendment contained a rule of interpretation expressly
limiting the constructive enlargement of federal power and preserving the
retained rights of the people. When the language regarding the construction
of federal power was removed from the final draft, this triggered concerns in
the Virginia Assembly that Congress had ignored the demands of the states.
Receiving word about the delay in Virginia's ratification, Madison wrote to
fellow Virginian George Washington and declared that Virginia's concerns
were fanciful--the final draft continued to express the same rule of
construction desired by Virginia and the other states. Prohibiting
constructions that disparaged retained rights amounted to the same thing as
prohibiting constructions that enlarged federal powers. Although Edmund
Randolph and the Virginia House soon withdrew their objections, the
Antifederalists in the Virginia Senate seized upon Randolph's concerns and
managed to delay ratification for two years. The Report of the Virginia
Senate, missing from all previous accounts of the Ninth Amendment,
explains the Senate's objections to the Ninth and sheds important light on
Randolph's concerns and the responses of Hardin Burnley and James
Madison.
While the Bill of Rights remained pending in Virginia, James Madison
delivered an important speech on the constitutionality of the proposed Bank
of the United States. In his speech before the House of Representatives,
Madison argued that federal power could not legitimately be construed to
include the power to charter the bank. Recounting the concerns of the state
conventions regarding expansive interpretations of federal power at the
expense of the states, Madison argued that the Constitution had been ratified
with the understanding that constructive enlargement of federal power was
prohibited. Madison concluded by noting that the Ninth and Tenth
Amendments were added specifically to address these concerns, with the
Ninth guarding against "a latitude of interpretation" and the Tenth declaring
the principle of delegated power. Madison's speech removed any ambiguity
regarding his understanding of the Ninth Amendment, and the Virginia
Assembly was entitled to rely on Madison's description of the Ninth when,
only a few months later, it ratified the Bill of Rights.
Having restored key pieces of the history of the Ninth Amendment, Part
V traces a theory of the Ninth Amendment as it likely would have been
understood by the Founders. This Part concludes by considering the
relationship between the federalism-based Ninth Amendment and the
Founders' widespread belief in natural rights. Although the Founding
generation believed in natural rights "retained by the people," the
identification and protection of such rights were a matter of local concern.
The Ninth and Tenth Amendments declare that all nondelegated powers and
338
Texas Law Review
[Vol. 83:331

rights are retained by the people who may delegate them to their respective
state governments as they see fit. The Ninth Amendment prevents the
nationalization of these powers and rights through expansive readings of the
Constitution. Early natural rights opinions by the Supreme Court follow this
approach, with the Court discussing natural rights as a matter of state law
when hearing diversity appeals from lower federal courts, but avoiding
natural rights holdings when hearing federal question appeals under section
25 of the original Judiciary Act.
Part V also considers the rise of the Tenth Amendment as a rule of
construction analogous to the Ninth. Having taken center stage in the
controversy over the Alien and Sedition Acts, the Tenth Amendment also
came to be understood as limiting the construction of federal power. By the
time of McCulloch v. Maryland,23 arguments denying federal power to
charter a bank focused on the Tenth instead of the Ninth Amendment as a
limiting rule of construction and, perhaps for that reason, were easily
dismissed by John Marshall in his opinion upholding the national bank.
Finally, Part VI explores how key elements of the historical roots of the
Ninth Amendment are missing, mislabeled, or misconstrued in major works
of constitutional history.
In a second Article, The Lost Jurisprudence of the Ninth Amendment,24 I
reveal the extensive and, until now, mostly unknown case law dealing with
the Ninth Amendment. That Article follows the interpretation and
application of the Ninth as a federalist rule of construction from the earliest
opinions of the Supreme Court, through antebellum America, the Progressive
Era, and into the era of the New Deal. In addition to revealing the lost
jurisprudence of the Ninth, the second Article addresses the historical
relationship between the Ninth and Fourteenth Amendments.
The lost history presented in these two Articles includes both newly
discovered historical material and a re-evaluation of materials long known
and discussed. In particular, the debate in the Virginia Assembly regarding
the Ninth Amendment, including the Virginia Senate's Majority and
Minority Report, have gone unnoticed despite the fact that they specifically
involve public debates regarding the Ninth Amendment during the critical
period of ratification. Also newly presented is James Madison's draft veto of
the Bank Bill and references to the historical roots of the Ninth Amendment
in his bank speech, which, until now, have gone unnoticed. Other material
discussed in this Article is not new and has been available for some time, but
has been often ignored or mislabeled. The state convention declarations and
proposed amendments fall into this category. Finally, in light of this new and
newly appreciated evidence, it is possible to take a new look at historical

23. 17 U.S. (4 Wheat.) 316 (1819).
24. Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 TEXAS L. REV.
(forthcoming Feb. 2005) [hereinafter Lash, The Lost Jurisprudence].
2004]
The Lost Original Meaning
339

materials that have been both known and discussed, but under the erroneous
assumption that all Founding-era discussions of rights go to the Ninth
Amendment while all discussions of power go to the Tenth. A clearer
understanding of evidence long known, then, also constitutes part of the lost
history of the Ninth Amendment.
In the end, given the work done by so many, particularly in regard to the
Bill of Rights, no presentation of the original meaning of the Constitution can
be completely new. This Article and its companion build upon important
scholarship undertaken by legal historians, many of whose early insights are
supported by the evidence now brought to light. Nevertheless, these two
Articles bring together lost and scattered pieces of history in order to bring
into better focus an Amendment that, from an historical perspective, has had
remarkably bad luck for over two hundred years.
II. The Text and General Theories of the Ninth Amendment
As an effort to uncover original meaning, the approach of this Article
will mirror the general approach of contemporary originalist scholarship.
The search for the original meaning of the Constitution plays a crucial role in
much of the Supreme Court's jurisprudence, and despite decades of
controversy in academia, originalism remains an influential area of
constitutional scholarship.25 Out of the scholarly debates of the last few
decades has emerged a more sophisticated form of originalism that seeks to
identify not the "original intent" of the Framers, but the "original meaning"
of the Constitution as it was understood by those who debated and ratified
the text.26 This approach draws upon theories of popular sovereignty
developed by constitutional theorists such as Akhil Amar,27 Bruce
Ackerman,28 and Keith Whittington.29 An originalism based on the theory of
popular sovereignty seeks to recover, to the degree possible, the likely public
understanding of texts intended to represent the people's fundamental law.30
There is no pretense here of recovering a single uniform understanding of the
Ninth Amendment. Instead, historical evidence may allow us to conclude

25. For a fine discussion of contemporary originalism, see generally KEITH E. WHITTINGTON,
CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL
REVIEW (1999).
26. See Randy E. Barnett, An Originalism for NonOriginalists, 45 LOY. L. REV. 611, 620�29
(1999) (describing "New Originalism" as the shift in originalist arguments from original intention to
original meaning).
27. See generally AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND
RECONSTRUCTION (1998).
28. See generally BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991) [hereinafter
ACKERMAN, WE THE PEOPLE I]; BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1991)
[hereinafter ACKERMAN, WE THE PEOPLE II].
29. See generally WHITTINGTON, supra note 25.
30. For an excellent presentation of the historic roots of popular sovereignty and the role the
theory played in the adoption of the federal Constitution, see generally GORDON S. WOOD, THE
CREATION OF THE AMERICAN REPUBLIC: 1776�1787 (1998).
340
Texas Law Review
[Vol. 83:331

that some core meanings were more likely shared by the general public than
others. Historical evidence also may allow us to conclude that some
understandings of the Ninth Amendment were most likely not the original
understanding of the majority of those who ratified the Ninth Amendment.
Popular sovereignty-based theories of originalism must be distinguished
from interpretive theories that equate modern constitutional meaning with
original meaning. A sovereign people retain the right to alter or abolish their
form of government as they see fit.31 Thus, whatever may have been the
original understanding of the Ninth Amendment, the people may have altered
or abolished that understanding in the years which followed its original
adoption. For example, although the Bill of Rights originally bound only the
federal government, later provisions such as the Fourteenth Amendment
added critical restrictions on state governments. An originalist theory of
interpretation based on popular sovereignty therefore must consider the
potential impact of later amendments on the scope and application of the
Ninth Amendment.32 Whatever its original meaning, that meaning may have
been altered by the People themselves through later amendments.

Accordingly, this Article looks at the original meaning of the Ninth
Amendment, while the second of these two Articles will address the potential
impact of the Fourteenth.
A. The Text
The enumeration in the Constitution of certain rights shall not be
construed to deny or disparage others retained by the people.33
The Ninth Amendment is solely concerned with constitutional
interpretation.34 It is neither a grant of power nor a source of rights.35 It

31. See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) ("Governments are instituted
among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form
of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish
it, and to institute new Government . . . ."); see also AMAR, supra note 27, at 119�22 (arguing that
the references to the "people" in the Preamble of the Constitution and the Bill of Rights reflect the
fundamental rights of the people to alter or abolish their constitution).
32. See AMAR, supra note 27, at 163�80 (reconciling the original meaning of the Bill of Rights
with the original meaning of the Fourteenth Amendment); see also Kurt T. Lash, The Second
Adoption of the Establishment Clause: The Rise of Non-Establishment 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 Exemption under the Fourteenth
Amendment
, 88 NW. U. L. REV. 1106 (1994) [hereinafter Lash, The Second Adoption of the Free
Exercise Clause
] (considering the impact of the Fourteenth Amendment on the original meaning of
the religion clauses). See generally ACKERMAN, WE THE PEOPLE I, supra note 28, at 41;
ACKERMAN, WE THE PEOPLE II, supra note 28 (reconciling what Ackerman refers to as three
"Constitutional moments," the Founding, Reconstruction, and the New Deal).
33. U.S. CONST. amend. IX.
34. The Ninth is one of only two provisions in the Constitution solely concerned with issues of
interpretation. The other is the Eleventh Amendment. Although it is possible to view the Necessary
and Proper Clause as a rule of interpretation, the clause is phrased in terms of power, not
interpretation, as are the Ninth and Eleventh Amendments. See U.S. CONST. art. I, � 8, cl. 18 ("The
2004]
The Lost Original Meaning
341

merely forbids a particular "construction" of the Constitution: The
enumeration of certain rights may not be construed in a manner disparaging
other retained rights. Note that the "enumerated rights" referred to go
beyond those enumerated in the Bill of Rights. When the Ninth Amendment
was ratified in 1791, rights enumerated in the Constitution included those
listed in Article I, Sections 9 and 10, such as the right to the great Writ of
Habeas Corpus36 and the right against the impairment of contracts.37 Neither
these nor any other rights enumerated in the Constitution are to be construed
in the forbidden manner.
Debates over the meaning of the Ninth Amendment generally focus on
the "other rights" retained by the people. Although this Article will address
those rights as we proceed, it is helpful first to consider the phrase that closes
the Ninth Amendment. The Ninth prevents a construction that denies or dis-
parages other rights "retained by the people."38 This language echoes
language that closes the Tenth Amendment, whereby certain powers are
reserved "to the people."39 Scholars have identified the term "the people," as
used in the Bill of Rights and in the Preamble of the Constitution, as an
expression of popular sovereignty--the idea that ultimate authority is
retained by the people who may alter or abolish their system of government
as they see fit.40 The fact that the Ninth and Tenth Amendments close with
the same expression of popular sovereignty suggests a degree of kinship
between the two amendments.
The Tenth Amendment states that "[t]he 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."41 By reserving power
to the "States respectively or to the people," the Tenth Amendment expresses
the idea that the people have the authority to delegate reserved powers to
their respective state governments or reserve such power to themselves, thus
denying it to either federal or state governments. As James Wilson put it in
the Pennsylvania ratifying convention:
When the principle is once settled that the people are the source of
authority, the consequence is, that they may take from the subordinate

Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying
into execution the foregoing powers . . . .").
35. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 776 n.14 (2d ed. 1988) ("It is
a common error, but an error nonetheless, to talk of `ninth amendment rights.' The ninth
amendment is not a source of rights as such; it is simply a rule about how to read the
Constitution.").
36. U.S. CONST. art. I, � 9.
37. U.S. CONST. art. I, � 10.
38. U.S. CONST. amend. IX (emphasis added).
39. U.S. CONST. amend. X.
40. See, e.g., AMAR, supra note 27, at 119�22.
41. U.S. CONST. amend. X.
342
Texas Law Review
[Vol. 83:331

governments powers with which they have hitherto trusted them, and
place those powers in the general government, if it is thought that
there they will be productive of more good. They can distribute one
portion of power to the more contracted circle, called state
governments; they can also furnish another proportion to the
government of the United States.42
In his Commentaries on the Constitution, Joseph Story echoes Wilson's
reading of Tenth Amendment popular sovereignty:
Being an instrument of limited and enumerated powers, it follows
irresistibly, that what is not conferred, is withheld, and belongs to the
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.43
Under the Tenth Amendment, powers are reserved to either the states
respectively or to the people. The Ninth Amendment, on the other hand,
does not speak of the retained rights of states or the people. It speaks only of
other rights retained by the people. This could be read to suggest that
retained rights are those which are assigned to neither the federal or state
governments. For example, other rights could include so-called "natural
rights" which many Founders believed were beyond the legitimate reach of
any government, state or federal.44 On the other hand, retained rights may
have been subject to being assigned to the people's respective state govern-
ments, just as reserved powers were subject to such assignment. For
example, the original Establishment Clause prohibited any federal
establishment of religion, but the people of each state remained free to
establish religion if they wished to do so (and many did for years following
the adoption of the First Amendment).45 The retained rights of the Ninth
Amendment also may have been understood as being subject to the collective
action of the people on a state-by-state basis.

42. James Wilson, Speech in Pennsylvania Convention (Dec. 1, 1787), in 2 THE DEBATES IN
THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS
RECOMMENDED BY THE GENERAL CONVENTION IN PHILADELPHIA, IN 1787, at 443�44 (Jonathan
Elliot ed., 2d ed. 1891) [hereinafter ELLIOT'S DEBATES].
43. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 712
(Carolina Academic Press 1987) (1833) (capitalization in original).
44. See, e.g., BARNETT, RESTORING THE LOST CONSTITUTION, supra note 12, at 44, 54�60
(explaining the historical understanding of natural rights as "rights persons have independent of
those they are granted by government and by which the justice or propriety of governmental
commands are to be judged").
45. See AMAR, supra note 27, at 32�33 (discussing the Establishment Clause's prohibition of a
nationally established church and noting that in 1789 at least six states had government-supported
churches).
2004]
The Lost Original Meaning
343

B. Theories of the Ninth Amendment
Different theories have emerged which seek to answer the questions left
open by the text of the Ninth Amendment. These theories fall into two
general categories. One approach reads the Ninth as focused on the
protection of unenumerated individual rights.46 The other approach links the
Ninth with the Tenth Amendment and views it as expressing the limited
powers of the federal government.47 The former, Libertarian reading of the
Ninth views it as supporting judicial enforcement of unenumerated rights,
while the latter, federalist reading views the Ninth as a passive expression of
limited government power.
Libertarian theories of the Ninth Amendment read the text as justifying
judicial enforcement of other rights beyond those enumerated in the
Constitution.48 In support of this reading, Libertarian scholars point out that

46. See Massey, supra note 12, at 213 ("The Ninth Amendment provides the best textual
justification for recognition of unenumerated rights."); Randy E. Barnett, James Madison's Ninth
Amendment
, in 1 RIGHTS RETAINED BY THE PEOPLE, supra note 14, at 41 ("[T]he Ninth
Amendment can be viewed as establishing a general constitutional presumption in favor of
individual liberty. . . . [T]he unenumerated rights of the Ninth Amendment that protect individual
liberty operate identically to enumerated rights."); Thomas C. Grey, The Original Understanding
and the Unwritten Constitution
, in TOWARD A MORE PERFECT UNION: SIX ESSAYS ON THE
CONSTITUTION 145, 162�67 (Neil L. York ed., 1988); John Kaminski, Restoring the Declaration of
Independence: Natural Rights and the Ninth Amendment
, in THE BILL OF RIGHTS 150 (John Kukla
ed., 1987) ("[T]he Ninth Amendment stands as a silent sentinel guarding liberties not otherwise
named in the Constitution."); Niles, supra note 12, at 119 ("One express goal of the Ninth
Amendment, therefore, was to ensure that the listing of a limited set of rights would not undermine
any rights that also deserved protection but were not listed for whatever reason."); Lawrence G.
Sager, You Can Raise the First, Hide Behind the Fourth, and Plead the Fifth. But What on Earth
Can You Do with the Ninth Amendment?
, 64 CHI.-KENT L. REV. 239, 240 (1988) ("[T]he
amendment announces that there are valid claims of constitutional right which are not explicitly
manifest in the liberty-bearing provisions of the Constitution but which enjoy the same status as do
those made explicit in the text."); Sherry, The Founders' Unwritten Constitution, supra note 12, at
1166 ("[B]oth the ninth amendment itself and the debates over other amendments confirm that the
founding generation envisioned natural rights beyond those protected by the first eight
amendments. . . . [T]he framers of the Bill of Rights did not expect the Constitution to be read as the
sole source of fundamental law.").
47. See, e.g., Raoul Berger, The Ninth Amendment as Perceived by Randy Barnett, 88 NW. U.
L. REV. 1508, 1534 (1994) ("To retain is to keep; hence the retained unenumerated rights were not
embodied in the Constitution and are therefore outside the federal jurisdiction altogether."); Charles
J. Cooper, Limited Government and Individual Liberty: The Ninth Amendment's Forgotten Lessons,
4 J.L. & POL. 63, 64 (1987) ("The ninth amendment is a rule of constitutional construction designed
to protect `residual' rights that exist by virtue of the fact that the federal government has only
limited powers."); Thomas B. McAffee, The Bill of Rights, Social Contract Theory, and the Rights
"Retained" by the People
, 16 S. ILL. U. L.J. 267, 268 (1992) ("[H]istorical evidence shows that the
other rights `retained' by the people are those which the framers of the proposed Constitution
sought to secure by the granting of specified and limited powers to the national government."); see
also Caplan, supra note 12, at 228 ("[The Ninth Amendment] simply provides that the individual
rights contained in state law are to continue in force under the Constitution until modified or
eliminated by state enactment, by federal preemption, or by a judicial determination of
unconstitutionality.").
48. See Griswold v. Connecticut, 381 U.S. 479, 492 (1965) (Goldberg, J., concurring) ("[T]he
Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are
344
Texas Law Review
[Vol. 83:331

the Founders' conception of rights went well beyond those few listed in the
first eight amendments to the Constitution.49 Such rights, declared James
Iredell in the North Carolina ratifying convention, were incapable of
exhaustive enumeration:
[I]t would be not only useless, but dangerous, to enumerate a number
of rights which are not intended to be given up; because it would be
implying, in the strongest manner, that every right not included in the
exception might be impaired by the government without usurpation;
and it would be impossible to enumerate every one. Let any one make
what collection or enumeration of rights he pleases, I will immediately
mention twenty or thirty more rights not contained in it.50
Members of Congress who participated in the drafting of the Ninth
Amendment also declared their belief in natural rights retained by the people.
James Madison's notes for his speech introducing the Bill of Rights refer to
"natural rights retained as speech."51 Roger Sherman, who served with
Madison on the House drafting committee, suggested an amendment
declaring that "[t]he people have certain natural rights which are retained by
them when they enter into Society."52 Relying on such evidence, prominent
Ninth Amendment theorists, including Randy Barnett and Calvin Massey,
conclude that the retained rights of the Ninth refer to unenumerated
individual natural rights.53

not expressly enumerated in the first eight amendments and an intent that the list of rights included
there not be deemed exhaustive.").
49. See Edward Corwin, The Higher Law Background of American Constitutional Law, 42
HARV. L. REV. 149, 152 (1928) (observing that the Ninth Amendment illustrates well the theory of
law that "[t]here are . . . certain principles of right and justice which are entitled to prevail of their
own intrinsic excellence"); John Choon Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J.
967, 969 (1993) ("As historical evidence shows, the Framers of the Fourteenth Amendment saw the
Ninth as a clause that could affirmatively protect unenumerated rights from government
interference."); Jeff Rosen, Note, Was the Flag Burning Amendment Constitutional?, 100 YALE L.J.
1073, 1075 (1991) (commenting that the phrase "retained by the people" in the Ninth Amendment
was "used repeatedly in the ratification period to refer to natural rights `retained' during the
transition from the state of nature to civil society").
50. Statement of James Iredell (July 29, 1788), in 4 ELLIOT'S DEBATES, supra note 42, at 167.
51. James Madison, Notes for Amendments Speech (June 8, 1789), in 1 RIGHTS RETAINED BY
THE PEOPLE, supra note 14, at 64.
52. Roger Sherman's Draft of the Bill of Rights (July 1789), in 1 RIGHTS RETAINED BY THE
PEOPLE, supra note 14, at 351. Sherman's draft and its implications for the Ninth Amendment are
discussed infra notes 137�39 and accompanying text.
53. 1 THE RIGHTS RETAINED BY THE PEOPLE, supra note 14, at 13; MASSEY, supra note 12, at
213 ("The Ninth Amendment provides the best textual justification for recognition of unenumerated
rights."); see also CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM 39 (1997) (tying together
the Declaration of Independence, the Ninth Amendment, and the Fourteenth Amendment's
Privileges and Immunities Clause). There are variations on each of these theories. For example,
Calvin Massey argues that the original Ninth Amendment had "dual" functions: One to cabin the
constructive enlargement of federal power, the other to insure that the "catalog of constitutional
rights did not stop with the enumerated rights." MASSEY, supra note 12, at 93�94. Massey believes
the former is more associated with the purposes of the Tenth and that the latter purpose became a
2004]
The Lost Original Meaning
345

Libertarian readings of the Ninth Amendment generally are "active" in
that they view the Ninth as justifying active judicial enforcement of
unenumerated rights.54 Professor Randy Barnett, for example, argues that the
Ninth Amendment creates an enforceable presumption of liberty that limits
the interpretation of federal power in order to protect unenumerated natural
rights.55 Although Ninth Amendment scholars concede that the Ninth
Amendment itself applies only against the federal government, they argue
that the same rights apply against the states by way of the Fourteenth
Amendment's Privileges and Immunities Clause.56
Federalist interpretations of the Ninth Amendment generally read the
Ninth in pari materia with the Tenth, with both Clauses understood as
maintaining a balance of state and federal power.57 As with the Libertarian
approach, there is evidence to support the federalist reading. The drive to
adopt a Bill of Rights, for example, was fueled by concerns about federal
power overwhelming the states.58 The Ninth Amendment itself seems
particularly responsive to concerns that the enumeration of certain rights
might undermine the theory of limited enumerated authority. Early drafts of
the Ninth contain language that not only speaks of retained rights, but also of
limiting the construction of federal power.59 Madison himself described the

"lost function," at least until the Court's decisions in Griswold v. Connecticut, 381 U.S. 479 (1965),
and Roe v. Wade, 410 U.S. 113 (1973). MASSEY, supra note 12, at 93�94.
54. See, e.g., Niles, supra note 12, at 90 ("Ninth Amendment adjudication would fill a critical
void in our personal autonomy jurisprudence by providing courts with a more appropriate and
effective means of resolving some of the major individual rights disputes of this century.");
Christopher J. Schmidt, Revitalizing the Quiet Ninth Amendment: Determining Unenumerated
Rights and Eliminating Substantive Due Process
, 32 U. BALT. L. REV. 169, 233 (2003) (arguing
that we must "allow the judiciary to determine when an unenumerated right has been
unconstitutionally abridged").
55. BARNETT, RESTORING THE LOST CONSTITUTION, supra note 12, at 241.
56. See id. at 320 (arguing that the Privileges and Immunities Clause prohibits states from
abridging "the background natural rights of the people along with the other rights and privileges of
citizenship expressly created by the Constitution"); see also Griswold, 381 U.S. at 493 (Goldberg,
J., concurring) (noting that the Ninth itself does not apply against the states, but that the Fourteenth
protects the same set of retained rights).
57. See, e.g., Raoul Berger, The Ninth Amendment: The Beckoning Mirage, 42 RUTGERS L.
REV. 951, 953�60 (1990) [hereinafter Berger, The Beckoning Mirage] (arguing that a historical and
textual examination of the Ninth and Tenth Amendments reveals that these amendments were
intended to limit the powers of the federal government and that they should not be read as allowing
the federal government to aggressively protect citizens from state governments); Berger, The Ninth
Amendment
, supra note 12, at 1�14 (contending that reading the Ninth Amendment in conjunction
with the Tenth and scrutinizing the history of the amendments demonstrates why the Libertarian
desire to use the Ninth Amendment as a way to legitimatize judicial activism is inconsistent with the
governmental power structure envisioned by the Founders); Caplan, supra note 12, at 262�64
(arguing that both amendments were aimed at quelling fears of federal encroachment on state
prerogatives in different ways, as the Ninth Amendment preserves rights already existing under
state law in addition to those which the states would thereafter see fit to enact, while the Tenth
permits states to continue to exercise their allocated functions).
58. See generally HERBERT J. STORING, THE COMPLETE ANTI-FEDERALIST (1981) [hereinafter
STORING, THE COMPLETE ANTI-FEDERALIST].
59. See infra notes 128, 167 and accompanying text.
346
Texas Law Review
[Vol. 83:331

Ninth's language regarding the disparagement of rights as amounting to the
same thing as a rule preventing the enlargement of federal power.60 In light
of this evidence, Professor Thomas McAffee concludes that the Ninth
Amendment was not intended to recognize natural rights as additional
restrictions beyond those rights listed in the Bill.61 To McAffee, the Ninth
was simply a "hold harmless" provision forbidding the expansion of federal
power by implication.62
To date, federalist theories of the Ninth Amendment have been
"passive" in that they do not view the Ninth as justifying judicial
intervention. This approach reads the Ninth as a mere declaration that
enumerated rights do not imply otherwise unenumerated federal power.63 In
essence, a passive, federalist reading limits the Ninth to preserving the
principle declared in the Tenth Amendment--all powers not delegated are
reserved. For example, in his Griswold dissent, Justice Potter Stewart
claimed that "[t]he Ninth Amendment, like its companion the Tenth, . . .
`states but a truism that all is retained which has not been surrendered.'"64
Professor McAffee advocates a similar approach to the Ninth Amendment,
arguing that the Ninth is not a limitation on federal power, but works in
conjunction with the Tenth to preserve the concept of enumerated power.65
It is possible to take an active federalist approach to the Ninth
Amendment. This would view the Ninth as a judicially enforceable rule of
construction limiting the power of the federal government to interfere with
the retained right of the people to local self-government. Under this reading,
the rule of construction announced by the Ninth holds back the encroaching
tide of federal regulation. As Justice Hugo Black put it in his Griswold dis-
sent, the Ninth Amendment was "enacted to protect state powers against
federal invasion."66 Just as the active Libertarian reading creates a
presumption in favor of unenumerated individual rights, so the active

60. See Letter from James Madison to George Washington (Dec. 5, 1789), in THE COMPLETE
BILL OF RIGHTS, supra note 13, at 662 ("If a line can be drawn between the powers granted and the
rights retained, it would seem to be the same thing whether the latter be secured by declaring that
they shall not be abridged, or that the former shall not be extended."). For a discussion of this letter,
see infra notes 202�03 and accompanying text.
61. MCAFFEE, supra note 12, at 169�73.
62. McAffee, supra note 47, at 301.
63. Justice Reed, writing for the Court, recognized this principle:
[W]hen 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.
United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 96 (1947).
64. Griswold v. Connecticut, 381 U.S. 479, 529 (1965) (Stewart, J., dissenting) (quoting United
States v. Darby, 312 U.S. 100, 124 (1941)).
65. MCAFFEE, supra note 12, at 169�73.
66. Griswold, 381 U.S. at 520 (Black, J., dissenting).
2004]
The Lost Original Meaning
347

federalist reading creates a presumption in favor of the collective right of the
people to state or local self-government.
The Libertarian and federalist readings of the Ninth Amendment have
each received their share of criticism, both in terms of original understanding
and contemporary application. Libertarian readings have been criticized for
failing to fully appreciate the role federalism played in the enactment of the
Bill of Rights,67 and federalist theories have been criticized for failing to
fully appreciate the Founders' belief in natural rights.68 The passive versions
of both Libertarian and federalist theories can be criticized as rendering the
Ninth Amendment without effect,69 with the passive, federalist reading of the
Ninth in particular seeming to render the Ninth Amendment redundant with
the Tenth.70
I will address Libertarian and federalist theories of the Ninth
Amendment, both active and passive, when appropriate as we move through
the historical record. In addition to recovering missing pages in the historical
record, this Article will address whether that recovered history supports
either a Libertarian or federalist reading of the Ninth Amendment, or whether
it suggests another reading altogether. Finally, whatever conclusions may be
drawn from the history of the Founding, there remains the difficult question
of how the Ninth Amendment should be read in light of the addition of the
Fourteenth Amendment to the Constitution.71 This question is addressed in
the second of these two Articles, The Lost Jurisprudence of the Ninth
Amendment
. My effort here is to focus on the Ninth Amendment and bring
to light those aspects of its origins that until now have been lost or
unrecognized and to consider how these materials shed light on the historic
understanding of the Clause.

67. See AMAR, supra note 27, at 123�24 (arguing that Ninth and Tenth Amendments'
integration of "popular sovereignty with federalism" reflects a thematic emphasis in the Bill of
Rights on federalism).
68. See, e.g., Suzanna Sherry, Textualism and Judgment, 66 GEO. WASH. L. REV. 1148, 1149�
51 (1998) [hereinafter Sherry, Textualism and Judgment] (asserting that "Madison's own statements
strongly suggest that the Ninth Amendment was designed to protect individual rights, not state
prerogatives").
69. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) ("It cannot be presumed that
any clause in the constitution is intended to be without effect.").
70. See, e.g., MASSEY, supra note 12, at 73.
71. For example, consider how the Ninth Amendment should be read in light of the Privileges
and Immunities Clause. For a discussion of unenumerated rights and the Privileges and Immunities
Clause of the Fourteenth Amendment, see Kurt T. Lash, Two Movements of a Constitutional
Symphony
, 33 U. RICH. L. REV. 485, 498�99 (1999).
348
Texas Law Review
[Vol. 83:331

III. The Drafting of the Ninth Amendment
A. The Traditional Story
As one of the original ten amendments to the Constitution, the Ninth
Amendment shares its origin with that of the Bill of Rights. When the
Philadelphia Convention circulated its proposed draft of the Constitution,
criticism quickly arose regarding the document's lack of specifically listed
freedoms, such as were common in state constitutions. The omission was
seized upon by antifederalist pamphleteers with names like "Federal Farmer"
and "Brutus" who circulated flyers throughout the states demanding the
addition of a Bill of Rights.72
Madison and the Federalists defended the document's lack of such a
Bill on two grounds. First, the principle of enumerated powers would
sufficiently protect the people from federal invasion of their rights.73
Second, adding a Bill of Rights might be construed in a manner that would
undermine the principle of limited enumerated power.74 As "Publius" wrote
in The Federalist Papers:
I go further, and affirm that bills of rights, in the sense and to the
extent in which they are contended for, are not only unnecessary in the
proposed Constitution but would even be dangerous. They would
contain various exceptions to powers which are 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?75

72. See 2 STORING, THE COMPLETE ANTI-FEDERALIST, supra note 58, at 214�452 (setting out
the works of "Federal Farmer" and "Brutus").
73. As James Madison wrote in The Federalist Papers:
The powers delegated by the proposed Constitution to the federal government are few
and defined. Those which are to remain in the State governments are numerous and
indefinite. The former will be exercised principally on external objects, as war, peace,
negotiation, and foreign commerce; with which last the power of taxation will, for the
most part, be connected. The powers reserved to the several States will extend to all
the objects which, in the ordinary course of affairs, concern the lives, liberties, and
properties of the people and the internal order, improvement, and prosperity of the
State.
THE FEDERALIST NO. 45, at 292�93 (James Madison) (Clinton Rossiter ed., 1961).
74. According to James Jackson of Georgia:
There is a maxim in law, and it will apply to bills of rights, that when you enumerate
exceptions, the exceptions operate to the exclusion of all circumstances that are
omitted; consequently, unless you except every right from the grant of power, those
omitted are inferred to be resigned to the discretion of the government.
See Remarks of Mr. James Jackson, Congressional Register (June 8, 1789), reprinted in THE
COMPLETE BILL OF RIGHTS, supra note 13, at 642.
75. THE FEDERALIST NO. 84, at 513 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
According to James Wilson in the Pennsylvania Convention:
[I]n a government consisting of enumerated powers, such as is proposed for the United
States, a bill of rights would not only be unnecessary, but in my humble judgment,
2004]
The Lost Original Meaning
349

The Antifederalists had a stinging response: If the principle of
enumerated power was sufficient in itself to control the actions of the federal
government, why then did the Framers of the Constitution add Article I,
Section Nine, which contains a number of specific restrictions on federal
power?76 Hoist by their own petard and threatened with calls for a second
constitutional convention to redraft the entire document,77 James Madison
and the Federalists ultimately agreed to propose a Bill of Rights in the first
Congress.
In his speech introducing draft amendments to the House of
Representatives, Madison repeated his original concerns regarding the
addition of a Bill of Rights, but now he proposed adding an amendment to
answer those concerns:
It has been objected also against a bill of rights, that, by enumerating
particular exceptions to the grant of power, it would disparage those
rights which were not placed in that enumeration, and it might follow
by implication, that those rights which were not singled out, were
intended to be assigned into the hands of the general government, and
were consequently insecure. This is one of the most plausible
arguments I have ever heard urged against the admission of a bill of
rights into this system; but, I conceive, that it may be guarded against.
I have attempted it, as gentlemen may see by turning to the last clause
of the 4th resolution.78

highly imprudent. In all societies there are many powers and rights which cannot be
particularly enumerated. A bill of rights annexed to a constitution is an enumeration of
the powers reserved. If we attempt an enumeration, every thing that is not enumerated
is presumed to be given.
Remarks of James Wilson, Pennsylvania Convention (Oct. 28, 1787), in THE COMPLETE BILL OF
RIGHTS, supra note 13, at 648; see also Remarks of James Madison, Virginia Convention (June 14,
1788), in THE COMPLETE BILL OF RIGHTS, supra note 13, at 655 ("If an enumeration be made of
our rights, will it not be implied that everything omitted is given to the general government?").
James Iredell echoed these concerns during the North Carolina Convention:
But when it is evident that the exercise of any power not given up would be a
usurpation, it would be not only useless, but dangerous, to enumerate a number of
rights which are not intended to be given up; because it would be implying, in the
strongest manner, that every right not included in the exception might be impaired by
the government without usurpation; and it would be impossible to enumerate every
one.
Remarks of James Iredell, North Carolina Convention (July 29, 1788), in THE COMPLETE BILL OF
RIGHTS, supra note 13, at 649.
76. See LEVY, supra note 8, at 28�30.
77. See Kurt T. Lash, Rejecting Conventional Wisdom: Federalist Ambivalence in the Framing
and Implementation of Article V, 38 AM. J. LEGAL HIST. 197, 215�21 (1994) [hereinafter Lash,
Rejecting Conventional Wisdom] (detailing the arguments used by Antifederalists to demonstrate
the need for a second constitutional convention).
78. James Madison, Speech in Congress Proposing Constitutional Amendments (June 8, 1789),
in JAMES MADISON, WRITINGS, supra note 3, at 448�49. The "last clause of the 4th resolution"
referred to by Madison was an early draft of the Ninth:
350
Texas Law Review
[Vol. 83:331

As Supreme Court Justice and influential treatise writer Joseph Story later
would write, "This clause [the Ninth] was manifestly introduced to prevent
any perverse, or ingenious misapplication of the well known maxim, that an
affirmation in particular cases implies a negation in all others."79
The above represents the most common account of the Ninth
Amendment. The Antifederalists rejected the claims that adding a Bill of
Rights was too dangerous and insisted that such a Bill be added as a
condition of their voting to ratify the proposed Constitution.80 Seeing that
the issue threatened ratification of the Constitution, the Federalists ultimately
agreed to propose a Bill of Rights. But Madison, still concerned about the
potential misconstruction of such a Bill, added the Ninth Amendment in
order to avoid the implication that enumeration of some rights suggested the
assignment into the hands of the federal government all unenumerated
rights.81
This common account makes James Madison the source of the Ninth
Amendment. It implies that the Ninth was not proposed by the states, but
that its principles originally were deployed against state calls for a Bill of
Rights. No wonder, then, that so many scholars ignore the importance of the
states in the adoption of the Ninth Amendment: Apparently, the states had
little, if any, role.
This account, however, is critically incomplete. As originally drafted
by James Madison, the Ninth Amendment expressly adopted language and
principles demanded by several states as a condition to their ratifying the
Constitution.82 Concerns in the states about this particular clause ran so high
that questions about its specific wording held up the adoption of the entire
Bill of Rights.83 The Ninth Amendment is not rooted in an excuse offered to
the states. The Ninth is rooted in the demands submitted by the states.
B. The Call for a Rule of Interpretation
The current debate over the meaning of the Ninth Amendment is
inextricably caught up in the broader debate over unenumerated rights and
the general concept of substantive due process.84 As such, the debate has

The exceptions, here or elsewhere in the constitution, made in favor of particular
rights, shall not be so construed as to diminish the just importance of other rights
retaconstitutionpeople; or as to enlarge the powers delegated by the constitution; but
either as actual limitations of such powers, or as inserted merely for greater caution.
Id. at 443.
79. STORY, supra note 43, at 711.
80. LEVY, supra note 8, at 28�32.
81. Id. at 247�48.
82. See infra subpart IV(A).
83. See infra subpart IV(C).
84. See BARNETT, RESTORING THE LOST CONSTITUTION, supra note 12, at 259, 334 (arguing
that the Ninth and Fourteenth Amendments together establish a "presumption of liberty" that,
among other things, protects the right to sexual autonomy recognized by the Supreme Court in
2004]
The Lost Original Meaning
351

tended to focus on individual rights versus the power of a state to enact
policies on contraception,85 abortion,86 and other matters affecting personal
autonomy.87 This focus on individual rights might explain why the most
unique aspect of the Ninth Amendment has received relatively little attention.
The Ninth Amendment is the only provision in the Bill of Rights which
addresses proper interpretation of the Constitution.88 In fact, every proposed
draft of the Ninth Amendment which emerged from the states, as well as
every draft considered by Congress, included a provision controlling the
"interpretation" or "construction" of the Constitution.89 Yet, despite this
unique thread running through the earliest history of the Ninth Amendment,
Founding-era concerns regarding the methods of constitutional interpretation
are almost totally absent from scholarly discussions of the Ninth.90 The lost
history of the Ninth Amendment thus begins with the first debate over how
best to interpret the Constitution.
1. Antifederalist Concerns about Constitutional Interpretation.--
Antifederalist fears regarding the potential scope of federal power under
provisions such as the Necessary and Proper Clause are well known.91 Less

Lawrence v. Texas, 539 U.S. 558 (2003)); MCAFFEE, supra note 12, at 169 (presenting his theory as
a challenge to readings of the Ninth Amendment such as those presented in Griswold v.
Connecticut
, 381 U.S. 479 (1965)); Caplan, supra note 12, at 226�28 (objecting to the use of the
Ninth Amendment in support of a substantive due process right of privacy).
85. See Planned Parenthood v. Casey, 505 U.S. 833, 848 (1992) (citing the Ninth Amendment
in support of a right to procure an abortion under the Fourteenth Amendment).
86. See Roe v. Wade, 410 U.S. 113, 152 (1973) (citing the Ninth Amendment in support of a
woman's unenumerated due process right to obtain an abortion).
87. See Appellant's Opening Brief, 2003 WL 22716416, at *38, Raich v. Ashcroft, 352 F.3d
1222 (9th Cir. 2003) (No. 03-15481) (citing the Ninth Amendment in support of the right to use
marijuana for medical purposes).
88. See Bruce Ackerman, Robert Bork's Grand Inquisition, 99 YALE L.J. 1419, 1431�32 ("The
seriousness with which the Founding generation took these words may be inferred from the fact that
the Ninth is the only constitutional amendment aimed at proscribing an interpretive technique; all
the other parts of the Bill of Rights are concerned with substantive or institutional matters."). The
first clause added after the Bill of Rights, the Eleventh Amendment, also addresses proper
constitutional interpretation--the only other amendment to do so in the history of the document.
See U.S. CONST. amend. XI.
89. For a discussion of these state proposals, see infra subpart III(C).
90. Although there are a number of outstanding discussions of general interpretive positions at
the time of the Founding, none of them focus on the Ninth Amendment. See, e.g., Caleb Nelson,
Originalism and Interpretive Conventions, 17 U. CHI. L. REV. 519, 521 (2003) (discussing the
Founders' view of "fixing" the meaning of constitutional provisions); see also WHITTINGTON,
supra note 25, at 181 ("Although it is easy to imagine an amendment directing the Court to adopt
some specific interpretive method, and thus converting an interpretive intent into a substantive
directive, no such clause exists in the Constitution.").
91. According to the antifederalist writer Brutus:
How far the clause in the 8th section of the 1st article may operate to do away all idea
of confederated states, and to effect an entire consolidation of the whole into one
general government, it is impossible to say. The powers given by this article are very
general and comprehensive, and it may receive a construction to justify the passing
352
Texas Law Review
[Vol. 83:331

recognized are antifederalist fears regarding the potentially destructive power
of the proposed federal courts.92 Federalists claimed that the proposed
Constitution granted only certain powers to the federal government, with all
other powers remaining under the authority of the states.93 Antifederalists
were not convinced. Once the Constitution was adopted, Antifederalists
argued, the federal government naturally would seek to exercise its powers to
the utmost.94 Because the federal legislature would be bound by the
decisions of the federal courts,95 this meant that the true arbiter of federal
power would be the judicial branch. Rejecting federalist assertions that the
federal judiciary was the "least dangerous" branch,96 antifederalists
pamphleteers like Brutus argued that courts "will not confine themselves to

almost any law. A power to make all laws, which shall be necessary and proper, for
carrying into execution, all powers vested by the constitution in the government of the
United States, or any department or officer thereof, is a power very comprehensive and
definite [indefinite?], and may, for ought I know, be exercised in a such manner as
entirely to abolish the state legislatures.
Brutus No. 1 (Oct. 18, 1787), in 2 STORING, THE COMPLETE ANTI-FEDERALIST, supra note 58, at
367.
92. Some scholars have noted the widespread suspicion of judicial interpretation during this
period. See, e.g., Berger, The Beckoning Mirage, supra note 57, at 959�60 (describing the distrust
of the proposed federal courts by the ratifiers of the Constitution and Hamilton's efforts to assure
them that the judiciary was "next to nothing" when compared to the other branches of government);
H. Jefferson Powell, The Modern Misunderstanding of Original Intent, 54 U. CHI. L. REV. 1513,
1537 (1987). For an excellent discussion of antifederalist concerns regarding the judiciary, see
JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE
CONSTITUTION 186 (1996).
93. See THE FEDERALIST NO. 45, at 292�93 (James Madison) (Clinton Rossiter ed., 1961).
94. According to antifederalist Federal Farmer, "[M]en usually take either side of the argument,
as will best answer their purposes: But the general presumption being, that men who govern, will, in
doubtful cases, construe laws and constitutions most favorably for increasing their own powers."
Federal Farmer No. 4 (Oct. 12, 1787), in 2 STORING, THE COMPLETE ANTI-FEDERALIST, supra note
58, at 247�48.

95. Brutus No. 11 (Jan. 31, 1788), in 2 STORING, THE COMPLETE ANTI-FEDERALIST, supra
note 58, at 420 ("And I conceive the legislature themselves, cannot set aside a judgment of [the
Supreme Court], because they are authorized by the constitution to decide in the last resort."); see
also Brutus No. 12 (Feb. 7, 1788), in 2 STORING, THE COMPLETE ANTI-FEDERALIST, supra note 58,
at 424 ("[T]he judgment of the judicial, on the constitution, will become the rule to guide the
legislature in their construction of their powers.").
96. As Hamilton wrote:
Whoever attentively considers the different departments of power must perceive that,
in a government in which they are separated from each other, the judiciary, from the
nature of its functions, will always be the least dangerous to the political rights of the
constitution; because it will be least in a capacity to annoy or injure them. The
executive not only dispenses the honors but holds the sword of the community. The
legislature not only commands the purse but prescribes the rules by which the duties
and rights of every citizen are to be regulated. The judiciary, on the contrary, has no
influence over either the sword or the purse; no direction either of the strength or of the
wealth of the society, and can take no active resolution whatever. It may truly be said
to have neither FORCE nor WILL but merely judgment; and must ultimately depend
upon the aid of the executive arm even for the efficacy of its judgments.
THE FEDERALIST NO. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
2004]
The Lost Original Meaning
353

any fixed or established rules,"97 but instead would adopt "certain principles,
which being received by the legislature, will enlarge the sphere of their
power beyond all bounds."98 However carefully one might fix the limits of
power, "we must leave a vast deal to the discretion and interpretation" of the
courts.99 Accordingly, "[W]e are more in danger of sowing the seeds of
arbitrary government in this department than in any other."100 Unrestricted
by any fixed rule of interpretation, the courts' latitudinarian constructions of
federal power inevitably would intrude upon matters belonging in the hands
of the states:
The judicial power will operate to effect . . . an entire subversion of
the legislative, executive and judicial powers of the individual states.
Every adjudication of the supreme court, on any question that may
arise upon the nature and extent of the general government, will affect
the limits of the state jurisdiction. In proportion as the former enlarge
the exercise of their powers, will that of the latter be restricted. . . .
Not only will the constitution justify the courts in inclining to this
mode of explaining it, but they will be interested in using this latitude
of interpretation.101
The provision in the proposed Constitution which seemed most subject
to latitudinarian interpretations was the Necessary and Proper Clause. More
than any other provision in the proposed Constitution, this clause threatened
to justify the extension of federal power "to almost every thing about which
any legislative power can be employed. . . . [N]othing can stand before it."102
Such destructive expansions of federal power might be avoided if the
Constitution itself laid down rules of constitutional interpretation. Federal
Farmer suggested that "we might advantageously enumerate the powers
given, and then in general words, according to the mode adopted in the 2d
art. of the confederation, declare all powers, rights and privileges, are
reserved, which are not explicitly and expressly given up."103 In the Virginia

97. Brutus No. 11 (Jan. 31, 1788), in 2 STORING, THE COMPLETE ANTI-FEDERALIST, supra
note 58, at 420.
98. Brutus No. 12 (Feb. 7, 1788), in 2 STORING, THE COMPLETE ANTI-FEDERALIST, supra note
58, at 423. According to Herbert Storing, the discussion of judicial power by Brutus was "the best
in the Anti-Federalist literature." 3 STORING, THE COMPLETE ANTI-FEDERALIST, supra note 58, at
358.
99. Federal Farmer No. 15 (Jan. 18, 1788), in 2 STORING, THE COMPLETE ANTI-FEDERALIST,
supra note 58, at 315.
100. Id. at 316.
101. Brutus No. 11 (Jan. 31, 1788), in 2 STORING, THE COMPLETE ANTI-FEDERALIST, supra
note 58, at 420�21.
102. Brutus No. 12 (Feb. 7, 1788), in 2 STORING, THE COMPLETE ANTI-FEDERALIST, supra
note 58, at 425.
103. Federal Farmer No. 16 (Jan. 20, 1788), in 2 STORING, THE COMPLETE ANTI-FEDERALIST,
supra note 58, at 324.
354
Texas Law Review
[Vol. 83:331

ratifying convention, Patrick Henry demanded that "a general positive
provision should be inserted in the new system, securing to the states and the
people every right which was not conceded to the general
government . . . ."104 George Mason, who had refused to sign the
Constitution, agreed that the Constitution needed "some express
declaration . . . asserting that rights not given to the general government were
retained by the states."105 According to Mason, "We wish only our rights to
be secured. We must have such amendments as will secure the liberties and
happiness of the people on a plain, simple construction, not on a doubtful
ground."106 Although the Federalists denied that the Constitution would
authorize unduly expansive interpretations of federal power,107 Federalists
conceded that there needed to be limits to the interpretive methods of the
courts. According to Alexander Hamilton in The Federalist Papers, "To
avoid an arbitrary discretion in the courts, it is indispensable that they should
be bound down by strict rules and precedents . . . ."108
The Constitution as it stood, however, had no "strict rules." It had no
express rules of interpretation at all. In exchange for their vote to ratify the
Constitution, the state ratifying conventions insisted that this deficiency be
remedied. Madison and the Federalists ultimately promised to add a Bill of
Rights to the ratified Constitution as soon as was practicable.109 On the
understanding that amendments would be forthcoming, several states
submitted proposed amendments along with their vote to ratify the
Constitution.110 In addition to calling for the recognition of certain rights,

104. Patrick Henry, Virginia Ratifying Convention (June 9, 1788), in 3 ELLIOT'S DEBATES,
supra note 42, at 150.
105. George Mason, Virginia Ratifying Convention (June 14, 1788), in 3 ELLIOT'S DEBATES,
supra note 42, at 444.
106. Id. at 271.
107. According to Hamilton in The Federalist Papers:
In the first place, there is not a syllable in the plan under consideration which directly
empowers the national courts to construe the laws according to the spirit of the
Constitution, or which gives them any greater latitude in this respect than may be
claimed by the courts of every State. I admit however, that the Constitution ought to
be the standard of construction for the laws, and that wherever there is an evident
opposition, the laws ought to give place to the Constitution. But this doctrine is not
deducible from any circumstance peculiar to the plan of convention; but from the
general theory of a limited Constitution; and as far as it is true is equally applicable to
most if not to all the State governments. There can be no objection, therefore, on this
account to the federal judicature which will not lie against the local judicatures in
general, and which will not serve to condemn every constitution that attempts to set
bounds to the legislative discretion.
THE FEDERALIST NO. 81, at 482 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
108. THE FEDERALIST NO. 78, at 471 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
109. James Madison, Speech in Congress Proposing Constitutional Amendments (June 8,
1789), in JAMES MADISON, WRITINGS, supra note 3, at 452.
110. LEVY, supra note 8, at 31�32.
2004]
The Lost Original Meaning
355

these proposals included rules of construction limiting the interpreted scope
of federal power.111
2. The Declarations and Proposals of the State Ratifying
Conventions.--The proposed amendments submitted by the states are
important for a number of reasons. James Madison expressly based his draft
of the Bill of Rights on the concerns emanating from the state ratifying
conventions.112 Understanding the state proposals, therefore, helps us
understand the drafts ultimately proposed by Madison. The determination of
the original meaning of provisions like the Ninth and Tenth Amendments is
also benefited by considering how those who ratified the Constitution under-
stood and used terms like "powers" and "rights." The proposed amendments
from the states used these terms repeatedly113 and in a manner that sheds light
on Madison's efforts to distill the state proposals into the Ninth and Tenth
Amendments. Finally, the state proposals provide critical insight into the
concerns that led to the adoption of the Bill of Rights in general and the
Ninth Amendment in particular.
As the last section discussed, critics of the proposed Constitution were
especially concerned with controlling the reach of federal power. The
Federalists had argued that the principle of enumerated power would limit
the expansion of federal authority. Provisions like the Necessary and Proper
Clause, however, were ambiguous enough to allow for unduly broad
interpretations of enumerated powers. The state conventions responded to
this threatened encroachment upon state autonomy in two different ways.
Some conventions submitted explanatory declarations along with their
ratification vote. These declarations announced the state's understanding of
the proper interpretation of federal power. Other conventions, unwilling to
rely on an assumed understanding, submitted proposed amendments that
would expressly reserve nondelegated power to the states and control the
interpretation of federal power.
The New York convention, for example, submitted declarations that
announced the convention's understanding that a proper reading of the
proposed Constitution conformed to federalist principles:
[T]hat every Power, Jurisdiction and Right, which is not by the said
Constitution clearly delegated to the Congress of the United States, or
the departments of the Government thereof, remains to the People of
the several States, or to their respective State Governments to whom
they may have granted the same;

111. See infra subpart III(C) (discussing various state proposals that featured rules of
construction).
112. Letter from Edward Carrington to James Madison (Dec. 20, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 228.
113. Amendments Proposed by the States (June 8, 1789), in CREATING THE BILL OF RIGHTS,
supra note 2, at 14�28.
356
Texas Law Review
[Vol. 83:331

And that those Clauses in the said Constitution, which declare, that
Congress shall not have or exercise certain Powers, do not imply that
Congress is entitled to any Powers not given by the said Constitution;
but such Clauses are to be construed either as exceptions to certain
specified Powers, or as inserted merely for greater Caution.114
The first half of New York's explanatory declaration declares the
principle of delegated "Power[s], Jurisdiction and Right[s]." This principle,
originally contained in the Articles of Confederation,115 distinguished the
limited enumerated powers of the federal government from the unenumerated
police powers of the states. Thus, all powers and rights not delegated to
Congress were reserved to the people of the several states. The people of the
states, in turn, may delegate those retained powers and rights to their own
state government. In addition to expressly declaring the principle of
enumerated federal power, this principle would prevent any attempt to use
the Necessary and Proper Clause as justification for a federal government of
general unenumerated power.
The second half of New York's declaration reflects the concerns raised
by both Federalists and Antifederalists regarding the potential dangers of
construction of the Constitution. Federalists claimed that a Bill of Rights
might be construed to imply that the only limits to federal power were the
express prohibitions contained in the Bill.116 The second provision prohibits
this kind of implied expansion of federal power. Other states echoed New
York's declaration of assumed constitutional principles. Rhode Island
submitted a declaration almost identical to New York's.117 South Carolina's
convention similarly declared that "no section or paragraph of the said
constitution warrants a construction that the states do not retain every power
not expressly relinquished by them, and vested in the general government of
the union."118

114. Amendments Proposed by the New York Convention (July 26, 1788), in CREATING THE
BILL OF RIGHTS, supra note 2, at 21�22. In ratifying the Constitution, the New York delegates
stated:
Under these impressions, and declaring that the rights aforesaid cannot be abridged or
violated, and that the explanations aforesaid are consistent with the said Constitution,
and in confidence that the amendments which shall have been proposed to the said
Constitution will receive an early and mature consideration--We the said delegates, in
the name and in the behalf of the people of the state of New York, do, by these
presents, assent to and ratify the said Constitution.
1 ELLIOT'S DEBATES, supra note 42, at 329.
115. See ARTICLES OF CONFEDERATION art. II ("Each state retains . . . every power,
jurisdiction, and right, which is not . . . expressly delegated.").
116. See James Madison, Speech in Congress Proposing Constitutional Amendments (June 8,
1789), in JAMES MADISON, WRITINGS, supra note 3, at 448�49.
117. Ratification of the Constitution by the Convention of the State of Rhode Island and
Providence Plantation (May 29, 1790), in 1 ELLIOT'S DEBATES, supra note 42, at 334.
118. Ratification of the Constitution by the Convention of the State of South Carolina (May 23,
1788), in 4 ELLIOT'S DEBATES, supra note 42, at 325.
2004]
The Lost Original Meaning
357

Other conventions, however, were not content to simply declare their
assumed understanding of the proposed Constitution. These conventions
demanded the addition of specific amendments "for greater caution." These
proposed amendments echoed the principles declared by the New York and
Rhode Island conventions that federal power was both enumerated and
limited in scope. North Carolina, for example, proposed:
1. That each state in the union shall, respectively, retain every power,
jurisdiction and right, which is not by this constitution delegated to the
Congress of the United States, or to the departments of the Federal
Government.
. . . .
18. That those clauses which declare that Congress shall not exercise
certain powers, be not interpreted in any manner whatsoever to extend
the powers of Congress; but that they be construed either as making
exceptions to the specified powers where this shall be the case, or
otherwise, as inserted merely for greater caution.119
North Carolina's proposals are even more specific than New York's
declarations in their focus on the implied expansion of federal power. In
addition to preserving the principle of enumerated federal power, the
enumeration of rights must not suggest any extension of enumerated powers.
This goes beyond preserving the principle of enumerated power and prevents
the implied extension of those powers which are enumerated.
Pennsylvania's proposals declared the principle of enumerated power,
followed by a provision explicitly prohibiting the courts from assuming "any
authority, power, or jurisdiction . . . under color or pretense of construction
or fiction."120
In Virginia, the convention appointed a committee to draft proposed
amendments to the Constitution. That committee, whose members included
James Madison and Edmund Randolph, produced the following:121

119. Amendments Proposed by the North Carolina Convention (Aug. 1, 1788), in THE
COMPLETE BILL OF RIGHTS, supra note 13, at 674�75.
120. The full text of the Pennsylvania provision reads:
That Congress shall not exercise any powers whatever, but such as are expressly given
to that body by the Constitution of the United States: nor shall any authority, power, or
jurisdiction, be assumed or exercised by the executive or judiciary departments of the
Union, under color or pretence of construction or fiction; but all the rights of
sovereignty, which are not by the said Constitution expressly and plainly vested in the
Congress, shall be deemed to remain with, and shall be exercised by, the several states
in the Union, according to their respective constitutions; and that every reserve of the
rights of individuals, made by the several constitutions of the states in the Union, to the
citizens and inhabitants of each state respectively, shall remain inviolate, except so far
as they are expressly and manifestly yielded or narrowed by the national Constitution.
2 ELLIOT'S DEBATES, supra note 42, at 545.
121. 3 ELLIOT'S DEBATES, supra note 42, at 656.
358
Texas Law Review
[Vol. 83:331

First, That each State in the Union shall respectively retain every
power, jurisdiction and right which is not by this Constitution
delegated to the Congress of the United States or to the departments of
the Foederal Government.
. . . .
Seventeeth, That those clauses which declare that Congress shall not
exercise certain powers be not interpreted in any manner whatsoever
to extend the powers of Congress. But that they may be construed
either as making exceptions to the specified powers where this shall be
the case, or otherwise as inserted merely for greater caution.122
Following the example of other states, particularly that of North Carolina,
Virginia's first provision declares a principle of delegated power by which
states retained nondelegated powers and rights, followed by the seventeenth
provision that prevents the constructive extension of these delegated powers.
All of these declarations and proposals share a common dual approach
to controlling federal power. First, a declaration must be added that
expressly declares the federal government has limited enumerated powers.
All powers, jurisdiction, and rights not delegated to the federal government
were to be retained by the states. Second, the enumeration of certain rights
was not to be construed in any manner that expanded the scope of
enumerated federal power. Both the declarations and the rules of
construction focused on controlling the expansion of federal power and
reserving all nondelegated powers and rights to the states.
3. Preventing the Constructive Extension of Federal Power.--These
explanatory declarations and proposed amendments reflect dual strategies for
controlling the expansion of federal power. The primary strategy was to
declare the principle of enumerated federal power. A secondary strategy was
to control the interpretation of enumerated federal power. New York's
declarations reflect the primary strategy: The enumeration of rights must not
suggest a government of unenumerated power. Proposals like those
submitted by North Carolina and Virginia highlight the second,
complementary strategy of controlling the interpreted scope of enumerated
power. North Carolina, for example, proposed:
That those clauses which declare that Congress shall not exercise
certain powers, be not interpreted in any manner whatsoever to extend
the powers of Congress; but that they be construed either as making

122. Amendments Proposed by the Virginia Convention (June 27, 1788), in THE COMPLETE
BILL OF RIGHTS, supra note 13, at 675. James Madison was a member of the committee that
drafted the Virginia proposal, and he later noted the role the Virginia proposals played in his
proposed draft of the Bill of Rights. Letter from James Madison to George Washington (Nov. 20,
1789), in 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1185 (Bernard Schwartz ed., 1971)
[hereinafter THE BILL OF RIGHTS: A DOCUMENTARY HISTORY].
2004]
The Lost Original Meaning
359

exceptions to the specified powers where this shall be the case, or
otherwise, as inserted merely for greater caution.123
Likewise, Virginia's seventeenth proposal stated, "That those clauses which
declare that Congress shall not exercise certain powers be not interpreted in
any manner whatsoever to extend the powers of Congress."124 These
proposals were made in addition to declarations that the federal government
had only limited enumerated power.
Concerns about extending the enumerated powers of Congress are
related to, but distinct from, preserving the principle of enumerated power.
By limiting the federal government to enumerated powers, the states intended
to retain to themselves all nondelegated powers, jurisdiction, and rights.
Under this approach, states did not have to list the powers and rights they
retained, for they retained everything not assigned to federal control. The
problem was, as the Antifederalists pointed out, merely declaring the
principle of enumerated powers by itself did not control the interpreted scope
of federal power. There being no fixed rules of interpretation for the courts
to follow, judicial construction of enumerated powers had no limit. Worse,
adding a Bill of Rights might imply that the only limits to broad readings of
federal power were those specific limits listed in Article I and the Bill of
Rights. In such a situation, states still would retain all nondelegated powers,
but those powers would be few (if any), with the federal government having
occupied the field. Preventing this from coming to pass required the
adoption of two provisions. One declaring the principle of enumerated
power; the second denying the implied expansion of federal power due to the
addition of specific rights.
This dual approach is most clearly seen in the proposals of North
Carolina and Virginia. Other state conventions, however, also recognized the
need to control the construction of federal power. Pennsylvania suggested a
provision that prohibited the courts from assuming any "authority, power, or
jurisdiction" under any "pretense of construction or fiction."125 South
Carolina declared that "no section or paragraph of the said Constitution
warrants a construction that the states do not retain every power not
expressly relinquished . . . ."126 These provisions, along with those of North
Carolina and Virginia, all seek to limit the interpretation of federal power.
In sum, the declarations and proposed amendments by the states
followed a two-track approach to limiting federal power. First, they declared

123. Amendments Proposed by the North Carolina Convention (Aug. 1, 1788), in THE
COMPLETE BILL OF RIGHTS, supra note 13, at 675.
124. Amendments Proposed by the Virginia Convention (June 27, 1788), in THE COMPLETE
BILL OF RIGHTS, supra note 13, at 675.
125. Amendments Proposed by the Pennsylvania Convention (Sept. 3, 1788), in THE
COMPLETE BILL OF RIGHTS, supra note 13, at 648.
126. Ratification of the Constitution by the Convention of the State of South Carolina (May 23,
1788), in 1 ELLIOT'S DEBATES, supra note 42, at 325.
360
Texas Law Review
[Vol. 83:331

that the federal government had limited enumerated powers, with all
nondelegated power, jurisdiction, and rights retained by the states. Second,
the states proposed a rule of construction that preserved the retained powers
of the states by preventing the constructive expansion of federal power.
When James Madison drafted the Bill of Rights, he referred to and relied
upon these proposals.
IV. The Drafting of the Ninth Amendment
A. Madison's Initial Draft
Fulfilling his promise to his constituents in Virginia,127 Madison drafted
and presented to the House of Representatives a list of proposed amendments
to the Constitution. Following the example of the state convention proposals,
Madison included both a provision declaring the principle of enumerated
federal power and a rule of construction:
The exceptions, here or elsewhere in the Constitution, made in favor
of particular rights, shall not be so construed as to diminish the just
importance of other rights retained by the people, or as to enlarge the
powers delegated by the Constitution; but either as actual limitations
of such powers, or as inserted merely for greater caution.
. . . .
The powers not delegated by this Constitution, nor prohibited by it to
the states, are reserved to the States respectively.128
In his speech introducing his draft Bill of Rights to the House of
Representatives, Madison stated his belief that the proposed Tenth
Amendment probably was not necessary, but that expressly declaring the
principle was considered important to the state conventions:
I find, from looking into the amendments proposed by the State
conventions, that several are particularly anxious that it should be
declared in the Constitution, that the powers not therein delegated
should be reserved to the several States. Perhaps words which may
define this more precisely than the whole of the instrument now does,
may be considered as superfluous. I admit they may be deemed
unnecessary: but there can be no harm in making such a declaration, if

127. Madison explained his obligation to introduce amendments in a letter to Richard Peters:
In many States the Const. was adopted under a tacit compact in favr. of some
subsequent provisions on this head. In Virg[ini]a. It would have been certainly
rejected, had no assurances been given by its advocates that such provisions would be
pursued. As an honest man I feel my self bound by this consideration.
Letter from James Madison to Richard Peters (Aug. 19, 1789), in CREATING THE BILL OF RIGHTS,
supra
note 2, at 282.
128. House of Representatives, Amendments to the Constitution (June 8, 1789), in 5 THE
FOUNDERS' CONSTITUTION, supra note 13, at 25�26.
2004]
The Lost Original Meaning
361

gentlemen will allow that the fact is as stated. I am sure I understand
it so, and do therefore propose it.129
Madison's proposed draft of the Ninth Amendment, on the other hand,
answered concerns shared by both Madison and the state conventions:
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.130
Madison's Ninth Amendment is concerned with the implications arising
from the enumeration of certain rights. Having already secured the principle
of enumerated powers through his draft of the Tenth Amendment, Madison's
Ninth seeks to prevent both the implied diminishment of other rights and the
implied enlargement of enumerated federal power. As Madison wrote in his
notes for this part of his speech, enumerating certain rights might "disparage
other rights--or constructively enlarge" delegated federal power.131 Again,
the concern was not that enumerating rights would imply new enumerated
powers. The concern was that enumerated rights might imply the
constructive enlargement of enumerated powers. Listing certain rights could
imply that the only limits to the interpreted scope of federal power were
those particular limits listed in the Constitution. Such a constructive
enlargement of federal power would have the result of diminishing the scope
of nondelegated powers, jurisdiction, and rights. Madison's draft Ninth
Amendment avoided such an implication by following the lead of the North
Carolina and Virginia conventions and by calling for a rule of construction
that prevented such constructive enlargement of enumerated federal power.
As had the state conventions, Madison proposed dual provisions, one
declaring the principle of enumerated power and the other establishing a rule
of construction limiting the constructive enlargement of those powers.
Madison's Ninth Amendment addressed the need to prevent the enlargement
of federal power and to protect the people's retained rights. In the end,
however, Congress discarded the reference to enlarged powers and preserved

129. Id. at 28.
130. James Madison, Speech in Congress Proposing Constitutional Amendments (June 8,
1789), in JAMES MADISON, WRITINGS, supra note 3, at 448�49.
131. See James Madison, Notes for Amendments Speech (1789), in 1 RIGHTS RETAINED BY
THE PEOPLE, supra note 14, at 65 (listing objections to the Bill of Rights).
362
Texas Law Review
[Vol. 83:331

the language of retained rights.132 That fateful choice and its implications for
the understood meaning of the Ninth Amendment are the focus of the next
subpart.
B. The Select Committee
On July 21, 1789, soon after Madison's speech introducing his draft of
the Bill of Rights, the House appointed a Select Committee to "consider the
subject of amendments."133 The Committee consisted of eleven members,
one from each state that had ratified the Constitution,134 and included James
Madison of Virginia and Roger Sherman of Connecticut.135 The work of that
Committee, including a draft Bill of Rights written by Roger Sherman, has
played important roles in Ninth Amendment scholarship. As we shall see,
recognizing the roots of the Ninth Amendment as a rule of construction sheds
significant new light on Sherman's draft and the Committee's final choice of
language for the Ninth Amendment.
1. Sherman's Draft Bill of Rights.--One of the principle issues left open
by the text of the Ninth Amendment involves the "other rights" protected by
the Ninth's rule of construction. Federalist theories emphasize the collective
rights of the people of the several states--the right to local self-government
on all matters not assigned to the federal government.136 Libertarian
scholars, on the other hand, emphasize the Founders' belief in individual
natural rights and read the Ninth Amendment as an acknowledgment of such
rights.137 In support, Libertarian scholars cite the draft Bill of Rights penned
by Roger Sherman as evidence that the retained other rights of the Ninth
refer to individual natural rights.138 A close look at Sherman's draft,
however, suggests that this is not the case.
Roger Sherman originally opposed the adoption of a Bill of Rights.139
When it became clear that a Bill would be proposed despite his objections,
Sherman suggested that it be added at the end of the document, rather than
incorporated into Article I, Section 9, as Madison proposed.140 A draft Bill

132. U.S. CONST. amend. IX.
133. 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY, supra note 122, at 1050.
134. North Carolina and Rhode Island at this point had not yet ratified the Constitution. Id.
135. CREATING THE BILL OF RIGHTS, supra note 2, at 5-6 (indicating that Sherman and
Madison were among those appointed to the Select Committee on July 21, 1789).
136. See supra note 57 and accompanying text.
137. See supra note 49 and accompanying text.
138. E.g., Yoo, supra note 49, at 984�85; see also Rosen, supra note 49, at 1076.
139. LEVY, supra note 8, at 103.
140. Letter from Roger Sherman to Henry Gibbs (Aug. 4, 1789), in CREATING THE BILL OF
RIGHTS, supra note 2, at 271; see also LEVY, supra note 8, at 145�46 (relating that Sherman
"opposed interspersing [the amendments] within the main body of the Constitution because that
would leave the mistaken impression that the Framers had signed a document that included
provisions not of their composition").
2004]
The Lost Original Meaning
363

of Rights penned by Sherman,141 possibly representing his vision of how the
Bill might appear if appended as a separate Bill of Rights,142 includes a
provision declaring that "[t]he people have certain natural rights which are
retained by them when they enter into society."143 Libertarian scholars have
characterized this provision as either an early draft of the Ninth
Amendment144 or as "reflect[ing] the sentiment that came to be expressed in
the Ninth,"145 thus establishing a link between the Ninth Amendment and the
Founders' intention to protect unenumerated individual natural rights.146
Finding an example of natural rights language in conjunction with the
Ninth Amendment would provide significant support for the Libertarian
rights position. Although all Ninth Amendment scholars agree that there was
widespread belief in natural rights at the time of the Founding, this alone
does not establish that protecting individual natural rights was the purpose of
the Ninth. At the time of the Founding, it was possible to embrace both
natural rights and a strong belief in the collective right of the people to local
self-government. A simple illustration of this can be seen in the proposals of
the North Carolina ratifying convention. The convention began by declaring:
That there are certain natural rights, of which men, when they form a
social compact, cannot deprive or divest their posterity, among which
are the enjoyment of life and liberty, with the means of acquiring,
possessing, and protecting property, and pursuing and obtaining
happiness and safety.147
As we saw previously,148 however, North Carolina also proposed an
amendment which declared "that each state in the Union shall respectively
retain every power, jurisdiction, and right, which is not by this Constitution
delegated to the Congress of the United States."149
The North Carolina convention obviously believed in natural rights, but
they also believed that the states retained every right not delegated to the
federal government. Similarly, Virginia's proposal insisted "[t]hat each State
in the Union shall respectively retain every power, jurisdiction and right

141. There is some question regarding whether this draft reflects the views of Sherman himself
or stands only as the report of a congressional committee of which Sherman was secretary. See
Christopher Collier, The Common Law and Individual Rights in Connecticut Before the Federal Bill
of Rights
, 76 CONN. B. J. 1, 63 (2002).
142. See Roger Sherman, Proposed Committee Report (July 21�28, 1789), in CREATING THE
BILL OF RIGHTS, supra note 2, at 266�68.
143. Id. at 267.
144. See Yoo, supra note 49, at 993 (assuming that the provision was Sherman's notes on what
would become the Ninth Amendment).
145. 1 RIGHTS RETAINED BY THE PEOPLE, supra note 14, at 7 n.16.
146. See, e.g., BARNETT, RESTORING THE LOST CONSTITUTION, supra note 12, at 55.
147. Amendment Proposed by the North Carolina Convention (Aug. 1, 1788), in 1 RIGHTS
RETAINED BY THE PEOPLE, supra note 14, at 364.
148. See supra note 119 and accompanying text.
149. Amendment Proposed by the North Carolina Convention (Aug. 2, 1788), in 1 RIGHTS
RETAINED BY THE PEOPLE, supra note 14, at 366�67, 369 (emphasis added).
364
Texas Law Review
[Vol. 83:331

which is not by this Constitution delegated to the congress of the United
States."150 This approach conceives of retained rights in a collective manner,
rather than an individual Libertarian sense. Rights and powers not delegated
to the federal government remain under the collective control of the people
of the individual states. New York's proposed amendments expressly
adopted this approach and spoke of "Power, Jurisdiction and Right[s]"
retained by "the People of the several States, or to their respective State
Governments to whom they may have granted the same."151 As these exam-
ples illustrate, the fact that the Ninth Amendment speaks of the people's
retained rights does not establish the character (collective or individual) of
the rights so retained. Nor does the fact that many Founders believed in
natural rights conflict with a federalist reading of the rights retained under
the Ninth.152 Thomas Jefferson, after all, believed in the natural rights of the
states.153 Similarly, when Congress violated the natural right of free speech
in passing the Alien and Sedition Acts, Madison argued that the Acts violated
the rights of the states.154 In sum, the rights of the Ninth Amendment remain
ambiguous if all we have is the text of the Ninth itself and a general
Founding belief in natural rights.
Libertarian theorists believe that Sherman's draft resolves the ambiguity
and establishes a link between the phrase "natural rights" and the Ninth
Amendment's phrase "other rights retained by the people."155 According to

150. Amendments Proposed by the Virginia Convention (June 27, 1788), in THE COMPLETE
BILL OF RIGHTS, supra note 13, at 675 (emphasis added).
151. Amendments Proposed by the New York Convention (July 26, 1788), in CREATING THE
BILL OF RIGHTS, supra note 2, at 21�22.
152. For this reason alone, the copious amount of time spent by unenumerated individual rights
theorists regarding a widespread Founding belief in natural rights has limited relevance to the
question of whether protecting individual rights was the purpose of the Ninth Amendment.
Madison, for example, drafted the First Amendment to protect natural rights such as speech, but he
clearly understood that withholding the power from the federal government left the issue under state
control. Accordingly, he unsuccessfully proposed a separate amendment to protect liberty of speech
and conscience in the states. See 1 ANNALS OF CONG. 783 (Joseph Gales ed., 1789) (stating that
"no State shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor
of the right of trial by jury in criminal cases").
153. Thomas Jefferson, Draft of Kentucky Resolutions (Nov. 10, 1798), in 5 THE FOUNDERS'
CONSTITUTION, supra note 13, at 134 ("[E]very State has a natural right in cases not within the
compact . . . to nullify of their own authority all assumptions of power by others within their
limits . . . ."); see also JOHN TAYLOR, CONSTRUCTIONS CONSTRUED AND CONSTITUTIONS
VINDICATED 172 (De Capo Press 1970) (1820) ("The states have a natural right to make all
necessary and proper laws within their national powers reserved.").
154. See JAMES MADISON, WRITINGS, supra note 3, at 608�62 (arguing against the Alien and
Sedition Acts).
155. See Randy E. Barnett, James Madison's Ninth Amendment, in 1 RIGHTS RETAINED BY THE
PEOPLE, supra note 14, at 7 n.16 (claiming that Sherman's use of the phrase "Such are" indicates
enumerated rights as mere examples); Calvin R. Massey, The Natural Law Component of the Ninth
Amendment
, 61 U. CINN. L. REV. 49, 94 (1992) (citing Sherman's draft as evidence that "it is
difficult to dismiss the influence of natural law on the creation of the Ninth Amendment"); Yoo,
supra note 49, at 993 ("Sherman's draft, like the Ninth Amendment in its final form, employed the
important `people-rights' terminology whose core meaning emphasizes majoritarian, popular
2004]
The Lost Original Meaning
365

Randy Barnett, the following passage from Sherman's draft Bill of Rights
"reflects the sentiment that came to be expressed in the Ninth":156
The people have certain natural rights which are retained by them
when they enter into Society, Such are the rights of Conscience in
matters of religion; of acquiring property and of pursuing happiness &
Safety; of Speaking, writing and publishing their Sentiments with
decency and freedom; of peaceably assembling to consult their
common good, and of applying to Government by petition or
remonstrance for redress of grievances.
Of these rights therefore they Shall not be deprived by the
Government of the united States.157
At first glance, Barnett's proposition seems plausible. Both the Ninth
Amendment and Sherman's proposal speak of rights retained by the people.
That Sherman's draft specifically referred to natural rights arguably suggests
that at least one member of the Select Committee responsible for drafting the
Bill of Rights believed that the rights of the Ninth Amendment referred to the
natural rights retained by the people. Before testing Barnett's reading,
however, consider another provision in Sherman's draft Bill of Rights, which
Professor Barnett believes "closely resembles what came to be the Tenth":158
And the powers not delegated to the government of the united States
by the Constitution, nor prohibited by it to the particular States, are
retained by the states respectively. [N]or Shall any [limitations on]159
the exercise of power by the government of the united States the
particular instances here in enumerated by way of caution be
construed to imply the contrary.160

rights."); see also Rosen, supra note 49, at 1075�76 (asserting that Sherman's draft demonstrates
that rights "retained by the people" referred to natural rights).
156. Barnett, James Madison's Ninth Amendment, supra note 155, at 7 n.16. In his most recent
work, Professor Barnett continues to link this quote to the Ninth Amendment. BARNETT,
RESTORING THE LOST CONSTITUTION, supra note 12, at 54�55.
157. 1 RIGHTS RETAINED BY THE PEOPLE, supra note 14, at app. a at 351.
158. Id. at 7 n.16. Professor Yoo similarly notes:
The predecessor to the Tenth spoke openly about limiting the federal government to its
enumerated powers: "And the powers not delegated to the Government of the united
states by the Constitution, nor prohibited by it to the particular States, are retained by
the States respectively, nor shall the exercise of power by the Government of the united
states particular instances here in enumerated by way of caution be construed to imply
the contrary."
Yoo, supra note 49, at 993 (quoting Roger Sherman's Draft of the Bill of Rights (1789), in 2
RIGHTS RETAINED BY THE PEOPLE, supra note 12, at 351�52).
159. Sherman's draft "Eleventh" provision contained gaps which scholars fill in different ways.
I have reproduced what I believe to be a "neutral" draft from Creating the Bill of Rights. See infra
text accompanying note 160; see also McAffee, supra note 47, at 302 n.98. How the gaps are filled,
however, has no effect on the significance of the text described above.
160. Roger Sherman's Proposed Committee Report (July 21�28, 1789), in CREATING THE BILL
OF RIGHTS, supra note 2, at 268.
366
Texas Law Review
[Vol. 83:331

Having kept our focus on the Ninth Amendment as a rule of
construction, the reader can probably recognize the above provision as a
combination of the two principles expressed by the Ninth and Tenth
Amendments.161 Sherman's "Eleventh Amendment" contains two separate
provisions: the first, a declaration of enumerated power; the second, a rule of
construction preserving that principle.162 The first portion repeats Madison's
draft Tenth Amendment almost verbatim. The second portion follows the
general approach of every draft of the Ninth Amendment, from the state
convention proposals to James Madison's, by announcing a rule of
construction controlling the interpretation of federal power.
Given the common tendency to read "rights" language as referring to
the Ninth and "powers" language as referring to the Tenth, it is easy to see
how the last portion of Sherman's draft might be misconstrued. Having
traced the roots of the Ninth Amendment as a rule of construction, however,
it is clear that Sherman's draft followed the same approach as the state
conventions. In fact, Sherman's Bill echoes the approach of North Carolina
by beginning with a general declaration of natural rights, followed by a
specific declaration of enumerated power and a rule of construction
preserving the principle of state autonomy. Because Sherman's draft links
the rule of the Ninth Amendment with the retained powers of the states,
despite the draft's opening declaration of retained natural rights, this rebuts
the interpretive presumption that just because a Founder declared the
existence of natural rights, he would have understood (much less intended)
the Ninth to protect individual as opposed to collective or "states" rights.
If all of this is not enough to break the link between Sherman's
reference to individual natural rights and the Ninth Amendment, there is the
shattering context in which Sherman's draft was written. Madison's initial
draft of the Ninth Amendment was presented to the House on June 8,

161. In this way, Sherman's draft echoes South Carolina's proposal, which also combined both
the rule of construction and the principle of enumerated power in a single phrase: "that no Section
or paragraph of the said Constitution warrants a construction that the states do not retain every
power not expressly relinquished by them and vested in the General Government of the Union."
THE COMPLETE BILL OF RIGHTS, supra note 13, at 675 (erroneously referring to this as only
involving the Tenth) (emphasis added).
162. In footnotes contained in his earlier work, Thomas McAffee recognizes Sherman's
eleventh provision as a combination of the Ninth and Tenth Amendments. See Thomas B.
McAffee, The Original Meaning of the Ninth Amendment, 90 COLUM. L. REV. 1215, 1303 n.333
(1990) [hereinafter McAffee, The Original Meaning] (identifying the Ninth and Tenth Amendment
aspects in Sherman's draft); Thomas B. McAffee, The Role of Legal Scholars in the Confirmation
Hearings
, 7 ST. JOHN'S J. OF LEGAL COMM. 211, 227 n.51 (1991) [hereinafter McAffee, The Role
of Legal Scholars
] (noting that "[h]ere the Ninth Amendment is drafted as an express guard against
a construction that would undercut the effect of the Tenth Amendment"). McAffee's current
position on the Ninth Amendment is that it is a "hold harmless" provision that "says nothing about
how to construe the powers of Congress." McAffee, The Original Meaning, supra, at 1300 n.325.
2004]
The Lost Original Meaning
367

1789.163 Both Sherman and Madison were members of the House Select
Committee appointed to review Madison's draft. Once again, here are
Madison's original drafts of the Ninth and Tenth Amendments:
The exceptions, here or elsewhere in the constitution, made in favor of
particular rights, shall not be so construed as to diminish the just
importance of other rights retained by the people, or as to enlarge the ez_rconstitutionp10001847=ez_replacebr_10001848powers delegated by the constitution; but either as actual limitations of
such constitutions inserted merely for greater caution.164
The powers not delegated by this constitution, nor prohibited by it to
the States, are reserved to the States respectively.165
Sherman drafted his provision the next month and presented it either in
July or early August.166 Again, here is Sherman's actual draft of the Ninth
and Tenth Amendments:
And the powers not delegated to the government of the united States
by the Constitution, nor prohibited by it to the particular States, are
retained by the States respectively. nor Shall any [limitations on] the
exercise of power by the government of the united States particular
instances here in enumerated by way of caution be construed to imply
the contrary.167
Sherman's draft deletes Madison's reference to "other rights retained by
the people" and replaces it with language that expressly grounds the Ninth as
a rule preserving the autonomy of the states.168 Sherman's draft is
significant, but for a very different reason than Professor Barnett supposes.
Instead of providing a link between individual natural rights and the Ninth
Amendment, the draft suggests that at least one member of the Select
Committee preferred a version of the Ninth that removed the language
regarding retained rights altogether and, instead, simply stated a rule of
construction preserving the retained powers of the states.169

163. Amendment Proposed by James Madison (June 8, 1789), in THE COMPLETE BILL OF
RIGHTS, supra note 13, at 627.
164. James Madison, Speech to the House of Representatives (June 8, 1789), in 1 RIGHTS
RETAINED BY THE PEOPLE, supra note 14, at 55.
165. Id. at 56.
166. See Roger Sherman, Proposed Committee Report (July 21�28, 1789), in CREATING THE
BILL OF RIGHTS, supra note 2, at 266�67.
167. Id. at 268.
168. In this manner, Sherman's draft apparently reflects the same preference voiced by Edmund
Randolph for a Ninth closer to the letter and spirit of Virginia's first and seventeenth amendments.
See infra note 200. Sherman apparently did not believe he was changing the substantive meaning of
the provision, as his draft was presented for stylistic purposes. His draft thus indirectly supports
Madison's argument that securing rights amounted to the same thing as limiting the constructive
enlargement of power. See infra note 202.
169. The House Committee reported its draft of the Bill of Rights on July 28, 1789, with the
Ninth having attained its final form. CREATING THE BILL OF RIGHTS, supra note 2, at 29. On
August 4, Roger Sherman wrote that the amendments as drafted by the Committee "will probably
368
Texas Law Review
[Vol. 83:331

2. The Altered Draft of the Select Committee.--The Select Committee
was appointed on July 21, 1789. One week later, on July 28, the Committee
reported back to the House a streamlined version of Madison's proposals.170
The new draft of the Ninth Amendment no longer contained Madison's
reference to constructive enlargement of federal power, but his draft of the
Tenth remained unchanged:171
The enumeration in this constitution of certain rights shall not be
construed to deny or disparage others retained by the people.
The powers not delegated by this Constitution, nor prohibited by it to
the States, are reserved to the States respectively.172
Because the Select Committee's version of the Ninth speaks only of
rights, while the Tenth speaks of powers, some scholars have suggested that
the committee "unpacked" Madison's early draft of the Ninth and moved the
"enlargement of powers" language to the Tenth.173 This is another example
of scholars categorizing historical materials relating to the Ninth and Tenth
Amendments under the assumption that rights go to the Ninth while powers
go to the Tenth.174
As before, applying the assumption to Madison's initial draft distorts
the evidence. To begin with, at the same time Madison offered his "enlarged
powers" draft of the Ninth, he also offered his draft of the Tenth.175 Madison
obviously believed his versions of the Ninth and Tenth each covered

be harmless & Satisfactory to those who are fond of Bills of rights." Letter from Roger Sherman to
Henry Gibbs (Aug. 4, 1789), in CREATING THE BILL OF RIGHTS, supra note 2, at 271. Sherman had
no objection to the Committee's draft of the Ninth, despite his preference for a draft that expressly
retained the rights of the states. Because his version was submitted for stylistic purposes and was
not intended to substantively alter the amendments, Sherman, like Hardin Burnley, probably read
the final version of the Ninth as expressing the same states rights principle he expressed in his own
draft. See infra note 201 and accompanying text.
170. According to Bernard Schwartz, "[T]he Committee version was a virtual restatement of
the amendments proposed by Madison." THE BILL OF RIGHTS: A DOCUMENTARY HISTORY, supra
note 122, at 1050.
171. Madison himself was ambivalent about the committee's draft: "The proposed amendments
of which I sent you a copy have since been in the hands of a committee composed of a member
from each State . . . [some] of the changes are perhaps for the better, others for the worse." Letter
from James Madison to Wilson Cary Nicholas (Aug. 2, 1789), in CREATING THE BILL OF RIGHTS,
supra
note 2, at 271.
172. House Committee Report (July 28, 1789), in CREATING THE BILL OF RIGHTS, supra note
2, at 31, 33.
173. See Randy Barnett, Introduction: James Madison's Ninth Amendment, in 1 RIGHTS
RETAINED BY THE PEOPLE, supra note 14, at 13; MASSEY, supra note 12, at 75 ("[T]he House
Select Committee used Madison's fourth resolution, in part, as the raw material for the Tenth
Amendment as well as the Ninth.").
174. See, e.g., MASSEY, supra note 12, at 11 ("[T]he Ninth Amendment is pretty clearly
concerned with `rights retained by the people' while the Tenth is equally explicit that its focus is on
governmental `powers'").
175. James Madison, Amendments to the Constitution (June 8, 1789), in 2 THE BILL OF
RIGHTS: A DOCUMENTARY HISTORY, supra note 122, at 1016, 1027�28.
2004]
The Lost Original Meaning
369

different subjects, despite the amendments sharing a common reference to
government powers. In fact, there is no evidence that language was taken
from the Ninth and placed in the Tenth. When the "enlargement of powers"
language was removed from Madison's Ninth, it was not placed in the
Tenth--it simply disappeared. The Select Committee left Madison's Tenth
unchanged.176
There appear to be three possible reasons for removing the
"enlargement of power" language from the final version of the Ninth
Amendment. First, the Select Committee might have decided to abandon the
attempt to limit the constructive enlargement of federal power. Second, the
Committee may have concluded that the constructive enlargement of powers
principle was redundant with language already contained in the Tenth.
Third, the Committee could have concluded that the constructive
enlargement of power language was redundant with language already
contained in the Ninth. There are reasons why the first two choices are
unlikely,177 but fortunately we do not have to guess.178 Madison himself
claimed the third explanation was the case, and he defended the Committee's
draft on those grounds.179 A defense was needed, too. Concerns over the
Committee's draft of the Ninth Amendment played a role in holding up
ratification of the entire Bill.180
3. Popular Sovereignty and the Tenth Amendment.--There is one final
change in the last two amendments that deserves mention before we proceed.
At the last minute, the phrase "or to the people" was added to the Tenth
Amendment.181 The final version read:

176. After the Select Committee referred the amendments back to the House, the Tenth was
altered at the last minute to include the words "or to the people." See House of Representatives
Journal (Aug. 18, 1789), in 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY, supra note 122, at
1114, 1118; MASSEY, supra note 12, at 78.
177. As to the first, given the repeated call by the states for a provision limiting the constructive
expansion of federal power and Madison's original decision that such a provision was appropriate,
it does not seem likely that the idea would be lightly abandoned. As to the second possibility, it was
clear that the states did not read declarations of enumerated power as controlling the constructive
enlargement of that power, which is why almost all the states called for two separate provisions.
Madison's own initial draft echoed this idea.
178. In rereading Calvin Massey's Silent Rights, I noticed that my manner of presenting this
issue closely mirrors his. See Massey, supra note 12, at 72�73 (setting up three possible reasons for
the Committee's alteration and stating "[f]ortunately, we are not confined to speculation").
Professor Massey and I offer very different resolutions of the issue, but our approaches are similar
enough in style that I believe Massey should be credited with the prior stylistic approach.
179. See infra notes 202�03 and accompanying text.
180. Kaminski, supra note 46, at 146.
181. See supra note 176.
370
Texas Law Review
[Vol. 83:331

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.182
The state convention proposals and Madison's draft of the Tenth clearly
indicate that the Tenth was meant to declare the principle that all
nondelegated powers were reserved to the States. No historian disputes this.
Why then did the Committee add the phrase "or to the people?" The answer
lies in the Founders' conception of popular sovereignty. A theory of popular
government developed in the period between the Revolution and the adop-
tion of the Constitution,183 popular sovereignty maintained that sovereign
power remains with the people, not with their government.184 The people
delegated powers to their government, but could "alter or abolish" those
powers as they saw fit.185 The delegation of power, however, could occur at
either of two levels. For example, powers not delegated to the federal
government could be delegated by the people to their own state government.
As New York's suggested amendment put it:
That every Power, Jurisdiction and right, which is not by the said
Constitution clearly delegated to the Congress of the United States, or
the departments of the government thereof, remains to the People of
the several States, or to their respective State Governments to whom
they may have granted the same.186
The final version of the Tenth Amendment expresses this idea that the
people retain the right to delegate reserved powers to their respective state
governments or not to delegate them to either level of government.
Grounding the Tenth in the theory of popular sovereignty linked it to the
Ninth. Together, the two amendments reserve to the people all retained
rights and powers.187

182. U.S. CONST. amend. X.
183. See GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776�1787, at 345
(1969) (arguing that the idea of popular sovereignty "was at the heart of the Anglo-American
argument that led to the Revolution").
184. For a discussion of the popular sovereignty roots of the phrase "the people" in the Ninth
and Tenth Amendments, see AMAR, supra note 27, at 64.
185. Id. at 119�22.
186. Amendment Proposed by the New York Convention (July 26, 1788), in THE COMPLETE
BILL OF RIGHTS, supra note 13, at 635.
187. Id. According to antifederalist Federal Farmer:
It is said, that when the people make a constitution, and delegate powers that all
powers not delegated by them to those who govern is [sic] reserved in the people; and
that the people, in the present case, have reserved in themselves, and in their state
govconstitutionery right and power not expressly given by the federal constitution to
those who shall administer the national government.
Letters From Federal Farmer (Oct. 12, 1787), in 2 STORING, THE COMPLETE ANTI-FEDERALIST,
supra note 58, at 247.
2004]
The Lost Original Meaning
371

C. The Missing Virginia Ratification Debate
[The eleventh amendment] is exceptionable to me, in giving a handle
to say, that congress have endeavoured to administer an opiate, by an
alteration, which is merely plausible.188
Almost every state proposing amendments to the Constitution suggested
the addition of two separate provisions: one declaring delegated powers, the
other forbidding the constructive enlargement of those powers.189 Madison's
original draft of the Ninth and Tenth Amendments followed this same
approach. His draft of the Tenth contained the declaration of enumerated
power, and his draft of the Ninth prohibited the constructive enlargement of
federal power.190 However, when the Select Committee removed the
constructive "enlargement of powers" language from the Ninth, this resulted
in an amendment that, stylistically, bore little resemblance to the rule of
construction provisions suggested by the states. True, the Select
Committee's version still contained a rule of construction. That rule,
however, no longer expressly controlled the constructive enlargement of
federal power as called for by the state conventions. Not surprisingly, the
Committee's modification of Madison's Ninth triggered concern, particularly
in Virginia. There, in an episode previously unexplored by Ninth
Amendment scholars, objections to the altered draft of the Ninth Amendment
brought to a halt the Federalists' efforts to ratify the Bill of Rights.
1. The Letters of Hardin Burnley and James Madison.--On August 21,
1789, James Madison wrote to Edmund Randolph reporting on Congress's
efforts to finalize a draft of the proposed Bill of Rights.191 After noting the
ongoing efforts by the Antifederalists to delay the process (and thus keep
hope alive for a second national convention), Madison apologized for not
proposing all of Virginia's suggested amendments. "It has been absolutely
necessary in order to effect any thing," Madison explained, "to abbreviate
debate, and exclude every proposition of a doubtful & unimportant
nature."192 There is no indication in his letter that Madison believed
Randolph would be troubled by those amendments which had made it
through the process of drafting.
On August 24, Congress settled on the final version of the Bill of Rights
and submitted the same to the states for ratification.193 On November 5,

188. Letter from Edmund Randolph to George Washington (Dec. 6, 1789), in 5
DOCUMENTARY HISTORY, supra note 1, at 223.
189. See supra notes 116�26 and accompanying text.
190. MASSEY, supra note 12, at 78.
191. Letter from James Madison to Edmund Randolph (Aug. 21, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 191�92.
192. Id.
193. Report from the House of Representatives (Aug. 24, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 193.
372
Texas Law Review
[Vol. 83:331

Virginia Assembly member Hardin Burnley wrote to James Madison
informing him that, although the assembly committee had voted to ratify the
first ten proposed amendments, the "11th & 12th" (our Ninth and Tenth
Amendments) had been rejected.194 Opposition to these two amendments
came from former governor Edmund Randolph.195 A few weeks later, a
frustrated Madison wrote to President Washington that the consideration of
the proposed amendments likely would be postponed until the next
session.196 Madison grumbled that the postponement would have made more
sense "if the amendments did not so much correspond as far as they go with
the propositions of the State Convention, which were before the public long
before the last election."197 From Madison's perspective, the amendments
sent to Virginia were not different in any significant way from their counter-
parts proposed by the Virginia convention, provisions which he himself had
helped draft and which had long been open to public comment.
On November 28, Burnley wrote to Madison again, warning that "the
fate of the amendments proposed by Congress to the General Government is
still in suspense."198 According to Burnley, Randolph's objections to the
Ninth and Tenth Amendments threatened to derail the ratification of the
entire Bill:
If the house should agree to the resolution for rejecting the two last I
am of opinion that it will bring the whole into hazard again, as some
who have been decided friends to the ten first think it would be unwise
to adopt them without the 11th & 12th.199

194. Letter from Hardin Burnley to James Madison (Nov. 5, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 214. Opposition had been brewing in Virginia from the start. In their
letter on Sept. 28, 1789 to Governor Randolph notifying him of the proposed amendments, Richard
Henry Lee and William Grayson declared their "grief that we now send forward propositions
inadequate to the purpose of real and substantial Amendments." See CREATING THE BILL OF
RIGHTS, supra note 2, at 300 n.1; see also Letter from William Grayson to Patrick Henry (Sept. 29,
1789), in CREATING THE BILL OF RIGHTS, supra note 2, at 300 ("[The proposed amendments] are so
mutilated & gutted that in fact they are good for nothing, & I believe as many others do, that they
will do more harm than benefit . . . .").
195. See Letter from Edward Carrington to James Madison (Dec. 20, 1789), in 5
DOCUMENTARY HISTORY, supra note 1, at 228 ("[O]n the eleventh and twelfth some difficulty
arose, from Mr. E. Randolph[] objecting to them as unsatisfactory . . . ."); see also Letter from
Edmund Randolph to George Washington (Nov. 26, 1789), in 5 DOCUMENTARY HISTORY, supra
note 1, at 216 ("The eleventh and twelfth were rejected 64 against 58. I confess, that I see no
propriety in adopting the two last.").
196. Letter from James Madison to The President of the United States (Nov. 20, 1789), in 5
DOCUMENTARY HISTORY, supra note 1, at 215.
197. Id.
198. Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 219.
199. Id. at 219�20. Burnley was right. The dispute over the Eleventh and Twelfth
Amendments (our Ninth and Tenth) ballooned into questions regarding the First, Sixth, Ninth, and
Tenth Amendments. LEVY, supra note 8, at 42.
2004]
The Lost Original Meaning
373

In this letter, Burnley attempted to describe in greater detail Randolph's
leading role in opposing the ratification of the Ninth and Tenth Amendments:
On the two last [the Ninth and Tenth] a debate of some length took
place, which ended in rejection. Mr. E. Randolph who advocated all
the others [amendments] stood in this contest in the front of
opposition. His principal objection was pointed against the word
retained in the eleventh proposed amendment, and his argument if I
understood it was applied in this manner, that as the rights declared in
the first ten of the proposed amendments were not all that a free
people would require the exercise of; and that as there was no criterion
by which it could be determined whither any other particular right was
retained or not, it would be more safe, & more consistent with the
spirit of the 1st & 17th amendments proposed by Virginia, that this
reservation against constructive power, should operate rather as a
provision against extending the powers of Congress by their own
authority, than as a protection to rights reducible to no definitive
certainty.200
Burnley, however, disagreed with Randolph's objections. He saw no
difference between Randolph's preferred language and the language used in
the Ninth's final draft:
But others among whom I am one see not the force of the distinction,
for by preventing an extension of power in that body from which
danger is apprehended safety will be insured if its powers are not too
extensive already, & so by protecting the rights of the people & of the
States, an improper extension of power will be prevented & safety
made equally certain.201

200. Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 219. There is an intriguing possibility that Burnley did not fully grasp
Randolph's objections. For example, it seems rather curious that, if Randolph was worried about
protecting unenumerated rights, he would prefer the language of Virginia's seventeenth proposal, a
provision which said nothing at all about the retained rights of the people. Burnley himself seemed
unsure that he had accurately grasped Randolph's objections and he was careful to caution that his
report was based on Randolph's objection "if I understood it." In fact, there is some indirect
evidence that Burnley collapsed what actually were two separate criticisms of the Ninth
Amendment, one involving the failure to expressly address constructive enlargement of federal
power and the other referring to the ineffectiveness of the Ninth if it was intended to protect
unenumerated rights. See infra notes 226�35 and accompanying text (discussing the Senate
Report).
201. Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 219. Notice that Burnley read the final language of the Ninth as
protecting the rights of the people and of the states. So would have others. Retaining rights to the
people included the understanding that these rights could be granted back to the respective state
governments. See supra notes 114�18 and accompanying text (discussing New York's proposals).
Under this view, preserving the retained rights of the people is the same thing as preserving the
retained "powers, jurisdiction and rights" of the states. See id. The final draft of the Ninth thus
would have been understood to preserve the rights of local government every bit as much as the
374
Texas Law Review
[Vol. 83:331

James Madison agreed with Burnley's reasoning and appended his
language in a letter to George Washington. In that letter, Madison lamented
the bad luck that had arisen in Virginia:
My last information from Richmond is contained in the following
extract: [Here Madison quotes Burnley's description of Randolph's
objection]. The difficulty started [against] the amendments is really
unlucky, and the more to be regretted as it springs from a friend to the
Constitution. It is a still greater cause of regret, if the distinction be,
as it appears to me, altogether fanciful. If a line can be drawn between
the powers granted and the rights retained, it would seem to be the
same thing whether the latter be secured by declaring that they shall
not be abridged, or that the former shall not be extended.202
This letter illuminates why the Select Committee, of which Madison
was a member, ultimately omitted Madison's language regarding the
constructive enlargement of federal power. If securing rights and limiting
the extension of powers amount to the same thing, then this means that the
original draft of the Ninth Amendment contained redundant provisions.
Either provision by itself would equally limit the construction of enumerated
powers while securing retained rights. Thus, according to Madison, the rule
of construction prohibiting the constructive enlargement of powers remained
alive and well in the final version of the Ninth Amendment. This is the plain
meaning of his letter to Washington, and it fits with the general view of
rights and powers held by many in the Founding generation.203

proposals submitted by the States. Madison's views on this matter were express, as the next section
shows.
202. Letter from James Madison to George Washington (Dec. 5, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 221�22.
203. Some scholars object to viewing rights and powers as two sides of the same coin. See,
e.g., BARNETT, RESTORING THE LOST CONSTITUTION, supra note 12, at 3. However much it might
make sense to us to treat powers and rights as independent, it appears the Founders broadly shared
the view that rights and powers were directly dependent. For example, one of the most important
constitutional theorists of his generation, James Wilson, declared in the Pennsylvania Convention,
"In all societies, there are many powers and rights which cannot be particularly enumerated. A bill
of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an
enumeration, everything that is not enumerated is presumed to be given." James Wilson,
Pennsylvania Convention (Oct. 28, 1787), in THE COMPLETE BILL OF RIGHTS, supra note 13, at
648; see also Remarks of James Madison, Virginia Convention (June 24, 1788), in THE COMPLETE
BILL OF RIGHTS, supra note 13, at 656 ("If an enumeration be made of our rights, will it not be
implied that every thing omitted is given to the general government?"). James Iredell made a
similar point at the North Carolina Convention:
But when it is evident that the exercise of any power not given up would be a
usurpation, it would be not only useless, but dangerous, to enumerate a number of
rights which are not intended to be given up; because it would be implying, in the
strongest manner, that every right not included in the exception might be impaired by
the government without usurpation; and it would be impossible to enumerate every
one.
James Iredell, North Carolina Convention (July 29, 1788), in THE COMPLETE BILL OF RIGHTS,
supra note 13, at 649. Even some unenumerated individual rights advocates concede that the
2004]
The Lost Original Meaning
375

There is a rather vigorous debate over the meaning of the
correspondence between Madison and Burnley.204 Passive, federalist
scholars see this letter as a straightforward statement that the Ninth is simply
another way of expressing the doctrine of limited federal power.205 Some
Libertarian scholars have suggested alternate ways to read the letter,206 while
others have dismissed Madison's treatment of powers and rights as incorrect
and have asserted that "[he] knew better."207 Surprisingly, given the focus of
Madison's letter, relatively little attention has been paid to Randolph's
particular concern and why he might have preferred Virginia's first and
seventeenth proposals over the final draft of the Ninth and Tenth
Amendments.208 Understanding Randolph's concerns illuminates the
significance of Burnley's letter and Madison's response. It also explains the
reaction of the Virginia Assembly to the final version of the Ninth
Amendment.
2. Edmund Randolph's Complaint.--As a delegate at the Philadelphia
Convention, Edmund Randolph had refused to sign the document.209
Ultimately, however, he became convinced that the Constitution was worth
supporting despite his continued concerns, and in the Virginia ratification
convention, Randolph defended the Constitution against claims that it created
a government of unlimited power:
If it would not fatigue the house too far, I would go back to the
question of reserved rights. The gentleman supposes that complete
and unlimited legislation is vested in the Congress of the United
States. This supposition is founded on false reasoning. . . . [I]n the
general Constitution, its powers are enumerated. Is it not, then, fairly

Founding generation had a different perspective regarding rights and powers than courts generally
do today. See, e.g., MASSEY, supra note 12, at 67 ("To many of the Founding generation it seemed
axiomatic that rights began where powers ended, and powers began where rights ended.").
204. For discussions of the correspondence between Madison and Burnley, see MCAFFEE,
supra note 12, at 145�47; LEVY, supra note 8, at 257�59; and BARNETT, RESTORING THE LOST
CONSTITUTION, supra note 12, at 249�52.
205. E.g., McAffee, The Original Meaning, supra note 162, at 1291; Berger, The Beckoning
Mirage, supra note 57, at 966.
206. See BARNETT, RESTORING THE LOST CONSTITUTION, supra note 12, at 249�52
(suggesting that Madison was referring to dual approaches for protecting unenumerated rights).
207. Leslie W. Dunbar, James Madison and the Ninth Amendment, 42 VA. L. REV. 627, 633�34
(1956).
208. In his most recent work on the Ninth Amendment, Randy Barnett discusses the
correspondence between Madison and Burnley, but never addresses Randolph's concern itself
beyond that which he infers from the correspondence. See BARNETT, RESTORING THE LOST
CONSTITUTION, supra note 12, at 250�52. Thomas McAffee analyzes Randolph's concerns as
described by Burnley, but also fails to explore Randolph's view beyond Burnley's letter. See
MCAFFEE, supra note 12, at 145�47; see also MASSEY, supra note 12, at 76�79. None of these
authors examine the debate in the Virginia Assembly.
209. LEVY, supra note 8, at 104.
376
Texas Law Review
[Vol. 83:331

deducible, that it has no power but what is expressly given it?--for if
its powers were to be general, an enumeration would be needless.210
. . . .
I persuade myself that every exception here mentioned is an
exception, not from general powers, but from the particular powers
therein vested.211
According to Randolph, reserved rights would be protected because the
document followed the assumed principle of limited delegated power.
Despite this general defense, however, Randolph remained concerned about
the Necessary and Proper Clause:
My objection is, that the [Necessary and Proper Clause] is ambiguous,
and that that ambiguity may injure the states. My fear is, that it will,
by gradual accessions, gather to a dangerous length. This is my
apprehension, and I disdain to disown it.212
Randolph was not alone in his concerns.213 It was agreed by all that the
federal government was to be one of limited enumerated power, with all
nondelegated powers reserved to the states. Finding some way to assure the
states that their rights were indeed protected was critical to heading off a
second convention.214 Not surprisingly, almost every list of proposed
amendments contained a declaration of limited delegated power and so did
Madison's original Bill.

210. Note that Randolph's remarks are yet another example of how the Founding generation
viewed rights and powers as two sides of the same coin.
211. Edmund Randolph, Speech in Virginia Convention, in 3 ELLIOT'S DEBATES, supra note
42, at 464.
212. Id. at 470.
213. A number of voices in the states suggested that a provision protecting the reserved power
of the states was more important than the rest of the Bill. William R. Davie of North Carolina wrote
to James Madison in June of 1789 informing him of the general sentiment of the state convention
regarding proposed amendments to the Constitution. Referring to those whose complaints were
"honest and serious," as opposed to the mere strategic objections being raised by the Antifederalists,
Davie wrote, "Instead of a Bill of Rights attempting to enumerate the rights of the Indivi[du]al or
the State Governments, they seem to prefer some general negative confining Congress to the
exercise of the powers particularly granted, with some express negative restriction in some
important cases." Letter from William R. Davie to James Madison (June 10, 1789), in CREATING
THE BILL OF RIGHTS, supra note 2, at 246. Davie probably was referring to the comment made by
Mr. Spencer in the North Carolina Convention: "It appears to me there ought to be such a clause in
the Constitution as there was in the Confederation, expressly declaring, that every power,
jurisdiction, and right, which are not given up by it, remain in the states. Such a clause would
render a bill of rights unnecessary." Mr. Spencer, North Carolina State Convention (July 29, 1788),
in THE COMPLETE BILL OF RIGHTS, supra note 13, at 647. In the Virginia Convention, Patrick
Henry declared, "A bill of rights may be summed up in a few words. What do they tell us?--That
our rights are reserved." Patrick Henry, Speech in Virginia Convention (June 14, 1788), in 3
ELLIOT'S DEBATES, supra note 42, at 448.
214. See Lash, Rejecting Conventional Wisdom, supra note 77, at 221 (discussing the threat of a
second convention and the role of the Bill in heading off the same).
2004]
The Lost Original Meaning
377

The problem was that without a rule of construction limiting the
interpretation of enumerated federal power, a mere declaration that "all not
delegated is reserved" would not be sufficient. It was still possible, as the
Antifederalists were quick to point out, that courts would give delegated
powers such a latitude of construction as to effectively render national power
unlimited in fact, if not in theory. According to Brutus:
The courts . . . will establish this as a principle in expounding the
constitution, and will give every part of it such an explanation, as will
give latitude to every department under it, to take cognizance of every
matter, not only that affects the general and national concerns of the
union, but also of such as relate to the administration of private
justice, and to regulating the internal and local affairs of the different
parts.215
As Randolph expressed it, something was needed to prevent the
"gradual accessions" of federal power.216 Others in the Virginia Assembly
shared Randolph's concern. Although Virginia ultimately voted to ratify the
Constitution, the convention recommended adding, among others,
amendments that specifically declared the principle of enumerated power and
provided a rule of construction.217 Although we have read these provisions
before, because of the role they play in this debate, Virginia's first and
seventeenth proposals are presented again:
First, That each State in the Union shall respectively retain every
power, jurisdiction and right which is not by this Constitution
delegated to the Congress of the United States, or to the departments
of the Foederal Government.
. . . .
Seventeeth, That those clauses which declare that Congress shall not
exercise certain powers be not interpreted in any manner whatsoever
to extend the powers of Congress. But that they may be construed
either as making exceptions to the specified powers where this shall be
the case, or otherwise as inserted merely for greater caution.218
As explained above, these two provisions are not redundant. One
declares the principle of delegated power, while the other prohibits the
extension of those delegated powers beyond that intended by the delegation.
As we have seen, similar clauses were suggested by other states as well.
Given the perceived importance of adding a clause limiting the construction

215. Brutus No. 12 (Feb. 7, 1788), in STORING, THE COMPLETE ANTI-FEDERALIST, supra note
58, at 422, 424.
216. See supra notes 210�11 and accompanying text.
217. See supra note 122 and accompanying text.
218. Amendments Proposed by the Virginia Convention (June 27, 1788), in THE COMPLETE
BILL OF RIGHTS, supra note 13, at 675.
378
Texas Law Review
[Vol. 83:331

of delegated federal power, we now can understand why Randolph objected
to the Select Committee's decision to delete the very language he deemed so
important. It was not that Randolph rejected Madison's explanation that the
final version continued to prevent the undue extension of federal power. The
problem was that this limit on the constructive enlargement of federal power
was implied rather than express. The eleventh amendment, Randolph
complained to fellow Virginian George Washington, "is exceptionable to me,
in giving a handle to say, that congress have endeavoured to administer an
opiate, by an alteration, which is merely plausible."219 Instead of this merely
"plausible" alteration, Randolph preferred "a provision against extending the
powers of Congress," such as the one contained in Madison's earlier draft,
because it was "more safe, & more consistent with the spirit of [Virginia's]
1st and 17th amendments."220
Randolph's preference was for a provision expressly limiting the power
of the federal government to interfere with the autonomy of the states.
Virginia's seventeenth proposal imposed a rule of construction that prevented
the federal government from extending its own power by implication. This
rule of construction was combined with a declaration that "each State in the
Union shall respectively retain every power, jurisdiction and right which is
not by this Constitution delegated to the Congress of the United States."221
Randolph was not calling for a provision protecting individual rights.222 He
desired a rule that clearly protected the scope of state autonomy such as
Virginia's seventeenth, and it is against the language of Virginia's
seventeenth that Randolph judged the final draft of the Ninth.
Although Randolph raised objections regarding both the Ninth and
Tenth Amendments, his complaint was focused on the language of the Ninth.
In a letter to George Washington, Randolph wrote:
The twelfth [the Tenth] amendment does not appear to me to have any
real effect, unless it be to excite a dispute between the United States,
and every particular state, as to what is delegated. It accords pretty
nearly with what our convention proposed; but being once adopted, it
may produce new matter for the cavils of the designing.223

219. Letter from Edmund Randolph to George Washington (Dec. 6, 1789), in 5
DOCUMENTARY HISTORY, supra note 1, at 223.
220. See supra text accompanying note 200.
221. Amendments Proposed by the Virginia Convention (June 27, 1788), in THE COMPLETE
BILL OF RIGHTS, supra note 13, at 675 (emphasis added).
222. Simply reading Virginia's first and seventeenth proposals closes the door on any attempt
to read Madison's letter as referring to alternate strategies for protecting individual natural rights.
The language preferred by Randolph had nothing to do with such rights. Instead, Randolph's
preference was for tandem amendments expressly limiting the construction of federal power and
reserving all remaining rights and powers to the states. Madison and Washington both knew this.
223. Letter from Edmund Randolph to George Washington (Dec. 6, 1789), in 5
DOCUMENTARY HISTORY, supra note 1, at 223.
2004]
The Lost Original Meaning
379

This is not a serious objection, and it is not presented as one. After all,
Virginia's proposed amendment also contained the term "delegated."224 In
fact, Randolph conceded that the language of the Tenth "accords pretty
nearly" with Virginia's suggested language that states retained all
nondelegated powers, jurisdiction, and rights.225 Dropping the specific
reference to states' "rights" does not appear to have troubled Randolph.226 In
fact, following its adoption, the Founders regularly cited the Tenth
Amendment as guarding the reserved powers and rights of the states.227
It was not that Randolph desired different language for the Tenth but
that the Tenth did not appear to have any real effect. Randolph believed that
the Constitution, even without the Tenth, adopted the principle of
enumerated federal power.228 Adding the Tenth made this principle express,
but it had no independent effect. Randolph's main concern, as he expressed
in the convention and now in the Virginia Assembly, involved the need for a
rule which limited the construction of those enumerated powers. Virginia
had proposed such a rule, and the original draft of the Ninth expressly
adopted this rule. The altered draft of the Ninth, however, obscured what
had been express in the earlier draft, thus making it "exceptionable" to
Randolph. His concerns were serious enough to convince him to temporarily
hold up ratification of both the Ninth and Tenth Amendments.
3. The Virginia Senate Report.--In his December 6 letter to George
Washington, Edmund Randolph reported that, despite his concerns about the
Ninth Amendment, the Virginia House had agreed to ratify all twelve
proposed amendments.229 This left the matter in the hands of the Virginia

224. Amendments Proposed by the Virginia Convention (June 27, 1788), in THE COMPLETE
BILL OF RIGHTS, supra note 13, at 675.
225. Letter from Edmund Randolph to George Washington (Dec. 6, 1789), in 5
DOCUMENTARY HISTORY, supra note 1, at 223.
226. Nor did it trouble the Virginia Senate. See infra note 235 and accompanying text.
227. This reading of the Tenth was regularly expressed by the Founding generation. See, e.g.,
Thomas Jefferson, Kentucky Resolutions, in 5 THE FOUNDERS' CONSTITUTION, supra note 13, at
132 (resolving that the Tenth enabled the states to reserve powers not delegated to the federal
government); James Madison, Report on the Virginia Resolutions, in JAMES MADISON, WRITINGS,
supra note 3, at 610 (recalling that the Tenth Amendment supported the principle "that powers not
given to the [federal] government, were withheld from it"); St. George Tucker, View of the
Constitution of the United States
, in 1 BLACKSTONE'S COMMENTARIES: WITH NOTES OF
REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED
STATES; AND OF THE COMMONWEALTH OF VIRGINIA app. 1, at 140�43 (St. George Tucker ed.,
Augustus M. Kelley 1969) (1803) [hereinafter TUCKER, BLACKSTONE'S COMMENTARIES]
(emphasizing that the Tenth meant that the federal government had limited powers while "the states,
in all unenumerated cases, are left in the enjoyment of their sovereign and independent
jurisdictions").
228. Edmund Randolph, Speech in Pennsylvania Convention, in 3 ELLIOT'S DEBATES, supra
note 42, at 464.
229. Letter from Edmund Randolph to George Washington (Dec. 6, 1789), in 5
DOCUMENTARY HISTORY, supra note 1, at 222.
380
Texas Law Review
[Vol. 83:331

Senate, where Antifederalists were more prevalent than in the House.230 As
Madison later reported to Washington, "The House of Delegates got over the
objections to the 11[th] & 12[th], but the Senate revived them with an
addition of the 3[rd] & 8[th] articles, and by a vote of adherence prevented a
ratification."231 Antifederalists had thus "revived" Randolph's good faith
objections to the Ninth Amendment in an attempt to derail ratification
altogether.232
A majority of the Senate prepared a report explaining their reasons for
objecting to the listed amendments. There is reason to take this report with a
grain of salt--the Senate was dominated by Antifederalists who had an
incentive to invent objections where none might actually be warranted.233
But for precisely that reason, their declared objection to the Ninth
Amendment is worth considering. The attempt was to use Randolph's
objections as a screen for adding more partisan objections. Thus, the
Antifederalist's attempt to use the concerns of Randolph, a "friend to the
Constitution," was likely to succeed only to the degree that his concerns were
convincingly represented. Here then is how the Senate described its
objections to the "11th proposed amendment":
We do not find that the 11th article is asked for by Virginia or any
other State; we therefore conceive that the people of Virginia should
be consulted with respect to it, even if we did not doubt the propriety
of adopting it; but it appears to us highly exceptionable.234
The Senate Report here states the truth: No state had proposed language
such as that adopted by the Select Committee. At the very least, noted the
Senate, the people of Virginia should have a chance to consider the meaning
of the Clause. The Report then compared the proposed Ninth with Virginia's
seventeenth proposal:
If the 11th Article [the Ninth Amendment] is meant to guard against
the extension of the powers of Congress by implication, it is greatly

230. According to Randolph, in the Senate "a majority is unfriendly to the government." Id.;
see also LEVY, supra note 8, at 42 (discussing antifederalist power in the Virginia Senate).
231. Letter from James Madison to George Washington (Jan. 4, 1790), in 5 DOCUMENTARY
HISTORY, supra note 1, at 230�31.
232. See LEVY, supra note 8, at 42 (discussing the antifederalist opposition to the Bill of Rights
in the Virginia Senate).
233. Leonard Levy describes the Senate Report as "grossly misrepresenting the First
Amendment (then the third)." Id. at 42. Curiously, Levy says nothing at all about the Senate's
characterization of the other amendments, including the Ninth and Tenth. Madison himself was not
troubled by the Senate Report because he believed they had gone too far, particularly in regard to
the Senate's purported objections to the First Amendment. See Letter from James Madison to
George Washington (Jan. 4, 1790), in 5 DOCUMENTARY HISTORY, supra note 1, at 231 (expressing
his opinion that the Senate's failure to ratify "will have the effect . . . with many of turning their
distrust towards their own Legislature," and noting that the "miscarriage" of the third article will
particularly have that effect).
234. Entry of Dec. 12, 1789, in JOURNAL OF THE SENATE OF THE COMMONWEALTH OF
VIRGINIA 63 (Richmond 1828) [hereinafter VIRGINA SENATE JOURNAL].
2004]
The Lost Original Meaning
381

defective, and does by no means comprehend the idea expressed in the
17th article of amendments proposed by Virginia; and as it respects
personal rights, might be dangerous, because, should the rights of the
people be invaded or called in question, they might be required to
shew by the constitution what rights they have retained; and such as
could not from that instrument be proved to be retained by them, they
might be denied to possess. Of this there is ground to be
apprehensive, when Congress are already seen denying certain rights
of the people, heretofore deemed clear and unquestionable.235
The Monday after the Senate delivered its report, a minority of the
Senate published their objections to the Majority Report. According to the
minority, even if the "3d, 8th and 12th" amendments were "not fully up in
form to those proposed" by the Virginia convention, they were nevertheless
sufficiently "analogous" and secured the people's "political and natural
rights."236 As for the Eleventh, the minority weakly noted that "though not
called for by any of the adopting States, we consider [it] as tending to quiet
the minds of many, and in no possible instance productive of danger to the
liberties of the people."237 Note that the minority read the Third, Eighth, and
Twelfth, but not the Ninth, as securing individual rights (including natural
rights).
This remarkable exchange between the Senate Majority and Minority
Reports raises a host of intriguing issues regarding the original understanding
of the Ninth Amendment. To begin with, we now have a clearer under-
standing of Edmund Randolph's objections. We know that Randolph led the
opposition to the Ninth Amendment in the Virginia House of Delegates.
According to Madison, the objections raised in the House were "revived" in
the Senate.238 If the above Senate Report accurately "revives" the concerns
that Randolph raised in the House, then this clarifies Randolph's objection to
the Ninth as reported by Hardin Burnley. According to Burnley, Randolph's
objection, as Burnley understood it, was focused on the word "retained"239
and seemed to argue that because the retained rights could not be

235. Id. at 63�64. The Senate's reported objections to the Twelfth were as follows:
We conceive that the 12th article would come up to the 1st article of the Virginia
amendments, were it not for the words "or to the people." It is not declared to be the
people of the respective States; but the expression applies to the people generally as
citizens of the United States, and leaves it doubtful what powers are reserved to the
State Legislatures. Unrestrained by the constitution or these amendments, Congress
might, as the supreme rulers of the people, assume those powers which properly belong
to the respective States, and thus gradually effect an entire consolidation.
Id. at 64.
236. Entry of Dec. 14, 1789, in VIRGINA SENATE JOURNAL, supra note 234, at 66.
237. Id. at 66�67.
238. Letter from James Madison to George Washington (Jan. 4, 1790), in 5 DOCUMENTARY
HISTORY, supra note 1, at 231.
239. See Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 219 (emphasizing the word "retained").
382
Texas Law Review
[Vol. 83:331

enumerated, it would have been better to use the "no extension of power"
language from Virginia's seventeenth proposal.240 The Senate Report,
however, separates these issues into two distinct points. The Report first
argues that, if the Ninth was intended to prevent the extension of federal
power, then it was defective and should have used the language of Virginia's
proposed seventeenth amendment.241 We know, in fact, that this was
Randolph's preferred language for the Ninth.242 The Report's second point
was that, if the Ninth was intended to protect retained personal rights
(something no state asked for), then it was defective because it would not be
clear exactly what rights were protected.243 It is possible that Burnley had a
hard time following the distinction between the two objections, and so
reported them to Madison as a single complaint against the Ninth.244 In any
event, Burnley accurately reported Randolph's preference: Virginia's
seventeenth amendment.
In terms of whether the Ninth was understood as guarding Libertarian
natural rights, the Majority Report says nothing about natural rights and the
Minority Report associates "political and natural rights" with the First, Sixth,
and Tenth Amendments, but not the Ninth. The Majority Report suggests
that it was possible to read the Ninth as either restricting federal power or as
protecting the personal rights of the people,245 but the fact that both the
Majority and the Minority were uncertain about the Ninth's meaning
suggests that the Select Committee's alteration of the text may have rendered
the Clause without any clearly identifiable meaning.
Before going so far as to abandon the search for original understanding,
however, a few points are in order. First, no other state besides Virginia
raised objections to the language of the Ninth Amendment. Had Virginia
voted in favor of ratification, the Bill of Rights, including the Ninth, would
have been added to the Constitution within a matter of months. Secondly,
despite Randolph's temporary objection that the Ninth only "plausibly"
contained the principles of Virginia's seventeenth,246 the Virginia House

240. Amendments Proposed by the Virginia Convention (June 27, 1788), in THE COMPLETE
BILL OF RIGHTS, supra note 13, at 675.
241. Entry of Dec. 12, 1789, in VIRGINA SENATE JOURNAL, supra note 234, at 63 (Richmond
1828).
242. Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 219 (indicating that Randolph preferred an amendment "more safe and
more consistent with the spirit of the 1st & 17th amendments proposed by Virginia").
243. Entry of Dec. 12, 1789, in VIRGINIA SENATE JOURNAL, supra note 234, at 63�64
(Richmond 1828).
244. See supra note 200 (discussing Burnley's possible misunderstanding of Randolph's
objections).
245. Whether the Majority understood the "personal rights of the people" to be individual or
collective in nature (or both) is not clear. The Antifederalist position, of course, favored the
protection of the collective rights of the people in the several states.
246. Letter from Edmund Randolph to George Washington (Dec. 6, 1789), in 5
DOCUMENTARY HISTORY, supra note 1, at 223.
2004]
The Lost Original Meaning
383

overcame whatever doubts they had about the Ninth within a few days. It
was only in the Senate, where antifederalist sentiment was strongest, that
objections continued to be raised regarding the Ninth. Also, it is unclear just
how great an ambiguity actually had been raised by the Select Committee's
choice of language. Madison believed that the Ninth continued to prevent
the extension of federal power and so did Virginia Assemblyman Hardin
Burnley.247 This means that the majority of states were satisfied with the
language of the Ninth, Madison and Burnley believed its federalist meaning
was clear, and the Virginia House had but temporary concerns. Finally, we
know that Randolph conceded that Madison's reading of the Ninth was
"plausible."248 His objection was that the final language was not as clear as
Virginia's seventeenth proposed amendment. Although the Majority Report
claimed the Ninth "by no means comprehend[ed] the idea expressed in the
17th Article," this is obviously an exaggeration of Randolph's own view that
the proposed Ninth was no longer as clear as Virginia's seventeenth.
Perhaps it is a coincidence that Virginia ultimately decided to ratify the
Bill of Rights only after Virginia Congressman James Madison gave a public
speech in which he actually used the Ninth Amendment in the manner
analogous to Virginia's seventeenth proposal.249 Coincidence or not, when
Virginia ratified the Ninth Amendment, it was entitled to rely on Madison's
public articulation of the meaning and effect of the Ninth Amendment
provided in Madison's speech opposing the Bank of the United States. As
we shall see, Madison clarified that the Ninth expressed a rule of
interpretation that protected the states from the constructive enlargement of
federal power.
Before addressing Madison's speech, there remains a mystery that this
account has not yet addressed. The above discussion suggests that the
"enlargement of powers" language contained in Madison's original draft was
redundant with the "disparagement of rights" provision. To Madison,
removing the "power" language did not affect the meaning or effect of the
clause because securing rights and limiting powers meant the same thing.
But the Select Committee had a choice regarding which "redundant"
provision should be removed. Why keep the language of rights and discard
that of powers, especially when the amendments proposed by the states had
used the language of enlarged federal power? As much as the above account
links the final draft of the Ninth with the desire to limit the expansion of
federal power, the fact remains that Madison and the Select Committee
framed the Ninth Amendment as a matter of retained rights. As the debate

247. According to Burnley, "others" believed the same thing. See supra note 201 and
accompanying text.
248. Letter from Edmund Randolph to George Washington (Dec. 6, 1789), in 5
DOCUMENTARY HISTORY, supra note 1, at 223.
249. James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791), in JAMES
MADISON, WRITINGS, supra note 3, at 489.
384
Texas Law Review
[Vol. 83:331

over the Bank of the United States makes clear, Madison believed that the
constructive enlargement of federal power was itself a violation of the
retained rights of the people. The issue was not one of constitutional policy,
but one of constitutional liberty.
D. Madison's Speech on the Constitutionality of the Bank of the United
States
Madison's speech on the Bank of the United States is significant for a
number of reasons. To begin with, it presents a public explanation of the
meaning of the Ninth Amendment by the primary drafter of the clause and
was presented in public while ratification of the Ninth Amendment remained
pending in a critical state. Moreover, it reveals how the Amendment could
be applied to a specific legal controversy. Although first noticed in a 1968
law review article,250 Madison's speech remained otherwise overlooked as
evidence regarding Madison's views on the Ninth Amendment until 1989.251
The occasion for the speech was a proposal to incorporate a national
bank. Only a few months after the ratification of the Constitution, Secretary
of the Treasury Alexander Hamilton submitted a plan to Congress for
chartering the Bank of the United States.252 The Senate approved the plan,
and the matter was debated in the House of Representatives in 1791 while
ratification of the proposed Bill of Rights was still pending in Virginia.253
Proponents of the bank argued that the charter was "necessary and proper" to
advancing Congress's enumerated powers to tax and regulate commerce
under Article I, Section 8.254
Those who opposed the bank maintained that only an unreasonably
expansive reading of Congress's enumerated powers could authorize the
charter. Thomas Jefferson, for example, argued that such a "latitude of
construction" would destroy the principle of enumerated powers declared in
the Tenth Amendment:
I consider the foundation of the Constitution as laid on this ground
that "all powers not delegated to the U.S. by the Constitution, not

250. Van Loan, supra note 12, at 15.
251. In his 1989 collection of essays on the Ninth Amendment, Randy Barnett reprinted Van
Loan's article which mentions Madison's speech and wrote his own essay discussing the
importance of the speech. See 1 RIGHTS RETAINED BY THE PEOPLE, supra note 14, at 149; see also
Randy E. Barnett, Introduction: Implementing the Ninth Amendment, in 2 RIGHTS RETAINED BY
THE PEOPLE, supra note 14, at 13�17. I address Barnett's analysis of the speech supra note 20.
252. Alexander Hamilton, Final Version of the Second Report on the Further Provision
Necessary for Establishing Public Credit (Dec. 13, 1790), in 7 THE PAPERS OF ALEXANDER
HAMILTON 305 (Harold C. Syrett, ed., 1963).
253. LEVY, supra note 8, at 37�43.
254. See Edmund Randolph, The Constitutionality of the Bank Bill (Feb. 12, 1791), in H.
JEFFERSON POWELL, THE CONSTITUTION AND THE ATTORNEYS GENERAL 7�9 (1999) (presenting
arguments by those supporting the bank).
2004]
The Lost Original Meaning
385

prohibited by it to the states, are reserved to the states or to the
people." . . . If such a latitude of construction be allowed to [the phrase
necessary and proper] as to give any non-enumerated power, it will go
to every one, for the[r]e is no one which ingenuity may not torture into
a convenience in some way or other, to some one of so long a list of
enumerated powers. It would swallow up all the delegated powers,
and reduce the whole to one phrase as before observed. . . . The
present is the case of a right remaining exclusively with the states.255
In a written opinion to President Washington, now Attorney General
Edmund Randolph presented the arguments for and against the
constitutionality of the Bank Bill.256 Noting his agreement with the
arguments opposed to the bank, Randolph proceeded to lay out that argument
in full.257 Randolph began by observing that, although governments without
constitutions might "claim a latitude of power not always easy to . . .
determine[]," the federal government was one of enumerated power as
"confessed by Congress, in the twelfth amendment."258 Addressing the
proper interpretation of Congress's enumerated powers, Randolph conceded
that 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, because "when we compare the ez_replacebr_temp1000184constitutionbr_10001848modes of construing a state and the federal constitution, we are admonished
to be stricter with regard to the later, because there is a greater danger of
error in defining partial than general powers."260
Canvassing the various claimed sources of power for the bank,
Randolph concluded:

255. Thomas Jefferson, Opinion on the Constitutionality of the Bill for Establishing a National
Bank (Feb. 15, 1791), in 19 THE PAPERS OF THOMAS JEFFERSON, 275, 276�80 (Julian P. Boyd ed.,
1974) (emphasis added).
256. Edmund Randolph, The Constitutionality of the Bank Bill (Feb. 12, 1791), in POWELL,
supra note 254, at 3�9.
257. Id. at 3.
258. Id. at 4. Randolph described state legislatures as governments which are "presumed to be
left at large as to all authority which is communicable by the people, and does not affect any of
those paramount rights, which a free people cannot be supposed to confide even to their
representatives." Id. The federal government, on the other hand, was one in which "powers are
described." Id. It appears then, that Randolph subscribed to an idea of inalienable rights which not
even state governments could violate. As we have seen, however, a belief in natural rights can exist
alongside a belief that states retained all nondelegated powers, jurisdiction, and rights.
259. Id. at 4; see also TUCKER, BLACKSTONE'S COMMENTARIES, supra note 227, at 141�45
(analogizing the Constitution to a contract, which may be open to interpretation).
260. Edmund Randolph, The Constitutionality of the Bank Bill (Feb. 12, 1791), in POWELL,
supra note 254, at 5.
386
Texas Law Review
[Vol. 83:331

[A] similar construction on every specified federal power, will stretch
the arm of Congress into the whole circle of state legislation. . . . [L]et
it be propounded as an eternal question to those who build new
powers on this clause, whether the latitude of construction which they
arrogate will not terminate in an unlimited power in Congress?261
We have heard Edmund Randolph's concerns about constructive
enlargement of federal power before. Randolph objected to the Select
Committee's removal of a provision expressly limiting the construction of
federal power from the final draft of the Ninth Amendment.262 He preferred
instead the approach of the Virginia ratifying convention which had
suggested two separate amendments, one declaring the principle of delegated
power and the other declaring a rule of construction preserving that
principle.263 To Randolph, like Jefferson, the doctrine of enumerated power
declared by the Tenth was under threat due to a "latitudinarian" construction
of enumerated federal power.
On February 2, 1791, Madison delivered an extended speech on the
floor of the House challenging the constitutionality of the Bank Bill.264 Two
days later, Roger Sherman sent Madison a memorandum on the bank
controversy.265 According to Sherman, Congress had general power to
regulate finances and:
. . . to make such rules & regulations as they may Judge necessary &
proper to effectuate these purposes. The only question that remains
is--Is a Bank a proper measure for effecting these purposes? And is
not this a question of expediency rather than of rights?266
In his Opinion on the Constitutionality of a National Bank, Alexander
Hamilton echoed Sherman's sentiment that "with regard to the question of
necessity it has been shown, that this can only constitute a question of
expediency, not of right."267 Hamilton and Sherman were responding to a
key element of Madison's argument against the Bank of the United States.
In his speech before the House, Madison declared that the Bill violated the
rights of the states--rights protected against invasion by the Ninth
Amendment.

261. Id. at 7 (emphasis added).
262. See supra notes 195�200 and accompanying text.
263. See id.
264. For an overview of Madison's speech, see GAZETTE OF THE UNITED STATES
(Philadelphia), Feb. 23, 1791, reprinted in 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL
CONGRESS, 1789�1791, at 367 (William Charles DiGiacomantonio et al. eds., 1995) [hereinafter
DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS].
265. Memorandum from Roger Sherman to James Madison (Feb. 4, 1791), in 13 THE PAPERS
OF JAMES MADISON 382 (Charles F. Hobson & Robert A. Rutland eds., 1981).
266. Id.
267. Alexander Hamilton, Opinion on the Constitutionality of a National Bank (Feb. 23, 1791),
in ALEXANDER HAMILTON, WRITINGS 622 (Library of America ed., 2001).
2004]
The Lost Original Meaning
387

1. Madison's Argument Regarding the Proper Rules of Constitutional
Interpretation.--As reported by the Gazette of the United States, "Mr.
Madison began with a general review of the advantages and disadvantages of
banks."268 Madison gave a short rendition of why the bank was not
necessary and threatened to cause more problems than it solved.269 This is
the briefest part of his speech.
Madison then turned to his main argument: The Constitution did not
grant Congress the power to establish an incorporated bank. Madison began
with a review of first principles: The federal government is one of limited
enumerated powers.270 If Congress has the power to incorporate a bank, it
must be discoverable through a proper interpretation of those powers.271
Madison then listed a number of rules for arriving at a "right interpretation"
of the Constitution:
An interpretation that destroys the very characteristic of the
government cannot be just. . . .
In controverted cases, the meaning of the parties to the instrument, if
to be collected by reasonable evidence, is a proper guide.
Contemporary and concurrent expositions are a reasonable evidence of
the meaning of the parties.
In admitting or rejecting a constructive authority, not only the degree
of its incidentality to an express authority, is to be regarded, but the
degree of its importance also; since on this will depend the probability
or improbability of its being left to construction.272
By this last rule, Madison meant that the more significant a power, the less
likely it was to have escaped the attention of the framers of the
Constitution.273 Thus, if it is not expressly listed in the Constitution, the
omission likely was intentional.
Armed with these tools for arriving at the right interpretation of the
Constitution, Madison next considered the purported sources of power put
forth by proponents of the bank. For example, attempting to locate power to
charter a bank in the power to "provide for the common defence, [and]
promote the general welfare"274 violated the first rule of right interpretation.
According to Madison:

268. GAZETTE OF THE UNITED STATES (Philadelphia), Feb. 23, 1791, reprinted in 14
DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS, supra note 264, at 367.
269. Id. at 367�68.
270. Id. at 369.
271. Id.
272. Id.
273. See infra note 281 (discussing the need to enumerate "great and important" powers).
274. U.S. CONST. pmbl.
388
Texas Law Review
[Vol. 83:331

To understand these terms in any sense, that would justify the power
in question, would give to Congress an unlimited power; would render
nugatory the enumeration of particular powers; would supercede all
the powers reserved to the state governments.275
To those who argued that Congress could act for the "general welfare"
so long as it did not interfere with the powers of the States, Madison
responded that chartering a bank "would directly interfere with the rights of
the States, to prohibit as well as to establish banks."276 Here, Madison
sounds a theme that would continue throughout his speech: Chartering the
bank would violate the rights of the states. At no point did Madison argue
that chartering a bank violated an individual right.277 It was the collective
rights of the people of the several states which were threatened by the Bill.278
Madison next considered whether chartering a bank was necessary and
proper to advance Congress's enumerated power to borrow money. Focusing
now on the Necessary and Proper Clause, Madison returned to first
principles:
Whatever meaning this clause may have, none can be admitted, that
would give an unlimited discretion to Congress. . . . The clause is in
fact merely declaratory of what would have resulted by unavoidable
implication, as the appropriate, and as it were, technical means of
executing those powers. In this sense it had been explained by the
friends of the constitution, and ratified by the state conventions.279
Deriving the power to charter a bank as necessary and proper to
borrowing money opened the door to an unlimited list of "implied powers:"
If, again, Congress by virtue of the power to borrow money, can create
the ability to lend, they may by virtue of the power to levy money,
create the ability to pay it. The ability to pay taxes depends on the
general wealth of the society, and this, on the general prosperity of
agriculture, manufactures and commerce. Congress then may give
bounties and make regulations on all of these objects. . . . The doctrine
of implication is always a tender one. . . . 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

275. GAZETTE OF THE UNITED STATES (Philadelphia), Feb. 23, 1791, reprinted in 14
DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS, supra note 264, at 369.
276. Id. at 370.
277. But see 2 RIGHTS RETAINED BY THE PEOPLE, supra note 14, at 15�17. For a discussion of
Barnett's analysis of the speech, see supra note 20 and accompanying text.
278. In this way, Madison's arguments against the bank were forerunners of the arguments he
would deploy in his Virginia Resolutions against the Alien and Sedition Acts: constructive
enlargement of federal power entrenched upon the rights of the states. See infra note 371�80 and
accompanying text.
279. GAZETTE OF THE UNITED STATES (Philadelphia), Feb. 23, 1791, reprinted in 14
DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS, supra note 264, at 371.
2004]
The Lost Original Meaning
389

whole compass of political economy. The latitude of interpretation
required by the bill is condemned by the rule furnished by the
Constitution itself.280
The rule furnished by the Constitution that Madison refers to is not the
Ninth Amendment or any other express constitutional provision. Madison
instead argues that the proper rule for identifying implied powers can be
derived from a study of the powers actually enumerated in the Constitution.
Although Congress did have implied powers to advance enumerated ends,
Madison argued that certain important powers required specific enumeration:
The examples cited, with others that might be added, sufficiently
inculcate nevertheless a rule of interpretation, very different from that
on which the bill rests. They condemn the exercise of any power,
particularly a great and important power, which is not evidently and
necessarily involved in an express power.281
Madison believed that "great and important powers" were not to be derived
by implication, but instead required an express enumeration unless actually
necessary to the advancement of an enumerated end.
Declaring that "it cannot be denied that the power proposed to be
exercised is an important power,"282 Madison then listed a number of
significant aspects of the bank charter, including the fact that the Bill "gives
a power to purchase and hold lands" and that "it involves a monopoly, which
affects the equal rights of every citizen."283 To Madison, these effects
established that the power to charter a bank was a "great and important
power" which required express enumeration:
From this view of the power of incorporation exercised in the bill, it
could never be deemed an accessary or subaltern power, to be deduced
by implication, as a means of executing another power; it was in its
nature a distinct, an independent and substantive prerogative, which
not being enumerated in the constitution could never have been meant
to be included in it, and not being included could never have been
rightfully exercised.284
However much proponents for the bank might argue the bank was
necessary and proper for the Union, this did not make the bank necessary and

280. Id. at 371�72.
281. Id. at 373; see also GAZETTE OF THE UNITED STATES (Phila.), Apr. 20, 1791, reprinted in
14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS, supra note 264, at 473 (reporting
Madison's statements during the debates over the Bank Bill that "[t]he power of granting Charters,
he observed, is a great and important power, and ought not to be exercised, without we find
ourselves expressly authorized to grant them").
282. GAZETTE OF THE UNITED STATES (Phila.), Feb. 23, 1791, reprinted in 14 DOCUMENTARY
HISTORY OF THE FIRST FEDERAL CONGRESS, supra note 264, at 373.
283. Id.
284. Id.
390
Texas Law Review
[Vol. 83:331

proper for executing an enumerated power.285 Unless "evidently and
necessarily" incident to an enumerated end,286 chartering a bank could not
appropriately be treated as an accessory power; if it were truly necessary for
the Union, it required its own enumeration. In the end, however, not only
was the bank not necessary to advance an enumerated end, "the proposed
bank could not even be called necessary to the government."287
Randy Barnett has argued that Madison believed the bank monopoly
abridged individual natural rights in violation of the Ninth Amendment.288
Barnett's argument is based on Madison's statement that the monopoly
"affects the equal rights of every citizen."289 Madison, however, was not
arguing that the bank charter violated individual rights. In fact, Madison
expressly stated that the proposed bank charter would "directly interfere with
the rights of the States."290 Madison's reference to the effect of a monopoly
on the equal rights of citizens was in support of his argument that the power
to charter a bank was an important power and, thus, required enumeration.
As his previously unnoticed draft veto of the proposed bill shows, Madison's
argument about the unequal treatment of citizens went to his understanding
of the effects of the monopoly and were separate from his views regarding
the constitutionality of the bank. Prepared at the behest of President
Washington, Madison drafted the following reasons for vetoing the Bank
Bill:
Feb. 21, 1791
Gentlemen of the Senate
Having carefully examined and maturely considered the Bill entitled
"An Act["] I am compelled by the conviction of my judgment and the
duty of my Station to return the Bill to the House in which it
originated with the following objections:
(if to the Constitutionality)

285. Id. at 374 ("Here he adverted to a distinction, which he said had not been sufficiently kept
in view, between a power necessary and proper for the government or union, and a power necessary
and proper for executing the enumerated powers.").
286. Id. at 373.
287. Id. at 374.
288. See 2 RIGHTS RETAINED BY THE PEOPLE, supra note 14, at 15; see also BARNETT,
RESTORING THE LOST CONSTITUTION, supra note 12, at 241.
289. 2 RIGHTS RETAINED BY THE PEOPLE, supra note 14, at 15.
290. JAMES MADISON, WRITINGS, supra note 3, at 483. Other opponents of the bank shared
Madison's view that the bank violated the rights of states, not the rights of individuals. According
to bank opponent, Mr. Giles:
Several gentlemen have said, that this authority may be safely exercised, since it does
not interfere with the rights of States or individuals. I think this assertion not very
correct; if the States be constitutionally entitled to the exercise of this authority, it is an
intrusion on their rights to do an act which would eventually destroy or impede the
freest exercise of that authority.
2 ANNALS OF CONG. 1990 (1791) (remarks of Mr. Giles, Feb. 7, 1791).
2004]
The Lost Original Meaning
391

I object to the Bill because it is an essential principle of the
Government that powers not delegated by the Constitution cannot be
rightfully exercised; because the power proposed by the Bill to be
exercised is not expressly delegated; and because I cannot satisfy
myself that it results from any express power by fair and safe rules of
implication.
(if to the merits alone or in addition)
I object to the Bill because it appears to be unequal between the public
and the Institution in favor of the institution; imposing no conditions
on the latter equivalent to the stipulations assumed by the former.
[quer. if this lie within the intimation of the President.] I object to the
Bill because it is in all cases the duty of the Government to dispense
its benefits to individuals with as impartial a hand as the public
interest will permit; and the Bill is in this respect unequal to
individuals holding different denominations of public Stock and
willing to become subscribers.291
In his final remarks on the bank, delivered on Tuesday, February 8,
1791, Madison again declined to raise any question of individual rights and
instead repeated his claim that "the exercise of this power, on the part of the
United States, involves, to all intents and purposes, every power which an
individual State may exercise."292
2. The Original Understanding of the State Conventions.--In the final
section of his speech, Madison addressed the original understanding of
federal power represented to the conventions that ratified the document. In
one of the first constitutional arguments based on original understanding,
Madison reminded the House that the original objection to a Bill of Rights
had been due to the fear that this would "extend[]" federal power "by remote
implications."293 State conventions had been assured that the Necessary and
Proper Clause would not be interpreted to give "additional powers to those
enumerated."294 Madison "read sundry passages from the debates" of the
state conventions in which "the constitution had been vindicated by its
principal advocates, against a dangerous latitude of its powers, charged on it
by its opponents."295 These state conventions had agreed to ratify the
Constitution only on the condition that certain explanatory amendments be
added which made express what the Federalists claimed were principles

291. 6 THE WRITINGS OF JAMES MADISON: COMPRISING HIS PUBLIC PAPERS AND HIS
PRIVATE CORRESPONDENCE, INCLUDING NUMEROUS LETTERS AND DOCUMENTS NOW FOR THE
FIRST TIME PRINTED 42�45 n.I (Gaillard Hunt ed., 1906).
292. 2 ANNALS OF CONG. 2009 (1791) (remarks of Mr. Madison, Feb. 8, 1791).
293. GAZETTE OF THE UNITED STATES (Phila.), Feb. 23, 1791, reprinted in 14 DOCUMENTARY
HISTORY OF THE FIRST FEDERAL CONGRESS, supra note 264, at 374.
294. JAMES MADISON, WRITINGS, supra note 3, at 489.
295. Id.
392
Texas Law Review
[Vol. 83:331

already implicit in the structure of the Constitution. Madison reminded his
audience of the proposals submitted by the state conventions seeking to
guard against the constructive extension of federal power: "The explanatory
declarations and amendments accompanying the ratifications of the several
states formed a striking evidence, wearing the same complexion. He referred
those who might doubt on the subject, to the several acts of ratification."296
Madison then arrives at the argument which he believes concludes the
issue. The proper rule of interpretation, implied in the structure of the
Constitution, represented by the Federalists to the state conventions, and
demanded to be made express by those same conventions, found textual
expression in the proposed Ninth and Tenth Amendments:
The explanatory amendments proposed by Congress themselves, at
least, would be good authority with them [the state proposals]; all
these renunciations of power proceeded on a rule of construction,
excluding the latitude now contended for. These explanations were
the more to be respected, as they had not only been proposed by
Congress, but ratified by nearly three-fourths of the states.297 He read
several of the articles proposed, remarking particularly on the 11th and
12th. [T]he former, as guarding against a latitude of interpretation--
the latter, as excluding every source of power not within the
constitution itself.298
Madison then sums up his argument in a manner that establishes,
without any further question, that the purpose of the Ninth Amendment was
to protect the rights of the states:
In fine, if the power were in the constitution, the immediate exercise
of it cannot be essential--if not there, the exercise of it involves the
guilt of usurpation, and establishes a precedent of interpretation,
levelling all the barriers which limit the powers of the general
government, and protect those of the state governments.299
3. The Significance of the Bank Speech.--By all accounts, Madison's
speech on the Bank of the United States should have a place of honor in the
documentary history of the Ninth Amendment. That his discussion of the
Ninth Amendment is missing in compilations like The Founders'
Constitution
and The Complete Bill of Rights is nothing short of
remarkable.300 In his speech, Madison follows the Ninth from its beginnings

296. Id.
297. Ratification was still pending in Virginia. See supra text accompanying note 249.
298. JAMES MADISON, WRITINGS, supra note 3, at 489.
299. GAZETTE OF THE UNITED STATES, (Philadelphia), Feb. 23, 1791, reprinted in 14
DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS, supra note 264, at 375.
300. For a discussion of missing Ninth Amendment materials in these compilations, see infra
notes 449�58 and accompanying text.
2004]
The Lost Original Meaning
393

in the state conventions, through the drafting process, and into the Virginia
Assembly.301 Having retraced these steps ourselves, Madison's argument is
easy to follow: The federal government is one of limited enumerated power.
All nondelegated powers are reserved to the states. Unduly broad
interpretations of these enumerated powers would destroy this principle by
allowing the government to invade areas of law reserved to the states.
Important powers like those exercised by the Bank Bill are not appropriately
derived by implication but require enumeration. The state conventions that
ratified the Constitution had been promised that federal power would not
receive this kind of latitudinous interpretation, and several states made the
adoption of a rule rejecting this kind of interpretation a condition of their
ratifying the Constitution. Although implied in the original Constitution, an
express rule against latitudinarian constructions found its ultimate expression
in the Ninth Amendment.
Madison's speech was given while Virginia continued to consider the
Bill of Rights--a debate we know was focused in part on Congress's
intended meaning of the Ninth Amendment. In the months following
Madison's speech, antifederalist efforts in Virginia waned, and later that
same year, on December 15, 1791, Virginia ratified the proposed
amendments without further debate and the Bill of Rights became part of our
Constitution.302 There is no historical evidence that Madison's speech
actually tilted Virginia toward ratification. It is nevertheless significant that
Virginia's ratification vote took place following this public articulation of the
meaning of the Ninth Amendment by Virginia's own congressional
representative.
Madison's speech resolves any remaining ambiguity, if there is any, in
regard to the correspondence between Burnley and Madison. The best
understanding of Madison's letter was that he read the Ninth as an
interpretive rule limiting the construction of federal power. His speech
makes that view express. Madison's letter appeared to say that the
"constructive enlargement of federal power" principle, expressed in his early
draft of the Ninth, remained alive and well in the final version. His speech
makes this clear. Finally, where his letter seemed to suggest that the Ninth
followed the lead of the state conventions and limited federal power in order
to reserve power to the states, Madison's speech explicitly links the Ninth to
retained state powers, as well as to the desires and understandings of the state
conventions. It is perhaps a happy coincidence of history that many of the
same players from Madison's letter to Washington (Madison, Randolph, and
Washington) repeat their roles with clearer lines in the debate over the Bank
of the United States.

301. The Virginia Assembly was still considering whether to ratify the Ninth and Tenth
Amendments at the time Madison gave this speech.
302. See LEVY, supra note 8, at 43.
394
Texas Law Review
[Vol. 83:331

V. The Original Meaning of the Ninth Amendment
A. A Federalism-Based Rule of Construction
Having recovered the roots of the Ninth Amendment in the state
convention proposals, followed its development through the Virginia
debates, and listened to Madison's magisterial account of how the principles
of the Ninth apply in an actual legal controversy, it is possible to now
construct a general theory of the Ninth Amendment as it was likely
understood by the Founding generation. As I stated in the Introduction, this
is not an attempt to reconstruct the current meaning of the Clause.
Subsequent to the Founding, the people may have exercised their sovereign
right to alter or amend constitutional rules. Accordingly, developing a
current theory of the Ninth Amendment must wait until we have considered
constitutional developments in the nineteenth and twentieth centuries. This
Article, however, is devoted to the lost original meaning of the Clause, and
we now have considered enough evidence to construct at least a tentative
account of that meaning.
Madison conceived the Ninth Amendment in response to calls from
state conventions that a provision be added limiting the constructive
expansion of federal power into matters properly belonging under state
control. Madison's original draft of the Ninth Amendment expressly
responded to these calls, and he insisted that the same states' rights principle
was expressed in the final draft. A rule of construction guarding the retained
rights of the people amounted to the same thing as limiting the power of the
federal government to interfere with matters believed left to state control.
Equating states' rights with the retained rights of the people, however, has
long since fallen out of fashion, and it requires a degree of intellectual effort
to hear the words of the Ninth Amendment as they were heard by James
Madison and the Founders.
There is nothing historically contradictory about linking the
prerogatives of the people with the autonomy of the states. The Tenth
Amendment, for example, simultaneously reserves nondelegated power to
the states and to the people of the several states. What may be difficult to
appreciate from a contemporary standpoint is that, to the Founding
generation, preserving the retained rights of the people amounted to the same
thing as preserving the retained rights of the states. This is why Hardin
Burnley could read the language of the Ninth Amendment, which spoke only
of the retained rights of the people, as "protecting the rights of the people &
of the States
."303 To both Madison and Burnley, the retained rights of the
people were those rights left to local control, free from federal interference.

303. Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in 5 DOCUMENTARY
HISTORY, supra note 1, at 219 (emphasis added).
2004]
The Lost Original Meaning
395

The people remained free to assign them into the hands of their state
government if they wished to do so. In this way, preserving the retained
rights of the people also preserved the right of state governments to operate
free from federal interference. As John Taylor, who also opposed the Bank
Bill, put it, "states rights are rights of the people."304 Madison himself
insisted that, with the adoption of the Bill of Rights, states were justified in
"maintaining unimpaired, the authorities, rights, and liberties, reserved to the
states respectively, or to the People."305 Even as strong a nationalist as
Joseph Story conceded that "every state remains at full liberty to legislate
upon the subject of rights, preferences, contracts, and remedies, as it may
please."306
This collective understanding of the people's retained rights is quite
different from the more individualistic conception of rights most often
expressed in contemporary law. To the Founding generation, however,
federalism was a liberty of the people.307 For this reason, the state
conventions insisted that a provision be added reserving all nondelegated
powers, jurisdiction, and rights to the states. They did so to better secure
liberty. While Madison could have framed the Ninth in terms of limiting
federal power, he chose instead to frame the Amendment in terms of rights.
By doing so, he prevented enumerated power from being interpreted as a
mere matter of expediency and, instead, anchored the principles sought by
the states in the language of enforceable rights.
To Madison, "[T]he permanent success of the Constitution depends on a
definite partition of powers between the General and the State
Governments."308 Overly broad interpretations of federal power "ha[d] the
effect of subjecting both the Constitution and laws of the several states in all
cases not specifically exempted to be superseded by laws of Congress."309
Worse, broad interpretations of federal power would have the effect of
removing the federal courts from preserving a balance of power that, to
Madison, was a matter of constitutional right. In a message accompanying
his veto of a proposed bill for "internal improvements," Madison wrote that
viewing the "general welfare clause" as justification for the bill would have
the effect of rendering the Government one of "general powers":

304. JOHN TAYLOR, NEW VIEWS OF THE CONSTITUTION OF THE UNITED STATES 96
(Washington, D.C., Way & Gideon 1823) (emphasis added).
305. James Madison, Report on the Alien and Sedition Acts (Jan. 7, 1800), in JAMES MADISON,
WRITINGS, supra note 3, at 659 (quoting and defending his draft of the Virginia Resolutions).
306. STORY, supra note 43, at 176.
307. For an outstanding discussion of Founding-era antifederalist thought regarding federalism
as liberty, see generally SAUL CORNELL, THE OTHER FOUNDERS: ANTIFEDERALISM & THE
DISSENTING TRADITION IN AMERICA, 1788�1828 (1999).
308. James Madison, Veto Message to Congress (Mar. 3, 1817), in JAMES MADISON,
WRITINGS, supra note 3, at 720.
309. Id.
396
Texas Law Review
[Vol. 83:331

Such a view of the Constitution, finally, would have the effect of
excluding the judicial authority of the United States from its
participation in guarding the boundary between the legislative powers
of the General and the State Governments, inasmuch as questions
relating to the general welfare, being questions of policy and
expediency, are unsusceptible of judicial cognizance and decision.310
The rule of construction preventing latitudinarian interpretations of
federal power was not only a guide for the legislature, it was the duty of the
judicial branch to apply such a rule in order to "guard the boundary" between
the state and federal governments.311
In the end, the Select Committee's decision to place the Ninth and
Tenth Amendments side by side was prescient. From the moment they were
enacted (indeed, before), the two provisions were cited as expressing twin
principles of federalism: limited and enumerated federal power. Madison
linked the two in his speech as dual guardians of state autonomy, and
numerous treatise writers of the Founding generation did the same. St.
George Tucker shared the Antifederalists' view that federalism was a critical
aspect of liberty,312 and in his influential essays on the Constitution, he
combined the Ninth and Tenth Amendments to create a single rule of strict
construction of federal power. According to Tucker, state governments
"retain every power, jurisdiction and right not delegated to the United States,
by the constitution, nor prohibited by it to the states."313 Under the principles
of 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 in question."314

310. Id. at 719. One account of Madison's remarks during the congressional debates on the
Bank Bill echoes these concerns. GAZETTE OF THE UNITED STATES (Philadelphia), Apr. 20, 1791,
reprinted in 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS, supra note 264, at
475. The report summarized:
The constructions of the constitution, he asserted, which have been maintained on this
occasion go to the subversion of every power whatever in the several States--but we
are told for our comfort that the judges will rectify our mistakes; how are the judges to
determine in the case; are they to be guided in their decisions by the rules of
expediency?
Id.
311. Nor did it matter whether the state favored congressional action in this case. According to
Madison, if Congress had not the power, "the assent of the States in the mode provided in the bill
cannot confer the power." James Madison, Veto Message to Congress (Mar. 3, 1817), in JAMES
MADISON, WRITINGS, supra note 3, at 720; see also New York v. United States, 505 U.S. 144, 182
(1992) ("Where Congress exceeds its authority relative to the States, therefore, the departure from
the constitutional plan cannot be ratified by the consent of state officials."). But see Garcia v. San
Antonio Metro. Transit Auth., 469 U.S. 528, 556 (1985) (holding that the political process, not the
courts, protects the autonomy of the states).
312. See CORNELL, supra note 307, at 265.
313. TUCKER, BLACKSTONE'S COMMENTARIES, supra note 227, at 141.
314. Id. at 154.
2004]
The Lost Original Meaning
397

According to Tucker, under the Ninth Amendment, federal power
should be strictly construed "wherever the right of personal liberty" was in
dispute.315 This interpretation of the Ninth was firmly grounded in the ideas
of federalism and state autonomy. According to Tucker, the Ninth and Tenth
Amendments prevented the federal government from interfering with or
adding to the individual's prior obligations to the state:
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
Tenth 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 Ninth and
Tenth Amendments].316 The few particular cases in which he submits
himself 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.317

315. Id. at 151.
316. The footnote to the Ninth and Tenth Amendments can be found in the photo-reproductions
of the original 1803 edition of Tucker's Commentaries. At least one modern reproduction of
Tucker's Commentaries deletes Tucker's cite to the Ninth and Tenth Amendments. See ST.
GEORGE TUCKER, VIEW OF THE CONSTITUTION OF THE UNITED STATES WITH SELECTED WRITINGS
(Foreword by Clyde N. Wilson) (Liberty Fund 1999) (1803).
317. Id.; see also id. at 307�08 (pairing the Ninth and Tenth Amendments). Randy Barnett
cites Tucker's rule of strict construction regarding federal interference with personal rights in
support of an unenumerated individual natural rights reading of the Ninth Amendment. See
BARNETT, RESTORING THE LOST CONSTITUTION, supra note 12, 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 avoid
interfering with or adding to an individual's prior obligations to the state. In his Commentaries on
the Constitution
, Joseph Story quoted the above passage by Tucker up to the citation to the Ninth
and Tenth Amendments. Story omits the citation, but nevertheless criticizes Tucker's rule of strict
construction as based not on the "rights of the people" but on the "rights of the states." See STORY,
supra note 43, at 711�14. Story evidently read Tucker's interpretation of the Ninth as a states'
rights interpretation, despite Tucker's language of personal liberty. In fact, Tucker's work was
widely regarded as representing a states' rights perspective of constitutional interpretation. G.
EDWARD WHITE, 3�4 HISTORY OF THE SUPREME COURT OF THE UNITED STATES, THE MARSHALL
COURT AND CULTURAL CHANGE, 1815�35, at 86�87 (1988) (noting that Tucker "was particularly
concerned with the preservation of state sovereignty in a federal republic"). Addressing Tucker's
Ninth and Tenth Amendment based rule of construction, G. Edward White wrote:
The effect of Tucker's remarks was to advance three propositions about the interplay
between federal and state sovereignty in the American republic. First, after the passage
of the Constitution the states retained a vast array of reserved powers. Second, the
inalienable rights of man preserved in the social compact were associated with the
sovereign rights of the states preserved in the federal compact: liberty and state
398
Texas Law Review
[Vol. 83:331

Other writers of the Founding generation joined Madison and Tucker in
linking the Ninth and Tenth Amendments as twin guardians of federalism. In
his Construction Construed and Constitutions Vindicated, political writer
John Taylor declared:
The [Ninth Amendment] prohibits a construction by which the rights
retained by the people shall be denied or disparaged; and the [Tenth]
"reserves to the state respectively or to the people the powers not
delegated to the United States, nor 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.318
Distinguishing the rights listed in the first eight amendments, which he
described as protecting "personal and individual rights," Taylor described the
Ninth and Tenth Amendments as protecting "political conventional rights."319
Through the adoption of these two amendments, "The states, instead of
receiving, bestowed powers; and in confirmation of their authority, reserved
every right they had not conceded, whether it is particularly enumerated, or
tacitly retained."320 Taylor thus shared Madison's and Tucker's view that
preserving the retained rights of the people amounted to the same thing as
preserving the autonomy of the states.321 Taylor's particular view that "states

autonomy were linked. Third, the Union was expressly not a consolidation of the
states justified by the will of the people; it was a confederacy of the states based on the
consent of states in their capacity as representatives of the people.
Id. at 489.
318. TAYLOR, supra note 153, at 46. Thomas Jefferson called Taylor's book "the most logical
retraction of our governments to the original and true principles of the Constitution creating them,
which has appeared since the adoption of that instrument." Letter from Thomas Jefferson to
Spencer Roane (1821) in THE JEFFERSON CYCLOPEDIA 859 (John Foley ed., 1900). For a
discussion of John Taylor and the influence of his work Construction Construed and Constitutions
Vindicated
, see DWIGHT WILEY JESSUP, REACTION AND ACCOMMODATION: THE SUPREME COURT
AND POLITICAL CONFLICT, 1809�1835, at 200 (1987) and CORNELL, supra note 307, at 283.
319. TAYLOR, supra note 153, at 46.
320. Id. at 49.
321. States' rights advocates typically described state autonomy from federal control as a
matter of individual liberty. In an 1826 speech, Kentucky Senator, and future Chair of the Senate
Judiciary Committee, John Rowan declared:
[T]his is the sense, Mr. President, in which liberty is power: it is the power created by
the social compact--which constitutes the liberty of the citizens. The controlling
power of the will of the majority, is not only the power, but the essence of liberty. The
control of this will, by the functionaries of the Government, whether Executive or
Judicial, is any thing but the power of liberty. Liberty is power, when the People of the
State govern themselves, by their own will, according to their own plan of government;
by functionaries of their own appointment. Thus it is evident that the states were,
anterior to the formation of this Union, independent Sovereigns: aliens in their nature,
as all sovereigns are, to each other. That each had an organized Government--its
Constitution; that the People, and their property, belonged exclusively to the States of
which they were citizens.
2004]
The Lost Original Meaning
399

rights are the rights of the people"322 would be tested and found wanting at
the time of the American Civil War. This does not alter the fact, however,
that the Ninth and Tenth Amendments originally were understood to
represent dual limitations on the power of the federal government to interfere
with the states. Nor would this linking of the amendments change in the
nineteenth century. While listing the first eight amendments as important
privileges or immunities protected by the Fourteenth Amendment, the drafter
of that amendment, John Bingham, left both the Ninth and Tenth
Amendments off his list.323
B. Applying the Ninth Amendment
Although the Ninth and Tenth Amendments both limited federal power,
they did so in different ways. The Tenth insured that the federal government
would exercise only those powers enumerated in the Constitution. The Ninth
Amendment went further, however, and prohibited an expanded
interpretation of those enumerated powers. This is reflected in the state
proposals and is express in Madison's original draft. In his correspondence
with Burnley and Washington and in his speech on the Bank of the United
States, Madison continued to describe the final language of the Ninth as
limiting the constructive expansion of enumerated federal power. The final
language, of course, speaks of retained rights, not limited powers.
Libertarian theories of the Ninth focus on this language and claim that it
represents an intention to protect individual natural rights.
One problem with such a view, however, is that it unduly limits the
scope of the Ninth Amendment. The text of the Ninth does not limit its
application to natural rights. All retained rights, natural or otherwise, were
protected from denial or disparagement as a result of the decision to
enumerate "certain rights." Neither the text nor the purpose of the Ninth
Amendment was limited to protecting a subcategory of retained rights. The
point was to protect the right of the people to manage all those affairs not
intended to be handed over to the federal government. The bank controversy
provides a compelling example of how the Ninth Amendment applied even
in those situations where no natural right was at issue. It was not that
immunity from monopolies was a natural right of the people. The problem
was that no fair construction of federal power justified the chartering of the
bank, thus leaving the matter to be decided by local, not federal,
governments. Accordingly, Madison argued that the Bill violated the rule of

Remarks of Senator Rowan (Apr. 10, 1826), reprinted in REGISTER OF DEBATES IN CONGRESS,
19th Congress, 1st Session, at 425�26; see also JESSUP, supra note 318, at 313 (discussing Rowan's
speech on the judiciary).
322. TAYLOR, supra note 304, at 96 (emphasis added).
323. CONG. GLOBE, 42d Cong., 1st Sess. 84 (1871) (statement of Rep. Bingham). The second
of these two articles on the history of the Ninth Amendment will address developments in the
nineteenth century.
400
Texas Law Review
[Vol. 83:331

construction expressed by the Ninth Amendment and intruded upon the
retained rights of the states. Natural rights interpretations of the Ninth thus
miss the full breadth of the Amendment.
The history of the Ninth Amendment also suggests that the Founders
generally viewed rights and powers as two sides of the same coin. As
Madison explained to President Washington, limiting powers and securing
rights amount to the same thing: the extension of one results in the
disparagement of the other.324 Thus, unduly latitudinarian interpretations of
federal power necessarily abridged the people's retained rights, even in the
absence of a specific argument based on "the enumeration of certain rights."
Early Supreme Court Justice Joseph Story agreed with Madison that the
Ninth simultaneously limited federal power as it secured the retained rights
of the people. In his Commentaries on the Constitution, Story wrote that the
Ninth "was manifestly introduced to prevent any perverse, or ingenious
misapplication of the well known maxim, that an affirmation in particular
cases implies a negation in all others; and e'converso, that a negation in
particular cases implies an affirmation in all others."325 To Story, the Ninth
prevented both an implied rejection of "other rights" (an affirmation which
implies a negation) and an implied grant of other powers (a negation that
implies an affirmation). Of the two, Story apparently viewed the limitation
on federal power as the Ninth's primary focus--his section on the Ninth
Amendment is titled "Non-Enumerated Powers."326
Understanding the Founders' view of the dependent relationship
between rights and powers explains how Madison could argue that the
principles of the Ninth Amendment were violated by the method of
interpretation used by proponents of the Bank Bill, even though none of
those proponents expressly used the enumeration of certain rights as an
excuse to justify power to charter a national bank. Madison saw that the rule
deployed by the bank proponents would allow Congress to exercise any

324. Letter from James Madison to George Washington (Dec. 4, 1789), in THE COMPLETE BILL
OF RIGHTS, supra note 13, at 661�62.
325. STORY, supra note 43, at 711.
326. The title is used in both the three volume edition of Story's Commentaries and in the
single volume abridged version that he prepared for use in legal education. Similarly, in the index
to his Commentaries, Story lists his discussion of the Ninth Amendment under both "Rights
Reserved to the States and People" and under "Powers Reserved to States or People." Id. at 734,
731. Other early constitutional commentators echoed Madison and Story's view of the Ninth as
relating to a limitation on federal power. In his 1800 treatise on the liberty of the press, Tunis
Wortman wrote:
With regard to the [Ninth and Tenth Amendments], it is to be observed that they are
strictly declaratory, and that they produce no alteration in the law as it in reality stood
at the time of their formation. They amount to nothing more than would have resulted
from a fair and regular interpretation of the Constitution: because it must ever have
been a fundamental position, that the general Government is entitled to no other
authority than what is substantially granted by that instrument.
TUNIS WORTMAN, A TREATISE CONCERNING POLITICAL INQUIRY AND THE LIBERTY OF THE PRESS
226 (Da Capo Press 1970) (1800).
2004]
The Lost Original Meaning
401

power, so long as the exercise of that power was not prohibited by a
particular enumerated right. To Madison, unduly broad interpretations of
federal power constituted independent violations of the Ninth Amendment,
for they allowed congressional power to abridge or disparage any right other
than those expressly enumerated in the Constitution. Madison's use of the
Ninth Amendment in the bank controversy thus confirms his belief that
securing rights and limiting powers were the same thing. It also reveals the
Ninth as having an operational effect on the construction of federal power,
even in the absence of a specific claim that the enumeration of certain rights
suggests a denial or disparagement of other rights retained by the people.
C. Natural Rights and the Ninth Amendment
Because so much of the debate over the original meaning of the Ninth
Amendment has involved the issue of natural rights, it seems appropriate to
consider the relationship of such rights with the federalist reading of the
Ninth Amendment. Libertarian scholars have criticized federalist readings of
the Ninth for ignoring the Founders' commitment to protect natural rights.327
In fact, evidence that many Founders embraced the idea of natural rights is
broad and deep.328 Madison himself referred to natural rights in his speech
introducing the Bill of Rights.329 Most state constitutions referred to natural
rights,330 and prior to the adoption of the Constitution, state courts referred to
natural rights, as did some early Supreme Court cases.331 In light of this
evidence, there is no textual reason and little historical reason to believe that
the "other rights" of the Ninth Amendment did not include natural rights.
But understanding that the Founders embraced natural rights is not the same
thing as understanding the Founders' view of the Ninth Amendment. The
story of the Ninth indicates that it served as a rule of construction protecting
the autonomy of local government. The evidence in this regard is as broad
and deep as evidence regarding natural rights. How then are we to reconcile
natural rights with the historical Ninth Amendment?
The answer lies in determining the manner in which natural rights were
to be protected. The Ninth and Tenth Amendments drew and maintained the
boundary between the jurisdictions of federal and local authorities. This line
can be perceived in other amendments as well. For example, it is Congress
that "shall make no law respecting an establishment of religion," not the

327. See Sherry, Textualism and Judgment, supra note 68, at 1149�50 (criticizing Professor
Amar's interpretation of the Ninth Amendment).
328. As Professor Sanford Levinson puts it, "[E]ven moral skeptics . . . do not deny that the
founding generation, as a general matter, accepted the idea of natural rights." Sanford Levinson,
Constitutional Rhetoric and the Ninth Amendment, 64 CHI.-KENT L. REV. 131, 155 (1988).
329. See supra note 51 and accompanying text.
330. For a list of such provisions, see THE COMPLETE BILL OF RIGHTS, supra note 13, at 636�
41.
331. See generally Sherry, The Founders' Unwritten Constitution, supra note 12.
402
Texas Law Review
[Vol. 83:331

states.332 The states continued to establish religion for a great many years
after the adoption of the Bill of Rights.333 The concern animating the Bill
was how to limit federal power without simultaneously suggesting that
federal authority reached all matters not expressly prohibited. Such a reading
would swamp the right of the people to decide, on a local level, how they
wished to exercise their rights, including natural rights such as religion and
freedom of speech.334
While this kind of "home rule" approach to individual liberty may seem
strange to us, it was a matter of first principles to the Founders. For example,
when Congress passed the Alien and Sedition Acts, the primary claim made
by James Madison and Thomas Jefferson was that this law abridged the
retained rights of the states to regulate on matters of speech, even though the
Founders considered speech to be a natural right.335 The very presumption of
the Bill of Rights is that personal rights will be better protected if left to the
states. As Samuel Adams wrote to Richard Henry Lee:
I mean my friend, to let you know how deeply I am impressed with a
sense of the Importance of Amendments; that the good People may
clearly see the distinction, for there is a distinction, between the
federal Powers vested in Congress, and the sovereign Authority
belonging to the several States, which is the Palladium of the private,
and personal rights of the Citizens.336
The rights referred to in the Ninth Amendment, natural or otherwise,
were to be administered on a state by state basis. The administration of such
rights was one of the reserved powers left to the states under the Tenth
Amendment. As the New York Convention declared:
[T]hat every Power, Jurisdiction and right, which is not by the said
Constitution clearly delegated to the Congress of the United States, or
the departments of the government thereof, remains to the People of
the several States, or to their respective State Governments to whom
they may have granted the same.337

332. U.S. CONST. amend. I.
333. See Lash, The Second Adoption of the Establishment Clause, supra note 32, at 1096, 1105.
334. See STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL
PRINCIPLE OF RELIGIOUS FREEDOM 18 (Oxford Univ. Press 1999) (1995) (arguing that the religion
clauses were "simply an assignment of jurisdiction over matters of religion to the states--no more,
no less").
335. Compare James Madison, Report on the Alien and Sedition Acts (Jan. 7, 1800), in JAMES
MADISON, WRITINGS, supra note 3, at 659 (stating that the Act abridges the sovereignty of the
states), with James Madison, Notes for Speech Introducing the First Amendment to the House of
Representatives (1789), in 1 RIGHTS RETAINED BY THE PEOPLE, supra note 14, at 64.
336. Letter from Samuel Adams to Richard Henry Lee (Aug. 24, 1789), in CREATING THE BILL
OF RIGHTS, supra note 2, at 286.
337. Amendments Proposed by the New York Convention (July 26, 1788), in THE COMPLETE
BILL OF RIGHTS, supra note 13, at 635 (emphasis added).
2004]
The Lost Original Meaning
403

Under this reading of the Ninth and Tenth Amendments, we would
expect natural rights to be enforced by courts, both state and federal, as an
aspect of state, not federal law. In fact, this is exactly what they did.
1. Calder v. Bull.--Calder v. Bull338 involved an act by the Connecticut
legislature granting a new trial in a probate case. The plaintiffs alleged that
this act violated the Ex Post Facto Clause of the federal Constitution.339 The
United States Supreme Court heard the appeal under section 25 of the
Judiciary Act, which granted the Court authority to review certain cases
arising in state court involving questions of federal law. After recounting the
facts, Justice Samuel Chase begins his opinion with a sentence generally
omitted from scholarly accounts of the case:
It appears to me a self-evident proposition, that the several state
legislatures retain all the powers of legislation, delegated to them by
the state constitutions; which are not expressly taken away by the
constitution of the United States. The establishing courts of justice,
the appointment of judges, and the making regulations for the
administration of justice within each state, according to its laws, on all
subjects not intrusted to the federal government, appears to me to be
the peculiar and exclusive province and duty of the State Legislatures.
All the powers delegated by the people of the United States to the
federal government are defined, and no constructive powers can be
exercised by it.340
Although Justice Chase does not expressly mention the Tenth
Amendment, contemporary scholars would have no difficulty seeing in
Chase's opening statement a paraphrase of the Tenth, despite his rewording
of the Clause. But Chase has done much more. His opening statement
declares the principles of the Ninth and Tenth Amendments. Not only does
he graft the term "retained" onto the general principle of reserved state
power, he follows that declaration with a principle forbidding the
constructive enlargement of federal power.
Justice Chase's opinion is often cited as an early example of natural
rights jurisprudence and is included in general discussions of the meaning of
the Ninth Amendment.341 In the early decades of the Nineteenth century,
however, Chase's opinion was understood as seriously limiting the power of

338. 3 U.S. (3 Dall.) 386 (1798).
339. Id. at 387.
340. Id.
341. E.g., BARNETT, RESTORING THE LOST CONSTITUTION, supra note 12, at 126; MASSEY,
supra note 12, at 49, 158�59; BREST ET AL., supra note 21, at 111; Sherry, The Founders' Unwritten
Constitution
, supra note 12, at 1166�73.
404
Texas Law Review
[Vol. 83:331

the federal government to interfere with the states.342 The fact that this
aspect of the opinion has gone unnoticed for so long is probably due to the
common assumption that a belief in natural rights is incompatible with a
strong position on state autonomy. Having disabused ourselves of this
presumption, we are now in a position to appreciate all of Chase's opinion.
After declaring the fundamental principle of delegated power and the
rule that such power is not to be enlarged by construction, Justice Chase next
addressed whether the state law violated the Ex Post Facto Clause. In an
extended rumination on an issue "not necessary now to be determined,"
regarding whether a state legislature can revise a decision of one of its state
courts,343 Justice Chase announced:
I cannot subscribe to the omnipotence of a state legislature, or that it is
absolute and without control; although its authority should not be
expressly restrained by the constitution, or fundamental law, of the
State. . . . There are acts which the federal, or state, legislature cannot
do, without exceeding their authority. There are certain vital
principles in our free republican governments, which will determine
and overrule an apparent and flagrant abuse of legislative power; as to
authorize manifest injustice by positive law; or to take away that
security for personal liberty, or private property, for the protection
whereof of the government was established. An act of the legislature
(for I cannot call it a law), contrary to the great first principles of the
social compact, cannot be considered a rightful exercise of legislative
authority. 344
In this passage, Justice Chase repeats the broadly held view that certain
fundamental principles of law limited the legitimate authority of the state.
Founders such as Edmund Randolph shared the same view. In his report to
President Washington regarding the constitutionality of the Bank of the

342. In his 1826 Commentaries on American Law, Chancellor James Kent criticized Chase's
states' rights reading of the Constitution. According to Kent:
Judge Chase, in the case of Calder v. Bull, declared that the state legislatures retained
all the powers of legislation which were not expressly taken away by the Constitution
of the United States; and he held, that no constructive powers could be exercised by the
federal government. Subsequent judges have not expressed themselves quite so
strongly in favor of state rights, and in restriction of the powers of the national
government.
JAMES KENT, 1 COMMENTARIES ON AMERICAN LAW 388�89 (O.W. Holmes Jr. ed., Fred B.
Rothman & Co. 1989) (1826). In United States v. New Bedford Bridge, 27 F. Cas. 91, 100 (C.C.D.
Mass. 1847) (No. 15,867), the court cites Calder alongside of states' rights opinions such as Justice
Story's in Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820), Justice Daniels's in Prigg v.
Pennsylvania
, 41 U.S. 539 (1842), and Justice Thompson's dissenting opinion in New York v. Miln,
36 U.S. 102 (1837). See also People ex rel. Attorney Gen. v. Naglee, 1 Cal. 232, 235 (Cal. 1850)
(citing Calder alongside Houston).
343. Calder, 3 U.S. (3 Dall.) at 387.
344. Id. at 387�88.
2004]
The Lost Original Meaning
405

United States, Attorney General Randolph described state legislatures as
governments which are "presumed to be left at large as to all authority which
is communicable by the people, and does not affect any of those paramount
rights, which a free people cannot be supposed to confide even to their
representatives."345 We know, however, that Randolph also preferred a draft
of the Ninth Amendment that limited constructive enlargement of federal
power and protected the autonomy of the states. The Founders' beliefs in
natural rights and in the reserved powers of the states are reconciled under
the Madisonian reading of the Ninth Amendment. The people retain all
nondelegated powers and rights, which they then may delegate to state
authorities if they believe such delegation is proper.
Justice Chase's dicta in Calder does not contradict this view. Nor
would we expect it to, given Chase's opening declaration of the retained
powers of the states.346 Chase merely insisted that the presumed existence of
fundamental principles should raise a presumption that the legislature did not
intend to violate such principles:
A law that punished a citizen for an innocent action, or, in other
words, for an act, which, when done, was in violation of no existing
law; a law that destroys or impairs the lawful private contracts of
citizens; a law that makes a man a Judge in his own cause; or a law
that takes property from A. and gives it to B: It is against all reason
and justice, for a people to intrust a legislature with such powers; and
therefore, it cannot be presumed that they have done it.347
This reconciles Chase's opening declaration of states' rights with his
belief in natural law. Following the principle of the Tenth Amendment, all
powers not delegated are reserved to the states or to the people. The people
have the retained right to delegate those powers to their respective
governments.348 Chase believed that the powers the people have granted
their state governments should be read against the presumed background of
natural rights. The people may invest their government with any power they
choose, but, Chase argued, when it comes to laws in conflict with natural
rights they will not be presumed to have done so.
In his concurring opinion, Justice Iredell addressed the situation in
which Chase's presumption is overcome and it appears that a law does in fact
transgress the Court's understanding of natural rights. In such a case, argued

345. Edmund Randolph, The Constitutionality of the Bank Bill (Feb. 12, 1791), in POWELL,
supra note 254, at 4.
346. That same year, while riding circuit, Justice Chase repeated his assertion of the limited
enumerated powers of the federal government and the concomitant limited jurisdiction of the
federal courts in United States v. Worrall, 28 F. Cas. 774, 777 (C.C.D. Pa. 1798) (No. 16,766)
(rejecting the idea that the laws of the United States include the common law).
347. Calder, 3 U.S. (3 Dall.) at 388.
348. See, e.g., supra notes 183�87 and accompanying text.
406
Texas Law Review
[Vol. 83:331

Iredell, a court would have no authority to invalidate the law.349 Iredell did
not deny the existence of natural rights, but he nevertheless maintained that
such rights remained in the hands of the people of the state:
1st. If the legislature pursue the authority delegated to them, their acts
are valid. 2nd. If they transgress the boundaries of that authority, their
acts are invalid. In the former case, they exercise the discretion vested
in them by the people, to whom alone they are responsible for the
faithful discharge of their trust: but in the latter case, they violate a
fundamental law, which must be our guide, whenever we are called
upon, as judges, to determine the validity of a legislative act.350
Although Ninth Amendment scholars from all points of view believe
that Justice Chase's opinion in Calder ignored the Ninth Amendment,351
Chase's opening statement declared the federalist principles of both the
Ninth and Tenth Amendments, and his articulation of natural rights fit
perfectly with those principles. Iredell's concurrence emphasized that
natural rights are matters best left to the people of a state to decide for
themselves. Both Chase's and Iredell's opinions fit within the Madisonian
vision of the Ninth and Tenth Amendments as reserving such rights to the
people of the several states to deal with as they see fit.
2. Fletcher v. Peck.--Another case commonly cited in support of
natural rights readings of the Ninth Amendment is Fletcher v. Peck.352
Fletcher involved the Georgia legislature's corrupt sale of land to
speculators.353 A subsequent legislature invalidated the sale, and the original
purchasers sued in federal court claiming a violation of the Contract Clause
of Article I, Section 9 of the United States Constitution.354 Had the case
come to the Supreme Court on appeal from the state supreme court, under
section 25 of the Judiciary Act, the Court would have been limited to
consideration of federal questions. This was a diversity case, however,
arising in federal court, so the Supreme Court remained free to consider
issues of both state and federal law.355 Accordingly, counsel raised

349. Calder, 3 U.S. (3 Dall.) at 398�99.
350. Id. at 399.
351. E.g., Caplan, supra note 12, at 260�61 n.158; Steven J. Heyman, Natural Rights,
Positivism and the Ninth Amendment: A Response to McAffee, 16 S. ILL. U. L.J. 327, 335 n.26
(1992); Levinson, supra note 328, at 144; Calvin R. Massey, Federalism and Fundamental Rights:
The Ninth Amendment
, 38 HASTINGS L.J. 305, 314 n.49 (1987).
352. 10 U.S. (6 Cranch) 87 (1810).
353. Id. at 87�89.
354. Id. at 87�92.
355. For a discussion of Fletcher and the jurisdictional issues in these cases, see WHITE, supra
note 317, at 597�612.
2004]
The Lost Original Meaning
407

arguments relating both to contract law and "first principles of natural
justice."356
Marshall's opinion addresses the legislature's rescission of the prior sale
first under general rules of contract law, itself a matter of state law, and then
secondly under the restrictions of the Contract Clause of the United States
Constitution. Although Marshall began his analysis of contract law by citing
"certain great principles of justice,"357 such language disappeared when he
turned to the construction of the Contract Clause.358
The most express declaration of natural law in Fletcher came in Justice
Johnson's concurrence: "I do not hesitate to declare that a state does not
possess the power of revoking its own grants. But I do it on a general
principle, on the reason and nature of things: a principle which will impose
laws even on the deity."359 According to Johnson, "When the legislature
have once conveyed their interest or property in any subject to the individual,

356. Id. at 604.
357. Remarks by John Marshall (Mar. 11, 1809), in 1 THE MEMOIRS OF JOHN QUINCY ADAMS
547 (C. Adams ed., 1874).
358. Compare Marshall's discussion of state law, Fletcher, 10 U.S. (6 Cranch) at 135�36 ("It
may well be doubted whether the nature of society and of government does not prescribe some
limits to the legislative power."), with his discussion of the federal Constitution. See id. at 136
("Does the case now under consideration come within this prohibitory section of the constitution?
In considering this very interesting question, we immediately ask ourselves what is a contract?"). In
another case, United States v. Fisher, 6 U.S. (2 Cranch) 358 (1805), Marshall appears to invoke
natural law in his construction of the Bankruptcy Code:
That the consequences are to be considered in expounding laws, where the intent is
doubtful, is a principle not to be controverted; but it is also true that it is a principle
which must be applied with caution, and which has a degree of influence dependent on
the nature of the case to which it is applied. Where rights are infringed, where
fundamental principles are overthrown, where the general system of the laws is
departed from, the legislative intention must be expressed with irresistible clearness to
induce a court of justice to suppose a design to effect such objects.--But where only a
political regulation is made, which is inconvenient, if the intention of the legislature be
expressed in terms which are sufficiently intelligible to leave no doubt in the mind
when the words are taken in their ordinary sense, it would be going a great way to say
that a constrained interpretation must be put upon them, to avoid an inconvenience
which ought to have been contemplated in the legislature when the act was passed, and
which, in their opinion, was probably overbalanced by the particular advantages it was
calculated to produce.
Of the latter description of inconveniences, are those occasioned by the act in question.
It is for the legislature to appreciate them. They are not of such magnitude as to induce
an opinion that the legislature could not intend to expose the citizens of the United
States to them, when words are used which manifest that intent.
Id. at 389�90. At the outset of his opinion, however, Marshall lays out his principles of statutory
construction, including "where great inconvenience will result from a particular construction, that
construction is to be avoided, unless the meaning of the legislature be plain; in which case it must
be obeyed." Id. at 386. Rather than a statement of natural rights binding the government, at most
this is a plain statement rule. But see Sherry, The Founders' Unwritten Constitution, supra note 12,
at 1170 (linking this opinion to a natural rights jurisprudence of the Supreme Court).
359. Fletcher, 10 U.S. (6 Cranch) at 143.
408
Texas Law Review
[Vol. 83:331

they have lost all control over it; have nothing to act upon . . . ."360 Given his
striking invocation of natural law, from a contemporary perspective one
might expect Justice Johnson to fall into the camp of unenumerated rights
advocates of the Ninth Amendment. This would be a mistake. Although his
embrace of judicially enforceable natural rights could not be clearer, just as
clear was his belief that the enumeration of certain rights in the Constitution
not be construed to disparage the retained rights of the states.
Johnson carefully distinguished his analysis of natural rights from his
interpretation of the federal Constitution: "I have thrown out these ideas that
I may have it distinctly understood that my opinion on this point is not
founded on the provision in the constitution of the United States, relative to
laws impairing the obligation of contracts."361 To Johnson, the court needed
to be extremely careful not to unduly expand the reach of the federal
Contract Clause:
I enter with great hesitation upon this question, because it involves a
subject of the greatest delicacy and much difficulty. The states and
the United States are continually legislating on the subject of
contracts, prescribing the mode of authentication, the time within
which suits shall be prosecuted for them, in many cases affecting
existing contracts by the laws which they pass, and declaring them to
cease or lose their effect for want of compliance, in the parties, with
such statutory provisions. All these acts appear to be within the most
correct limits of legislative powers, and most beneficially exercised,
and certainly could not have been intended to be affected by this
constitutional provision; yet where to draw the line, or how to define
or limit the words, "obligation of contracts," will be found a subject of
extreme difficulty.
To give it the general effect of a restriction of the state powers in
favour of private rights, is certainly going very far beyond the obvious
and necessary import of the words, and would operate to restrict the
states in the exercise of that right which every community must
exercise, of possessing itself of the property of the individual, when
necessary for public uses; a right which a magnanimous and just
government will never exercise without amply indemnifying the
individual, and which perhaps amounts to nothing more than a power
to oblige him to sell and convey, when the public necessities require
it.362
Justice Johnson limited his construction of the federal Contract Clause
in order to avoid unduly interfering with "that right which every community

360. Id.
361. Id. at 144.
362. Id. at 145.
2004]
The Lost Original Meaning
409

must exercise" regarding the taking of private property for public use.363
Johnson's opinion is a perfect example of how both a states' rights protective
rule of constitutional interpretation could coexist with a strong embrace of
natural rights. Although neither Marshall nor Johnson cited the Ninth
Amendment, both opinions fit comfortably with the federalist account of the
Ninth envisioned by James Madison and the ratifying conventions.
3. Society for the Propagation of the Gospel v. Wheeler.--There is one
example of a case decided in this period which expressly raised both natural
rights and Ninth Amendment claims. 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.364 In Wheeler, one of
the issues was whether a state law allowing tenants to recover the value of
improvements was void due to its retroactive effect. 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 theconstitution of
the constitution of the United States; and is also repugnant to natural
justice; and is therefore void.365
Justice Story quickly 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 noconstitutionan 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. Calder v. Bull, 3 Dall. [3 U.S.] 386; Fletcher v. Peck,
6 Cranch [10 U.S.] 87. 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.366
Story ignored the Ninth Amendment claim, despite the alleged violation
of natural rights. Calder and Fletcher are discussed as relevant to the Ex

363. Id.
364. 22 F. Cas. 756 (C.C.D.N.H. 1814) (No. 13,156).
365. Id. at 766.
366. Id. at 767.
410
Texas Law Review
[Vol. 83:331

Post Facto and Contract Clause Claims, not the Ninth. Story does go on to
consider principles of "natural justice," but only after he concludes his dis-
cussion of the federal Constitution and moves on to the issue of state law.367
On that issue, the Ninth Amendment was irrelevant. This is precisely what
we would expect under the Madisonian reading of the Ninth. It was not that
natural rights did not exist, nor was it that they were not subject to judicial
enforcement even by federal courts. Such rights did exist as matters of state
law and were discussed as such when addressed by the Supreme Court.
D. The Rise of the Tenth Amendment as a Rule of Construction
As noted earlier, the Ninth's rule of construction must be distinguished
from the Tenth Amendment's declaration of principle. Though related, the
two provisions operate, and were intended to operate, in different ways. The
Tenth declares the principle of enumerated federal power. The Ninth con-
trols the interpretation of those powers. In situations where Congress has
implausibly extended its enumerated powers, this would call into play both
Amendments: the Ninth, as establishing the proper rule of construction, and
the Tenth, as prohibiting the exercise of any power not fairly attributable to
an enumerated power. Madison's argument regarding the Bank Bill is an
example of how the two amendments work together in a situation involving
unduly expansive interpretations of enumerated powers. On the other hand,
situations where Congress claimed the power to act independently of any
particular enumeration would raise concerns under the Tenth, but not the
Ninth Amendment. An example of an early "Tenth Amendment" crisis
occurred in the debates over the Alien and Sedition Acts. Madison's Tenth
Amendment-based argument against the Acts became a touchstone for future
states' rights interpretations of the Constitution, interpretations which viewed
the Tenth Amendment, as well as the Ninth, as establishing a federalist rule
of constitutional construction.
1. The Alien and Sedition Acts and Madison's Report of 1800.--Passed
in 1798, the Alien and Sedition Acts codified the common law offense of
seditious libel and made it a crime to disparage the national government and
its officials.368 Congress justified the Acts as part of its duty to protect the
general welfare and also as an exercise of its inherent unenumerated power to
enforce the common law.369 From the safety of the state legislative

367. Id. at 768.
368. Ch. 74, 1 Stat. 596 (1798).
369. See John Marshall, Report of the Virginia Minority (Jan. 22, 1799), reprinted in 5 THE
FOUNDERS' CONSTITUTION, supra note 13, at 137. Marshall argued:
What are cases arising under the constitution, as contradistinguished from those which
arise under the laws made in pursuance thereof? They must be cases triable by a rule
which exists independent of any act of the legislature of the union. That rule is the
common or unwritten law which pervades all America, and which declaring libels
against government to be a punishable offence, applies itself to and protects any
2004]
The Lost Original Meaning
411

assemblies, James Madison and Thomas Jefferson wrote the Virginia and
Kentucky Resolutions decrying the Acts as an abuse of federal power. Both
the Acts and the Resolutions are famous landmarks in the history of freedom
of speech. Less well known, however, are Madison's and Jefferson's
arguments that the Acts abridged the rights of the states. In his speech
introducing the Bill of Rights to the House, Madison described freedom of
speech as a natural right.370 The First Amendment, however, bound only the
federal government, and according to the Tenth Amendment, all
nondelegated powers were reserved to the states. Thus, by enacting
restrictions on the natural right to free speech, Congress had usurped a matter
belonging in the hands of local governments.
Madison's federalism argument against the Acts is presented in his
Virginia Resolutions, and then more fully developed in his 1800 Report on
the Alien and Sedition Acts. In his Virginia Resolutions, Madison wrote that
"the powers of the federal government as resulting from the compact to
which the states are parties" were "limited by the plain sense and intention of
the instrument constituting that compact."371 It was the duty of the states to
"interpose" in order to maintain "the authorities, rights and liberties" of the
states.372 Madison then referred to Congress's recent habit of making unduly
expansive interpretations of its own power:
[T]he General Assembly doth also express its deep regret, that a spirit
has, in sundry instances, been manifested by the federal government to
enlarge its powers by forced constructions of the constitutional charter
which defines them . . . and so as to consolidate the states, by degrees,
into one sovereignty.373
In his Report on the Alien and Sedition Acts, later known as the "Report
of 1800,"374 Madison supported this point by citing the bank law:
[T]he resolution may be presumed to refer particularly to the bank
law, which from the circumstances of its passage as well as the
latitude of construction on which it is founded, strikes the attention

government which the will of the people may establish. The judicial power of the
United States, then, being extended to the punishment of libels against the government,
as a common law offence, arising under the constitution which creates the government,
the general clause gives to the legislature of the union the right to make such laws as
shall give that power effect.
Id. Marshall apparently believed that subjects within the jurisdiction of the federal courts were
equally within the jurisdiction of Congress. G. Edward White has described this as the theory of
"coterminous power." See WHITE, supra note 317, at 538. We will return to this issue again in the
second Article.
370. See JAMES MADISON, WRITINGS, supra note 3, at 444�45.
371. James Madison, Virginia Resolutions (Dec. 21, 1798), in 4 ELLIOT'S DEBATES, supra note
42, at 528.
372. Id.
373. Id.
374. See CORNELL, supra note 307, at 241.
412
Texas Law Review
[Vol. 83:331

with singular force; and the carriage tax, distinguished also by
circumstances in its history having a similar tendency.375
Given Congress's appetite for expanding its own powers, it was
"incumbent in this, as in every other exercise of power by the federal
government, to prove from the constitution, that it grants the particular power
exercised."376 If the law was based on the unenumerated power to enforce
the common law, this was a test Congress could not possibly meet. Not only
was there no single "common law" embraced by all the states,377 the very
idea of inherent power to enforce the common law destroyed the concept of
enumerated power:
Should . . . the common law be held, like other laws, liable to revision
and alteration, by the authority of Congress; it then follows, that the
authority of Congress is co-extensive with the objects of common law;
that is to say, with every object of legislation: For to every such object
does some branch or other of the common law extend. The authority
of Congress would therefore be no longer under the limitationsconstitutionbr_temp10001847=ez_replacebr_10001848marked out in the constitution. They would be authorized to legislate
in all cases whatsoever.378
According to Madison, "[a]dmitting the common law as the law of the
United States . . . would overwhelm the residuary sovereignty of the states,
and by one constructive operation new model the whole political fabric of the
country."379 As Madison put it in his Address to the People of Virginia, "The
sedition act is the offspring of these tremendous pretensions, which inflict a
death-wound on the sovereignty of the States."380
Some scholars have wondered why, if the Ninth was meant to be a limit
on the constructive enlargement of federal power, Madison did not raise the
Ninth in the controversy over the Alien and Sedition Acts.381 As the above
shows, Madison did refer to the earlier controversy regarding the Bank of the
United States. Because it is not generally known that Madison's opposition
to the bank was based in part on the Ninth Amendment, scholars have missed

375. See James Madison, Report on the Alien and Sedition Acts (Jan. 7, 1800), in JAMES
MADISON, WRITINGS, supra note 3, at 615.
376. Id. at 621.
377. Id. at 633.
378. Id. at 639; TUCKER, BLACKSTONE'S COMMENTARIES, supra note 227, at 422�23.
379. James Madison, Report on the Alien and Sedition Acts (Jan. 7, 1800), in JAMES MADISON,
WRITINGS, supra note 3, at 640.
380. James Madison, Address of the General Assembly to the People of the Commonwealth of
Virginia (Jan. 23, 1799), in 5 THE FOUNDERS' CONSTITUTION, supra note 13, at 139.
381. See Dunbar, supra note 207, at 635�37 (pondering the significance of Madison's failure to
raise the Ninth during discussion of the Alien and Sedition Acts); Niles, supra note 12, at 96 n.30
(discussing Madison's failure to mention the Ninth). Others have tried to argue that the Ninth
Amendment was irrelevant to the issues raised by the Acts. See, e.g., Caplan, supra note 12, at 261
n.158.
2004]
The Lost Original Meaning
413

the significance of Madison's reference to the bank controversy in his Report
on the Virginia Resolutions.382 Nevertheless, despite Madison's reference to
the bank controversy and "latitudinarian constructions," his Report focused
on the Tenth Amendment, not the Ninth.383 This emphasis makes sense
given the nature of the claims of federal power asserted by Congress in
support of the Acts.
Congress based its authority to pass the Acts on its inherent
unenumerated power to enforce the common law.384 According to the
Virginia Resolutions, the Acts "exercise[] in like manner, a power not
delegated by the constitution, but on the contrary, expressly and positively
forbidden by one of the amendments thereto."385 This case did not involve
the construction of enumerated power. It involved a power derived from
unenumerated common law and stood in clear violation of the positive denial
of power contained in the First Amendment. As we shall see in the second of
these two articles, some constitutional controversies seemed mainly to
involve the Ninth, such as determining the scope of concurrent state
power,386 while others seemed mainly to involve the Tenth, such as
unenumerated emergency economic power.387 Given the common law basis
of arguments supporting the Alien and Sedition Acts, if ever there was a
Tenth Amendment issue, this was it.
2. The Tenth Amendment as a Rule of Construction.--The controversy
over the Alien and Sedition Acts fueled opposition to the Federalist party,
and in the election of 1800, they were swept from office and replaced by
Madison's and Jefferson's party, the Democratic Republicans. Madison's
Report of 1800, which Spencer Roane referred to as the Magna Charta of the
Republicans388 became a foundational document for nineteenth-century

382. You can find Madison's Report on the Virginia Resolutions in The Founders' Constitution
under the section on speech and the press. See 5 THE FOUNDERS' CONSTITUTION, supra note 13, at
141�47. Omitted, however, are the first two thirds of the speech in which Madison links the
latitudinous Alien and Sedition Acts with prior intrusions upon state sovereignty such as the
incorporation of the Bank of the United States. The full speech is reproduced in JAMES MADISON,
WRITINGS, supra note 3, at 608�62. The point at which The Founders' Constitution picks up the
speech occurs at approximately page 36 of a 54 page speech. Compare id. at 644, with 5 THE
FOUNDERS' CONSTITUTION, supra note 13, at 141.
383. See Thomas Jefferson, Kentucky Resolutions (Nov. 10, 1798), in 5 THE FOUNDERS'
CONSTITUTION, supra note 13, at 131; James Madison, Report on the Virginia Resolutions (Jan. 7,
1800), in JAMES MADISON, WRITINGS, supra note 3, at 610 (emphasizing the notion that powers are
reserved to the states unless delegated to the federal government).
384. See supra note 369.
385. James Madison, Report on the Virginia Resolutions (Jan. 7, 1800), in JAMES MADISON,
WRITINGS, supra note 3, at 620.
386. See Lash, The Lost Jurisprudence, supra note 24.
387. Id.
388. Spencer Roane, Hampden Essays (June 11, 1819), in JOHN MARSHALL'S DEFENSE OF
MCCULLOCH V. MARYLAND 107, 113 (Gerald Gunther ed., 1969).
414
Texas Law Review
[Vol. 83:331

advocates of state rights.389 Because Madison's Report focused on the Tenth
Amendment, it had the effect of eclipsing the Ninth Amendment to some
degree as the constitutional provision most responsible for limited
constructions of federal power. For example, in his treatise on the federal
Constitution, St. George Tucker described the Tenth Amendment as "added
`to prevent misconstruction or abuse' of the powers granted by the
Constitution,"390 and found that it established that the Constitution was to be
"construed strictly, in all cases where the antecedent rights of a state may be
drawn in question."391 Tucker penned his Tenth Amendment-based "rule of
construction" in 1803, soon after Madison's Tenth Amendment-based Report
of 1800. In fact, Tucker cites to Madison's Report of 1800 in support of his
Tenth Amendment-based criticism of the Bank Bill.392 Similarly, when the
Supreme Court upheld the constitutionality of the second Bank of the United
States in McCulloch v. Maryland, a number of critics of the opinion cited the
Tenth Amendment arguments from Madison's "celebrated" Report of
1800,393 instead of Madison's earlier speech regarding the first Bank of the
United States.
3. Marshall v. Madison: McCulloch v. Maryland.--
a. The Opinion.--Although the charter for the first Bank of the
United States was allowed to lapse in 1811, Congress voted to establish the
second bank in 1815.394 At that time, now President James Madison vetoed
the bill, although he deferred on the issue of whether the bank was a
constitutional exercise of federal power.395 When the Bank Bill came up
again in 1816, however, he finally signed it.396 In protest, the Maryland
Assembly in 1818 enacted an annual tax of $15,000 on any bank not
chartered by the state.397 When cashier J.W. McCulloch refused to pay the
tax, he was sued in state court and fined.398 Under the leadership of Chief

389. See CORNELL, supra note 307, at 245 (describing Madison's Report as the "framework"
upon which antifederalist ideas could be directed at the Federalists).
390. Here, Tucker cites the preamble to the Bill which was sent to the states along with the 12
proposed amendments. TUCKER, BLACKSTONE'S COMMENTARIES, supra note 227, at 143.
391. Id. at 151.
392. Id. at 287 n.*.
393. See Spencer Roane, Hampden Essays (June 15, 1819), in JOHN MARSHALL'S DEFENSE OF
MCCULLOCH V. MARYLAND, supra note 388, at 116 (referring to Madison's Report as the
"celebrated report of 1799").
394. David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV.
1457, 1474 (2001).
395. Id.
396. Despite doing so, Madison never relinquished his doubts about the method of
interpretation required to justify federal power to charter the bank. See infra note 428.
397. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 317�21 (1819).
398. Id. at 317�18.
2004]
The Lost Original Meaning
415

Justice John Marshall, the United States Supreme Court heard his appeal and,
in McCulloch v. Maryland,399 upheld the constitutionality of the bank.
In his original speech on the Bank of the United States, Madison had
argued that construing Congress's powers to encompass the bank constituted
an improper latitude of construction in violation of the Ninth and Tenth
Amendments. Madison himself, however, had ultimately (if reluctantly)
signed the 1816 Bank Bill.400 This made him a rather unpersuasive source of
constitutional arguments against the bank. Instead, opponents of the bank
focused their arguments on the Tenth Amendment.401 In his opinion,
Marshall says nothing about the Ninth Amendment and mentions the Tenth
only in passing. In regard to claims that the Tenth Amendment limits the
federal government to only those powers specifically expressed in the
Constitution, Marshall pointed out that the Tenth, unlike the Articles of
Confederation, does not limit Congress to those powers expressly
delegated.402 The Tenth itself, argued Marshall, did not restrict the powers of
Congress but merely "was framed for the purpose of quieting the excessive
jealousies which had been excited."403
Marshall was correct that the Tenth of itself did not forbid Congress
from exercising implied power.404 The issue, however, was the proper
construction of enumerated power, an issue for which the Ninth was
especially designed. Marshall not only ignored the Ninth, he deployed a rule
of construction that conflicts with the literal terms of the Ninth:
[The Constitution's] nature, therefore, requires, that only its great
outlines should be marked, its important objects designated, and the
minor ingredients which compose those objects, be deduced from the
nature of the objects themselves. That this idea was entertained by the
framers of the American constitution, is not only to be inferred from
the nature of the instrument, but from the language. Why else were
some of the limitations, found in the ninth section of the first article,
introduced? It is also, in some degree, warranted, by their having

399. Id. at 316.
400. See infra sources cited in note 428.
401. See, e.g., McCulloch, 17 U.S. (4 Wheat.) at 372.
402. Id. at 406.
403. Id. at 407.
404. As Justice Story put it in his Commentaries:
It is plain, therefore, that it could not have been the intention of the framers of [the
Tenth Amendment] to give it effect, as an abridgment of any of the powers granted
under the constitution, whether they are express or implied, direct or incidental. Its
sole design is to exclude any interpretation, by which other powers should be assumed
beyond those which are granted. All that are granted in the original instrument,
whether express or implied, whether direct or incidental, are left in their original state.
All powers not delegated, (not all powers not expressly delegated), and not prohibited,
are reserved.
STORY, supra note 43, at 712�13.
416
Texas Law Review
[Vol. 83:331

omitted to use any restrictive term which might prevent its receiving a
fair and just interpretation.405
If there is one constant theme in the history of the Ninth Amendment,
from the state conventions through ratification, it is that the enumeration of
certain rights was not to be construed to imply any expansion of federal
power. Yet this is exactly the implication Marshall draws from the
enumeration of rights in Article I, Section 9. Instead of reconciling his
interpretive approach with either the Ninth or Tenth Amendments, Marshall
simply asserts that the Framers omitted "any restrictive term" preventing "a
fair and just interpretation" of federal power.406 Marshall's assertion, of
course, is a bit of a cheat. Of course Congress did not include a restrictive
term requiring an unfair and unjust interpretation of the Constitution.
Congress did, however, add a provision restricting the construction of federal
power, a provision which a former President had argued applied in just this
situation.407
Having denied the existence of any restrictive term, Marshall goes on to
articulate a broad understanding of federal power as justifying any means
fairly related to an enumerated end.408 Deploying the Necessary and Proper
Clause as a kind of reverse Ninth Amendment, Marshall declared that the
Founders could not have been expected to enumerate every possible means
for advancing legitimate ends in the manner of a legal code. "[W]e must
never forget," after all, "it is a constitution we are expounding."409 Perhaps
anticipating objections that this seemed to grant Congress unlimited
discretion to determine the scope of its powers, Marshall provided a caveat:
Should congress, in the execution of its powers, adopt measures which
are prohibited by the constitution; or should congress, under the
pretext of executing its powers, pass laws for the accomplishment of
objects not intrusted to the government; it would become the painful

405. McCulloch, 17 U.S. (4 Wheat.) at 407.
406. Id.
407. John Marshall is generally regarded as the author of the Minority Report of the Virginia
Assembly on the Alien and Sedition Acts. Report of the Minority of the Virginia Resolutions (Jan.
22, 1799), in 5 THE FOUNDERS' CONSTITUTION, supra note 13, at 136 (attributing authorship to
Marshall). If so, he probably would have been aware of Madison's arguments regarding
latitudinarian constructions of federal power such as those deployed in the bank controversy. In
fact, in letters published following the decision, Marshall defended himself against claims of
latitudinarian construction of the Constitution. See infra notes 422 and accompanying text.
408. See McCulloch, 17 U.S. (4 Wheat.) at 421 ("Let the end be legitimate, let it be within the
scope of the constitution, and all means which are appropriate, which are plainly adapted to that
end, whichconstitutionhibited, but consist with the letter and spirit of the constitution, are
constitutional.").
409. Id. at 407. In his bank speech, of course, Madison did not deny the existence of implied
powers. Madison argued that such powers did not include "great and important powers" which
required a separate enumeration. See supra note 284 and accompanying text.
2004]
The Lost Original Meaning
417

duty of this tribunal . . . to say, that such an act was not the law of the
land.410
This left judicial review restricted to two situations: those where
Congress had violated a specific prohibition and those where Congress
intended to accomplish objects not entrusted to the government. Given
Marshall's disclaimer about second-guessing Congress's determination
regarding the reasonableness of a law, this suggested that the only limits on
congressional power were those limitations expressly enumerated in the
Constitution.411 The result feared by the Antifederalists and intended to be
prevented by the adoption of the Ninth and Tenth Amendments appeared to
have come to pass.
b. The Tenth Amendment and Criticism of Marshall's
"Latitudinarian" Interpretation of Federal Power.--Criticism of Marshall's
opinion was swift and voluminous. Ardent Republican John Taylor, who had
himself delivered Madison's Virginia Resolutions,412 ridiculed Marshall's
opinion in his colorfully entitled book, Construction Construed and
Constitutions Vindicated
:413 "As ends may be made to beget means, so means
may be made to beget ends, until the cohabitation shall rear a progeny of
unconstitutional bastards, which were not begotten by the people . . . ."414 To
Taylor, Marshall had violated the proper rule of construction presented by
the Ninth and Tenth Amendments:
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 states respectively or to the people the powers not
delegated to the United States, nor 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.415

410. Id. at 423.
411. Marshall would expressly take this position in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1
(1824). For a discussion of that case, see Lash, The Lost Jurisprudence, supra note 24 (manuscript
at 43�46).
412. See F. Thornton Miller, Foreword to JOHN TAYLOR, TYRANNY UNMASKED xiii (F.
Thornton Miller ed., Liberty Fund 1992) (1822).
413. TAYLOR, supra note 153.
414. Id. at 84.
415. Id. at 46. Taylor goes on:
In one other view, highly gratifying, these two amendments correspond with the
construction I contend for. Several previous amendments had stipulated for personal
or individual rights, as the government of the union was invested with a limited power
of acting upon persons; these stipulate for political conventional rights. But different
modes are pursued. By the first, certain specified aggressions are forbidden; by the
second, all the rights and powers not delegated are reserved. The first mode is
imperfect, as the specified aggressions may be avoided, and yet oppression might be
practiced in other forms. By the second, specification is transferred to the government
418
Texas Law Review
[Vol. 83:331

Other critics echoed Taylor's criticism of McCulloch. The editor of the
Richmond Enquirer, Thomas Richie, published a series of pseudonymous
papers written by "Amphictyon" and "Hampden," both of whom castigated
Marshall's latitudinarian interpretation of federal power.416 In his essays,
Amphictyon accused the Chief Justice of having adopted a "liberal and
latitudinous construction" of the Necessary and Proper Clause.417 "[S]o wide
is the latitude given to the words `general welfare,' in one of these clauses,
and to the word `necessary' in the other, that it will, (if the construction be
persisted in) really become a government of almost unlimited powers."418
This, argued Amphictyon, conflicted with the proper vision of federal power
because "[t]he government of the U.S. is one of specified and limited
powers. . . . The state governments have all residuary power; every thing
necessary for the protection of the lives, liberty and property of individuals is
left subject to their control."419 This "residuary power was left in possession

of the union; and the states, instead of being the grantees of limited rights, which might
have been an acknowledgement of subordination, are the grantors of limited powers;
and retain a supremacy which might otherwise have been tacitly conceded. . . . Thus
the powers reserved are only exposed to specified deductions, whilst those delegated
are limited, with an injunction that the enumeration of certain rights shall not be
construed to disparage those retained though not specified, by not having been parted
with. The states, instead of receiving, bestowed powers; and in confirmation of their
authority, reserved every right they had not conceded, whether it is particularly
enumerated, or tacitly retained. Among the former, are certain modes by which they
can amend the constitution; among the latter, is the original right by which they created
it.
Id. at 48�49.
416. The essays are reproduced in JOHN MARSHALL'S DEFENSE OF MCCULLOCH V.
MARYLAND, supra note 388. The phrase "latitudinarian construction" was widely used to condemn
readings of the Constitution which unduly expanded federal power at the expense of the states. For
instance, in Commercial Bank of Cincinnati v. Buckingham's Executors, it was argued that
[t]his court will not feel inclined to enlarge the construction of the constitution, in order
to abridge the power of legislation belonging to the States, their highest attribute of
sovereignty, by any implication extending this constitutional inhibition to all
pre�xisting laws relating to the subject-matter of contracts. Of such latitudinarian
construction
, so startling to State power, the end cannot be seen from the beginning.
While this court, in the exercise of that high function which sits in judgment upon the
validity of the legislative acts of a sovereign State, has always shown itself firm to
maintain all just rights under the constitution of the United States, it has also shown
itself not less careful to guard against trenching, by its decisions, upon the remnant of
rights which that constitution has left to the States. So cautious does it move, in the
execution of this most delicate trust, that it will not set aside an act of the legislature of
a State, as a void thing, unless it appear clearly to be repugnant to the constitution. If
its constitutionality be doubtful only, the doubt resolves itself in favor of the exercise
of State power, and the act takes effect.
Commercial Bank of Cincinnati v. Buckingham's Ex'rs, 46 U.S. (5 How.) 317, 332�33 (1847)
(argument of Mr. Convers) (emphasis added).
417. See A Virginian's "Amphictyon" Essay (Mar. 30, 1819), reprinted in JOHN MARSHALL'S
DEFENSE OF MCCULLOCH V. MARYLAND, supra note 388, at 53. Editor Gerald Gunther suggests
that the essays were "probably written by Judge William Brockenbough." Id. at 1.
418. Id. at 65.
419. Id. at 70.
2004]
The Lost Original Meaning
419

of the states for wise purposes. It is necessary that the laws which regulate
the daily transactions of men should have a regard to their interests, their
feelings, even their prejudices."420 If the rule of McCulloch prevailed, the
judiciary would be unable to control federal expansion into the powers
reserved to the states. Scoffing at Marshall's claim that it would be the
"painful duty" of the court to invalidate mere pretextual assertions of
enumerated power,421 Amphictyon wrote that "[t]he latitude of their
construction will render it unnecessary for them to discharge a duty so
`painful' to their feelings."422
Although John Taylor claimed that the Court's decision violated both
the Ninth and Tenth Amendments, most critics focused on the Tenth. For
example, a series of essays critical of McCulloch were printed in the
Richmond Enquirer under the pseudonym "Hampden." The author was John
Marshall's great nemesis and Chief Justice of the Virginia Supreme Court,
Spencer Roane. Referring repeatedly to the odious precedent of the Alien
and Sedition Acts and Madison's now famous Report of 1800,423 Roane
argued that Congress, and the Court, had once again invaded the reserved
powers of the States:
It has been our happiness to believe, that in the partition of powers
between the general and state governments, the former possessed only
such as were expressly granted . . . while all residuary powers were
retained by the latter. . . . This, it is believed, was done by the
constitution, in its original shape; but such were the natural fears and
jealousies of our citizens, in relation to this all important subject, that

420. Id. at 71.
421. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819).
422. A Virginian's "Amphictyon" Essay (Mar. 30, 1819), reprinted in JOHN MARSHALL'S
DEFENSE OF MCCULLOCH V. MARYLAND, supra note 388, at 75. The criticism was serious enough
to prompt John Marshall to write his own anonymous defense of McCulloch. In a remarkable
exchange of essays, unique in constitutional history, the Chief Justice of the United States Supreme
Court defended his opinion against claims which he had brushed off in the opinion itself--that his
interpretation of the Constitution adopted the latitudinarian construction Madison had warned about
years earlier. "The court does not, in a single instance" huffed Marshall, "claim the aid of a
`latitudinous,' or `liberal' construction; but relies, decidedly and confidently, on the true meaning,
`taking into view of the subject, the context, and the intention of the framers of the constitution.'"
John Marshall, "A Friend to the Union" Essay II (Apr. 28, 1819), reprinted in JOHN MARSHALL'S
DEFENSE OF MCCULLOCH V. MARYLAND, supra note 388, at 92. Throughout his essays, Marshall
repeatedly denies that the opinion deploys a latitudinous interpretation of the Constitution:
It is a palpable misrepresentation of the opinion of the court to say, or to insinuate that
it considers the grant of a power "to pass all laws necessary and proper for carrying
into execution" the powers vested in the government, as augmenting those powers, and
as one which is to be construed "latitudinously," or even "liberally."
Id. at 97.
423. See Spencer Roane, Hampden Essays (June 11�15, 1819), reprinted in JOHN MARSHALL'S
DEFENSE OF MCCULLOCH V. MARYLAND, supra note 388, at 109 n.5, 110 n.9; see also id. at 113,
115�16 ("For truth, perspicuity and moderation, it has never been surpassed. . . . It was the Magna
Charta
on which the republicans settled down, after the great struggle in the year 1799.").
420
Texas Law Review
[Vol. 83:331

it was deemed necessary to quiet those fears, by the 10th amendment
to the constitution.424
Tying the hated Sedition Acts to Marshall's opinion in McCulloch,
Hampden argued that "[t]he latitude of construction now favored by the
supreme court, is precisely that which brought the memorable sedition act
into our code."425 In a famous paragraph, Hampden declared, "That man
must be a deplorable idiot who does not see that there is no earthly difference
between an unlimited grant of power, and a grant limited in its terms, but
accompanied with unlimited means of carrying it into execution."426 It was
not simply the Bank Act that drew Hampden's ire; it was the method of
interpretation used by the Supreme Court that threatened the reserved powers
of the states. To Hampden, Marshall's opinion was "the `Alpha and Omega,'
the beginning and the end, the first and the last--of federal usurpations."427
Despite the fact that he signed the Bill establishing the second Bank of
United States, James Madison never lost his doubts about congressional
power to charter such a bank.428 When Roane sent James Madison his
Hampden essays, he received a congratulatory reply: "I have found their
latitudinary mode of expounding the Constitution, combated in them with the
ability and the force which were to be expected."429 Picking up where his
speech on the Bank of the United States left off, 28 years in the past,
Madison once again decried latitudinous constructions of the Constitution:430
But what is of most importance is the high sanction given to a latitude
in expounding the Constitution which seems to break down the
landmarks intended by a specification of the Powers of Congress, and

424. Id. at 108; see also id. at 114, 149 (asserting in later Hampden Essays that the Tenth
Amendment merely declared the principle that residuary powers not granted to the government
were reserved to the states and the people, and noting the existence of some judicial decisions that
reflected this).
425. Id. at 134. Madison, of course, had tied the Alien and Sedition Acts to the earlier
controversy over the Bank of the United States. See supra note 20 and accompanying text.
426. Id. at 110.
427. Id. at 114. Marshall's responses to Hampden's essays are reprinted and available. Id. at
155�214; see also Jack N. Rakove, Judicial Power in the Constitutional Theory of James Madison,
43 WM. & MARY L. REV. 1513, 1534�42 (2002) (discussing Madison's commentary on judicial
power and its role as demonstrated by his responses to the Hampden Essays sent to him by Spencer
Roane).
428. See Letter from James Madison to Mr. Ingersoll (June 25, 1831), reprinted in 4 LETTERS
AND OTHER WRITINGS OF JAMES MADISON 183�87 (1867). Madison acquiesced on the basis of the
bank's usefulness and deference to past precedent, but declined to alter his earlier stated views
regarding the methods of interpretation originally used to justify the bank. Id. at 186. ("A veto
from the Executive, under these circumstances, with an admission of the expediency and almost
necessity of the measure, would have been a defiance of all the obligations derived from a course of
precedents amounting to the requisite evidence of the national judgment and intention.").
429. Letter from James Madison to Spencer Roane (Sept. 2, 1819), reprinted in JAMES
MADISON, WRITINGS, supra note 3, at 733.
430. Id. at 733�37.
2004]
The Lost Original Meaning
421

to substitute for a definite connection between means and ends, a
Legislative discretion as to the former to which no practical limit can
be assigned. In the great system of Political Economy having for its
general object the national welfare, everything is related immediately
or remotely to every other thing; and consequently a Power over any
one thing, if not limited by some obvious and precise affinity, may
amount to a Power over every other.431
Although in his letter Madison did not expressly mention the Ninth
Amendment, he nevertheless repeated a number of arguments originally
made in his 1791 speech before the House. In particular, Madison pointed
out how chartering the bank thwarted the expectations of the state
conventions:
It could not but happen, and was foreseen at the birth of the
Constitution, that difficulties and differences of opinion might
occasionally arise in expounding terms & phrases necessarily used in
such a charter; more especially those which divide legislation between
the General & local Governments . . . . But it was anticipated I
believe by few if any of the friends of the Constitution, that a rule of
construction would be introduced as broad & as pliant as what has
occurred. And those who recollect, and still more those who shared in
what passed in the State Conventions, thro' which the people ratified
the Constitution, with respect to the extent of the powers vested in
Congress, cannot easily be persuaded that the avowal of such a rule
would not have prevented its ratification.432
Throughout his life, Madison continued to insist that the Bank Bill was
based on a latitudinarian construction of the Constitution "incompatible with
the rights of the states and the liberties of the people."433 Ultimately,

431. Id. at 734.
432. Id. at 735.
433. See H.R. J., 26th Cong., 2d Sess. 17 (Dec. 9, 1840). Madison's arguments regarding the
bank continued to appear as long as the bank remained an issue. At the second session of the 26th
Congress, a written communication from President Van Buren was read, which included the
following language:
If a national bank was, as is undeniable, repudiated by the framers of the constitution
as incompatible with the rights of the States and the liberties of the people; if, from the
beginning, it has been regarded by large portions of our citizens as coming in direct ez_replacebr_temp10001847=ez_replconstitution48collision with that great and vital amendment of the constitution, which declares that
all powers not conferred by that instrument on the General Government are reserved to
the States and to the people; if it has been viewed by them as the first great step in the
march of latitudinous construction, which, unchecked, would render that sacred
instrument of as little value as an unwritten constitution, dependent, as it would alone
be, for its meaning, on the interested interpretation of a dominant party, and affording
no security to the rights of the minority;--if such is undeniably the case, what rational
grounds could have been conceived for anticipating aught but determined opposition to
such an institution at the present day?
Id. (emphasis added).
422
Texas Law Review
[Vol. 83:331

Madison's view prevailed: In 1832, President Andrew Jackson vetoed a
proposed extension of the bank's charter explaining that, among other things,
the bank amounted to an "invasion[] of the rights and powers of the several
States."434 Whether intentionally or not, Jackson thus repeated Madison's
original argument that the bank violated the nondelegated rights and powers
reserved to the people of the several states under the Ninth and Tenth
Amendments.
The history of the bank controversy not only illuminates the original
meaning of the Ninth Amendment, it also reveals the Tenth Amendment's
development as a rhetorical tool against expansive constructions of federal
power. Although some critics of McCulloch raised Ninth Amendment
concerns, most focused on the Tenth. It is not that the Ninth Amendment
lost its original meaning. Neither Madison, nor any other writer, reversed or
revised Madison's original reading of the Ninth.435 Instead, Madison's Ninth
Amendment-based arguments from his bank speech were eclipsed by the
more famous Tenth Amendment-based assertions of state autonomy
contained in his 1800 Report. It seems only an accident of history that the
Alien and Sedition Acts and the Election of 1800 focused states' rights
arguments on the Tenth Amendment to the point that the Tenth, not the
Ninth, became the basis for most arguments decrying the constructive
enlargement of federal power displayed in Marshall's opinion. In this way,
the bank controversy is yet another example of the unlucky history of the
Ninth Amendment.
VI. Losing the History of the Ninth Amendment
The roots of the Ninth Amendment are found in the amendments
proposed by the state conventions, and the most significant discussion of the
origins and purpose of the Ninth Amendment is found in James Madison's
speech on the Bank of the United States. Unfortunately, in major works on
the history of the Ninth Amendment, the state proposals, the Virginia debate,
and Madison's speech on the Bank of the United States have been
mislabeled, misconstrued, or, until now, simply missed. Some of this may be
attributed to Founding-period conventions that mask discussions of the Ninth
Amendment from contemporary view. In his bank speech, for example,
Madison referred to the Ninth Amendment as the "Eleventh." By referring to
the Ninth according to its position on the original list of twelve proposed
amendments, Madison was using a common convention of the early years of

434. Andrew Jackson, Veto Message to the Senate (July 10, 1832), in 2 MESSAGES AND
PAPERS OF THE PRESIDENTS 576�91 (James D. Richardson ed., 1896).
435. As the next Article will discuss, the Ninth Amendment continued to be deployed for more
than a century as establishing a rule of construction limiting the scope of enumerated congressional
power. See Lash, The Lost Jurisprudence, supra note 24.
2004]
The Lost Original Meaning
423

the Constitution. As the years went by, and it became clear that the first two
proposals would not be ratified, the convention changed and the amendments
came to be known as One through Ten. As demonstrated in The Lost
Jurisprudence of the Ninth Amendment
, this "renumbering" has had the
effect of obscuring other early references to the Ninth Amendment.436
Contemporary assumptions about rights and powers, however, appear to
have played an even greater role in masking the historical roots of the Ninth
Amendment. If one assumes that the Ninth Amendment is about individual
rights, while the Tenth is about government power, the state convention
precursors to the Ninth Amendment disappear from view: None of the
proposed drafts of the Ninth Amendment from the state conventions used the
language of rights. Instead, the state conventions proposed a rule of
construction limiting the interpretation of federal power. A historian who
assumes that the Ninth Amendment was about unenumerated individual
rights and not government power would overlook these provisions and either
erroneously focus attention on proposed amendments dealing with individual
rights or assume that there were no state precursors to the Ninth Amendment
at all.
In fact, contemporary assumptions about rights and powers have
influenced the collection and presentation of historical materials relating to
the Ninth Amendment. In his extensive collection of historical materials on
the Bill of Rights, Neil Cogan identifies only three proposals for the "Ninth
Amendment" suggested by the state ratifying conventions, all of them
involving language protecting individual rights.437 The first is an expanded
version of New York's explanatory declaration, with Cogan's version
including New York's declaration of the "essential rights" of life, liberty and
the pursuit of happiness.438 Cogan's second "proposed Ninth Amendment" is
in fact the first two clauses of the North Carolina Convention's submitted
"Declaration of Rights":
1st. That there are certain natural rights of which men, when they
form a social compact, cannot deprive or divest their posterity, among
which are the enjoyment of life, and liberty, with the means of
acquiring, possessing and protecting property, and pursuing and
obtaining happiness and safety.

436. Id.
437. THE COMPLETE BILL OF RIGHTS, supra note 13, at 635�36.
438. Amendments Proposed by the New York Convention (July 26, 1788), in THE COMPLETE
BILL OF RIGHTS, supra note 13, at 635.
424
Texas Law Review
[Vol. 83:331

2d. That all power is naturally vested in, and consequently derived
from the people; that magistrates therefore are their trustees, and
agents, and at all times amenable to them.439
If one assumes that the Ninth was a Libertarian provision intended to
protect unenumerated natural rights, the above choice makes sense, despite
the lack of any resemblance to the actual words of any draft of the Ninth
Amendment and despite the fact that the above was not a proposed
amendment to the Constitution. On the other hand, consider the following
amendment which actually was proposed by North Carolina, but is not cited
by Cogan in his section on the Ninth Amendment:
That those clauses which declare that Congress shall not exercise
certain powers, be not interpreted in any manner whatsoever to extend
the powers of Congress; but that they be construed either as making
exceptions to the specified powers where this shall be the case, or
otherwise, as inserted merely for greater caution.440
This proposal clearly echoes Madison's original draft of the Ninth
Amendment which declared that "exceptions here or elsewhere in the
constitution, made in favor of particular rights, shall not be so construed . . .
to enlarge the powers delegated by the constitution; but either as actual
limitations of such powers, or as inserted merely for greater caution."441
Despite the similarity to Madison's Ninth, however, Cogan places North
Carolina's proposal with materials relating to the Tenth Amendment.442
As his third and final example of a proposed Ninth Amendment, Cogan
cites one of the Virginia explanatory declarations--an almost verbatim repeat
of the North Carolina's "natural rights" provision cited above.443 Cogan
omits from his section on the Ninth Amendment Virginia's seventeenth
proposed amendment, despite its obvious relationship to Madison's original
draft of the Ninth. Instead, Cogan places Virginia's first and seventeenth
proposals in his section on the Tenth Amendment.444 This placement can
only be explained as reflecting a powerful assumption; provisions speaking

439. Amendments Proposed by the North Carolina Convention (Aug. 1, 1788), in THE
COMPLETE BILL OF RIGHTS, supra note 13, at 635�36. The critical language distinguishing North
Carolina's "Declaration of Rights" from its "Amendments to the Constitution" can be found in 4
ELLIOT'S DEBATES, supra note 42, at 242�47 and 1 RIGHTS RETAINED BY THE PEOPLE, supra note
14, at 364�70.
440. Amendments Proposed by the North Carolina Convention (Aug. 1, 1788), in THE
COMPLETE BILL OF RIGHTS, supra note 13, at 674�75.
441. JAMES MADISON, WRITINGS, supra note 3, at 443.
442. Amendments Proposed by North Carolina (Aug. 1, 1788), in THE COMPLETE BILL OF
RIGHTS, supra note 13, at 674�75.
443. Proposal from the Virginia State Convention (June 27, 1788), in THE COMPLETE BILL OF
RIGHTS, supra note 13, at 636.
444. Id. at 675.
2004]
The Lost Original Meaning
425

of individual rights must relate to the Ninth while provisions limiting the
construction of power must relate to the Tenth.445
Another outstanding source of original historical materials consistently
relied upon by legal scholars is Philip Kurland and Ralph Lerner's five-
volume set, The Founders' Constitution.446 These volumes bring together a
remarkable set of original source materials relating to the principles and texts
of every provision in the Constitution, including proposed amendments
issued by the state conventions. For example, materials relating to the
religion clauses of the First Amendment include the Virginia Ratifying
Convention's proposed amendment on the subject of religion.447 In the
section on the Ninth Amendment, however, the Virginia Convention
suddenly has nothing to say. In fact, Kurland and Lerner include not a single
proposed amendment from the state conventions in their section on the
Ninth.448
Cogan's Complete Bill of Rights and Kurland and Lerner's The
Founders' Constitution are both significant sources of historical information.
Both are on my bookshelf and I refer to them often. Neither source,
however, adequately presents the documentary history of the Ninth
Amendment. But neither are they unique in their failure to recognize the
roots of the Ninth Amendment. Ninth Amendment scholar Randy Barnett
has reproduced all of the state conventions' proposed amendments in an
appendix to his two-volume set of essays, The Rights Retained by the
People
.449 Just which (if any) of these proposed amendments relate to the
Ninth and which to the Tenth, however, is left for the reader to decide on

445. See generally THE COMPLETE BILL OF RIGHTS, supra note 13, at 627�62.
446. THE FOUNDERS' CONSTITUTION, supra note 13.
447. 5 THE FOUNDERS' CONSTITUTION, supra note 13, at 89.
448. Id. at 388. Also missing from this section of Kurland and Lerner's compendium is
Madison's original draft of the Ninth (though the original draft of the First Amendment is included),
Madison's letters discussing the Ninth (though hundreds of letters are reproduced in the volumes),
the Virginia debate and Senate Report on the proposed Ninth Amendment, and Madison's speech
on the Bank of the United States discussing the purpose and origins of the Ninth Amendment. Id. at
388. These missing pieces seem all the more significant when one considers that Professor Kurland
testified before Congress that his research on the Ninth Amendment for The Founders' Constitution
led him to embrace a Libertarian reading of the clause, and accordingly, he opposed the nomination
to the Supreme Court of Robert Bork who rejected such a reading of the Ninth. See Senate Comm.
on the Judiciary, Nomination of Robert H. Bork to be an Associate Justice of the Supreme Court,
EXEC. REP. NO. 100-7, at 8 (1987).
449. See 1 THE RIGHTS RETAINED BY THE PEOPLE, supra note 14, at 353�85. Although
Barnett emphasizes the importance of the state conventions in attempting to identify the original
meaning of the constitution, see BARNETT, RESTORING THE LOST CONSTITUTION, supra note 13, at
96�100, Barnett does not discuss the state conventions and their proposed "Ninth Amendments" in
his discussion of the Ninth in the same work. See id. at 54�60, 234�52. At one point, Barnett links
a provision from Sherman's draft Bill of Rights that Barnett associates with the Ninth Amendment
with similar proposals from North Carolina and Virginia. Id. at 247 n.85. As explained above,
none of these provisions are precursors to the Ninth Amendment. See supra notes 14�16 and
accompanying text.
426
Texas Law Review
[Vol. 83:331

their own. In his most recent book, Restoring the Lost Constitution, Barnett
relates the history of the Ninth Amendment without once discussing the
proposed state amendments.450 The great historian Leonard Levy quotes
Madison's original draft of the Ninth Amendment, including the
"constructive enlargement of power" language suggested by the state
conventions, but then declares that "Madison improvised that proposal. No
precise precedent for it existed."451 When it comes to the state conventions,
in some of the most influential works written on the origins of the Ninth
Amendment, it is as if the history is not there.452
Also missing from contemporary scholarship on the Ninth Amendment
are the Virginia Assembly debates and the Report of the Virginia Senate.
Scholars have known for some time about the correspondence between
Burnley and Madison.453 Surprisingly, however, no Ninth Amendment
scholar has investigated the records of the Virginia Assembly, much less
considered the significance of Virginia's proposed first and seventeenth
amendments in explaining the concerns of Edmund Randolph. Had they

450. The omission is surprising given that constitutional historians seeking the original meaning
of a particular clause generally concede that state ratification debates are crucial sources of
evidence. See, e.g., WHITTINGTON, supra note 25, at 163�64 ("[O]riginalism refers to the
intentions of the various individuals who composed the ratifying convention and the degree of
agreement that they expressed over the meaning of constitutional terms."); BARNETT, RESTORING
THE LOST CONSTITUTION, supra note 12, at 98 (advocating original meaning analysis and
explaining the importance of ratifying conventions in determining such meaning).
451. LEVY, supra note 8, at 247. Like Cogan, as well as Kurland and Lerner, Levy finds the
roots of the Ninth in broad declaration of rights provisions. See id. at 249.
452. Two contemporary Ninth Amendment scholars who at least have noted the importance of
Virginia's seventeenth proposal are Russell L. Caplan and Thomas B. McAffee. See Caplan, supra
note 12, at 254; Thomas B. McAffee, The Federal System as a Bill of Rights: Original
Understandings, Modern Misreadings
, 43 VILL. L. REV. 17, 147 (1998). Neither Caplan nor
McAffee, however, identify the link between the final version of the Ninth and Virginia's call for a
provision controlling the constructive enlargement of federal power. Interestingly, prior to the
contemporary debate over unenumerated rights, the link between the Ninth Amendment and
Virginia's seventeenth proposal was seen as obvious. See, e.g., DUMBAULD, supra note 12, at 55.
Similarly, in his 1971 two-volume work on the Bill of Rights, Bernard Schwartz lists the "Sources
of Bill of Rights." The sole document listed as a source for the Ninth Amendment is "Va.
Convention, proposed amendment 17." 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY, supra
note 122, at 1204. Akhil Amar, in his book The Bill of Rights points out the link between New
York's and Virginia's convention statements and the Ninth and Tenth Amendments. AMAR, supra
note 27, at 121�22. Amar does not address the Ninth as a rule of construction, but rather as a
statement of popular sovereignty and the right of the people to alter or abolish their form of
government. Id.
453. In his recent book, Thomas McAffee discusses Burnley's letter and Madison's letter to
Washington in a section entitled "The Ratification Debate in Virginia." See MCAFFEE, supra note
12, at 145�47. Surprisingly, McAffee does not discuss the events taking place in Virginia at the
time of Burnley's letter. McAffee limits his discussion to arguing (correctly in my mind) that
Burnley and Madison's letters reflect a view of the Ninth Amendment as preventing an extension of
federal power through the language of retained rights. McAffee continues to believe, however, that
the Ninth does no more than preserve the doctrine of enumerated powers. Id. at 147.
2004]
The Lost Original Meaning
427

done so, Randolph's concerns would have been clarified, as would have
Madison's response.
But perhaps the most startling example of the lost history of the Ninth
Amendment involves the treatment of Madison's speech on the Bank of the
United States. The speech itself is hardly mentioned in most constitutional
law textbooks, and in the one textbook that does present Madison's speech,
his reference to the "Eleventh and Twelfth" Amendments is edited out.454
You can find Madison's speech in The Founders' Constitution under the
section relating to the Necessary and Proper Clause.455 Almost the entire
speech is reproduced . . . except for Madison's reference to the Ninth
Amendment.456 Jack Rakove devoted an entire book to Founding approaches
to constitutional interpretation and specifically addressed Madison's speech
as an example of Madison's approach to construing the Constitution, yet
nowhere mentioned Madison's reference to the Ninth Amendment, the
textual basis for Madison's rule of constitutional interpretation.457 Although
some Ninth Amendment scholars have debated the meaning of Madison's
speech,458 no one has recognized Madison's discussion of how the principles
of the Ninth Amendment are rooted in the amendments proposed by the state
conventions.
These key pieces of history that reveal the Ninth Amendment as a
federalist rule of construction have been lost. Contemporary scholarship, and
the current jurisprudence of the Supreme Court, assume that if there is a
federalist rule of construction in the Constitution, that rule is expressed by
the Tenth Amendment, not the Ninth. The key precedents in discussing
federalism-based limitations on federal power are McCulloch v. Maryland,459
which discusses the Tenth Amendment, not the Ninth, and United States v.
Lopez
,460 which does the same. Instead of following Madison's approach and
citing the Ninth Amendment alongside the Tenth as one of the twin
guardians of federalism, contemporary scholars and courts regularly cite the
Ninth in opposition to the Tenth Amendment and claims of local autonomy.
Viewing the Ninth and Tenth Amendments as antagonists, however, is a
recent development. For most of our history, bench and bar shared
Madison's federalist reading of the Ninth and Tenth Amendments and
recognized their dual role in guarding the states from federal interference.

454. See PROCESSES OF CONSTITUTIONAL DECISIONMAKING, supra note 21, at 8�11.
455. 3 THE FOUNDERS' CONSTITUTION, supra note 13, at 244�45.
456. Compare id. with JAMES MADISON, WRITINGS, supra note 3, at 488�89.
457. See JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF
THE CONSTITUTION 350�54 (1996).
458. See BARNETT, RESTORING THE LOST CONSTITUTION, supra note 12, at 245; MCAFFEE,
supra note 12, at 2�3.
459. 17 U.S. (4 Wheat.) 316 (1819).
460. 514 U.S. 549 (1995).
428
Texas Law Review
[Vol. 83:331

VII. Epilogue
In his later years, Madison looked back on how the Supreme Court had
fared in its fledgling efforts to interpret the Constitution. With disputes such
as the Bank of the United States, the Alien and Sedition Acts, and Marshall's
opinion in McCulloch v. Maryland still fresh in his mind, Madison had
reason to be melancholy:
It is to be regretted that the Court is so much in the practice of
mingling with their judgments pronounced, comments & reasonings of
a scope beyond them; and that there is often an apparent disposition to
amplify the authorities of the Union at the expence of those of 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.461
Responding to Spencer Roane's concerns about the Supreme Court's
decision in Cohens v. Virginia462 limiting the scope of the Eleventh
Amendment, Madison wrote "whatever may be the latitude of Jurisdiction
assumed by the Judicial Power of the U.S. it is less formidable to the
reserved sovereignty of the States than the latitude of power which it has
assigned to the National Legislature."463 Still, Madison conceded, the Court
had failed 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.464
Despite his many disappointments, however, Madison never lost faith:

461. Letter from James Madison to Spencer Roane (May 6, 1821), in JAMES MADISON,
WRITINGS, supra note 3, at 773.
462. 19 U.S. (6 Wheat.) 264 (1821).
463. Letter from James Madison to Spencer Roane (May 6, 1821), in JAMES MADISON,
WRITINGS, supra note 3, at 774.
464. Id. at 776. As the reader now knows, the "expository language" referred to by Madison
included the Ninth and Tenth Amendments.
2004]
The Lost Original Meaning
429

I am not unaware that the Judiciary career has not corresponded with
what was anticipated. At one period the Judges perverted the Bench
of Justice into a rostrum for partizan harangues. And latterly the
Court, by some of its decisions, still more by extrajudicial reasonings
& dicta, has manifested a propensity to enlarge the general authority in
derogation of the local, and to amplify its own jurisdiction, which has
justly incurred the public censure. But the abuse of a trust does not
disprove its existence.465
The problem addressed by Madison's thoughtful meditations--the need
to maintain a "just equilibrium" between "the National or the local
powers"--would continue to be a thorn in the country's side for the next one
hundred and fifty years. The "expository language" meant to help guide the
Court in this endeavor may have been forgotten, but our forgetfulness is only
recent. In fact, the original federalist meaning of the Ninth Amendment did
not pass with James Madison. It was cited, quoted, discussed, and deployed
in countless cases throughout the nineteenth and early twentieth centuries in
precisely the manner hoped for by James Madison and the ratifying
conventions. This jurisprudence, yet another missing piece of the lost history
of the Ninth Amendment, is presented in the second of these articles, The
Lost Jurisprudence of the Ninth Amendment
.

465. Letter from James Madison to Thomas Jefferson (June 27, 1823), in JAMES MADISON,
WRITINGS, supra note 3, at 802.