The Ninth Amendment and the Federalist Interpretation

Andrew Hyman writes a response to my post that the Ninth Amendment refers to natural rights, although it does not protect them as constitutional rights. Hyman offers a different interpretation of the Ninth Amendment, one I call the Federalist interpretation (which I referred to in my earlier post).

Hyman argues that the:

Amendment means the Constitution’s enumeration of powers – and not its enumeration of rights – may be construed to deny or disparage unenumerated retained rights to the same extent as under the original unamended Constitution.

Why, you might ask, would the framers have suggested that the enumeration of powers can be construed to deny unenumerated retained rights?  It is not a mystery.  As James Madison wrote to George Washington on December 5, 1789: “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.”

Hyman’s post is a bit brief. But it is worthwhile explaining his view in a bit more detail, since it is a significant one. Under this view, there was a concern that the Bill of Rights might be dangerous and lead to interpretations that would expand the powers of the federal government. How could that happen?

Consider the following example. The Federalists had argued that an amendment protecting freedom of the press was unnecessary because Congress did not have authority under the enumerated powers to regulate the press. But if a freedom of the press amendment was passed, that could be dangerous. People might argue that the passage of the freedom of the press amendment showed that Congress’s powers were broad enough to regulate the press. The reason is that a freedom of the press amendment might have seemed unnecessary if the enumerated powers did not extend to regulations of the press. The amendment would have been superfluous. To avoid that superfluousness, one should interpret the enumerated powers to allow regulation of the press. Therefore, a Bill of Rights might expand the interpretation of the enumerated powers. According to this argument, the Ninth Amendment was needed to eliminate this inference.

I used to prefer this interpretation of the Ninth Amendment and still think there is much to it. But ultimately I concluded that it did not fit the original meaning of the text as well as the interpretation I defended in my previous post.

Let me explain why. Madison’s original proposal for the Ninth Amendment was the following:

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. [Emphasis added.]

Thus, Madison’s original proposal was concerned with two inferences: that the enumeration in the Bill of Rights would enlarge Congress’s enumerated powers (the italicized portion) and that the enumeration would disparage the rights retained by the people.

But Madison’s proposal was changed into the Ninth Amendment, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  Clearly, the italicized language has been taken out.  Instead, it is only the language about the retained rights that remains.

Thus, it is hard to argue that the Ninth Amendment merely protects against the expansion of Congress’s powers. Given that the language about rights retained by the people typically referred to natural rights, I believe the best public meaning of the language here is a reference to those natural rights. Now, it might be possible that the Ninth Amendment is also referring to the expansion of enumerated powers. If so, then the Ninth Amendment will have a meaning that protects against the freedom of press inference described above. But I do not believe that the best meaning can deny that natural rights are at least part of what is being referred to here in the Ninth Amendment.

Reader Discussion

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on April 24, 2019 at 10:41:21 am

Although this does strictly pertain to rights retained as opposed to limitations on powers delegated, it may still be useful to recall a similar concern over the limitations on congressional powers delineated in Article 1, Section 9. New York in her ratification expressed the understanding,

"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."

The similarity with Mr. Madison's language quoted above is clearly noted.

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on April 24, 2019 at 14:48:34 pm

So long as ninth amendment rights are treated the same as first amendment rights, it doesn't really matter what you call them.

If you can't have background checks or waiting periods or excise taxes or bans on public-carry on first amendment rights, then you also can't have them on ninth amendment rights. So long as you treat all rights the same--whether they come from the first or ninth amendment-- you can call ninth amendment rights "natural" rights instead of "constitutional" rights.

“As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion." -Ullmann v. US, 1956

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on April 24, 2019 at 18:37:51 pm

The important distinction isn't between "constitutional" and "natural" rights, but between "rights" and "privileges".

How do you define a privilege? A privilege is something that has requirements (like a license) and it's something you can lose (after serving time in jail).

A right is something you never lose, i.e., it must be restored upon release from prison.
Think if, after you were released from prison, the government arrested you because they found you with a newspaper or found you at a church, after they told you you no longer have a right to go to church or read a newspaper. You'd say that's ridiculous; that once you're out of jail you have all your rights back. That's the definition of a right, it's "inalienable"--it can't be lost forever, like upon conviction of a crime.

The question is, what's the definition of a "right", versus a "privilege"? That is, what regulations destroy a right by turning it into a privilege? Those regulations that destroy a right are the very regulations that are unconstitutional under the bill of rights, because they infringe on the right.

Can you please do a blogpost describing in detail what those unconstitutional regulations are? You could call it "strict scrutiny", or just "constitutional law" . . .

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Doubting Thomas Federalist
on April 25, 2019 at 10:03:14 am

We have an "inalienable" right to life, yet capital punishment deprives one of his life--which then is indeed lost forever.

Rights exist independently of any constitution or declaration of rights. The Federal Bill of Rights only acknowledges rights that are pre-existent and tell the government, "Hands off."

An example of a privilege--something actually granted via a constitutional/legal provision would be the privilege against self-incrimination. That was not considered a prior right as such, it developed over a period of centuries. It is not referred to as a "right" in the Fifth Amendment.

During the congressional debates on the proposed bill of rights it was in fact rewritten from the general language first introduced to apply only to "any criminal case." (Although the Supreme Court has arbitrarily extended the privilege to apply even to congressional testimony.) New Jersey notably had no such privilege in their State Constitution--which the U.S. Supreme Court upheld in 1908 (Twining v. New Jersey.)

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on April 26, 2019 at 13:13:18 pm

That was not considered a prior right as such, it developed over a period of centuries. It is not referred to as a “right” in the Fifth Amendment.

Do you have quotes from the framers that the B of R is not from natural law? It seems to me, the 9A calls the others enumerated as rights.

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on April 26, 2019 at 16:45:10 pm

I didn't expect to be in the position of proving the negative! I don't recall offhand seeing quotes from the framers about natural law as related to the Federal Bill of Rights one way or other. However, the 9th Amendment merely refers to "the enumeration . . . of certain rights . . ." It doesn't assert whether every provision is a "right"--nor does it mention anything about "natural rights." We have to examine the historical context of each provision in question.

If you search on "The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America" you'll find the 1935 essay by Carter Pittman, which was evidently one of the first (and for a while only) substantive historical accounts--cited many times by the Supreme Court. This essay explain how the privilege originated and evolved over time.

A follow-up essay published in the ABA Journal can also be found online entitled "The Fifth Amendment
Yesterday, Today, and Tomorrow." This essay provides a possible explanation of why the privilege was confined only to criminal cases, based on the history of Silas Deane.

When Mr. Deane--who was evidently working for the British during the Revolution--was called to testify on certain of his actions by the Continental Congress he pleaded that he should not be required to testify against himself. However, he made this plea strictly on the basis of grace and NOT of right. It is hypothesized that this may have been an important background for the limitation of the privilege, following an objection by Congressman Lawrence of NY.

As a side note, the Virginia Declaration of Rights (upon which most of the State bills of right are based) uses different language from the Federal Bill of Rights. While the latter employs the term "shall not," the former typically read "ought not." There are significant reasons for the difference, but I digress.

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on April 27, 2019 at 01:29:17 am

However, the 9th Amendment merely refers to “the enumeration . . . of certain rights . . .” It doesn’t assert whether every provision is a “right”–nor does it mention anything about “natural rights.” We have to examine the historical context of each provision in question.

Check my blog. The framers said the B of R is from natural law. Unalienable rights are from God. Therefore, the rights enumerated, and very limited. Most of them got the idea of property rights from 1 KI 4:25.

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James Goswick
on April 30, 2019 at 13:03:08 pm

I had some difficulty finding your blog, but if it's "Our Founding Truth" then I found it. I was unable to find any reference to the present topic however, even on a site search.

It may well be that certain of the early American leaders stated what you said, and I'd be interested in seeing relevant quotations.

I'm not sure what else we're debating here, unless you're suggesting that the privilege against self-incrimination should instead be considered a natural right. I do not see any Biblical basis for such a view. (The right of private property ownership is affirmed throughout Scripture.)

For example, when Joshua confronted Achan for his sin in taking the accursed things, he commanded him to "tell me now what thou hast done; hide it not from me." To confess this meant being deprived of his (and his family's!) life. Surely you would not suggest that Joshua was violating any "natural right."

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