The Original Purpose Of The Two Most Significant And Ignored Amendments To The Constitution: The Pairing That Is The 9th And 10th Amendments

• ‎Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

• Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

What was the original purpose of these two Amendments? The Tenth Amendment is pretty self explanatory, but the Ninth Amendment is often viewed as more nebulous and vague, having very little real or relevant meaning. Supreme Court Justice Joseph Story wrote in his 1833 Commentaries on the Constitution that the Ninth Amendment "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 é converso, that a negation in particular cases implies an affirmation in all others. The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies. The amendment was undoubtedly suggested by the reasoning of the Federalist on the subject of a general bill of rights."

The truth of the matter is that the Ninth and Tenth Amendments were intended to be a pair that would secure the rights of the people by ensuring a federal government of limited powers. The original purpose of what became the Ninth and Tenth Amendments is embodied in a letter from James Madison to George Washington in 1789. Madison wrote, "If a line can be drawn between the [federal] 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." In other words, what became the Ninth and Tenth Amendments serve virtually identical and reciprocal purposes.

Instead of realizing the nearly identical purposes to what became the Ninth and Tenth Amendments, the pair are currently the most significant yet utterly ignored provisions of the Bill of Rights. The Ninth Amendment was originally a rule of construction (note the words "shall not be construed" in its text) that was intentionally coupled with the Tenth. The Tenth plainly says that there is a federal government only of limited enumerated powers. This is of course a most important principle to announce and clearly enshrine in the Constitution, but it alone is not enough precisely because those powers can always be interpreted to be limitless. This is evident and obvious in our day. So what is the remedy to this problem? The Ninth was therefore also included to say that in applying those federal enumerated powers, it is forbidden to construe them to the point where everything conceivable falls within those powers so long as they do not violate a right specified in the previous listed Amendments to the Constitution that became the Bill of Rights. The Tenth Amendment stands for the proposition that there is only an enumeration of powers and no more, and the Ninth stands for the proposition that the notion of limited and defined powers is to be taken seriously.

Federalist (those who argued for the ratification of the Constitution) Governor Edmund Randolph clearly expressed this intent behind what would later became the Ninth and Tenth Amendments at the Virginia Ratifying Convention of 1788. He asked, "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 [federal] Constitution, its powers are enumerated. Is it not, then, fairly 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... [Regarding a government] body arising from a compact, and with certain delineated powers...a bill of rights...would not be [necessary]...for the best security that can be...is the express enumeration of its powers" (emphasis added). The "retained rights" of the Ninth Amendment are reserved by the Tenth Amendment's making clear there is an enumeration of powers. It is in making sure that the federal government is one of limited and defined powers, and that these limitations are taken seriously, that the reserved rights of the people are protected.

Nonetheless, this concern underlying the Ninth and Tenth Amendments is in contravention with Supreme Court jurisprudence. The principles announced in the Ninth and Tenth Amendments has been intentionally gutted by the modern Supreme Court since the New Deal. The modern Supreme Court tends to look at the Constitution and the issues surrounding federal power completely differently than the Constitution as originally understood. The Court stated in the most famous footnote of Constitutional law, in Footnote 4 of the US v. Carolene Products (1938) decision, that there is a "narrower scope for operation of the presumption of Constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments." The idea expressed by the Supreme Court is the most famous footnote precisely because it is still the framework for much of Supreme Court jurisprudence today. The footnote states that there is a "presumption of Constitutionality" given to federal laws unless a right enumerated in the first ten amendments is at issue. This specifically turns the original meaning of the Ninth Amendment on its head, it contradicts the very purpose of the Ninth Amendment's inclusion at the end of the Bill of Rights. In the words of Justice Story, this footnote stands as a "perverse, or ingenious misapplication" of legal principles.

As James Madison told Thomas Jefferson in a letter in 1788, "I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted." The Ninth Amendment stems from the Federalist argument against including a Bill of Rights in the Constitution to begin with. They argued that it was unnecessary to list rights to be protected because the powers of the federal government were enumerated and therefore no powers were granted that could lead to rights being infringed at all. The creation of a limited list of rights would imply that the powers extend without limits, so long as only those rights listed are not infringed. Federalist James Wilson argued this point specifically at the Pennsylvania Ratifying Convention in 1787. When it came to a Bill of Rights he said, "If we attempt an enumeration [of rights], everything that is not enumerated is presumed to be given [to government power]. The consequence is, that an imperfect enumeration would throw all implied power into the scale of government; and the rights of the people would be rendered incomplete." That exact fear sounds exactly like the logic and framework actually established in Footnote 4 for a reason. It is precisely the folly of Footnote 4. The Supreme Court fell into the trap that the Founders feared a Bill of Rights would present, and that the Ninth Amendment was designed to protect against. The Ninth Amendment was ratified in response to this concern to disallow for overly expansive interpretations of federal power, which is what allows for Congress to infringe on rights not enumerated in the first place. As Madison expressly put it in 1791, "the [Ninth Amendment] and the [Tenth Amendment], the former, as guarding against a latitude of interpretation; the latter, as excluding every source or power not within the Constitution itself." So the Ninth Amendment was, in the short but sweet words of Madison, specifically about not allowing for a latitude of interpretation in construing federal powers. The Tenth embodies the principle of enumeration, the Ninth was meant to act as a rule of construction. Only the two together could prevent a federal government of limitless power.

It should therefore come as no surprise that the two Amendments that are paired together to reassure that there can only be a federal government of limited powers, and whose powers could not be interpreted without limit, are the two most ignored in modern times by our Supreme Court. The Tenth Amendment standing alone is viewed as a "truism" which provides no inherent limitation on government. Even if this were conceded to be the case, the Ninth Amendment exists as well to rebut this argument and make sure that the enumeration of powers actually means something and is taken seriously. But the Ninth Amendment is instead ignored and viewed as having no meaning. The Supreme Court itself is in fact the branch of government most regularly violating the Ninth Amendment through its rulings that give no heed to the principle of avoiding unlimited latitudinarian interpretations of our nation's founding charter.

My friends, pray tell, I wonder what it is that stops the Justices from ruling or prevents them from realizing that the Ninth Amendment forbids a "latitude of interpretation"? Tweet