A lively debate on the original meaning of the Ninth Amendment has broken out on Southern Appeal (here, here & here) and is spreading throughout the blogsphere (for some links click here). As is to be expected in a blog debate, it is long on confident assertion and a little short on comprehensive discussion of the historical evidence. When making historical claims about original meaning, evidence really matters and cannot comprehensively be presented in a blog--which is why I have been staying quiet. But as others have queried me for my reaction, I will note a few items that should be of interest. For those who want a more extensive explanation of this, I devote two chapters of Restoring the Lost Constitution: The Presumption of Liberty to the meaning (Chapter 3) and mandate (Chapter 9) of the Ninth Amendment.

The first concerns the meaning of "retained" rights and is found in the beginning of an amendment proposed by Roger Sherman, who served with Madison on the House Select Committee that drafted the Bill of Rights. It read:

"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."

This is not a reference to limited federal powers or to state constitutional rights, but to the inherent liberty rights of the people which no government can properly infringe.

Second, when proposing amendments to the Constitution in Congress, Madison explained that constitutional rights were of two kinds. Natural rights retained by the people--such as the right of freedom of speech--and positive rights created by the Constitution itself. And, in his precursor to the Ninth Amendment he explained how constitutional rights have two distinct functions:

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.

In other words, some enumerated rights provided additional or “actual limitations” on the delegated powers beyond those that already existed. In his speech to the House, Madison categorized these actual limitations as “positive rights” and gave the example of trial by jury. Second were those rights that were enumerated “merely for greater caution.” As Madison explained, these refer to “those rights which are retained when particular powers are given up to be exercised by the Legislature.” In his handwritten notes to this speech, Madison refers to these “rights which are retained” as “natural rights” and gives as an example of such a natural right, the freedom of speech.

Thus, according to how Madison used the terms “retained” rights we know that the “other” unenumerated rights “retained by the people” mentioned in the Ninth Amendment fall into the second category of his original proposal. They are the natural rights “which are retained when particular powers are given up to be exercised by the Legislature.” A very few of these rights were included in the Bill of Rights “for greater caution” but most were left unenumerated. They were not left textually unprotected however. The textual source of that protection was, initially, the limited powers scheme and the Necessary and Proper Clause, and soon thereafter the enumeration of certain rights coupled with the Ninth Amendment. Remember that for 2 years there was no Bill of Rights, and ALL retained rights were unenumerated. Laws restricting speech and other natural rights would nevertheless have been "improper" under the Necessary and Proper Clause.

The 9th Amendment is functionally distinct from the 10th Amendment, as Madison himself made clear in his speech to the House objecting to the constitutionality of the national bank. There after arguing that the bank was not necessary (under the Necessary and Proper Clause), he added:

"The explanatory amendments proposed by Congress themselves, at least, would be good authority with them; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended for. . . . He read several of the articles proposed, remarking particularly on the 11th [the Ninth Amendment] and 12th [the Tenth Amendment]; the former, as guarding against a latitude of interpretation; the latter, as excluding every source of power not within the Constitution itself."

In other words, the 10th Amendment limited Congress to its enumerated powers, while the Ninth Amendment argued against a lattitudinarian interpretation of these powers, either because a construction of a power exceeds the proper end of government or because a power is being implemented by improper means. Of particular significance is that Madison made this argument though no one has previously claimed greater constitutional power in Congress on account of the existence of enumerated rights--the view of the Ninth Amendment advanced by Professor Thomas McAffee of UNLV and by Owen of Southern Appeal.

In Restoring the Lost Constitution, I propose we can implement the original meaning of the Ninth Amendment (and the Privileges or Immunities Clause of the 14th) by adadopting a "Presumption of Liberty" that would place the burden on the government to show that its laws were necessary to achieve a proper end. At the federal level the ends are provided by the enumerated powers; at the state level by a proper conception of the police power. But this doctrine would be a construction of the Constitution--as is the current "presumption of constitutionality"--and not an interpretation of the original meaning of either the Ninth Amendment or the Privileges or Immunities Clause. There is much more to say, of course, on this topic than can be said in a blog--like the interesting question of judicial power--but that is why we write law review articles and books. For better or worse, man does not live by blogs alone.

UPDATE: Here is a new interesting post by Tim Sandefur who has been doing a nice job defending the original meaning of 9th Amendment in this debate.

UPDATE 2: An excellent post by Trivial Pursuits on the relationship between the 9th Amendment and the Privileges or Immunities Clause. In Chapter 3, I present copious evidence that "privileges or immunities" was a reference both to unenumerated rights or immuniities and also to new positive rights or privileges created by the Bill of Rights and other laws, a distinction corresponding with Madison's distinction between natural "retained" rights and "positive" rights. And he has a nice post on the tyranny of the majority here.