Although it does not provide easy answers to all present cases and controversies, one of the nice things about original meaning originalism is that is seeks to discover a genuine fact about the world: the public meaning of the words used at the time of their enactment. In contrast, original intent originalism seeks either to construct some sort of “collective intention” or to answer a counterfactual question: what would the founders have thought about a particular matter? Neither of these are matters of genuine historical fact. The advantage of discovering facts is that if there is indeed a truth of the matter—-though sometimes there won’t be—what evidence exists is likely to line up pretty uniformly in favor of this truth.
Because the Ninth Amendment seems so clearly to authorize the protection of unenumerated rights, judicial conservatives (not to be confused with all political conservatives) who profess a fealty towards originalism have long sought to dismiss it. But facts, as they say, are stubborn things.
Russell Caplan’s Thesis
The first contender was Russell Caplan’s 1983 article, “The History and Meaning of the Ninth Amendment,” in the Virginia Law Review. Caplan argued that the rights retained by the people was a reference to state law common law and constitutional rights. All it provided was that these state law rights were not repealed by the Constitution. It provided no enforceable constraint on federal power so long as a federal law did not purport to repeal any state law right.
Caplan’s article was long, had lots of footnotes and quotes, and was published in a premier law review. His argument was touted at the time by judicial conservatives as the definitive reason for ignoring the Ninth Amendment–so much so that, when he published his The Tempting of America, Robert Bork switched his infamous “inkblot” metaphor from the Ninth Amendment to the Privileges or Immunities Clause of the Fourteenth and cited Caplan’s state law interpretation instead. But facts are stubborn things.
The problem with Caplan’s argument was both a lack of evidence in its favor and evidence that contradicted it. Suffice it to say that no state ratification convention proposed any amendment voicing this precise concern, and neither was it mentioned in any of the discussion surrounding adoption of the Ninth Amendment. What evidence he cited expressed concerns about the effect of the Constitution on state law rights, but the Ninth Amendment itself addresses the effect of enumerating rights in the Bill of Rights, not the effect of enacting the Constitution. And no one ever voiced concern that the enumeration in the Constitution of certain rights would repeal state law rights. No one. After its demolition by scholars, Caplan’s thesis has been abandoned and largely forgotten by judicial conservatives.
Thomas McAffee’s Thesis
The next contender was Professor Thomas McAffee’s 1990 article, “The Original Meaning of the Ninth Amendment,” in the Columbia Law Review. McAffee affirmed that Caplan’s thesis was completely wrong. McAffee contended instead that the Ninth Amendment’s sole purpose was to negate any argument that the Federal government had broader powers just because a particular right had been enumerated in the Bill of Rights.
McAffee’s article was even longer than Caplan’s, had even more footnotes and quotes, and was published in a premier law review. His argument was touted at the time by judicial conservatives as the definitive reason for ignoring the Ninth Amendment. But facts are stubborn things.
After McAffee published his piece, it was pointed out that, among its other weaknesses, James Madison had actually used the Ninth Amendment in his speech opposing the constitutionality of the national bank. In his speech, Madison was in no way responding to any argument that Congress had the power to enact the Bank Bill because of some enumerated right. In other words, the author of the Ninth Amendment used it in a constitutional argument outside the only context in which McAffee had so confidently claimed it applied. Since these criticisms of McAffee appeared, it has lost favor among judicial conservatives.
Kurt Lash’s Thesis
The latest ‘Great Judicial Conservative Hope’ is Professor Kurt Lash, who has written a very interesting article that is forthcoming in the Texas Law Review. Kurt’s article is longer than McAffee’s, has gobs of footnotes and quotes, and will be published in a premier law review. True to form, Lash affirm’s that McAffee’s thesis was completely wrong. So was Caplan’s. Kurt’s article is already being touted by judicial conservatives on the blogosphere and elsewhere as the definitive reason for ignoring the Ninth Amendment.
As it has not yet been published, I have not commented publicly on his article because I do not know its final form. Like McAffee, Kurt’s evaluation of the historical evidence is very complex and requires an enormous amount of work to parse and evaluate. Some of his analysis of particular items of evidence represents an advance, although he makes some errors regarding my work that, because they do not directly refute his thesis, I am sure he will revise if I ever get around to writing him about them. But now he has gone public to mildly chastise me for failing to “acknowledge” his work-in-progress on the Ninth Amendment with this email to Larry Solum. So I believe I should say something about his thesis, which he summarizes as follows:
Historical evidence suggests that natural rights were retained to the people under the Ninth Amendment. But “retaining” that right meant that the people of each state were free to delegate power over the “retained” subject to their own state government if they saw fit to do so (as many did, for example, in regard to the “natural rights” of speech and religion). The Ninth, in other words, protected state autonomy over these matters from federal interference.
I have read his paper and am not persuaded. The most obvious problem with this thesis is that when the framers of the Bill of Rights wanted to refer to “states” they did so, as they did in the Tenth Amendment right next door to the Ninth. Kurt’s thesis is remarkably close to the now discredited “states rights” interpretation of the Second Amendment’s “right of the people to keep and bear arms.” [I evaluate the new and improved replacement for this theory of the Second Amendment here. The successive nature of the arguments that the Ninth Amendment is functionless in service of democratic majoritarianism really does remind me of the gun control advocates’ successive theories about why the Second Amendment is similarly irrelevant.]
Kurt greatly overstates the novelty of his evidence. For example, he claims, “Until recently, Madison’s speech before the House of Representatives was not recognized as involving the Ninth at all, and remains missing from compilations of original sources regarding the Ninth Amendment.” At the end of a lengthy footnote, however, he acknowledges that I began discussing this speech in my Introduction to my 1993 anthology, The Rights Retained by the People: The History and Meaning of the Ninth Amendment, Volume 2, although he fails to note that I also reproduced Madison’s speech in its entirety as an appendix to this volume.
Kurt claims that “The precursors to the Ninth Amendment—the proposals submitted by the state ratification conventions upon which Madison based his draft—are missing or mislabeled throughout contemporary scholarship.” In the footnote following this claim, however, he acknowledges that I provide all these precursors (so they were not missing) and do not label them (so they were not mislabeled).
Kurt dismisses the significance of the crucial portion of a draft bill of rights by House Select Committee member Roger Sherman, which 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.
Although this is not literally a precursor of the Ninth Amendment, as Kurt correctly observes, this sentence is significant nevertheless because it is important evidence that the original public meaning of “rights which are retained by [the people]” are “natural rights.” Contrary to what he asserts, this draft is significant not because it refers to “rights” (of which there are many kinds) or to “retained rights” (which some asserted belonged to states), but because, like the Ninth Amendment, it refers to rights retained by the people, and it tells us that this phrase is a reference to natural rights, a type of right that belongs only to individuals.
The centerpiece of Kurt’s new evidence is indeed new and interesting: the record of the debates in the Virginia Assembly concerning the wording proposed by Congress of what became the Ninth Amendment, which he is correct to claim has gone unexamined in the literature. However, because the substance of this debate was contained in a very much-discussed letter from Hardin Burnley to James Madison, his claim that “No work on the Ninth Amendment addresses the debate in the Virginia Assembly,” is misleading, as is his claim that this “episode [has been] completely missed in Ninth Amendment scholarship.”
Moreover, I think the debates he has uncovered support rather than undercut my previous work on the Ninth Amendment. I can only begin to explain why here. In brief, the fact that those in the Virginia convention, such as Edmund Randolph, were concerned that the enacted words of the Ninth Amendment differed substantively from the language proposed by the Virginia ratification convention that “each state in the Union shall retain every power, jurisdiction and right” supports a conclusion that this change in wording was meaningful. In other words, that these Virginians were upset about this change in wording strongly suggests that the public meaning of the Ninth Amendment was NOT that of state rights, whatever the subjective intention of its authors–and Virginians eventually adopted it anyway. If the language meant exactly the same thing to a member of the public, there would have been no outrage at the change in language. Madison’s much-discussed response to the substance of Randolph’s concerns, which did not concede their correctness, is discussed in detail in Restoring the Lost Constitution (at 250-51). As I explain there, Madison viewed protecting rights as a complimentary strategy to expressly limiting powers, and viewed both as distinct means to keep the federal government within its proper bounds.
Of course, the natural retained rights referred to in the Ninth Amendment were protected by the original Constitution only from federal infringement. Apart from a few prohibitions in Article I, sec 10, neither the Constitution nor the Bill of Rights protected these rights from infringement by states. In this sense, Kurt is perfectly right to claim that “the people” were free to delegate the power to regulate their rights to state governments. But the Fourteenth Amendment changed this by providing a federal constitutional protection against state infringements of these very same natural liberty rights, as well as additional privileges or “positive rights” created by the Bill of Rights such as the right to jury trial, that were not themselves natural rights.
Why Kurt disagrees with this is itself dependent on his view that the Ninth Amendment affirmatively protects only state laws from federal interference, including apparently from the affect of the Fourteenth Amendment’s protection of the Privileges or Immunities of Citizens of the United States. Unpacking this claim would take even more space. Most importantly it would require examining the evidence concerning the original meaning of the Privileges or Immunities Clause I report in Restoring the Lost Constitution, which Kurt does not address at all in his article. Kurt is also insensitive to the relationship between natural retained liberty rights and delegated powers that I discuss at pp. 68-76.
I have only scratched the surface of the issues raised by this new, important, but still unpublished, article. To be clear, I do not believe I have “refuted” Kurt Lash’s thesis in this blog. Still, I advise others to be skeptical about even a lengthy well-footnoted law review article published by a premier law review when it claims to see something in the evidence that all other scholars in the field have completely missed.
I welcome Kurt Lash to the rich and fascinating scholarly debate over the original meaning of the Ninth Amendment. I am quite certain that our understanding of its meaning will only be enhanced by the evidence he has uncovered. But his new-found judicial conservative fans should bear in mind that, when it comes to original meaning, facts are stubborn things.
NOTE: I leave today for St. Louis and then travel to DC for a conference. My ability to read and respond to replies will be limited until next week, but feel free to send them along.
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