The Ninth Amendment: The Tenth’s Partner
26. Apr, 2009 
10 Comments
by Rob Natelson
The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It was designed to work with the Tenth Amendment to reinforce limits on the federal government.
The original Constitution contained three types of restrictions on federal power:
Type 1: The Constitution listed things the government could not do (e.g., pass an ex post facto law).
Type 2: The Constitution enumerated the powers the government was to have (e.g., regulate interstate commerce, but not agriculture).
Type 3: The Constitution included specific restrictions on specific powers (e.g., Congress could appropriate money for an army, but only for a two-year period).
Some argued that Type 1 should be expanded with a Bill of Rights. But others (James Madison among them) pointed to a risk in that proposal. Because of the legal maxim Designatio unius est exclusio alterius (the designation of one thing implies the exclusion of another), adding a Bill of Rights might encourage people to disregard the Type 2 and 3 restrictions on federal power.
When the demand for a Bill of Rights prevailed, Madison agreed to draft one – but he included what became the Ninth Amendment to make it clear that expanding Type 1 did not mean abandoning Types 2 or 3.
A key to reading the Ninth (and Tenth) Amendments properly is to know that the Founding Generation often used the words “right” and “power” interchangeably. (We more rarely do the same, as when we refer to the President’s “right” to veto a bill.) That is how they were used here. If you sometimes read the word “rights” in the Ninth Amendment as “powers” and “powers in the Tenth Amendment as “rights,” you can better understand their meaning.
Few parts of the Constitution have been so misunderstood as the Ninth Amendment. For example, some have argued that it reserved a mass of “natural rights” that the Courts should enforce against the federal, and even the state, governments – such as abortion, property, and contract rights. That misunderstanding arises from failure to understand that “rights” in the Ninth Amendment means “powers.”
The Ninth Amendment was not designed to enable the Courts to create new rights – or even to recognize old ones. It was designed to work with the Tenth Amendment to preserve the Constitution’s other restrictions on federal power.
Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history. He is currently seeking a publisher for his latest book, The Original Constitution.
If you enjoyed this post:
Click Here to Get the Free Tenth Amendment Center Newsletter,
The Ninth Amendment was, and is, a cautionary warning to the federal government that the people were the masters in this country and not elected (or appointed) officials. Our rights are exactly those that we do not temporarily lend to the federal government for the purpose of defending our rights, period!
When the actions of the federal government injure or threaten our rights we have a right, even a duty, to recoup those powers lent to the government to make new assurances for our future happiness. In short if the government becomes the problem and not the solution we can replace it!
If this description seems uncannily like our current government then, perhaps, they will begin to take notice before the torches and pitchforks arrive on Pennsylvania Ave. and finally begin to respect the Constitution and the Bill of Rights. The choice is of course theirs to make…
How does a court or anyone distinguish the concepts of Rights and powers?
They are really the same thing except one(rights) is implied to exist legitimately regardless the usurpation of others.
The break down in the understanding of the language of the Constitution i feel has helped fuel the break down in that document.
Rights vs powers is an important issue to discuss.
States and governments do no have rights. Only people have rights.
Governments only have powers – and they only have those powers that people delegate to them – nothing more.
Well, that’s the way it’s supposed to be!
In reply yo comment #2
Monorprise Says:
They are really the same thing except one(rights) is implied to exist legitimately regardless the usurpation of others.
In regards to your comment above, It is my belief that only people have rights, and governments have power…am I wrong?
Of course the 9th Ammendment deals with protcting a mass of rights unnamed and its’ meaning isn’t only a philosphical statement on the federal government but on all governments. Although Founders like Jefferson couldn’t curb state abuses on say, free exercise of religion that does not mean that wasn’t a concern of theirs. A state violating my rights is just as bad as the federal government doing the same.
Jerome – thanks for your perspective. Important issue, no doubt. And yes, when a state violates rights it can seem as bad as federal violations.
But, in practice, when the federal government creates new laws or regulations that violate your liberty it’s far worse than when a single state does it.
Why? because there’s no escape.
And that’s part of what the founding generation gave us with this idea of a federal republic.
No, this article is wrong. The 9th deals with the rights of individuals, not of a state. Why would the Founders have made 2 constitutional Ammnendments that stated the same thing, essentially? No, the 9th guarantees to individuals rights not previously stated. So, when courts protect a right that isn’t listed in a previous ammendment they aren’t “inventing rights” but upholding rights retained by the people. The burden is on government (and not just the federal government but state or local also) why a person should not be able to practice any action.
No, this article is wrong. The 9th deals with the rights of individuals, not of a state. Why would the Founders have made 2 constitutional Ammnendments that stated the same thing, essentially? No, the 9th guarantees to individuals rights not previously stated. So, when courts protect a right that isn’t listed in a previous ammendment they aren’t “inventing rights” but upholding rights retained by the people. The burden is on government (and not just the federal government but state or local also) why a person should not be able to practice any action.
@MPE/Jerome – these two amendments don’t deal with the exact same thing, but like the rest of the bill of rights and the constitution itself – they’re intended as a limitation on the power of government….
The Professor provides some significant analysis in this short piece – do you have anything other than your opinion to back up your statement?