Ninth Amendment (Part II)

Some scholars have said that the Ninth Amendment only applies to a compact between the States and the federal government (like the Tenth Amendment). This is half true. The original meaning of the Ninth Amendment can be explained in part by James Madison, Supreme Court Justice Joseph Story, and Roger Sherman’s original draft of the Bill of Rights. Sherman attempted to combine both the Ninth and Tenth Amendments into one amendment. The committee rejected this, but it is proof both amendments had the purpose of limiting federal power. Madison’s first inclination was to add the first ten amendments into the Constitution under the section where they were most pertinent. Madison wanted to list the first nine amendments under Article I, Section 9 after the clauses guaranteeing other natural or fundamental rights including a writ of habeas corpus and the ban on bills of attainer and ex post facto laws. Madison proposed placing the unique federalism protection clause (the Tenth Amendment) in Article VI. Since Madison did not want to place the Ninth Amendment in the same section as the Tenth Amendment, some incorrectly argue the two amendments cannot have a similar meaning to limit federal power. This explains why when some States were admitted to the union they had provisions similar to the Ninth Amendment in their State constitutions: They believed the Ninth Amendment limited federal power, not State power. Of course, the amendments were added to the end of the Constitution creating some confusion about the intent or the meaning of the Ninth Amendment. In fact, Madison’s original proposal for the Ninth Amendment reads as follows: “The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be construed so 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 for greater security.” The second part of the proposed Ninth Amendment is proof it was intended to be a federalism clause. The purpose of the clause was to limit federal powers similar to the Tenth Amendment. The fact the “enlarge the powers” phrase of the Madison’s Ninth Amendment draft was removed, it incorrectly led many scholars to believe the amendment was not one to deny federal power, but only retain individual rights. However, in letters between Madison and Hardin Burnley, he ensures the meaning of his draft and the final version of the Ninth Amendment have the same meaning. Madison asserted that “retained rights” and “limited power” were one of the same thing. Madison’s correspondence with Burnley started when the Virginia ratifying committee (for the Bill of Rights) rejected the Ninth and Tenth Amendments. Governor Edmund Randolph and others fretted over the changed language of the Ninth Amendment. Although the language of the Tenth Amendment between Madison’s draft and the final version remained unchanged, the Virginia committee wanted two amendments to stop the encroachment of federal power. Madison wrote that “every public usurpation is an encroachment on the private right, not of one, but of all.” Hence, protecting rights is the same as limiting federal power. At the same time Virginia was debating ratifying the Bill of Rights another dispute started in Congress over establishing a national bank. The crux of the debate for Madison centered around the fact that both the Ninth and Tenth Amendments limited federal powers from using the necessary and proper clause to create a national bank. Madison’s reassurance of the meaning of the Ninth and Tenth Amendments in the bank dispute may have helped Virginia to end its gridlock and pass the Bill of Rights. It is important to note that only Virginia questioned the meaning of the Ninth Amendment. All of the other States seemed to understand that the Ninth Amendment was intended to limit federal power. Thus, the Ninth Amendment was drafted to protect citizens from the “backdoor” theory. For instance, freedom of the press in the First Amendment did not allow Congress the power to regulate the press if it did not infringe on a free press. Hamilton feared this exact theory in Federalist Paper 84. He felt by having a Bill of Rights it would allow the federal government to use the amendments as a backdoor to broader powers. In other words, if there is an amendment restricting Congressional powers, then the fear was that the Constitution would be interpreted as implying that power must be an enumerated one. But the statement proposed by Madison in the previous paragraph shows he did not intend for the Bill of Rights to “enlarge the [federal] powers” in the Constitution. A good early example of the backdoor theory is the Alien and Seditions Act signed into law by President John Adams. Many people were imprisoned or deported because of the Act. Most people are aware of the Virginia and Kentucky Resolutions (written by Madison and Jefferson). In the Resolutions, both Madison and Jefferson proposed that the Alien and Seditions Act was unconstitutional because it violated both the First and Tenth Amendments. Most people, on the other hand, are not aware of the “Response to the Virginia Resolutions”. Scholars agree that the author of the document would be future Chief Justice John Marshall. Marshall defends the Alien and Seditions Act as Constitutional using three arguments. First, he asserts that Congress may use the necessary and proper clause in times of crisis (to avoid war with France) to protect the well being of American citizens. Secondly, he brings up the point of how the Tenth Amendment was copied from Article II of the Articles of Confederation which provides “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction and right, which is not by this Confederation expressly delegated to the United State, in congress assembled.” The key word in this provision is “expressly” since it was omitted from the wording of the Tenth Amendment. Hence, Marshall felt this meant that federal power could be “liberally construed”. Finally, Marshall contends that Congress can regulate speech so long as it does not abridge the freedom of speech. The final argument proposed by Marshall was the backdoor theory and is precisely one of the purposes of the Ninth Amendment. The Ninth Amendment does not allow Congress to “enlarge” its powers around clauses, provisions, and amendments in the Constitution. In fact, many politicians such as Thomas Mason, James Callender, and Nathaniel Macon are on record for using the Ninth Amendment to find the Alien and Seditions Act unconstitutional. As for the “expressly” argument, John Page (Virginia politician and governor), wrote that the combination of both the Ninth and Tenth Amendments provides for “conferred expressly delegated powers.” Even in the famous case, Calder v. Bull, Justice Samuel Chase holds “the several State Legislatures retain all the powers of legislation, delegated to them by the State Constitutions; which are not expressly taken away by the Constitution of the United States”