The Ninth Amendment: Partner to the Tenth in Limiting Federal Power
The Ninth Amendment.
Most people don’t know what it says or means. Others just ignore it. Those who don’t, usually get it completely wrong.
The Ninth isn’t a grant of additional federal power. It’s a partner to the Tenth Amendment and a firewall for federalism.
It wasn’t an afterthought. It was the final lock on constructive federal power.
THE FEDERALIST TRAP
The 9th Amendment emerged from a fight. Federalists warned that a Bill of Rights was a trap – it would expand government power, not limit it.
James Madison wrote the 9th. Unlike other Federalists, he wasn’t rigid on this point. A bill of rights could work, he believed, if properly designed to avoid implying powers not intended to be granted.
Madison wrote to Thomas Jefferson that he had “always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration.”
But other Federalists kept warning that listing rights would destroy liberty, not protect it. Their fear was simple: any list becomes a tool for expanding government power.
The logic was simple: if you list some rights as protected, you’re implying government can violate any rights not on the list. James Iredell explained this danger at the North Carolina Ratifying Convention:
“It would be not only useless but dangerous to enumerate a number of rights which are not intended to be given up; because it would be implying in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation, and it would be impossible to enumerate every one.”
Alexander Hamilton put it best: Why declare restrictions on powers never granted in the first place?
“For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
THE ANTI-FEDERALISTS PUSH BACK
The Anti-Federalists weren’t buying it.
They saw two threats: Congress claiming powers it wasn’t given, and Congress twisting its enumerated powers through creative interpretation.
The Anti-Federalists demanded everything be written down explicitly. They knew human nature – when in doubt, those in power expand their power.
Federal Farmer shot back at James Wilson’s claim that a bill of rights would be dangerous:
“The general presumption being, that men who govern, will, in doubtful cases, construe laws and constitutions most favourably for encreasing their own powers; all wise and prudent people, in forming constitutions, have drawn the line, and carefully described the powers parted with and the powers reserved.”
The Anti-Federalists kept insisting – no written guarantees, no protection.
George Mason summed up this position at the Virginia Ratifying Convention: “We wish only our rights to be secured. We must have such amendments as will secure the liberties and happiness of the people, on a plain simple construction, not on a doubtful ground.”
Even Hamilton admitted courts couldn’t have free rein:
“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”
THE STATES DEMAND CLEAR LIMITS
Here’s what Hamilton admitted was needed but the Constitution didn’t have: “strict rules” of construction. Not one.
Massachusetts fired the first shot. New Hampshire, Virginia, New York, and others followed – each ratifying the Constitution with a list of demanded amendments.
New York’s demand was blunt: federal power stops at what’s expressly delegated.
“That every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same”
That first part? A precursor to the 10th Amendment. But here’s what matters for the 9th – this second part captures exactly what Madison would later write:
“And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.”
North Carolina echoed the same principle – everything not delegated stays with the states:
“THAT each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.”
North Carolina went further – no constructive interpretation that extends federal power:
“That those clauses which declare that Congress shall not exercise certain powers, be not interpreted in any manner whatsoever to extend the powers of Congress; but that they be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution.”
Virginia started with natural rights, but kept the list deliberately open-ended:
“That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People in some such manner as the following; First, That there are certain natural rights of which men, when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.”
See it? “Among which.” Not “these are” or “limited to.” Virginia knew what they were doing – keeping that door open. Then they slammed their own anti-construction rule on the table:
“That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress.”
These states shared the same two-part demand: First, spell out that federal power is limited to what’s explicitly granted. Everything else stays with the states. Second, make sure that listing rights doesn’t become an excuse to expand federal power
MADISON’S FIX
James Madison got the message loud and clear.
On June 8, 1789, he stood before the first Congress and laid out the Federalist objection:
“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure.”
Then came the admission. Madison called this the most plausible argument he’d heard against a bill of rights. But he already had a fix.
“This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.”
Madison’s draft for what became the Ninth Amendment took the North Carolina and Virginia language and ran with it. It created a rule of construction to prevent constructive enlargement of federal power at the expense of rights.
“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.”
The House cut the second half. Why? Madison told Washington they thought it was redundant.
“If a line can be drawn between the 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. If no line can be drawn, a declaration in either form would amount to nothing.”
The final version – the 9th Amendment we have today – seemed clear enough:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
RANDOLPH RESISTS
Problem solved? Not even close.
The streamlined language nearly killed the entire Bill of Rights.
The streamlined language nearly killed the entire Bill of Rights. In Virginia, Edmund Randolph saw the danger immediately. The new language was too vague. Congress could drive a truck through it. Hardin Burnley explained Randolph’s concern in a letter to Madison – the new language would not operate “as a provision against extending the powers of Congress by their own authority”
Virginia slammed on the brakes. The House postponed debate on the 9th and 10th amendments – and with them, the entire Bill of Rights. Burnley warned Madison that rejecting those two amendments would likely “bring the whole into hazzard again.”
Only Virginia objected to the text of the Ninth Amendment. That made it worse, because their concerns delayed ratification for two full years.
THE SLAM DUNK: MADISON’S BANK SPEECH
Early 1791. Hamilton wants a national bank. Virginia still hasn’t ratified the Bill of Rights. Madison sees his opening.
On February 2, he started a speech on the House floor with first principles: “An interpretation that destroys the very characteristic of the government cannot be just.”
Then Madison played his ace. Remember how we sold the Constitution without a bill of rights? We promised strict construction:
“The defence against the charge founded on the want of a bill of rights presupposed, that the powers not given were retained and that those given were not to be extended by remote implications. On any other supposition, the power of Congress to abridge the freedom of the press, or the rights of conscience, etc. could not have been disproved.”
In case anyone didn’t believe him, Madison pulled out the receipts. He read supporting passages from the Pennsylvania, Virginia, and North Carolina convention debates.
Then Madison connected the dots. Those amendments Virginia was stalling on? They locked in this exact principle: “The former, as guarding against a latitude of interpretation-the latter, as excluding every source of power not within the constitution itself.”
Madison had just shown that the 9th and 10th Amendments were their insurance policy – twin barriers against federal power grabs.
It worked. December 15, 1791: Virginia ratified.
THE FIREWALL
The 9th Amendment wasn’t a tool to expand federal power. It was a rule of construction meant to limit federal power – a partner to the 10th Amendment and a barrier against federal interference with both individual rights and the right to local self-government.
St. George Tucker got it. First, the 10th Amendment. It was designed “to guard against encroachments on the powers of the several states, in their politic character, and of the people, both in their individual and sovereign capacity.”
Next, the 9th, a rule “to guard the people against constructive usurpations and encroachments on their rights.”
Put them together, and Tucker says you get one essential, foundational rule for the entire constitution:
“The sum of all which appears to be, that the powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn in question.”
John Taylor of Caroline saw the same partnership (referring to the 9th and 10th by their original numbers):
“The eleventh amendment prohibits a construction by which the rights retained by the people shall be denied or disparaged; and the twelfth reserves to the states respectively or to the people the powers not delegated to the United States, nor prohibited to the states. The precision of these expressions is happily contrived to defeat a construction, by which the origin of the union, or the sovereignty of the states, could be rendered at all doubtful.”
The Ninth Amendment wasn’t an afterthought. It was the final lock on federal power. It doesn’t compete with the Tenth. It helps protect it. And vice versa.
Together, they enforce the core principle of the Constitution: Delegated powers only. Everything else stays close to home. Or with the individual.
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