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The Importance and Purpose of the Ninth and Tenth Amendments to the Constitution

The Bill of Rights and the Ninth and Tenth Amendments

The Bill of Rights consist of the first ten Amendments to the Constitution. The Ninth and Tenth Amendments are the last two that were officially added to the Constitution in late 1791 shortly after ratification in 1789.  More Amendments have been made since then but the Ninth and Tenth made up the final two of the original Amendments.

The reason that the Ninth and Tenth Amendments were added was due to a political compromise to allow the Bill of Rights to be added to the Constitution. And the reason that the Bill of Rights was added to the Constitution was due to a political compromise between the Federalists and the Anti-Federalists about ratifying the Constitution.

Earlier in the semester, we discussed the debate between the Federalist and the Anti-Federalists.  Even though the Federalists basically “won” that debate due to the Constitution being ratified, the Anti-Federalists required James Madison to make some changes.  Had the Federalists not agreed to these changes,  they would not have gotten enough votes from the states led by Anti-Federalists to ratify the Constitution. 

One of those changes was the inclusion of a Bill of Rights. The existence of the Ninth and Tenth Amendments played a crucial role in the passing of the Bill of Rights which was necessary for the ratification of the Constitution to occur.  So, from the very beginning, the Ninth and Tenth Amendments each had at least one practical purpose.

However, it goes much further than that.  The Ninth Amendment and Tenth Amendment each reflect a political and legal philosophy that helped to “complete” the Constitution.  Let’s talk a little more about the debate in regard to the Ninth Amendment.

Anti-Federalists: They were concerned that the Constitution gave too much express and implied powers to the Federal Government. They were equally concerned that the Constitution lacked enumerated rights for the people.

Federalists:  They understood the Anti-Federalist concerns regarding the lack of enumerated rights.  However, they were making a legalistic argument.  Hamilton made this argument in Federalist 84 and James Madison made it too.

Here is his full speech introducing the Ninth Amendment to the House of Representatives in 1789.  This is one of the more important and relevant excerpts from that speech:

"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.

The Inclusion of the Bill of Rights in the Constitution

Madison was saying that there was a danger of having a Bill of Rights in the Constitution without any further information mentioning the protection of unlisted rights.

By just enumerating (listing) these specific rights in the Constitution, some people may reasonably assume that no other rights were ever meant to be added and given protection. 

“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 it may be guarded against.”

Madison understood the concern but had a plan to limit it from hurting our rights.

Madison’s strategy for the first and second concerns were expressed here:

“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.”

The Ninth Amendment ensured that people would not interpret the Bill of Rights to exclude other important rights of the people or to give the government too much power. 

Madison didn’t want people to look at the first 8 Amendments and assume only those rights were meant to be protected. Other unlisted rights could even be amended into the language of the Constitution in the future. The very fact that the Constitution can be amended is proof that the framers did not consider it to be a final document in 1789.

Discussion Question: Do you think that Madison was correct in his assumption? Would some people look at a Bill of Rights that only had the first 8 Amendments and then deny the possibility that other rights could be protected by the Constitution? Does that argument still happen anyway even though we actually have the Ninth Amendment?

The framers realized that society would change.  Old rights that they considered not worthy of inclusion into the Constitution could eventually be supported enough to be added. New rights could be realized and given protection in the Constitution.

Just because these specific rights in the Bill of Rights were listed, it does not mean that we don't have other ones too.  Maybe the founders thought of certain rights but didn’t put them in the Bill of Rights because they weren’t important enough to be in there, but they were still recognized as rights to be protected in general against the government. 

The Ninth and Tenth Amendments and Political Philosophy

Maybe there were rights that were better protected by the branches of the national government or by the States: through their Constitutions or laws.  Maybe there were rights that required certain circumstances to occur before society recognized them. 

For example: Do we have a right to prevent time travelers going to the past and interfering with our lives?  Right now, we don’t have the need for such a right to be recognized. In the future that need may exist and the Ninth Amendment may be the only place we can point to for a minimum degree of credibility to protect such a right.  If we ever did need such a right, it would seem fundamental to life and liberty and yet it is clearly not in the Constitution because the framers did not think to put it in.

Discussion Question: Do you think that a hypothetical right to prevent time travelers could be exactly the type of right that the Ninth Amendment is talking about? 

Discussion Question: Can you think of any specific rights or liberties that became recognized in recent times due to circumstances beyond the imagination of the framers?

The Ninth Amendment helped pave the way for all the Amendments to follow in addition to protecting the idea that other rights can exist even if they are not formally recognized by the law.  Every time a right is added to the Constitution, the point that the Ninth Amendment is making does not become any weaker. One can argue it gets stronger.

But the Ninth Amendment is not weakened by the Courts recognizing a right which doesn’t get amended into the Constitution.  That is the point of the Ninth Amendment. A right does not have to be in the Constitution for it to deserve protection. 

The challenge is figuring out what those rights are and how to protect them.

Discussion Question: How can we figure out exactly what rights we have that can be protected by the Ninth Amendment if they aren’t actually in the Constitution? Would you look to other laws (state or Congress), court cases, philosophy?  How do we know how much these unnamed rights should be protected without any further guidance?

Usage and enforcement of the Ninth Amendment

The next thing to understand about the Ninth Amendment is that it does not provide any guidance for recognizing a specific unenumerated right that is worthy of protection.

Debate between the Federalists and the Anti-Federalists

You don’t usually see the term “Ninth Amendment rights” come up because the Ninth Amendment has no express process for choosing what behaviors count as rights.

You can see it as a pragmatic political compromise, a way to read the Constitution, and a philosophical limitation on the government.  But it doesn’t give the government any instruction as to what specific rights deserve protection or how to actually protect them.

The Judiciary is one source to potentially help us figure out how to solve this problem.  After all, they are the branch charged with interpreting and applying the law.

Our courts have created different sets of rules to interpret and apply the vague language of specific Amendments. However, they have not done that for the Ninth Amendment. You won’t see anything like the “Scrutiny” test of the Fourteenth Amendment, the “Search and Seizure” test of the Fourth Amendment, the “Just Compensation” test of the Fifth Amendment, or the ”Lemon” test of the First Amendment.

The Ninth Amendment has been used inconsistently by courts over the years. It's unlikely that anyone would successfully use the Ninth Amendment on its own to get a new right recognized under the law. But in court, lawyers use every argument that they possibly can sway a judge or Justice.  The Ninth Amendment is a good "extra" public policy argument because it speaks directly to the idea that other rights can/do exist, and that the government can't just deny it on the grounds that it isn't already in the Constitution.

One of the most high-profile instances of a court using the Ninth Amendment to recognize and protect a right was the District Court in Roe v. Wade.   The District Court is the lowest level Federal Court.  However, when the case went to the Supreme Court, the majority found that it was the Fourteenth Amendment that protected the specific right of privacy that was at issue in that case rather than the Ninth Amendment.  The “due process” clause of the Fourteenth Amendment has been a more effective tool in protecting unenumerated rights rather than the Ninth Amendment which is seen by most people to simply protect the idea that non-enumerated rights can be protected.

Aside from that, you will be hard-pressed to find influential cases on the higher levels of our Judiciary that support using the Ninth Amendment to recognize a specific right.  There have been many opinions given against doing exactly that though.  When we discuss Privacy later in this session, you’ll see opinions for and against that idea.

The Ninth Amendment and the Protection of Unlisted Rights

The concern is that there are some ideas of rights that the founders thought of but rejected: thus intentionally keeping them out of the Bill of Rights.  Critics are concerned that those ideas should be prevented from getting legal protection and shouldn’t be allowed a theoretical Ninth Amendment backdoor to Constitutional or general protection.

A related claim that critics have is that the Ninth Amendment potentially allows people to  come up with the idea for new rights that clash with old ones. If we declare new rights that potentially infringe on other people's existing and agreed upon rights, those new rights may not be legitimate. Using the Ninth Amendment on its own to recognize a right, without any supplemental argument, could bring in ideas we don't necessarily want since it offers no guiding principles as to what type of rights should be accepted.

For example: if a “right to not be offended” becomes recognized and protected by the law, that could clash with the First Amendment right of free expression. 

Discussion Question: Do you think that the Ninth Amendment was intended to be used on its own to protect a specific unenumerated right? Is that legitimate to you?

The Ninth Amendment is also seen by some to be a statement of political philosophy. Madison said we need this guarantee in the face of government that, by nature, claims more power over behavior than they leave for us in the form of rights or liberties. Madison knew that government has the tendency to grab power. If there was any ambiguity as to whether an action should be considered a right of the people or should be controlled under the power of the government, Madison believed that ambiguity usually did not end up in the citizen’s favor if the government is the one making that decision. 

One interpretation of the Ninth Amendment is that any behavior not yet covered by law should initially be considered to a right of the people despite not being enumerated. One can take it a step further and say the Ninth Amendment suggests the burden should be on the government to prove why an action shouldn't be recognized or enforced as a right.

They can't use the argument that a right isn't in the Constitution to stop citizens from having it.  If people retain certain rights and the government has not already been given an enumerated power over a behavior by the Constitution, why shouldn’t it count as a right to be enjoyed by the people rather than as something regulated by the government?

The Ninth Amendment and the Admissibility of Other Rights

Discussion Question: How far should the Ninth Amendment be taken as a statement of citizen rights vs. government power? Does it suggest that the citizen has the advantage against the government as to whether a specific action is a right or government power? Does it suggest that the burden of proof should always be on the government to show that an action, not listed by the Constitution, should be a power rather than a citizen right?

The Ninth Amendment is a potentially strong protection of the citizens. but it is so vague in its language, and so connected to its own clear history of political compromise, that it has become one of the most mysterious Amendments. It may hit at the heart of American political philosophy or merely be the result of two very legally obsessive groups of people coming to a practical compromise. Some people just choose to ignore it.

Some merely see the Ninth Amendment as a political compromise or a historical footnote with no actual legal significance.  They are not incorrect about its role in history, but there is a question as to how powerless any Constitutional provision really is.

Some see the Ninth Amendment merely as a tool of reading the Constitution that tells us not to exclude rights from protection that are not already enumerated.

Some see the Ninth Amendment as having an additional philosophic ideal about the citizens' rights having priority over unenumerated government power.

Is it just a political compromise? A merely instructive “read me” file for how to understand the Bill of Rights and those rights left off the list?  Does it offer real substance to guide us?  And how many rights can we actually have that are not recognized?

Discussion Question:  Do you feel that the Ninth Amendment has any meaning or potential usage beyond its historical role as a political compromise? Is it just a vestige of the past or is it an Amendment with a viewpoint and purpose that is still relevant?

Tenth Amendment:  "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This is like the Ninth Amendment in some ways, specifically the last part. Just as we may have rights not discussed in the Bill of Rights, we also get powers that aren't specifically given to us provided they aren't expressly given to the Federal or State governments.

Usage and Enforcement of the Ninth Amendment

However, this is more about states then the people. For one, citizens are almost never referred to as having "powers". Rather, in the terminology of political science, the government has powers, and the citizens have rights. That language alone hints that the "or to the people" part is an afterthought just put in to make the citizens feel better. 

How would “powers not delegated to the United States by the Constitution or prohibited by it to the states” mean something different than the Ninth Amendment protection for unenumerated rights?  Is a non-delegated power different than an unenumerated right?

Discussion Question:  Do you think that the Tenth Amendment grants us any specific powers which weren’t delegated to the national government that are different than the unenumerated rights that we have under the Ninth Amendment? 

Discussion Question:  Are there any other powers or abilities that citizens should get from the Tenth Amendment that we do not already get from the Ninth Amendment?

I prefer the term “state power” or “state sovereignty” because states don’t have rights: only the citizens of those states have rights.  The Tenth Amendment is mainly focused on state government power rather than the rights of the citizens within.

The main reason we know that this is about the states is because of the debates that led to this Amendment. This is the Amendment that was put in to respect the concept of federalism and provide a balance between State and National power. 

Opponents to the original Constitution did not want to see an overly powerful national government which is exactly what they accused the Federalists of wanting.  We look at the Tenth amendment specifically as Constitutional protection for State Power.

There was a similar clause in the old Articles of Confederation:

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 States, in Congress assembled.

The word "expressly" is important here. An express power is a clear, given power. The Articles were careful not to give Congress, or any other branch, any "implied" powers that were not spelled out. That's what express vs. implied means.  The Articles said that unless they specifically and clearly gave a power, it could not be said to exist.

But our current Constitution replaced the Articles of Confederation in 1789. And our Constitution is completely full of "implied" powers for the National government that aren't spelled out but are granted.  We discussed “necessary and proper” as one example of an express grant of an implied power to Congress.

To make things even more confusing, those implied powers have been expanded by the Judiciary.  (One can even make the argument that Judicial Review is itself an implied power). The Anti-Federalists correctly predicted that this expansion of government power through the usage of implied powers was going to happen.

Like the 9th Amendment, the Tenth Amendment was a compromise between the two sides so that the Anti-Federalists would be comfortable enough with the Constitution to ratify it. However, the Anti-Federalists clearly lost this battle over time as the national government got stronger.

The Tenth Amendment does not get as much attention as the other Amendments even though that is starting to change over the past few years.   The COVID-19 pandemic is causing people to re-evaluate the Tenth Amendment in regard to what powers the state should have in comparison to the national government.

I am not aware of the teaching habits of people in the 1800's but I do get the impression that the Tenth Amendment and the overall concept of state power lost credibility once people used the “state’s rights” concept to try to justify slavery. It poisoned the idea of states having power that could be used to help citizens. 

However, state power isn’t inherently good or bad when you look at it through the lens of political science and law rather than just history. Furthermore, if you look at modern times, is not even indicative of a specific political ideology to support state power. 

Someone who supports giving the state more power is not necessarily a Democrat or a Republican.   After all, the Democrats and Republicans switch every 4 or 8 years as to whether they support individual states (like California or Texas) against the National Government depending on who the President is.  The connection there is politics rather than structural principle.   To many it’s not about the merit of state power: it’s about who is using it.  But that approach gives us no idea of whether state power is useful or not.

Whether you support one side or the other, it is important to understand that there are things that state governments do better than the national government, and vice versa.   For example, states governments are able to be more receptive to their citizens since they have a smaller population than the entire national government represents.

Furthermore, there is an advantage in having a state government make laws for specific geographical challenges which that state faces as compared to a national government which could not make law responsive to that state without having it apply to a state that doesn’t have those same challenges.  One can go a step further and see the value in county and city governments too.  The United States is a geographically diverse country in regard to national features like water access.  Even New York is geographically diverse.  The needs that upstate NY citizens have are different than those in Manhattan.  The point here is that governments more local have the ability to respond to the specific needs of their people better than the national government does sometimes.

That is why some people support state power regardless of ideology. They may just have a view of power dynamics in the way that Madison had a view of power dynamics.   It's about how their states use their power to better represent the people while protecting their rights. You can see a snapshot of how state power is used at any given time: like slavery in the 1800's or COVID regulations now. But the state power vs. national power debate is a broader question than any one issue or any one party. How you see the issue of state vs. national power will influence your view of the Tenth Amendment.

Discussion Question: Do you have any preference as to the balance between National and State/Local governments? Do you think it is better to have a stronger national government or stronger state/local governments? For the purposes of this question, ignore political parties and which ideological movements have been in and out of power over the past 8-12 years. Answer this from the perspective of political science rather than that of partisan politics.  This is a question of power dynamics rather than parties or platforms.

Limitations of the Tenth Amendment:  Supremacy Clause

Remember that the Tenth Amendment only discusses powers not already expressly granted to the National government. Whenever you have a situation where the State is trying to claim a power that the National government expressly has, the answer is here:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

An express power delegated to the branches of the national government by the Constitution always supersedes State government power.   Unless the Supreme Court is claiming that the express national power itself is unconstitutional for other reasons (like violating a right in the Amendments or a power of another branch), the express power will always win against a claimed state power that conflicts with it.

Although the Tenth Amendment does not come up very often in cases on its own, here are a few to read if you are interested. You can use these pages to link to cases:

“Even without an express preemption provision, state law must yield to a congressional Act if Congress intends to occupy the field, California v. ARC America Corp., 490 U. S. 93, 100, or to the extent of any conflict with a federal statute, Hines v. Davidowitz, 312 U. S. 52, 66-67. This Court will find preemption where it is impossible for a private party to comply with both state and federal law and where the state law is an obstacle to the accomplishment and execution of Congress's full purposes and objectives. What is a sufficient obstacle is determined by examining the federal statute and identifying its purpose and intended effects. Here, the state Act is such an obstacle, for it undermines the intended purpose and natural effect of at least three federal Act provisions.”

We have a clear restatement of the Supremacy Clause there. 

Constitutional Law is clear when an express power of the National government is considered to have supremacy over an express power of a State government. However, Constitutional Law in this field becomes very interesting when either:

1) The states claim power to regulate behavior that a branch of the National government claims they have the implied power to regulate.

2) The states claim power to regulate behavior that a citizen claims they have the right to do without any state interference.

We are not done with the effects of the 10th Amendment. After the Midterm we will be discussing the concept of “State Police Power.”  The discussion of state police power is very relevant to the Tenth Amendment since that is one method that the courts have found that the states can use the power they were reserved by that Amendment.

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