The Lost History of The Ninth Amendment, Part II: The Lost Historical ApplicationThis is the html version of the file http://classes.lls.edu/spring2004/conlaw-lash/documents/TheLostHistoryofTheNinthAmendment-TheLostJurisprudence.doc. G o o g l e automatically generates html versions of documents as we crawl the web. To link to or bookmark this page, use the following url: http://www.google.com/search?q=cache:mGkCoh1dRvcJ:classes.lls.edu/spring2004/conlaw-lash/documents/TheLostHistoryofTheNinthAmendment-TheLostJurisprudence.doc++%22Jonathan+Robins%22&hl=en Google is not affiliated with the authors of this page nor responsible for its content. These search terms have been highlighted: jonathan robins THE LOST HISTORY OF THE NINTH AMENDMENT (II): THE LOST JURISPRUDENCE KURT T. LASH* ABSTRACT It is widely assumed that the Ninth Amendment languished in constitutional obscurity until it was resurrected by Justice Arthur Goldberg in 1965. In fact, the Ninth Amendment played a significant role in some of the most important constitutional disputes in our nation’s history, including the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the constitutionality of the New Deal, and the legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment. The second of two articles addressing the Lost History of the Ninth Amendment, The Lost Jurisprudence takes a comprehensive look at the Ninth Amendment jurisprudence which flourished from the early nineteenth to the mid-twentieth century. Long assumed never to have received significant attention from the Supreme Court, in fact the first discussion and application of the Ninth Amendment was by none other than Justice Joseph Story himself. In a passage unnoticed since the nineteenth century, Justice Story interpreted and applied the Ninth Amendment precisely the way James Madison and the state ratifying conventions intended; as a rule of construction preserving the retained right of local self-government. Ignored by the framers of the Fourteenth Amendment, the Ninth Amendment and its attendant rule of construction were deployed by courts to limit the interpretation of federal powers and rights. Ubiquitously paired with the Tenth Amendment, the Ninth suffered the same fate as the Tenth at the time of the New Deal, when both were rendered mere “truisms” in the face of expansive constructions of federal power. By 1965, the Ninth was assumed to exist in a doctrinal and historical vacuum, an assumption that no one has questioned until now. THE LOST HISTORY OF THE NINTH AMENDMENT (II): THE LOST JURISPRUDENCE Introduction I. Beginnings: The Ninth Amendment in Antebellum America A. The Unenumerated Rights Cases B. Concurrent v. Exclusive Federal Power C. Justice Story and Houston v. Moore 1. Houston v. Moore 2. The Influence of Story’s Opinion a. Gibbons v. Ogden b. Mayor, Alderman and Commonality of City of New York v. Miln c. Prigg v. Pennsylvania d. Smith v. Turner 3. The Fate of Houston v. Moore 4. The Significance of Houston v. Moore D. The Ninth Amendment and the Enumeration of Certain Rights E. Slavery F. Summary: The Ninth Amendment from Founding to the Civil War II. Reconstruction and the Ninth Amendment A. The Ninth and Fourteenth Amendments B. The Rule of (Re)Construction 1. The Legal Tender Cases 2. The Slaughterhouse Cases: Preserving The Rule of Construction 3. Hans v. Louisiana C. Congressional Power, Individual Rights, and the Ninth Amendment, 1868 – 1930. 1. The General Structure of Ninth Amendment Claims in the Progressive Era 2. The Rule of Construction and Defining the Retained Rights of the People 3. Mistaking the Tenth Amendment for the Ninth 4. Distinguishing the Ninth from the First Eight Amendments 5. The Ninth Amendment and Individual Rights III. The New Deal Transformation of the Ninth Amendment A. The Rule in Transition: The New Deal Revolution 1. The New Deal and The Ninth Amendment Prior to 1937 2. The New Deal and Tenth Amendment Prior to 1937 B. The Rule Abandoned: The Ninth and Tenth Amendments As Truisms 1. Rejecting the Individual Right to Local Self-Government 2 The Triumph of Marshall’s Opinion on the Bank of the United States 3. Principles Without a Rule of Construction: United Federal Workers of America (CIO) v. Mitchell 4. The Ninth Amendment as a Truism C. The Last Days of the Historic Ninth Amendment 1. The Post New Deal Ninth Amendment and Individual Rights 2. The Last Stand of the Traditional Ninth Amendment: Bute v. People of State of Illinois IV. Griswold and the Birth of the Modern View of the Ninth Amendment A. Bennett Patterson’s Book B. Griswold v. Connecticut Conclusion Introduction “[T]his Court has had little occasion to interpret the Ninth Amendment” Arthur Goldberg, Griswold v. Connecticut It is widely assumed that the Ninth Amendment2 languished in constitutional obscurity until it was resurrected by Justice Arthur Goldberg in 1965.3 In his concurring opinion in Griswold v. Connecticut,4 Justice Goldberg announced that “this court has had little occasion to interpret the Ninth Amendment.”5 Pointedly citing Bennett Patterson’s 1955 book “The Forgotten Ninth Amendment,” Goldberg announced that he had located but three prior Supreme Court discussions of the Ninth Amendment, none of much help.6 There being no precedent to guide the Court, Goldberg consulted what he believed was the original understanding of the Founders. After quoting Madison’s speech introducing the Bill of Rights to House of Representatives and Joseph Story’s Commentaries, Goldberg concluded that “[t]hese statements of Madison and Story make clear that the framers did not intend that the first eight amendments be construed to exhaust the basic fundamental rights which the Constitution guaranteed to the people.”7 Although Justices Hugo Black and Potter Stewart dissented, they agreed that the Ninth had been little used, and they derided their fellow Justice’s “recent discovery” of the Clause.8 Since Griswold, a lively scholarly debate has emerged over the meaning of the Ninth. All sides in this debate believe that the Clause received little judicial construction prior 1965.9 In fact, there is a surprisingly rich history of legal interpretation and judicial application of the Ninth Amendment prior to Griswold. Beginning in 1789 and extending to 1964, the Ninth Amendment played a significant role in some of the most important constitutional disputes in our nation’s history, including the ratification of the Bill of Rights, the constitutionality of the Bank of the United States, the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the constitutionality of the New Deal, and the legitimacy and scope of incorporation doctrine. Unaware of this history, scholars consistently echo Bennett Patterson’s claim that, for one hundred and seventy years, state and federal courts have rarely even glanced at the Ninth Amendment.10 Unencumbered by doctrinal precedent, debate over the Ninth Amendment has centered on the text and original understanding, with scholars generally taking one of two main interpretive positions. One general view is that the Ninth justifies judicial enforcement of unenumerated rights.11 The other side generally reads the Ninth in tandem with the Tenth Amendment as an expression of enumerated federal power.12 Defining the debate in terms of rights versus powers, however, has influenced how historical evidence is viewed and categorized. Evidence relating to unenumerated rights tends to be associated with the Ninth Amendment, while evidence relating to enumerated powers tends to be associated with the Tenth.13 As discussed in first of these two articles on the lost history of the Ninth Amendment, The Lost Original Understanding, this categorical mistake has played a major role in masking the true history of the Ninth Amendment.14 This presumption not only has obscured valuable evidence regarding the understood meaning of the Ninth Amendment at the time it was adopted, it also has resulted in the scholarly dismissal of countless judicial opinions discussing and deploying the Ninth. In The Lost Original Meaning, I presented previously missed evidence regarding the adoption and early understanding of the Ninth Amendment. Responding to calls from the state conventions, including his home state of Virginia, Madison’s draft of the Ninth Amendment expressed a rule of interpretation preventing the constructive enlargement of federal power.15 Although the final draft altered the language suggested by the states, Madison insisted the meaning of the provision had not changed.16 In a major speech before the House of Representatives, Madison linked the Ninth Amendment to the state proposals and explained that the purpose of the Ninth was to “guard against a latitude of interpretation” while the Tenth Amendment “exclude[ed] every source of power not within the Constitution itself.”17 For the rest of his life, Madison continued to oppose “latitudinous” interpretations of federal power which he believed violated the constitutionally prescribed balance between federal and state power.18 This second article, The Lost Jurisprudence, takes up where the first left off. It is a comprehensive look at the Ninth Amendment jurisprudence which flourished from the early nineteenth century to the mid-twentieth century. This jurisprudence is divided into three periods, Founding to Civil War, Reconstruction to the New Deal, and Post-New Deal to Griswold v. Connecticut. In the first of these periods, the Founding to the Civil War, the Ninth Amendment was interpreted precisely along the lines anticipated by James Madison and the state conventions. Instead of being read as a source of individual rights, the Ninth was deployed as a tool for preserving state autonomy. Of particular concern was whether enumerated federal power prevented the states from exercising concurrent authority over the same matter in the absence of federal regulation. In a previously unrecognized discussion of the Ninth Amendment, Justice Joseph Story described how the Ninth mandates a limited construction of federal power in order to preserve the concurrent powers of the states. Story’s reading of the Ninth echoed that of James Madison and his opinion remained influential for more than a century. Given its role in preserving the retained rights of the states, it was inevitable that the Ninth Amendment became entangled with the struggle over the southern institution of slavery. Both slave and free states attempted to use the Ninth Amendment in defense of local regulations regarding slavery. No one, however, attempted to use the Ninth as a source of rights on behalf of the enslaved. When John Bingham drafted the Privileges or Immunities Clause of the Fourteenth Amendment, the Ninth and Tenth Amendments were the only provisions in Bill of Rights that Bingham did not believe declared privileges or immunities of citizens of the United States. In the second period addressed by the article, Reconstruction to the New Deal, courts and commentators continued to cite the Ninth Amendment in conjunction with the Tenth as one of the twin guardians of state autonomy. Instead of reading the Ninth Amendment as one of the newly protected Privileges or Immunities of United States citizens, courts applied the rule of construction represented by the Ninth to limit the interpretation of the Fourteenth Amendment. As the country moved into the new century and began to experiment with greater centralized control of labor and industry, the Ninth and Tenth Amendments continued to serve as barriers against the expansion of federal power. So closely aligned were the Ninth and Tenth Amendments that courts regularly combined their language and treated them as expressing a single principle of limited federal power. More and more, the Tenth Amendment was read to contain it own rule of construction, thus obviating the need to separately analyze the Ninth. Nevertheless, in every case where the Ninth was discussed, courts continued to follow the Madisonian reading of the Clause. In the third and final period, the New Deal to Griswold, the traditional reading of the Ninth Amendment disappeared in the dramatic reconfiguration of federal power that occurred after 1937. Although initially deployed by courts in resistance to President Roosevelt’s attempts to regulate the national economy, Justice Robert’s “switch in time” reduced both the Ninth and Tenth Amendments to no more than “truisms.” Free from the restraining rule of construction previously associated with the Ninth Amendment, the Supreme Court expanded the scope of federal power without regard to the impact on state regulatory autonomy. This expansion of regulatory power required a concomitant reduction in the Court’s previously broad interpretation of liberty under the Due Process Clause. The issue now became how to reconstruct that liberty in light of the New Deal Court’s general deference to the political process. In particular, having limited due process liberty to the rights listed in the text of the Bill of Rights, the Court had to decide whether all of the Bill of Rights should be incorporated against the states. It was here that the traditional doctrine of the Ninth Amendment made its last stand. Applying a rule of construction based on the Ninth and Tenth Amendments, the Supreme Court initially resisted total incorporation in order preserve the retained rights of the states to establish local rules of criminal procedure. By 1955, when Bennett Patterson wrote his book, The Forgotten Ninth Amendment, almost all traces of the traditional Ninth Amendment had disappeared. The speeches of James Madison and the early opinions of the Supreme Court dealing with the Ninth Amendment had long been lost. The vast jurisprudence of the Ninth Amendment was dismissed as mere handmaiden to the Tenth, and the Court had abandoned its initial resistance to incorporating most of the Bill of Rights against the states. Thus, when Justice Arthur Goldberg penned his opinion in Griswold v. Connecticut, the Ninth Amendment appeared to exist in a doctrinal and historical vacuum. This article concludes by considering the possibility that, even if the traditional understanding of the Ninth Amendment until now has been lost, the rule of construction represented by the Ninth lives on. Although generally associated with the Tenth Amendment, the federalism jurisprudence of the contemporary Supreme Court echoes the same rule of construction originally associated with the Ninth. Thus, when contemporary courts rule in favor of state autonomy, whether in regard to commerce or state authorized medicinal use of marijuana, they are echoing the voices of countless judges who throughout our constitutional history have sought to protect the retained right of the people to local self-government. I. Beginnings: The Ninth Amendment in Antebellum America A. The Unenumerated Rights Cases In The Lost History of the Ninth Amendment(I): The Lost Original Meaning, the roots of the Ninth Amendment were discovered in proposals from the state ratifying conventions which called for a rule of construction preventing the “constructive enlargement” of federal power at the expense of the states.19 Placed alongside the Tenth Amendment at the close of the Bill of Rights, the two provisions expressed related principles of local autonomy. The Tenth Amendment declared the principle of enumerated federal power, while the Ninth Amendment prohibited unduly “latitudinarian” interpretations of federal authority which effectively would eviscerate the Tenth. This reading of the Ninth and Tenth Amendments as twin guardians of federalism was repeated by bench and bar throughout antebellum America. Before exploring those cases in depth, however, we should first consider the dog that did not bark: Judicial interpretation of the Ninth Amendment as a source of unenumerated individual rights. Nineteenth century cases discussing the Ninth Amendment as a source of unenumerated rights are extremely rare.20 Prior to the Civil War, there appear to have been only three attempts by litigants to raise such claims. All of these attempts were rejected by the courts. In the 1799 case, U.S. v. Robins,21 an American citizen named Jonathan Robins was accused of committing murder on the high seas aboard a British war ship. Under a treaty with Great Britain, Robins was to be extradited to Great Britain for prosecution. Robins fought the extradition on the grounds that it denied him his constitutional right to trial by jury. According to Robins’ attorney, both the Ninth and Tenth Amendments (at the time referred to as the eleventh and twelfth articles of amendment) retained to the people the right to trial by jury.22 The court rejected the claim without specifically discussing the Ninth and Tenth Amendments, instead summarily stating “[t]he objections made to the treaty's being contrary to the constitution, have been so often and so fully argued and refuted, that I was in hopes no time would have been occupied on that subject.” 23 In Holmes v. Jennison,24 a Canadian citizen was arrested in Vermont having been accused of a murder committed in Canada. On his own initiative, the Governor of Vermont directed the state court to deliver the prisoner to Canadian authorities, despite the fact that there was no extradition treaty currently in force between the United States and Great Britain (the sovereign authority over Canada). Counsel for the defendant argued that extradition under these circumstances violated his constitutional rights. In his argument before the Supreme Court, former Governor Van Ness25 argued that the current Governor’s unilateral action violated the defendant’s right to due process under the Fifth Amendment to the Constitution. Calling on the Court to reverse its recent decision in Baron v. Baltimore,26 Van Ness argued that the people retained inherent personal rights that should be respected by all governments, state and federal.27 He distinguished the retained rights of the Ninth Amendment from the reservation of powers in the Tenth and argued that, not only were such rights recognized in the Ninth Amendment, but also that the Bill of Rights should be read as granting the federal government power to protect these rights against state intrusion.28 The Court rejected this attempt to reverse Baron, and dismissed the case for want of jurisdiction without discussing Van Ness’s interpretation of the Ninth and Tenth Amendments, or his remarkable argument that the original Bill of Rights was a source of federal regulatory power.29 Instead of viewing the Ninth as protecting unenumerated rights, the Supreme Court during this period appeared to presumptively treat Ninth Amendment claims as involving the proper interpretation of federal power. In Roosevelt v. Meyer,30 Meyer wished to pay a debt he owed Roosevelt in notes issued by the United States.31 There being some question whether the United States government had the power to issue such notes, the two parties went to state court seeking a judgment regarding the validity of the notes. According to the record, Roosevelt [R]elied upon certain provisions in the Constitution of the United States, namely Article I, section 8, clause 5, of the said Constitution, and Articles 5, 9, and 10 of the amendments thereof, the effect of which, as the said respondent insisted, was, that the debt, owing to the said respondent upon and by virtue of the bond and mortgage mentioned in the submission of the case, could not be paid against the will of the said creditor in anything but gold or silver coin.32 The highest court of New York ruled that the notes were valid legal tender and Roosevelt appealed to the United States Supreme Court. There, Meyer argued that the appeal should be dismissed on the grounds that the Supreme Court lacked jurisdiction to hear the case. Section 25 of the Judiciary Act granted the Supreme Court appellate jurisdiction “where is drawn in question the construction of any clause of the Constitution, or of a . . . statute of . . . the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party under such clause of the said Constitution, statute.”'33 According to Meyer, because the state court had upheld the validity of the Act, the Supreme Court had no jurisdiction to hear the appeal. Although Roosevelt had included the Fifth, Ninth and Tenth Amendments in his original claim, Meyer argued that these constitutional provisions were cited only in support of Roosevelt’s main argument that Congress had no power to issue the notes.34 The Supreme Court agreed and dismissed the appeal for want of jurisdiction.35 The Court thus treated Roosevelt’s Ninth Amendment claim not as an unenumerated right, but as a rule for construing federal power under the Bankruptcy Clause.36 Finally,37 while riding circuit in New Hampshire only two years after joining the Supreme Court, Justice Joseph Story decided Society for the Propagation of the Gospel v. Wheeler.38 Wheeler involved claims that a state law allowing tenants to recover the value of improvements was: [I]n contravention of the 2d, 3d, 12th, 14th and 20th articles of the bill of rights, in the constitution of New Hampshire; and of the 10th section of the first article, and the 9th article of the amendments, of the constitution of the United States; and is also repugnant to natural justice; and is therefore void.39 Justice Story dismissed the constitutional claim: In respect also to the constitution of the United States, the statute in question cannot be considered as void. The only article which bears on the subject, is that which declares, that no state shall pass 'any expost facto law, or law impairing the obligation of contracts.' There is no pretence of any contract being impaired between the parties before the court. The compensation is for a tort, in respect to which the legislature have created and not destroyed an obligation. Nor is this an ex post facto law within this clause of the constitution, for it has been solemnly adjudged, that it applies only to laws, which render an act punishable in a manner, in which it was not punishable, when it was committed. [citing Calder v. Bull and Fletcher v. Peck] The clause does not touch civil rights or civil remedies. The remaining question then is, whether the act is contrary to the constitution of New Hampshire.40 As discussed in The Lost Original Meaning, Story ignored the Ninth Amendment claim, despite the alleged violation of natural rights.41 Even though the case involved a consideration of natural justice, he viewed the Ninth Amendment as having “no bear[ing] on the subject.” It is only after Story expressly moved from considering the federal constitution (including the Ninth Amendment) to issues of state law that he addressed issues of “natural justice.”42 This is precisely what we would expect under the Madisonian reading of the Ninth Amendment as a rule of construction. B. Concurrent v. Exclusive Federal Power Questions of this nature are always of great importance and delicacy. They involve interests of so much magnitude, and of such deep and permanent public concern, that they cannot but be approached with uncommon anxiety. Joseph Story43 A critical issue in the early republic was determining the nature of federal power. If deemed exclusive, this would preclude state authority over any matter within the potential reach of the federal government. For example, federal authority to regulate interstate commerce had the potential to deny states authority to regulate any matter touching local commercial affairs. A hotly contested issue during the ratification debates, Alexander Hamilton in the Federalist Papers sought to placate antifederalist concerns by limiting exclusive federal authority to “three cases”: The principles established in a former paper teach us, that the states will retain all pre-existing authorities, which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases; where an exclusive authority is in express terms granted to the union; or where a particular authority is granted to the union, and the exercise of a like authority is prohibited to the states, or where an authority is granted to the union with which a similar authority in the states would be utterly incompatible.44 Under Hamilton’s approach, much depends on the “third case” and how one arrives at the conclusion that state power is “utterly incompatible” with federal authority. Those advocating the maximum degree of state autonomy advocated strictly construing federal power in cases involving matters traditionally under state control. In 1803, for example, St. George Tucker argued that, as a confederacy of states, the Constitution was to “to be construed strictly, in all cases where the antecedent rights of states may be drawn in question.”45 As early courts struggled to draw the proper line between state and federal authority, the issue became whether the Constitution itself established the proper rule of construction. In answer, a number of courts turned to the Ninth and Tenth Amendments. In 1816, South Carolina courts were faced with the question whether states have the authority to prosecute persons passing counterfeit federal coins.46 Although the Constitution expressly empowers the federal government to punish counterfeiters,47 it was not clear whether this express enumeration should be interpreted to prohibit the states from punishing persons passing counterfeit coins. Writing for the South Carolina Supreme Court, Judge Grimke noted that the Constitution does not expressly grant Congress the power to punish persons passing counterfeit coins. Applying a rule of construction based on the Ninth and Tenth Amendments, Judge Grimke concluded that this, then, was a power retained by the states: [I]t does not appear that the power of punishing persons for passing counterfeit coin, knowing it to be counterfeit, was either expressly given to the Congress of the United States, or divested out of the individual states. Now the 9th section of the amendments to the constitution, as agreed to by the several states, and which has now become a component part of the constitution, declares, that the enumeration in the constitution of certain rights, shall not be construed to deny or disparage others retained by the people; and in the 10th section of the same, it is further provided, that the powers not delegated to the United States by the constitution, nor prohibited by it to the state, are reserved to the states respectively or to the people. When we examine the powers conceded by the individual states, we find no enumeration of this power given to Congress, and when we review the powers denied to the individual states, we discover no mention whatever of their being divested of this power. The individual states were in possession of this power before the ratification of the constitution of the United States; and if there is no express declaration in that instrument, which deprives them of it, they must still retain it, unless they should be divested thereof by construction or implication.48 Grimke read the Ninth Amendment to apply to powers exercised by the states prior to the adoption of the Constitution.49 If such powers are not expressly granted to the federal government, or divested from the states, then under the Ninth Amendment the constitution should be interpreted in a manner “retaining” such rights to the states. Other courts repeated this idea of “retained” state power. In Livingston v. Van Ingen,50 the state of New York had granted a ferry monopoly to Robert Livingston and Robert Fulton51 by virtue of their “new and advantageous mode of transportation.” A competitor claimed that the power to grant such monopolies was exclusively in the power of the federal government, under their enumerated power to “promote the progress of science and useful arts,” as well as their power to regulate interstate commerce. Livingston’s counsel Thomas A. Emmett52 responded that the federal government had only such power as was expressly granted and that all other powers were reserved to the states under the Ninth and Tenth Amendments.53 The highest court of New York, under the leadership of Chancellor Kent, upheld the monopoly.54 Judge (and later Supreme Court Justice) Smith Thompson concurred in an opinion that described the proper rule of construction in language which combines both the Ninth (retained rights) and Tenth (non delegated powers): It is an undeniable rule of construction, applicable to the constitution of the United States, that all powers and rights of sovereignty, possessed and enjoyed by the several states, as independent governments, before the adoption of the constitution, and which are not either expressly, or by necessary implication, delegated to the general government, are retained by the states.55 As the Nineteenth Century progressed, the need to define the line between exclusive and concurrent federal power was diminished somewhat by court decisions which narrowed the scope of federal power to regulate interstate commerce.56 For example, in 1863 the Supreme Court of Indiana ruled that Congress had no authority to regulate intrastate commerce, thereby obviating the issue of concurrent state power over the same activity. The court’s interpretation of the scope of federal power was informed by principles expressed in the Ninth and Tenth Amendments: In the case at bar, it may, for the sake of the argument, be conceded, that Congress not only possesses the power, but the exclusive right, to regulate commerce among the several States, including the pilotage of vessels engaged in said commerce; and still the facts, so far as the record shows them, do not make a case falling strictly within the principle of the points thus conceded, because not involved. And why? The ninth amendment to the Constitution is as follows: "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people," and tenth: "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." The power conferred upon Congress to regulate commerce, it will not, we suppose, in view of these provisions, be contended, give jurisdiction over the navigable waters of a State, except as regards intercourse with other States of the Union, or with a foreign country.57 In other cases, however, the conflict between state and federal jurisdiction would be unavoidable. Those cases forced a determination of the degree to which state power ran concurrent with federal authority, an issue which called for the application of the Ninth Amendment. C. Justice Story and Houston v. Moore The tandem application of the Ninth and Tenth Amendments illustrated in the previous cases was repeated throughout the nineteenth century, with both clauses generally read as related expressions of state autonomy.58 In determining the scope of exclusive federal power, however, the Ninth Amendment played a particular role. Although the Tenth Amendment reserves all non-delegated powers to the states, the issue of concurrent state power involves matters concededly within Congress’ delegated power. Determining whether that power is exclusive requires a rule of construction. Accordingly, in one of the Supreme Court’s most influential opinions on the exclusivity of federal power, it was the Ninth, not the Tenth, that informed the Court’s interpretation of the Constitution. The first Supreme Court discussion of the Ninth Amendment, Justice Joseph Story’s opinion in Houston v. Moore was influential for the next one hundred years. It was cited by later Supreme Court justices and many state and federal courts as they continued to struggle with the line between state and federal power.59 In the countless articles and treatises discussing the Ninth Amendment, not one discusses Story’s analysis of the Ninth Amendment in Houston. Despite the importance of the case,60 it is not hard to understand why it was missed: Justice Story referred to the Ninth as the “eleventh amendment.” This is not a mistake. James Madison also referred to the Ninth as the “Eleventh” in his letters and in his speech on the Bank of the United States.61 This usage reflects an early convention which referred to the first ten amendments according to their position on the original list of twelve.62 For example, the same year Story wrote his opinion in Houston, John Taylor published his “Construction Construed,” in which he referred to Ninth and Tenth Amendments as the “eleventh and twelfth.”63 As late as 1833, the Supreme Court referred to the Seventh Amendment as the “Ninth”--its place on the original list.64 Over time, the convention changed and “Articles Three through Twelve” became known as the Bill of Rights, and were renumbered one through ten. This change in convention, however, has had the effect of obscuring Justice Story’s important discussion of the Ninth Amendment in Houston. Rescued from obscurity,65 Story’s opinion stands as the Supreme Court’s first and most relied upon discussion of the Ninth Amendment as an independent principle of constitutional law.66 1. Houston v. Moore67 Houston involved a state prosecution for failure to perform federal militia duty. Pennsylvania law provided that "every non-commissioned officer and private of the militia who shall have neglected or refused to serve when called into actual service" would be court-martialed by the state and punished according to the federal militia law of 1795. In 1814, President Madison instructed the Governor of Pennsylvania to supply militiamen for the war against Great Britain. Houston, a private enrolled in the Pennsylvania militia, refused join up with his detachment and was prosecuted and fined according to state law. Houston’s defense was that Pennsylvania law in this instance was “contrary to the constitution of the United States” particularly Article I, Section 8, Clauses 15 and 16 of the Constitution which grants Congress authority over the militia.68 According to Houston, federal power over the militia was “exclusive of state authority” and thus the states had no concurrent power to create courts martial and impose penalties for violating federal militia law, even when Congress had failed to create its own courts martial. The state argued that concurrent state power should be assumed on the grounds of state sovereignty. Citing the New York court’s decision in Livingston v. Van Ingen, Houston’s lawyer declared: The necessity of a concurrent jurisdiction in certain cases results from the peculiar division of the powers of sovereignty in our government, and the principle, that all authorities of which the States are not expressly devested in favour of the Union, or the exercise of which, by the States, would be repugnant to those granted to the Union, are reserved to the States, is not only a theoretical consequence of that division, but is clearly admitted by the whole tenor of the constitution.69 Writing for a splintered majority, Justice Bushrod Washington ruled that Congress had not provided federal courts with exclusive jurisdiction in these kinds of matters and upheld Houston’s conviction.70 Justice Joseph Story dissented on the ground that federal militia law applicable to this case contemplated a federal, not a state, court martial.71 In his opinion, Story articulated principles of construction for determining whether federal power was concurrent or exclusive. He began by stating the importance of the case to issues of state sovereignty: Questions of this nature are always of great importance and delicacy. They involve interests of so much magnitude, and of such deep and permanent public concern, that they cannot but be approached with uncommon anxiety. The sovereignty of a State in the exercise of its legislation is not to be impaired, unless it be clear that it has transcended its legitimate authority; nor ought any power to be sought, much less to be adjudged, in favour of the United States, unless it be clearly within the reach of its constitutional charter.72 Story then noted that a constitutional grant of power does not necessarily deny states concurrent authority over the same subject. His reasoning here deserves to be presented in full: The constitution containing a grant of powers in many instances similar to those already existing in the State governments, and some of these being of vital importance also to State authority and State legislation, it is not to be admitted that a mere grant of such powers in affirmative terms to Congress, does, per se, transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion, that the powers so granted are never exclusive of similar powers existing in the States, unless where the constitution has expressly in terms given an exclusive power to Congress, or the exercise of a like power is prohibited to the States, or there is a direct repugnancy or incompatibility in the exercise of it by the States.[73] The example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased by the consent of the legislature of the State in which the same shall be, for forts, arsenals, dock-yards, &c.; of the second class, the prohibition of a State to coin money or emit bills of credit; of the third class, as this Court have already held, the power to establish an uniform rule of naturalization, amend the delegation of admiralty and maritime jurisdiction. In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only upon the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principles of general reasoning. There is this reserve, however, that in cases of concurrent authority, where the laws of the States and of the Union are in direct and manifest collision on the same subject, those of the Union being 'the supreme law of the land,' are of paramount authority, and the State laws, so far, and so far only, as such incompatibility exists, must necessarily yield. Such are the general principles by which my judgment is guided in every investigation on constitutional points. I do not know that they have ever been seriously doubted. They commend themselves by their intrinsic equity, and have been amply justified by the opinions of the great men under whose guidance the constitution was framed, as well as by the practice of the government of the Union. To desert them would be to deliver ourselves over to endless doubts and difficulties; and probably to hazard the existence of the constitution itself.74 The context of the discussion initially makes Story’s reference to the Eleventh Amendment puzzling. The Eleventh Amendment restricts the jurisdiction of federal courts to hear claims by individuals against states.75 In this passage, however, Story is not discussing federal court jurisdiction, but the proper construction of federal legislative power. This, as we have seen, raises issues under the Ninth but not the Eleventh Amendment. The reference makes sense, however, if Story is understood to be using the early convention of referring to provisions in the Bill of Rights according to their position on the originally proposed list.76 Read this way, the passage not only makes sense, it becomes a textbook case for how to apply the Ninth Amendment’s rule of construction. One of the original purposes of the Ninth Amendment was to prevent the addition of the Bill of Rights from being construed to suggest that congressional power extended to all matters except those expressly restricted.77 As Joseph Story would later write in his Commentaries on the Constitution: [The Ninth Amendment] was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others; and é converso, that a negation in particular cases implies an affirmation in all others. The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies. The amendment was undoubtedly suggested by the reasoning of the Federalist on the subject of a general bill of rights.78 In Houston, the defendant was attempting just such a “political heresy.” One of Houston’s arguments was that the sole power of the states to regulate on matters involving the militia was contained in the “reservation” clause of Art. I, § 8 clause 16. That clause, after granting Congress power to organize and discipline the militia, reserved to the states “the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”79 According to Houston, this “reservation” implied that all power not expressly reserved to the states was exclusively in the hands of Congress. Story rejected this argument, applying the rule of construction he believed declared by the Ninth Amendment: It is almost too plain for argument, that the power here given to Congress over the militia; is of a limited nature, and confined to the objects specified in these clauses; and that in all other respects, and for all other purposes, the militia are subject to the control and government of the State authorities. Nor can the reservation to the States of the appointment of the officers and authority of the training the militia according to the discipline prescribed by Congress, be justly considered as weakening this conclusion. That reservation constitutes an exception merely from the power given to Congress 'to provide for organizing, arming, and disciplining the militia;' and is a limitation upon the authority, which would otherwise depend upon their own the appointment of officers. But the exception from a given power cannot, upon any fair reasoning, be considered as an enumeration of all the powers which belong to the States over the militia.[80] What those powers are must depend upon their own constitutions; and what is not taken away by the Constitution of the United States, must be considered as retained by the States or the people. The exception then ascertains only that Congress have not, and that the States have, the power to appoint the officers of the militia, and to train them according to the discipline prescribed by Congress. Nor does it seem necessary to contend, that the power 'to provide for organizing, arming, and disciplining the militia,' is exclusively vested in Congress. It is merely an affirmative power, and if not in its own nature incompatible with the existence of a like power in the States, it may well leave a concurrent power in the latter.81 This previously undiscovered text, marred by a transcription error in online Westlaw version,82 deserves a place alongside of Madison’s speech on the Bank of the United States in terms of the historical understanding of the Ninth Amendment. Having announced that determining the scope of exclusive federal power must be guided by the letter and spirit of the Ninth Amendment, Story then applies the rule of construction he describes in his Commentaries as mandated by the Ninth. That rule forbids construing a reservation of rights to suggest that all other rights are surrendered. In this case, the enumeration of certain rights (the state’s right to appoint officers) must not be construed to deny or disparage other rights “retained by the states” (like the right to create courts martial). This reading is exactly what one would expect under a Madisonian approach to the Ninth Amendment: Both powers and rights are “retained by the States or the People.” The people may then delegate that power to their state government under their own constitution as they see fit.83 This principle of federalism is preserved by a rule guiding the proper interpretation of the Constitution. All of this in a passage that cites only the Ninth, and not the Tenth Amendment.84 Justice Story’s reading of the Ninth Amendment in Houston not only tracked his reading of the Ninth in his Commentaries, it also echoes a rule of construction insisted upon by the state ratifying conventions, and dovetails nicely with James Madison’s description of the Ninth Amendment as guarding against a latitude of interpretation.85 Joseph Story was nominated to the bench by James Madison. Thus, when Story notes that his “general principles . . . have been amply justified by the opinions of the great men under whose guidance the constitution was framed,” one cannot help but think of Story’s patron.86 2. The Influence of Story’s Opinion a. Gibbons v. Ogden Four years after it was penned, lawyers before the Supreme Court quoted significant portions of Story’s opinion in one of the most important cases regarding federal power in the nineteenth century, Gibbons v. Ogden.87 Gibbons involved yet another dispute over New York’s grant of a steam navigation monopoly to Robert Fulton and Robert Livingston. The New York courts having upheld the monopoly in cases such as Livingston v. Van Ingen,88 the monopoly (now assigned to Ogden) was challenged on the ground that it interfered with Congress’ exclusive power to regulate interstate commerce.89 The case, according to G. Edward White “has been acknowledged as the high point of advocacy on the Marshall Court.”90 Thomas A. Emmett represented Fulton and Livingston, and their assignee, Aaron Ogden. In his lengthy argument before the Court, Emmett claimed that states retained concurrent power to regulate commerce and cited in support Tucker’s Commentaries, (now) Justice Thompson’s opinion in Livingston v. Van Ingen,91 and Story’s opinion in Houston v. Moore.92 According to Emmett, concurrent state power to regulate commerce must give way only in cases involving a direct conflict between state and federal regulation.93 On this point, Emmett quotes that portion of Justice Story’s opinion in Houston which relies on the “11th Amendment.”94 There is no indication that Emmett believed the reference to the Eleventh was in error (for example, he could have paraphrased without quoting the passage),95 and there is no attempt by Emmett to link the passage to his discussion of the Tenth Amendment several pages earlier in his brief.96 As in Houston, this is a freestanding Ninth Amendment argument in favor of a limited reading of federal power. Nor is it surprising that Emmett picked up on Story’s Ninth Amendment argument—Emmett himself had made the same argument before the New York courts prior to Story’s opinion in Houston.97 Although his argument in Gibbons regarding the Tenth Amendment has been recognized, scholars have completely missed Thomas Emmett’s reliance on the Ninth.98 In striking down the state monopoly, Chief Justice John Marshall did not directly address either the Ninth or Tenth Amendments. Instead, he rejected Ogden’s argument that Congress lacked power to grant Gibbons a coasting license, and went on to rule that the state monopoly was in direct conflict with the federal license and thus invalid under the Supremacy Clause.99 Indirectly, however, Marshall declared his skepticism that there is any provision in the Constitution which restricts the interpretation of enumerated power: [T]his instrument contains an enumeration of powers expressly granted by the people to their government. It has been said, that these powers ought to be construed strictly.100 But why ought they to be so construed? Is there one sentence in the constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress is authorized 'to make all laws which shall be necessary and proper' for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule.101 In his earlier opinion in McCulloch v. Maryland, Marshall ignored the Ninth Amendment despite its being the focus of James Madison’s argument against the Bank.102 In Gibbons, Marshall ignores the Ninth, despite its being raised by counsel. In fact, during his entire tenure on the Supreme Court, Marshall never found a single occasion to refer to the Ninth Amendment, despite that Clause being repeatedly cited by bench and bar as counseling against expansive readings of federal power.103 b. Mayor, Alderman and Commonality of City of New York v. Miln Story’s opinion in Houston influenced judges as well as lawyers. When serving on New York’s highest Court, then-judge Smith Thompson had indicated his sympathy towards using the Ninth and Tenth Amendments in construing federal power. In New York v. Miln,104 now-Justice Thompson made his reliance on the Ninth explicit. Miln involved a New York statute which required ship captains to furnish local authorities with a list of all passengers being brought into the state. The Supreme Court upheld the state law, with Justice Story dissenting on the grounds that this was a regulation of commerce belonging exclusively in the hands of the federal government.105 In his concurrence, Justice Smith Thompson disagreed with Story’s view of state power in this case and quoted Story’s own words in Houston in support of concurrent state power to regulate commerce. In Van Ingen, Thompson had followed the lead of Livingston’s counsel Thomas Emmett and grounded concurrent state power in language suggesting both the Ninth and Tenth Amendments: It is an undeniable rule of construction, applicable to the constitution of the United States, that all powers and rights of sovereignty, possessed and enjoyed by the several states, as independent governments, before the adoption of the constitution, and which are not either expressly, or by necessary implication, delegated to the general government, are retained by the states.106 Now a Justice on the Supreme Court, Thompson in Miln clearly embraced Thomas Emmett’s and Justice Story’s view of concurrent state power as falling within the principles of the Ninth Amendment. [Concurrent state power] is fully recognised by the whole court, in the case of Houston v. Moore. . . . Mr. Justice STORY, who also dissented from the result of the judgment, is still more full and explicit on this point. 'The constitution,' says he, 'containing a grant of powers, in many instances similar to those already existing in the state governments, and some of these being of vital importance also to state authority and state legislation, it is not to be admitted, that a mere grant of such powers, in affirmative terms, to congress, does, per se, transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion, that the powers so granted are never exclusive of similar powers existing in the states; unless [citing exceptions] . . .. In all other cases, not falling within the classes already mentioned, it seems unquestionable, that the states retain concurrent authority with congress; not only upon the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principle of reasoning.107 In his earlier Van Ingen opinion, then-Judge Thompson had cited the Tenth Amendment in support of his view of concurrent state power. In Miln, however, Thompson says nothing about the Tenth Amendment, despite its role in the opinions of other Justices.108 Instead, Justice Thompson is content to let Story’s construction of the Ninth Amendment suffice as textual grounding for the proper rule of interpretation.109 c. Prigg v. Pennsylvania Other Justices, as well as high ranking executive officials, also embraced Story’s reading of the Ninth Amendment in Houston. In Prigg v. Pennsylvania,110 the Supreme Court struck down Pennsylvania’s personal liberty law of 1826 on the grounds that it interfered with the enforcement of the federal Fugitive Slave Act and the Constitution’s Fugitive Slave Clause. In defense of the law, Pennsylvania’s Attorney General Ovid F. Johnson argued that federal law should not be read to displace all state regulation on the subject of fugitive slaves. In support of his argument, Johnson quotes Story’s position in Houston: Supposing the power to pass laws on the subject of fugitive slaves to be concurrent, the learned counsel on the other side contended, that it had been exercised by congress; that the whole ground of legislation was provided for; that the right of the states was thereby superseded, and that the act of assembly of Pennsylvania was absolutely void. To all these positions, he would answer, in addition to what had already been advanced, that congress had not covered the whole ground; . . . He could not, on this branch of the case, fortify his argument with stronger reason or authority than by quoting the words of Mr. Justice Story, in the case of Houston v. Moore. On this basis, he did not fear to let it rest. 'The constitution, containing a grant of powers in many instances similar to those already existing in the state governments, and some of these being of vital importance also to state authority and state legislation, it is not to be admitted, that a mere grant of such powers in affirmative terms to congress, does, per se, transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion, that the powers so granted are never exclusive of similar powers existing in the states, unless where the constitution has expressly, in terms, given an exclusive power to congress, or the exercise of a like power is prohibited to the states, or there is a direct repugnancy or incompatibility in the exercise of it by the states.' And also, 'in all other cases not falling within the classes already mentioned, it seems unquestionable, that the states retain concurrent authority with congress, not only on the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principles of general reasoning.'111 In his opinion striking down the Pennsylvania law, Justice Story did not dispute the Attorney General’s reading of Houston. Instead, Story argued that the power to regulate on the subject of fugitive slaves was exclusively federal in nature. Here, Story referred not to his own opinion in Houston, but to Chief Justice Marshall’s formulation in Sturges v. Crowninshield that wherever “the terms in which a power is granted to congress, or the nature of the power, require, that it should be exercised exclusively by congress, the subject is as completely taken from the state legislatures, as if they had been forbidden to act.”112 Although Story did not repute his earlier approach in Houston, his reasoning seemed to weaken Houston’s presumption of concurrent state power. In his concurrence, Justice Peter Daniel noted the departure. Although concurring in the judgment, Daniel nevertheless felt “constrained to dissent from some of the principles and reasonings which that majority, in passing to our common conclusions, have believed themselves called on to affirm.”113 Arguing that states had concurrent power to regulate on the subject of fugitive slaves, Justice Daniel quoted Story’s passage in Houston v. Moore, including Story’s statement regarding the “eleventh amendment.”114 d. Smith v. Turner Justice Daniel would find another occasion to quote Story’s opinion in Houston, this time in Smith v. Turner,115 one of the so-called Passenger Cases.116 In Smith, the Supreme Court struck down a state tax on incoming sea passengers, drawing a dissent from Justice Daniel. Daniel began his analysis of the Constitution by announcing two principles: First, under the 10th Amendment, Congress has but delegated power. Second, those powers are subject to a limiting rule of construction.117 Rejecting statements in an earlier case by Justice Baldwin that federal power over commerce was exclusive,118 Daniel invoked Justice Story’s opinion in Houston: In opposition to the opinion of Mr. Justice Baldwin, I will place the sounder and more orthodox views of Mr. Justice Story upon this claim to exclusive power in Congress, as expressed in the case of Houston v. Moore with so much clearness and force as to warrant their insertion here, and which must strongly commend them to every constitutional lawyer. The remarks of Justice Story are these:--'Questions of this nature are always of great importance and delicacy . . . . 119 Daniel proceeds to quote this entire section of Story’s opinion, including Story’s reference to the “Eleventh Amendment.”120 Justice Daniel then remarks “[h]ere, indeed, is a commentary on the Constitution worthy of universal acceptation.”121 No one in the majority responded to Daniel’s point regarding the “clearness and force” of Story’s opinion in Houston, nor did they dispute Story’s interpretation of the Ninth Amendment. Instead, Justice Grier simply defended his decision to invalidate the state law against claims that he had engaged in a “latitudinarian” interpretation of federal power.122 3. The Fate of Houston v. Moore Given that Houston included the Supreme Court’s first discussion of the Ninth Amendment penned by no less a Justice as Joseph Story, and that it was quoted in its entirety by later litigants and Supreme Court justices,123 it seems surprising that this interpretation of the Ninth Amendment has gone so long unnoticed. In fact, Story’s approach to concurrent state powers has remained influential throughout the history of the Supreme Court. Numerous state and federal courts have cited it in cases struggling to define the line between state and federal power, and the Supreme Court itself continues to favorably cite Houston in cases involving questions of concurrent state power.124 Over time, however, Houston’s connection to the Ninth Amendment has been forgotten. Although later courts continued to cite Story’s opinion in Houston, they omitted his language regarding the “eleventh amendment.”125 As the convention for referring to the Bill of Rights changed, Story’s reference to the eleventh amendment became ever more obscure. Instead, the passage came to be associated with principles underlying the Tenth Amendment.126 For example, in the 1843 case Harlan v. People,127 Judge Felch for the Michigan court appears to write his own version of Story’s opinion, replacing the “Eleventh Amendment” with the Tenth. After citing Story’s opinion in Houston, Judge Felch wrote: And it is affirmed, by the same authorities, that a mere grant of power in affirmative terms, does not, per se, transfer an exclusive sovereignty on such subjects to the Union. In all cases not falling within either of the classes already mentioned, the states retain either the sole power, or a power which they may exercise concurrently with congress. This results not only from the general principles on which the Union is founded, but is within the letter of the tenth article of the amendments to the constitution, which declares that "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."128 This passage is taken straight from Story’s opinion, with Felch simply changing “letter and spirit of the eleventh amendment” to “the letter of the tenth.”129 Felch either believed Story made a mistake, or he thought the Tenth provided clearer support. In either event, Story’s actual reference to the eleventh and its significance to the early understanding of the Ninth Amendment was erased. 4. The Significance of Houston v. Moore Although long forgotten as an opinion dealing with the Ninth Amendment, Justice Story’s opinion in Houston v. Moore is significant for a number of reasons. Judges and scholars seeking the original meaning of the Ninth Amendment often have turned to the views of James Madison and Joseph Story.130 Until now, however, the views of these Founding-era figures remained critically incomplete. Although his Commentaries described the Ninth as a rule of interpretation, Houston v. Moore shows how Justice Story believed the Ninth Amendment actually should be applied. More, it illuminates the general understanding of the Ninth Amendment in the period immediately following its adoption. Not only was Story’s reading of the Ninth not contradicted by any other Justice, his specific analysis of the Ninth Amendment was quoted by bench and bar and remained influential for one hundred years. When one considers that no other account of the Ninth Amendment was proposed by any Justice on the Court at the time (or for the next one hundred and fifty years), this strongly suggests that Story’s opinion presented the commonly accepted view. Because Story’s opinion adopts the Madisonian reading of the Ninth Amendment—a reading itself based on proposals from the state conventions—Houston v. Moore establishes a link between the state conventions, Madison’s interpretation of the Ninth Amendment, and the common understanding of the Ninth in the period following its adoption. Houston v. Moore also illustrates how the Ninth Amendment could be closely related to the Tenth, and yet still retain an independent role in constitutional interpretation. The case did not involve whether enumerated federal power existed. The issue was whether concededly delegated federal power should be construed in a manner disparaging the concurrent rights of the states. Answering this question required a rule of interpretation and it is the Ninth, not the Tenth, which expressly provides such a rule. The ultimate fate of Houston v. Moore, however, raises an intriguing possibility. Scholars often have dismissed historical references to the Ninth Amendment because they believed that such references really were about the Tenth.131 Judge Felch’s rewriting of Houston in Harlan v. People suggests that the opposite may be true: Past cases that refer to the Tenth Amendment may really be about the Ninth. D. The Ninth Amendment and the Enumeration of Certain Rights Just as the principle of state autonomy suggested a limited reading of enumerated federal power, that same principle supported a limited reading of constitutional restrictions on the states. John Marshall himself, despite ignoring the Ninth and Tenth Amendments in cases such as McCulloch and Gibbons, nevertheless appreciated the role of federalism in interpreting the provisions in Article I, Section 10. For example, in Trustees of Dartmouth College v. Woodward,132 Chief Justice Marshall wrote of the need to limit the potential scope of the Impairment of Contract Clause in order to avoid interfering with the “internal concerns of a state.” [E]ven marriage is a contract, and its obligations are affected by the laws respecting divorces. That the clause in the constitution, if construed in its greatest latitude, would prohibit these laws. Taken in its broad, unlimited sense, the clause would be an unprofitable and vexatious interference with the internal concerns of a state, would unnecessarily and unwisely embarrass its legislation, and render immutable those civil institutions, which are established for purposes of internal government, and which, to subserve those purposes, ought to vary with varying circumstances. . . .The general correctness of these observations cannot be controverted. That the framers of the constitution did not intend to restrain the states in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us, is not to be so construed, may be admitted.133 As ardent a nationalist as John Marshall believed that the framers intended a limited construction of constitutional rights in order to avoid “restrain[ing] the states in the regulation of their civil institutions.” Although Marshall does not cite the Ninth Amendment, his approach follows both the letter and spirit of the Ninth by limiting the “construction” of an enumerated right (freedom from impaired contracts) in order to preserve other rights retained by the people (local control of civil institutions). Later courts would recognize the relation between Marshall’s words in Dartmouth and the rule of construction expressed by the Ninth Amendment, and would cite Dartmouth accordingly.134 Antebellum courts generally were not as reluctant as John Marshall to recognize the Ninth Amendment as limiting the construction of enumerated rights against the states. In Anderson v. Baker,135 the Supreme Court of Maryland declined to give an expansive reading to Article I, Section 10’s prohibition of Ex Post Facto laws, citing as justification the Ninth and Tenth Amendments: Prohibitions on the States, are not to be enlarged by construction. To do so, would violate the spirit and object of the 9th and 10th amendments to the Constitution of the United States, viz.: "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. 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." These were intended to prevent argumentative implications of power not delegated; to exclude any interpretation by which other powers should be assumed beyond those which are granted. The idea that the Ninth Amendment and its attendant rule of construction limited the interpreted scope of rights bearing provisions as well as power granting provisions would prove particularly significant in the next great period of Constitutional law, when courts had to reconcile the federalism principles of the Founding with the individual rights provisions of the Fourteenth Amendment.136 E. Slavery I shall support the Amendments proposed to the Constitution that any exception to the powers of Congress shall not be so construed as to give it any powers not expressly given, & the enumeration of certain rights shall not be so construed as to deny others retained by the people--& the powers not delegated by this Const. nor prohibited by it to the States, are reserved to the States respectively; if these amendts. are adopted, they will go a great way in preventing Congress from interfering with our negroes after 20 years or prohibiting the importation of them. Otherwise, they may even within to 20 years by a strained construction of some power embarrass us very much. William L. Smith to Edward Rutledge, Aug. 10, 1789.137 As a rule of construction preserving the autonomy of the states, the Ninth Amendment was caught up in the struggle over slavery from its very beginning. Throughout the antebellum period, courts struggled to find what Madison referred to as the “just equilibrium” between National and local powers.138 Cases decided by the nationalist Marshall court such as Martin v. Hunters’ Lessee139 were resisted by some state courts as violating the balance established by the Ninth and Tenth Amendments. In The Ohio,140 for example, future Chief Justice of the Ohio Supreme Court, T.W. Bartley, relied on the Ninth and Tenth Amendments in an opinion rejecting the authority of the Supreme Court to review state court opinions: We may here promise, that it is a settled rule of interpretation founded on sound reason, that every written instrument conferring limited and expressly defined powers must be strictly construed; and that to warrant the exercise of special authority thus delegated, the grant of it, must appear affirmatively and distinctly to be within the terms of the prescribed limits. If this rule be important in any instance, it is so in its application to the written constitution of a government of limited and expressly defined powers. If the exercise of doubtful authority, derived by vague and far-fetched construction and implication, be warranted or allowed, a written constitution will be of but little consequence as a restraint upon ambition and cupidity. The rigid application of the strict rule of construction above mentioned, is also authoritatively required by the ninth or tenth additional amendatory articles of the constitution, declaring that the powers not expressly delegated, are reserved, and that the enumeration of certain rights in the constitution shall not be construed to deny or disparage those retained. Without this express requirement of a strict construction, the constitution would not have been adopted by the states.141 As the nation grew ever more divided over slavery, voices such as Bartley’s would only grow louder. But state autonomy ran two ways. In Mitchell v. Wells,142 the Supreme Court of Mississippi ruled that a former slave who had been freed in Ohio had no enforceable rights in Mississippi courts. In his dissent, Judge Handy criticized the majority’s refusal to recognize the rights of Ohio citizens and raised the Ninth and Tenth Amendments as establishing the reserved “rights and powers” of the people of the several states. The 9th and 10th amendments to the Constitution of the United States reserve to the people of the several States the rights and powers not enumerated in that instrument, and delegated to the confederacy, nor prohibited to the States; and the right of an inhabitant or subject of any State, not enumerated, remains as a sovereign power reserved to the State, and to be exercised by those entitled to her protection according to the principles applicable to the relations of independent nations.143 In Willis v. Jolliffee,144 a certain E.W. took one of his slaves, Amy, and her seven children to Ohio with the intention of setting them free. His will dictated that his estate was to be executed in trust for Amy and her children. Tragically, E.W. died the moment he arrived with Amy and her children at the wharf in Cincinnati. Not having set her free, Amy remained a slave under South Carolina law and, according to the trial court, Amy could not inherit E.W.’s estate. The opinion cited a number of constitutional provisions, including the Ninth and Tenth Amendments, in support of its conclusion that the Constitution anticipated state recognition of slavery as a “property” right.145 Supreme Court Justice John Campbell took a similar view in his concurring opinion in Dred Scott v. Sandford.146 In Dred Scott, the Supreme Court struck down the Missouri Compromise on the ground that Congress had no authority to ban slavery from the territories. One of the issues in the case was the scope of power delegated by the provision permitting “Congress to dispose of and to make all needful rules and regulations respecting the territory or other property belonging to the United States.” The Government argued that “all” meant all and that it “includes all subjects of legislation in the territory.”147 Campbell’s response was that such a construction of congressional power would destroy the concept of limited enumerated power as expressed by the Ninth and Tenth Amendments. According to Campbell: The people were assured by their most trusted statesmen 'that the jurisdiction of the Federal Government is limited to certain enumerated objects, which concern all members of the republic,' and 'that the local or municipal authorities form distinct portions of supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them within its own sphere.' Still, this did not content them. Under the lead of Hancock and Samuel Adams, of Patrick Henry and George Mason, they demanded an explicit declaration that no more power was to be exercised than they had delegated. And the ninth and tenth amendments to the Constitution were designed to include the reserved rights of the States, and the people, within all the sanctions of that instrument, and to bind the authorities, State and Federal, by the judicial oath it prescribes, to their recognition and observance. Is it probable, therefore, that the supreme and irresponsible power, which is now claimed for Congress over boundless territories, the use of which cannot fail to react upon the political system of the States, to its subversion, was ever within the contemplation of the statesmen who conducted the counsels of the people in the formation of this Constitution?148 F. Summary: The Ninth Amendment from Founding to the Civil War The jurisprudence of the Ninth Amendment in the antebellum period is both plentiful and consistent. Following the approach of James Madison, courts at all levels read the Ninth Amendment as a rule of construction preserving the right of local self-government. Generally deployed in tandem with the Tenth, both the Ninth and Tenth Amendments were understood to express principles of state autonomy. Although related, the amendments were not redundant, with the Ninth playing a unique role in limiting the construction of enumerated powers and rights. Although bench and bar were in general agreement in regard to the meaning of the Ninth Amendment, influential Justices such as John Marshall ignored the Ninth in major cases interpreting the scope of federal power. Marshall in particular discounted the idea that any provision in the Constitution suggested a substantive limit on the construction of federal power. Marshall never articulated an alternate reading of the Ninth; he simply ignored it. Judicial opinions which did address the Ninth, however, read it in line with Justice Story’s analysis in Houston v. Moore. As had James Madison, Story read the Ninth as guarding against a latitude of interpretation to the detriment of state autonomy. Finally, as a state rights provision, the Ninth Amendment was recruited by both sides in the national struggle over slavery. As we shall see, the Ninth Amendment’s association with slavery and state sovereignty distinguished it from the first eight amendments as potential “privileges or immunities” of United States citizens. II. Reconstruction and the Ninth Amendment A. The Ninth and Fourteenth Amendments The struggle over slavery and a bloody Civil War gave rise to a new birth of freedom, one that dramatically altered the original balance of power between the federal government and the states. Whereas the original Bill of Rights applied to only the federal government, the Fourteenth Amendment introduced significant new restrictions on the states and bound them to respect the “Privileges or Immunities” of citizens of the United States.149 Although the Supreme Court has interpreted the Due Process Clause to incorporate most of the provisions in the Bill of Rights,150 modern scholarship suggests that the Privilege or Immunities Clause is more likely to have been the intended vehicle for incorporation.151 If, in fact, the framers of the Fourteenth Amendment intended to incorporate the Bill of Rights, this signaled a changed understanding of the nature of the Bill itself.152 For example, originally, the First Amendment’s Establishment Clause was intended not only to prevent federal religious establishment, but likely was intended to protect state religious establishments from federal interference.153 If the Fourteenth Amendment was intended to incorporate the Establishment Clause against the states, this would mean that non-establishment had come to be understood as a national freedom, and not just a jurisdictional rule of federalism.154 Recently, a number of constitutional scholars have argued that just such a transformation occurred in regard to a number of liberties listed in the Bill of Rights. Michael Kent Curtis, for example, has traced the growing calls for freedom of speech against state action which were triggered by widespread suppression of abolitionist speech.155 Akhil Amar has examined how drafters of the Fourteenth Amendment believed, contrary to Supreme Court precedent, that the liberties listed in the first eight amendments as a matter of natural right should be protected against abridgment by the states.156 In my own work, I have argued that certain principles of religious liberty were understood to be “privilege or immunities” by Reconstruction.157 It is possible that the Ninth Amendment also “evolved” in popular understanding during the antebellum period. Even if originally understood as limiting federal power in the service of state autonomy, by 1868 the common understanding of the Ninth could have changed. If the rule of construction of the Ninth Amendment was understood as a personal rights guarantee at the time of the adoption of the Fourteenth Amendment, then this new understanding of the Clause is as capable of being “incorporated” against the states as is freedom of speech or any other personal freedom listed in the Bill of Rights. In fact, at least two members of the Reconstruction Congress appeared to read the Ninth in this manner.158 Some scholars have made an argument along these lines.159 Professor John Yoo, for example, concedes the original federalist understanding of the Bill of Rights, including the Ninth Amendment. Between the Founding and the Civil War, however, a number of states adopted provisions in their state constitutions which mirror the language of the federal Ninth Amendment. Yoo argues that, since these state constitutional provisions limit the powers of the state, this suggests a new understanding of the language and meaning of the Ninth Amendment.160 Although it is possible that the common understanding of the Ninth Amendment in 1868 rendered it an appropriate candidate for incorporation, the great bulk of historical evidence makes it more likely that the Ninth Amendment, like the Tenth, was not considered a “Privilege or Immunity” to be protected against state action. To begin with, even those historians who support incorporation do not believe that the Tenth Amendment was on the list of incorporated rights. As a clause expressly protecting states’ rights, incorporating the Tenth against the states is logically impossible. But, as the last section has shown, the Ninth Amendment was read in pari materia with the Tenth consistently throughout the ante-bellum period. From the controversy over the Bank of the United States, to the struggle over exclusive federal power, to Campbell’s concurrence in Dred Scott, the Ninth and Tenth Amendments were understood as joint expressions of state autonomy. In fact, by 1868, these two amendments were regularly distinguished from the first eight. The Confederate Constitution, for example, adopted the first eight amendments word for word, but placed the Ninth and Tenth in a separate section and reworded the Ninth to reflect the common understanding of the Clause: "The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people of the several states."161 Nor was this a special construction of the southern states. Abolitionists, for example, had long called for a reevaluation and a broadening of individual liberty,162 but they ignored the Ninth Amendment as either a source of rights or as textual support for additional rights.163 If the Ninth had been considered even indirect support for individual rights against the states, then its omission from abolitionist arguments is inexplicable. Of all people in antebellum America, abolitionists had the greatest incentive to use every possible constitutional argument available in the cause against slavery. In fact, abolitionists relied on the Declaration of Independence, natural law, biblical exegesis, common law, as well as a libertarian reading of most of the Bill of Rights;164 almost everything except the Ninth Amendment.165 Similarly, judicial decisions such as Calder v. Bull,166 Fletcher v. Peck,167 and Terret v. Taylor168-decisions which explored the existence of enforceable natural rights--never raised the Ninth Amendment as a potential source of unenumerated rights.169 Instead, slave owners from the beginning saw the Ninth as protecting the rights of states to maintain slavery.170 Even the drafter of the Fourteenth Amendment’s Section One, John Bingham, distinguished the Ninth and Tenth from the first eight amendments in regard to “Privileges or Immunities” protected by the Fourteenth Amendment.171 Other members of the 39th Congress also described the personal rights protected by the Fourteenth Amendment to be expressed in the first eight amendments.172 There had been no evolution in public understanding of the Ninth Amendment. Right up until the adoption of the Fourteenth Amendment, the Ninth continued to be linked with the Tenth as one of the twin guardians of federalism. For example, in 1863, in the midst of a violent national struggle over fundamental rights, the Indiana Supreme Court quietly rejected a claim that the federal government had exclusive jurisdiction over navigable waters within a state: In the case at bar, it may, for the sake of the argument, be conceded, that Congress not only possesses the power, but the exclusive right, to regulate commerce among the several States, including the pilotage of vessels engaged in said commerce; and still the facts, so far as the record shows them, do not make a case falling strictly within the principle of the points thus conceded, because not involved. And why? The ninth amendment to the Constitution is as follows: "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people," and tenth: "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."173 Even states whose constitutions contain provisions mirroring the Ninth Amendment continued to read the federal Ninth in conjunction with the Tenth. In 1865, the Supreme Court of Maryland declined to give an expansive reading to Article I, Section 10’s prohibition of Ex Post Facto laws, citing as justification the Ninth and Tenth Amendments: Prohibitions on the States, are not to be enlarged by construction. To do so, would violate the spirit and object of the 9th and 10th amendments to the Constitution of the United States . . . These were intended to prevent argumentative implications of power not delegated; to exclude any interpretation by which other powers should be assumed beyond those which are granted.174 Only a few years earlier, Maryland had added a provision to its Declaration of Rights which mirrored the federal Ninth Amendment.175 However the state court might have interpreted that provision, it is clear its addition had no effect on the court’s understanding of the federal Ninth Amendment. Rather than modify their readings of the Ninth Amendment, judicial opinions in the 1860s emphasized the links between the Ninth and Tenth Amendments. In the 1864 case Philadelphia & R.R. Co. v. Morrison,176 a federal court considered a challenge to Congress’ power to issue notes as legal tender.177 Although he withdrew from the case and left the judgment to circuit-riding Supreme Court Justice Grier,178 Judge Cadwalader published an opinion in which he emphasized the target of the Ninth and Tenth Amendments as denying the federal government inherent powers. In determining the application of the incidental power of legislation, the ninth and tenth amendments of the constitution must be considered. The ninth provides that the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people; the tenth provides that the powers not delegated by the constitution, to the United States, nor prohibited by it to the states, are reserved to the states respectively or to the people. These two amendments, whether their words are to be understood as restrictive or declaratory, preclude everything like attribution of implied residuary powers of sovereignty, or ulterior inherent rights of nationality, to the government of the United States. Therefore the constitution confers no legislative powers except those directly granted, and those which may be appropriate as incidental means of executing them. . . . That the amendments were thus intended for security against usurpations of the national government only, and not against encroachments of the state governments, may be considered a truism. But recurrence to historical facts which explain constitutional truisms, cannot be too frequent, if they are in danger of being overlooked in calamitous times, or of being crowded out of memory by any succession of appalling events.179 Interpretation of the Ninth Amendment at the time of Reconstruction tracks the same interpretation of the Ninth Amendment at the time of the Founding. Even if there is evidence that the first eight amendments were understood to represent “privileges or immunities” of United States citizens, when it comes to the Ninth Amendment, this evidence disappears. Instead, it appears that both the Ninth and Tenth Amendment fell outside the public’s understanding in the 1860s of the personal freedoms expressed in the Fourteenth Amendment. On this matter, the views of the drafters of the Confederate Constitution and those of John Bingham were in agreement. However, even if the Ninth Amendment fell outside of the scope of the Fourteenth, this does not tell us whether the Fourteenth on its own was intended to embrace individual unenumerated rights. There is evidence that the Privileges or Immunities Clause was understood to protect more than just the first eight amendments,180 and may have included unenumerated common law rights such as those listed by Justice Bushrod Washington in Corfield v. Coryell.181 Scholars such as Akhil Amar,182 Randy Barnett,183 and others184 argue that the Privileges or Immunities Clause may include much that Unenumerated Rights scholars believe are protected under the Ninth. If so, then perhaps whatever the original meaning of the Ninth, unenumerated personal rights are now protected against state action under the Fourteenth Amendment and, perhaps, against the federal government as well under a theory of “reverse incorporation.”185 But this is the story of the Ninth Amendment, and its continued existence in the Constitution carries implications for any interpretation of the Fourteenth. As a rule of construction, the Ninth Amendment applies not only to the rights enumerated in the Bill, but also to other enumerated rights against the states such as the Ex Post Facto and Contract Clauses of Article I, Section 9. Under the last in time rule, the rights contained in the Fourteenth trump any state autonomy protected under the Ninth and Tenth Amendments. However, unless the Fourteenth Amendment repealed the Ninth and Tenth Amendments, all three of these provisions must be taken into consideration when “construing” a right enumerated in the Fourteenth.186 This is precisely what courts struggled to do following the adoption of the Fourteenth Amendment. B. The Rule of (Re)Construction The Ninth amendment declared a rule of construction which the Founders believed inherent in the very character of a nation comprised of both national and state governments. Were the United States organized around a single government, this might suggest a different approach to constitutional interpretation. As Attorney General Edmund Randolph explained in the controversy over the Bank of the United States, constitutions generally should receive a more liberal interpretation than statutes, for “[t]he one comprises a summary of matter, for the detail of which numberless will be necessary; the other is the very detail.”187 The United States, however, was comprised of two kinds of governments, each with its own constitution. Under this kind of system, the presumption of liberal construction had to be modified: When we compare the modes of construing a state and the federal constitution, we are admonished to be stricter with regard to the later, because there is a greater danger of error in defining partial than general powers.188 Similarly, James Madison believed that “latitudinarian constructions” of federal power threatened to overwhelm the “balance of power” between the federal government and the states. It is of great importance as well as of indispensable obligation, that the constitutional boundary between them should be impartially maintained. Every deviation from it in practice detracts from the superiority of a Chartered over a traditional Govt. and mars the experiment which is to determine the interesting Problem whether the organization of the Political system of the U.S. establishes a just equilibrium; or tends to a preponderance of the National or the local powers.189 The evil of chattel slavery and a terrible civil war, however, threw into question the “just equilibrium” which obtained prior to 1868. The Thirteenth, Fourteenth, and Fifteenth Amendments each imposed significant new restrictions on the autonomy of the states. The question for the courts following the adoption of the Reconstruction Amendments was whether the character of the nation had changed so much as to remove the presumptions underlying the Founding rule of construction. The answer to this question would determine the fate of the Ninth and Tenth Amendments. In two critical sets of cases, both decided within four years of the adoption of the Fourteenth Amendment, the Supreme Court considered competing visions of federal power. In the first of these, the Legal Tender Cases, the Court came close to abandoning the principle of limited enumerated powers. However, in the Slaughter-House Cases, the Court returned to its pre-Civil War rule of construction, and limited the reach of both Congress and the federal courts. In doing so, the Supreme Court signaled that the principles underlying the Ninth and Tenth Amendments had not been repealed. Reconstruction must be reconciled with the Founding. 1. The Legal Tender Cases A recurring controversy throughout the Nineteenth Century was whether the federal government had power to issue paper money. Although states were forbidden from issuing legal tender,190 it was not clear whether issuing paper money was a power delegated to the federal government. In almost back-to-back opinions, the Supreme Court swung from invalidating to upholding federal power to issue legal tender. In the first case to reach the Supreme Court, Hepburn v. Griswold,191 Chief Justice Salmon P. Chase narrowly construed federal power and invalidated Congress’ attempt to issue paper money.192 In the Legal Tender Cases,193 a new majority of the Court led by Justice Strong reversed Hepburn. Relying on Marshall’s broad articulation of federal power in McCulloch, Strong echoed Marshall’s construction of federal power and maintained that Congress has “the right to employ freely every means, not prohibited, necessary for its preservation, and for the fulfillment of its acknowledged duties.”194 Strong went even further than Marshall, however, and argued that Congress had power beyond those expressly or even impliedly authorized by the text of the Constitution. Remarkably, Strong based his argument in part on the implications arising from the addition of the Bill of Rights. Strong’s reasoning on this point is presented in full, as it is perhaps the strongest “anti-Ninth Amendment” analysis ever produced by the Supreme Court: And here it is to be observed it is not indispensable to the existence of any power claimed for the Federal government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and infer from them all that the power claimed has been conferred. Such a treatment of the Constitution is recognized by its own provisions. This is well illustrated in its language respecting the writ of habeas corpus. The power to suspend the privilege of that writ is not expressly given, nor can it be deduced from any one of the particularized grants of power. Yet it is provided that the privileges of the writ shall not be suspended except in certain defined contingencies. This is no express grant of power. It is a restriction. But it shows irresistibly that somewhere in the Constitution power to suspend the privilege of the writ was granted, either by some one or more of the specifications of power, or by them all combined. And, that important powers were understood by the people who adopted the Constitution to have been created by it, powers not enumerated, and not included incidentally in any one of those enumerated, is shown by the amendments. The first ten of these were suggested in the conventions of the States, and proposed at the first session of the first Congress, before any complaint was made of a disposition to assume doubtful powers. The preamble to the resolution submitting them for adoption recited that the 'conventions of a number of the States had, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.' This was the origin of the amendments, and they are significant. They tend plainly to show that, in the judgment of those who adopted the Constitution, there were powers created by it, neither expressly specified nor deducible from any one specified power, or ancillary to it alone, but which grew out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted. Most of these amendments are denials of power which had not been expressly granted, and which cannot be said to have been necessary and proper for carrying into execution any other powers. Such, for example, is the prohibition of any laws respecting the establishment of religion, prohibiting the free exercise thereof, or abridging the freedom of speech or of the press.195 The passage is a clear example of exactly what the letter and spirit of the Ninth Amendment were designed to prevent: Construing the addition of the Bill of Rights to imply the existence of unenumerated federal power.196 Marshall, of course, had used a similar argument in McCulloch197 and, like Marshall in that case, Justice Strong remains silent regarding the meaning of the Ninth. Instead, by flipping the rule of construction represented by the Ninth on its head, Strong articulated a principle irreconcilable with both the Ninth and Tenth Amendments.198 2. The Slaughterhouse Cases: Preserving the Rule of Construction If the holding of Hepburn had been short lived, so too was the broad rule of construction announced by Justice Strong in the Legal Tender Cases. Only two years later, in The Slaughterhouse Cases, the Supreme Court returned to the rule of construction reflected in pre-Civil War discussions of the Ninth and Tenth Amendments. Perhaps emboldened by the Court’s broad reading of federal power in the Legal Tender Cases, the plaintiffs in The Slaughterhouse Cases199 declared that the Fourteenth Amendment had “obliterated” the “confederate features of government” and had “consolidated the several 'integers' into a consistent whole.”200 The purpose of the Fourteenth, they argued, was “to establish through the whole jurisdiction of the United States ONE PEOPLE, and that every member of the empire shall understand and appreciate the fact that his privileges and immunities cannot be abridged by State authority.”201 It was “an act of Union, an act to determine the reciprocal relations of the millions of population within the bounds of the United States--the numerous State governments and the entire United States administered by a common government.”202 Justice Samuel Miller, however, rejected the idea that the Fourteenth Amendment had consolidated the several states into a single “common government” where all privileges and immunities were controlled at the national level. According to Miller, the Reconstruction Amendments’ core purpose was to establish the freedom of former slaves, and that their scope should be limited with this core purpose in mind.203 Were the Court to adopt the plaintiffs’ position this would mean that, under Section Five of the Fourteenth Amendment, Congress “may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects.”204 This would “fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character.”205 According to Miller, the Court should not interpret any constitutional provision in a manner that “radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people . . . in the absence of language which expresses such a purpose too clearly to admit of doubt.”206 Miller’s rule for interpreting the Constitution echoes the antebellum application of the Ninth and Tenth Amendments. But the United States had just endured a Civil War--a war in which the claims of state autonomy were decidedly rejected by the victors. According to the butchers in Slaughterhouse, however appropriate a state-protective rule of construction might have been prior to the Civil War, we were now a wholly national people and the Reconstruction Amendments should be construed accordingly. Justice Miller recognized the force of this argument, but nevertheless maintained that the Reconstruction Amendments had not completely erased the constitutional principle of federalism: The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government. Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government. But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights--the rights of person and of property--was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation. But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts.207 Justice Miller believed federalism had survived and, echoing Madison,208 he believed it was the Court’s duty to preserve a balance between State and Federal power through the application of a rule of construction for limiting the scope of federal authority. In this case, it meant limiting the scope of the Reconstruction Amendments. In this way, the Slaughterhouse Cases are an example of the Court refusing to construe enumerated rights so broadly as to transfer to the national government power to control general matters of local self-government. In the absence of clear language requiring such a construction, Justice Miller believed that the Court must limit its interpretation of constitutional rights as well as unenumerated powers. Although Slaughterhouse did not expressly mention the Ninth Amendment, its reasoning clearly adopts the pre-Civil War understanding of the Ninth Amendment’s rule of construction, as later courts would recognize.209 Justice Miller’s opinion in The Slaughterhouse Cases has been castigated in contemporary scholarship for failing to identify and enforce the intended meaning of the Privileges or Immunities Clause, reducing that Clause instead to a redundant statement of pre-existing national rights. As discussed in the last section, there is significant evidence that the Privilege or Immunities Clause was intended to embrace at the very least the freedoms listed in the first eight amendments to the Constitution, and perhaps fundamental common law rights as well.210 Justice Miller’s attempt to read “privileges and immunities” as wholly unrelated to “privileges or immunities” simply is unconvincing. But what has been missed is Miller’s attempt at synthesis.211 Federalism was not merely an idea animating the Founding era, now to be shrugged off with the adoption of the Reconstruction Amendments. Federalism was textually enshrined in the Constitution through the adoption of the Ninth and Tenth Amendments (and, Miller appears to suggest, through the adoption of the Eleventh Amendment as well). Absent an express repeal of these constitutional provisions, it was the duty of the Court to synthesize the document as a whole, preserving what remained of the past while giving meaning to the people’s new articulation of fundamental law. Miller may have given short shrift to the desires of the Framers of the Fourteenth Amendment, but his effort to reconcile the Founding and Reconstruction is an endeavor, however flawed, to interpret the document as a whole. The Court would remain solidly in the camp of James Madison, not William Strong (or John Marshall), for the remainder of the nineteenth century and into the twentieth. Had the Supreme Court continued to follow Strong’s reasoning in the Legal Tender Cases, the Ninth and Tenth Amendments most likely would have withered on the vine. Instead, by embracing the same rule of construction advocated by Madison and the state conventions, the next several decades would prove quite hospitable to the twin guardians of federalism. The Slaughterhouse Cases are another example of the Court finding within the Tenth Amendment an attendant rule of construction for preserving the principle of limited federal power.212 It is the Ninth, not the Tenth, of course, which expressly declares a rule of construction. As time went on, courts increasingly read the Tenth as containing an inherent rule of construction. This not only had the effect of masking the textual roots of such a rule, it also increased the likelihood that past references to the Ninth Amendment would be seen as really about the Tenth. 3. Hans v. Louisiana According to Justice Miller, “[t]he adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense of danger at that time from the Federal power.”213 Miller was not the first to group the eleventh with the original Bill of Rights. Madison himself linked the Ninth, Tenth, and Eleventh Amendment to the same rule of construction prohibiting “latitudinous constructions” of federal power to the injury of the states. Writing to Spencer Roane in regard to the Supreme Court’s decision in Cohens v. Virginia,214 Madison lamented the Court’s failure to consider the Constitution’s own directions regarding the construction of federal judicial power: On the question relating to involuntary submissions of the States to the Tribunal of the Supreme Court, the Court seems not to have adverted at all to the expository language when the constitution was adopted; nor to that of the Eleventh Amendment, which may as well import that it was declaratory, as that it was restrictive of the meaning of the original text.215” The “expository language” Madison referred to was that of the Ninth and Tenth Amendments.216 In fact, the Ninth and Eleventh Amendments share language unique among any other provision in the federal Constitution. Consider the language of the Eleventh: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.217 Both the Ninth and Eleventh Amendments declare a rule for “construing” the Constitution.218 Under the contemporary assumption that the Ninth has to do with individual rights, while the Eleventh seems to deal with states rights, the similarity of language between the Ninth and Eleventh appears to be no more than a coincidence. Once one understands the Ninth as expressing a principle of state autonomy, the Ninth and Eleventh Amendments appear closely related. Notice that the Eleventh Amendment does not remove a power originally granted. Instead, the Clause announces that the previous grant of judicial power in Article III “shall not be construed” in a particular way. The Eleventh was adopted in response to the Supreme Court’s decision in Chisolm v. Georgia219 amidst a public outcry against allowing out of state citizens to haul states into federal court for the payment of debts. It is almost as if the Eleventh Amendment could be placed immediately after the Ninth with the prefatory words “for example” added to the beginning of the Clause. If this sounds far fetched, consider the Court’s decision in Hans v. Louisiana. Decided in 1890, in Hans v. Louisiana220 the Supreme Court ruled that states could not be sued in federal court by their own citizens without the consent of the state. Long considered an important Eleventh Amendment case, Justice Bradley’s opinion actually involves the proper construction of the federal courts enumerated powers under Article III. Bradley begins by noting that the Eleventh Amendment by its terms does not apply to the case.221 However, Bradley pointed out, the context in which the Eleventh was adopted was important because it showed that the country agreed with Justice Iredell’s dissent,222 a dissent Bradley believed reflected the proper construction of the Constitution.223 Turning to the issue before the Court in Hans, whether a state may be sued in federal court by one of its own citizens without its consent, Bradley concluded that allowing such a suit would repeat Chisolm’s erroneous construction of Article III. The letter [of Article III] is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a state. The reason against it is as strong in this case as it was in that. It is an attempt to strain the constitution and the law to a construction never imagined or dreamed of.224 Prior to the Eleventh Amendment, of course, there was only one provision in the constitution prohibiting expansive judicial “constructions” of federal power: The Ninth Amendment. The people’s response to Chisolm, as Bradley saw it, was to add a provision expressly stating how the Constitution was meant to be interpreted in the first place. The purpose of the Ninth was to prevent “latitudinarian” constructions of federal power to the injury of the states. The purpose of the Eleventh was to declare erroneous one such latitudinarian construction. Is it really a coincidence, then, that the language in the Eleventh echoes the language in the Ninth? Exploring the full relationship between the Ninth and Eleventh Amendments requires a separate treatment.225 For now, it bears pointing out that the rule of construction deployed in Hans echoes the rule of construction used in The Slaughterhouse Cases. The rule may have been erroneously applied in both situations. It suggests, nevertheless, a relationship between the Ninth, Tenth and Eleventh Amendments that until now has been insufficiently explored.226 C. Congressional Power, Individual Rights, and the Ninth Amendment, 1868 – 1930. Surely one of the most important and significant of all those powers reserved was the right of each state to determine for itself its own political machinery and its own domestic policies. Hawke v. Smith (Ohio 1919).227 1. The General Structure of Ninth Amendment Claims in the Progressive Era Federalism having survived Reconstruction, both the Ninth and Tenth Amendments flourished in the period prior to the New Deal. Cited repeatedly by individuals and states, the Ninth Amendment continued to be applied in tandem with the Tenth as an expression of limited federal power and retained local autonomy.228 Challenges based on the Ninth and Tenth Amendments were brought against federal regulation of prostitution,229 drugs,230 unfair trade practices,231 and bribery.232 Some plaintiffs went so far as to claim the Ninth and Tenth Amendments invalidated the ratification of National Prohibition under the Eighteenth Amendment.233 Although these cases held in favor of federal power, no court disputed the reading of the Ninth and Tenth Amendments as mutual declarations of limited federal power and retained state autonomy.234 More successfully, states used the Ninth and Tenth Amendments to limit federal preemption of state law235 and to narrow the construction of the enumerated restrictions placed upon the states in Article I, section 10. For example, Iowa courts concluded that both the federal and the state “impairment of contract” clauses should receive a limited construction in light of the Ninth and Tenth Amendments’ preservation of state police power to respond to economic emergencies.236 In Oregon R. & Nav. Co. v. Campbell,237 Oregon’s railroad rate regulations were challenged as unconstitutional interference with interstate commerce and violations of equal protection and due process of law.238 Federal District Judge Wolverton dismissed the equal protection and due process claims, concluding that the rates were reasonable.239 Determining whether the enumerated commerce power precluded state rate regulation required a return to first principles: By the ninth article of amendment to the Constitution it is declared that: 'The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.' And by the tenth article: '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.' Thus is indicated, as strongly as could be, that the Constitution of the United States is but a delegation of powers, which powers, together with the implied powers that attend those that are express, necessary to a practical and efficient exercise thereof, constitute all that the general government has, or can presume to exercise. All primarily to the people, as they are the repository of all power, political and civil. The whole lawmaking power out of this repository of power is committed to the several state Legislatures, except such as has been delegated to the federal government or is withheld by express or implied reservation in the state Constitutions.240 Questions involving the balance of power between the states and the federal government to regulate railroads occurred repeatedly during this period. Determining the scope of federal commerce power--and whether federal statutes preempted state authority--raised issues addressed by the Ninth and Tenth Amendments. In People v. Long Island Railroad,241 the court issued an injunction preventing the railroad from raising its rates for intrastate travel beyond that authorized by state law. The railroad had argued that its rates were authorized by the federal Interstate Commerce Commission, and that any state regulation to the contrary was preempted by federal law. According to Judge Benedict, allowing federal regulation of intrastate travel would unconstitutionally intrude upon powers reserved to the states under the Ninth and Tenth Amendments: Article 10 of these amendments reads as follows: '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.' Article 9 provides that: 'The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.' If the original form of our government had been other than it was, the need of these provisions would not have arisen. . . . Under this Constitution, the powers of government over all the states were vested in the general or federal government, and at the same time the powers of government over each state, in so far as they were not delegated either expressly or by necessary implication to the federal government were reserved to the states themselves.242 According to Benedict, if the federal government can regulate such matters of local concern, “what becomes of state sovereignty?”243 2. The Rule of Construction and Defining the Retained Rights of the People At the time of the Founding, Governor Edmund Randolph had raised concerns about the Ninth Amendment on the grounds that, because “retained rights” were undefined, the Clause could not effectively limit the expansion of government power.244 Despite Madison’s insistence that the final draft of the Ninth was meant to contain constructive enlargement of power,245 Randolph’s point keeps its sting. Limiting the construction of federal power in order to preserve the retained rights of the people requires some kind of articulation of what those rights are. Following the lead of James Madison, courts defined agriculture, mining and manufacturing as among the retained powers of the states and limited the construction of federal power accordingly.246 As the industrial age exponentially increased the nature and scope of the national economy, the Court conceded local activities occasionally involved interstate commerce, but, once again, limited construction of this power to activities which directly or substantially affected interstate commerce. In Hammer v. Dagenhart,247 for example, the Court invalidated the Keating-Owen Child Labor Act which barred goods made by children from interstate commerce. Writing for the Court, Justice Day noted that delegated federal power “was not intended to destroy the local power always existing and carefully reserved to the states in the Tenth Amendment to the Constitution.”248 Justice Day then quoted Marshall’s opinion in Dartmouth College, which forbade “construing” the Constitution in a manner that would “restrain the states in the regulation of their civil institutions, adopted for internal government.”249 According to Justice Day, preserving the reserved powers of the states limited the Court’s interpretation of enumerated federal power: The maintenance of the authority of the states over matters purely local is as essential to the preservation of our institutions as is the conservation of the supremacy of the federal power in all matters entrusted to the nation by the federal Constitution. In interpreting the Constitution it must never be forgotten that the nation is made up of states to which are entrusted the powers of local government. And to them and to the people the powers not expressly delegated to the national government are reserved. [citing the Slaughterhouse Cases]. . . To sustain this statute would not be in our judgment a recognition of the lawful exertion of congressional authority over interstate commerce, but would sanction an invasion by the federal power of the control of a matter purely local in its character, and over which no authority has been delegated to Congress in conferring the power to regulate commerce among the states.250 To Justice Day, John Marshall’s interpretive approach in Dartmouth College and Miller’s approach in the Slaughterhouse Cases reflected a common rule of construction limiting the scope of enumerated rights. Although the Court in Hammer mentioned only the Tenth Amendment, other courts cited Dartmouth and Hammer as expressing the principles embraced by the Ninth, as well as the Tenth Amendments. In George v. Bailey,251 a federal court considered whether Congress could enact essentially the same law invalidated in Hammer, only this time justified as an exercise of Congress’ enumerated power to tax. The Court began its analysis of the Child Labor Tax by repeating the interpretive rules of both Hammer v. Dagenhart and Dartmouth College: [I]n the case of Hammer v. Dagenhart, Mr. Justice Day in delivering the opinion of the court among other things said: 'In interpreting the Constitution it must never be forgotten that the nation is made up of states to which are entrusted the powers of local government. And to them and to the people the powers not expressly delegated to the national government are reserved. . . . To sustain this statute would not be in our judgment a recognition of the lawful exertion of congressional authority over interstate commerce, but would sanction an invasion by the federal power of the control of a matter purely local in its character, and over which no authority has been delegated to Congress in conferring the power to regulate commerce among the states.' It is held in Dartmouth College v. Woodward: 'That the framers of the Constitution did not intend to restrain the states in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us, is not to be so construed, may be admitted.'252 Rejecting the government’s argument that the court should defer to Congress’ power to tax and spend, District Judge Boyd pointed to the Ninth and Tenth Amendments. The position taken by the counsel for the defendant does not appeal to the court here as being based upon sound reason or intelligent construction. The Tenth Amendment to the Constitution reads as follows: '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.' From time to time the courts have been called on to construe the meaning of this amendment, and almost without exception it has been held that the powers of the national government are limited to those delegated. This construction is fortified by the Ninth Amendment, which reads as follows: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' This amendment must be construed to mean that, in framing the Constitution, the sovereign people of the several states ceded to the general government certain designated powers, leaving all other rights and powers, such as are necessary to maintain our dual system of government, to the states respectively and to the people.253 To allow the commerce power to reach any matter affecting commerce would, from a Madisonian perspective, destroy the concept of enumerated power and alter the very character of our constitutional government. For all the criticism nineteenth century courts have received for failing to recognize the true nature of commerce, the critics have failed to recognize the constitutional mandate which drove the need to maintain a distinction between matters national and local. 3. Mistaking the Tenth Amendment for the Ninth The ubiquitous pairing of the Ninth and Tenth Amendments suggests a kind of “collapsing” in the common understanding of the Clauses. Increasingly cited as paired expressions of enumerated power, it often was not clear whether the Ninth and Tenth played separate roles and whether both supported the rule of construction. At the Founding, of course, a limited construction of federal power was considered an inherent aspect of a government of enumerated powers. State conventions such as those in New York, North Carolina and Virginia insisted on adding an express rule of construction only “for greater caution.”254 If this rule of construction was an inherent constitutional norm, then the rule could be applied independently,255 or in conjunction with either the Ninth or Tenth Amendments.256 But tandem citations to the Ninth and Tenth Amendments in cases applying the rule of construction effectively masked the rule’s particular link to the Ninth Amendment.257 To James Madison, the Tenth Amendment “excluded every source of power not within the Constitution itself,” while the Ninth “guard[ed] against a latitude of interpretation.” Some Justices on the Supreme Court, however, expressly linked Madisonian arguments regarding “latitudinarian construction” to the Tenth Amendment. In Lambert v. Yellowly,258 the Supreme Court narrowly upheld a provision in the National Prohibition Act against a claim that it exceeded Congress’ powers under the Eighteenth Amendment. In dissent, Justice George Sutherland opened his opinion by declaring a rule of construction that he believed was established by the Tenth Amendment: The general design of the federal Constitution is to give to the federal government control over national and international matters, leaving to the several states the control of local affairs. Prior to the adoption of the Eighteenth Amendment, accordingly, the direct control of the manufacture, sale and use of intoxicating liquors for all purposes was exclusively under the police powers of the states; and there it still remains, save in so far as it has been taken away by the words of the amendment. These words are perfectly plain and cannot be extended beyond their import without violating the fundamental rule that the government of the United States is one of delegated powers only and that '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. Const. Amend. 10. To Sutherland, the Eighteenth Amendment was an exception to the general power of the states, and should therefore be read in a limited manner. Sutherland rooted this rule of construction in the Court’s prior decision in Hammer, and in James Madison’s warnings about “latitudinarian” readings of the Constitution: Congressional legislation directly prohibiting intoxicating liquor for concededly medical purposes . . . does not consist with the letter and spirit of the Constitution, and viewed as a means of carrying into effect the granted power is in fraud of that instrument, and especially of the Tenth Amendment. The words of Mr. Madison are pertinent: “Nor can it ever be granted that a power to act on a case when it actually occurs, includes a power over all the means that may tend to prevent the occurrence of the case. Such a latitude of construction would render unavailing every practical definition of particular and limited powers.”259 To Sutherland, Madison’s rule against latitudinarian constructions was rooted in the Tenth Amendment. Other Supreme Court Justices agreed. In an opinion joined by Oliver Wendell Holmes, Justice (soon to be Chief Justice) Edward Douglass White objected to latitudinarian constructions of the commerce clause as violating the principles of the Tenth Amendment.260 Ninth Amendment scholars often dismiss tandem references to the Ninth and Tenth Amendments as irrelevant to understanding the historical application of the Ninth under the assumption that such references are “really” about the Tenth Amendment.261 Given the pattern of citing the Ninth and Tenth Amendments as expressing a single principle of enumerated power, and given the numerous opinions applying Madison’s rule of construction in conjunction with the Tenth Amendment, this assumption is understandable. As a matter of constitutional text, however, it is the Ninth, not the Tenth, which controls the construction of enumerated power.262 Thus, as a textual matter, cases deploying an interpretive rule against latitudinarian construction of federal power to the injury of the states are “really” about the Ninth. Thus, an irony: Tandem references to the Ninth and Tenth which scholars have dismissed as mistaking the Ninth Amendment for the Tenth appear to have correctly cited the Ninth in support of the traditional rule of construction. On the other hand, cases which cite only the Tenth in conjunction with the rule of conjunction appear to have mistaken the Tenth Amendment for the Ninth. Sutherland’s linking Madison’s concern about latitudinarian constructions to the principles of the Tenth Amendment is one example. Another is Judge Felch’s rewriting of Justice Story’s opinion in Houston v. Moore. The mistake is obvious if one keeps in view the fact that only the Ninth expresses a rule of construction. If, on the other hand, one assumes that the Ninth is about rights and the Tenth is about powers, then the true jurisprudence of the Ninth Amendment remains hidden from view. 4. Distinguishing the Ninth from the First Eight Amendments Not only was the Ninth Amendment consistently linked to the Tenth, both of these Amendments often were omitted from general discussions regarding the rest of the Bill of Rights.263 In Brown v. Walker,264 Justice Henry Brown wrote that “the object of the first eight amendments to the constitution was to incorporate into the fundamental law of the land certain principles of natural justice which had become permanently fixed in the jurisprudence of the mother country.”265 When the Supreme Court first began to construe the Due Process Clause of the Fourteenth Amendment to include certain freedoms listed in the Bill of Rights, the discussion generally, and sometimes expressly, involved only the first eight amendments.266 On a number of occasions, the Supreme Court described the Bill of Rights as including only the first eight amendments.267 In Palko v. Connecticut, for example, Justice Benjamin Cardozo characterized arguments in favor of total incorporation of the Bill of Rights as applying only to the first eight amendments.268 This distinction between the first eight amendments and the Ninth and Tenth echoes the same distinction made by Fourteenth Amendment framers such as John Bingham. The distinction would become even more apparent in opinions citing the Ninth and Tenth Amendments in support of decisions limiting the incorporation of the first eight amendments.269 5. The Ninth Amendment and Individual Rights Between the Civil War and the New Deal, a few cases discussed the Ninth Amendment as a source of unenumerated rights.270 In Roman Catholic Archbishop of Diocese of Oregon v. Baker,271 the Oregon Supreme Court invalidated a local ordinance prohibiting the building of a school in a residential district. In doing so, the Oregon court declared that “right to own property is an inherent right,”272 and suggested that this was one of the “other rights” referred to in the Ninth Amendment.273 However, just as before the Civil War, courts generally dismissed arguments that the Ninth Amendment was a source of unenumerated rights.274 More frequently, courts relied on the Ninth in decisions limiting the construction of enumerated federal rights. In U.S. v. Moore,275 for example, the federal court dismissed a federal indictment for conspiring to interfere with a citizen’s right to establish a miners’ union on the grounds that the indictment exceeded federal power. The federal government claimed that it had power to prohibit such conspiracies as part of their power to protected privileges or immunities of United States citizens under Section Five of the Fourteenth Amendment. The district court rejected this reading of the Fourteenth Amendment on the grounds that, as declared in the Ninth and Tenth Amendments, states retain the excusive power to protect individuals from private violence: The last two of the ten amendments thus proposed provided that 'the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people,' and that '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.' It is quite apparent, therefore, that the protection of certain rights of the citizen of a state, although he is by recent amendments made a citizen of the United States and of the state in which he resides, depends wholly upon laws of the state, and that as to a great number of matters he must still look to the states to protect him in the enjoyment of life, liberty, property, and the pursuit of happiness.276 According to the district court, the Ninth and Tenth Amendments counseled a limited reading of congressional power under the Fourteenth Amendment. Whatever effect the Fourteenth Amendment had on state power, when it came to private conspiracies, “recent amendments to the Constitution have made no change in the power or duty of the general government.”277 Moore is an example of how courts increasingly deployed the Ninth and Tenth Amendments in cases involving the construction of asserted federal rights against state action. Although there are examples of this prior to 1868,278 the adoption of the Fourteenth Amendment significantly expanded the catalogue of constitutional rights against state action. Just as the Ninth and Tenth Amendments expressed a rule for construing the scope of enumerated powers, so they now guided the courts in interpreting the scope of enumerated rights. In State v. Gibson,279 for example, the Indiana Supreme Court upheld a state anti-miscegenation law against a challenge under the Fourteenth Amendment and the Civil Rights Act of 1866. In doing so, the court noted that the Founders intended that powers not delegated to the federal government were to be “retained” by the states, and that the Ninth and Tenth Amendment were adopted expressly for this purpose: The powers conferred on the general government are of a general and national character, and none of them authorize or permit any interference with, or control over, the local and internal affairs of the state. The general government is one of limited and enumerated powers, and it can exercise no power that is not expressly, or by implication, granted. The people being the inherent possessors of all governmental authority, it necessarily and logically resulted that all powers not granted to the general government, or prohibited to the state governments, were retained by the states and the people, but the great, wise, and illustrious men who framed our matchless form of government were so jealous of the right of local self-government that they were unwilling to leave the question of the reserved powers to implication and construction. Hence, within two years after the adoption of the federal constitution, twelve amendments thereto were submitted by Congress to the states for ratification, which were ratified. The ninth and tenth amendments read as follows [quoting the amendments in full].”280 States now used the Ninth and Tenth Amendments in their efforts to maintain racial segregation, just as southern states had used both amendments to maintain local control of slavery. While today we see such uses as denying basic individual human rights, the limits of the Ninth and Tenth Amendments originally were understood as preserving a kind of collective right:281 The right to local self-government. Although one might read the Ninth and Tenth Amendments as guarding “states rights,” to James Madison (and even a nationalist like Joseph Story) maintaining the proper balance between state and local power protected the people’s retained right to decide certain matters at a local level.282 The Ninth and Tenth Amendments expressly preserve the people’s political right to control all unenumerated matters at a local level, and thus limited the court’s construction of enumerated rights such as those contained in the Fourteenth Amendment.283 The rule of construction expressly declared in the Ninth applied to any provision in the Constitution which could potentially be expanded to the derogation of the states. In State v. Howell,284 the Washington state legislature adopted a joint resolution ratifying the proposed Eighteenth Amendment and submitted the issue to state referendum, which voted in support of ratification. The use of a referendum for ratifying a proposed constitutional amendment was challenged as violating the ratification structure set out in Article V of the federal Constitution. Writing for the Washington Supreme Court, Chief Justice Chadwick rejected the argument. According to Chadwick, by expressly adopting a referendum provision in the state constitution, “[t]he right [to use referendums] is emphasized as a power reserved, and the terms of the amendment imply in the strongest possible way that the intention of the people was to reserve a right to review every act of the Legislature which might affect the people in their civil rights, or limit or extend their political liberties.”285 Although Article V speaks of ratifications by state legislatures, this provision in the federal Constitution should not be read so broadly as to interfere with the people’s right to referendum286--a right reserved to the states under the Ninth and Tenth Amendments: [T]he tenth amendment to the Constitution, [which states] that 'the powers not delegated to the United States . . . are reserved to the states respectively, or to the people,' . . . is a declaration that the people of the several states may function their legislative power in their own way, especially so when the Ninth Amendment, 'The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people,' is regarded--for the right to legislate directly or by representative bodies is a right assuredly retained, and, being retained, may be exercised in the form and manner provided by the people of a state.”287 Other courts echoed this collective political rights reading of the Ninth and Tenth Amendments. In Hawke v. Smith,288 the Ohio Supreme Court was faced with the same issue confronting the Washington Supreme Court in Howell. According to the per curium opinion, Article V’s use of the term “legislature” included situations in which the people of the state act in a “legislative capacity,” and that public referenda were such an instance.289 In his concurrence, Justice Wanamaker noted that “each state was presumed to deal with its own domestic affairs--that is, state affairs--in the manner best calculated to promote the safety and happiness of the people of that state, according to the judgment of the people of that state.”290 Responding to the contention that this would “elevate the state above the nation,” Wanamaker replied: It must be remembered that we had state Constitutions before we had a national Constitution, and that only by acting as states, through representatives and delegates, was the national Constitution adopted, first by the convention, and second by the states, and then it would not have been adopted by the states but for the overwhelming assurance that as soon as Congress would meet there should be proposed and adopted, at the earliest practicable moment, a Bill of Rights safeguarding the rights of the states and the people. In this behalf it is significant to note articles 9 and 10: Article 9: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' Article 10: '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.' It must be remembered that in the early history of the nation, especially at the time of the making of the national Constitution, the doctrine of state's rights was in the ascendancy--that is, the states were exceedingly jealous of their rights and powers as states and were loath to surrender them--and therefore the imperative demand for the reservation of all powers not delegated by the Constitution. Surely one of the most important and significant of all those powers reserved was the right of each state to determine for itself its own political machinery and its own domestic policies, and it can scarcely be claimed that it is within the power of any court to nullify or in any wise alter the political machinery of a state, especially that which the state has designed and designated as its lawmaking machinery.291 To Wanamaker, the Founders’ adopted the Ninth and Tenth Amendments in order to reserve the “right of each state to determine for itself its own political machinery and its own domestic policies.” This being a retained right, it was not to be disparaged by an overly restrictive reading of Article V. The idea that the Ninth and Tenth Amendment preserved the retained right of local self-government echoed throughout the cases decided between Reconstruction and the New Deal. The rule of construction preserving this right sometimes was deployed on its own, sometimes in association with the Tenth Amendment, and sometimes in conjunction with both the Ninth and Tenth Amendments. In a legal culture where the autonomy of the states was presumed, perhaps it was not necessary to link the rule to the textual mandate of the Ninth Amendment. The time would come, however, when the legal culture would change. III. The New Deal Transformation of the Ninth Amendment A. The Rule in Transition: The New Deal Revolution 1. The New Deal and the Ninth Amendment Prior to 1937 Following President Franklin Delano Roosevelt’s election in 1932, state and federal courts were obliged to struggle with the constitutionality of the New Deal. Because the issue often involved construing the scope of federal power, the Ninth Amendment often was called into play. In 1935, for example, a New York court struck down provisions in the National Industrial Recovery Act on the ground that it violated the non-delegation doctrine.292 Concurring in the opinion, Justice Rhodes declared the Act exceeded federal power as constructed under the Ninth and Tenth Amendments: The Ninth Amendment to the Constitution of the United States provides as follows: 'Reserved rights of people. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' The Tenth Amendment to said Constitution is as follows: 'Powers not delegated, reserved to States and people respectively. 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.' The several states were separate and independent sovereignties at the time of the adoption of the Federal Constitution, and thus they remain, except in so far as certain powers have been delegated to the United States by that Constitution. No state may lawfully be deprived of such reserved powers except in the manner specified in such Constitution. In no other way may the sovereignty of any state be impaired, except by surrender from within or usurpation from without.293 With a single exception,294 federal court opinions discussing the Ninth Amendment in the period from 1930 to 1936 focused on the constitutionality of the New Deal. In Amazon Petroleum Corp. v. Railroad Commission of Tex.,295 the plaintiff alleged that the National Industrial Recovery Act exceeded federal power under the Tenth Amendment, violated “natural and inherent rights contrary to the Ninth Amendment to the national Constitution,” and contravened non-delegation principles and various aspects of the fourth, fifth and eighth amendments.296 It is unclear whether the plaintiff’s Ninth Amendment claim involved the right to local government or instead referred to unenumerated individual rights. To the federal district judge, however, the rights at issue were those of the states. According to Judge Bryant, the Secretary of the Interior had exceeded his power “to the prejudice of the rights of the state over matters of purely local concern.”297 Bryant continued: In interpreting the Constitution it must never be forgotten that the nation is made up of states to which are entrusted the powers of local government. And to them and to the people the powers not expressly delegated to the national government are reserved. 298 In Hart Coal Corp. v. Sparks,299 a federal district court invalidated wage and hours regulations issued by the National Administrator under the NIRA. According to District Judge Dawson, the Ninth and Tenth Amendments expressed principles that limited the construction of federal power: In considering this question, we must never forget that the national government is one of delegated powers, and that Congress possesses only such legislative powers as are expressly or by implication conferred upon it by the people in the Constitution. Even though the Ninth and Tenth Amendments to the Constitution had never been adopted, it would be difficult, in the light of the history of the Constitution, of its source, and of the objects sought to be accomplished by it, to reach any other conclusion than that there is reserved to the states or to the people all the powers and rights not expressly or impliedly conferred upon the national government. But the Ninth Amendment, which declares, 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or to disparage others retained by the people,' and the Tenth Amendment, providing that '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,' put this matter beyond all question. Therefore Congress does not have all legislative power. It possesses only such legislative power as has been expressly or impliedly conferred upon it.300 References to the right to local self-government occur in a number of opinions in the years leading up to the New Deal. For example, in United States v. Lieto,301 the district court dismissed a prosecution for violations of maximum hour and minimum wage provisions set under the Code of Fair Competition issued pursuant to the NIRA. The defendant claimed that the prosecution violated the Fifth, Tenth and Ninth Amendments. Without expressly mentioning any of these amendments, Judge Atwell focuses on the individual’s right to operate a local business in local fashion free from federal interference. The only controversy that is here is between the humble citizen who asserts his right to carry on his little business in a purely local commodity and in a purely local fashion, without being arrested and punished for a mythical, indirect effect upon interstate commerce.302 As they had from the beginning, courts preserved this right to local self-government by the application of a rule of construction generally, and sometimes expressly, associated with the Ninth Amendment. In Acme, Inc. v. Besson,303 the federal district court of New Jersey invalidated the wage and hour provisions promulgated under the NIRA. In coming to his conclusion, Judge Fake interpreted “commerce” to exclude local manufacturing. His conclusion was based in part on Supreme Court precedent and in part on the interpretive rules of the Ninth Amendment: There is still another source to which we may refer in sustaining the foregoing definition, and that is the well-known historic fact that the people of the original states were extremely reluctant in granting powers to the federal government and expressly laid down a rule of constitutional construction in the Ninth Amendment, wherein our forefathers said: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' And then, further, in the Tenth Amendment, we find this express limitation upon the federal government: '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.' In view of the foregoing, we have labored in vain to conclude that it was the intent of the Constitution to pass to the Congress regulatory authority over those local, intimate, and close relationships of persons and property which arise in the processes of manufacture, even though they may, in the broader sense, affect interstate commerce.304 As a rule of construction, the Ninth Amendment acts in the service of other rights. It is not itself a “right” which can be violated by federal action.305 This explains why, even in cases which cited both the Ninth and Tenth Amendments as principles of limited federal power, courts concluded that federal overreaching violated the Tenth. For example, in Sparks (discussed above), the court cited both the Ninth and Tenth Amendments as expressing limits on federal power, but then concludes that overbroad assertions of federal power violated the “rights reserved to the states and the people under the Tenth Amendment.” Similarly, in United States v. Neuendorf,306 an Iowa district court invalidated an attempt to regulate purely intrastate commerce under the Agricultural Adjustment Act. In coming to its conclusion, the court cited both the Ninth and Tenth Amendments in support of the doctrine of limited federal power, but concluded that allowing the federal government to regulate purely intrastate commerce would “emasculate the intent of the Tenth Amendment to retain in and for the states all powers not delegated to the national government.”307 To the court, the Ninth prevents overbroad constructions of federal power in order to protect rights or powers reserved to the states under the Tenth, in particular the right to local self-government.308 Despite the ubiquitous linking of the Ninth and Tenth Amendments, occasionally their separate functions were apparent. In the 1936 case, Ashwander v. Tennessee Valley Authority,309 the Supreme Court upheld congressional authority to sell electricity generated by the Wilson Dam. According to Chief Justice Hughes, Congress had express authority under Article IV, section 3 to dispose of property acquired by the United States, including electrical energy.310 Hughes then addressed the Ninth and Tenth Amendment claims: To the extent that the power of disposition is thus expressly conferred, it is manifest that the Tenth Amendment is not applicable. And the Ninth Amendment (which petitioners also invoke), in insuring the maintenance of the rights retained by the people, does not withdraw the rights which are expressly granted to the federal government. The question is as to the scope of the grant and whether there are inherent limitations which render invalid the disposition of property with which we are now concerned.311 According to Hughes, the Tenth Amendment claim fails once it is established that Congress is exercising an enumerated power. A separate inquiry is then required for the Ninth Amendment claim, which Hughes describes as involving the “scope” of enumerated power and whether there are “inherent limitations” that would prevent the sale of electricity to a local market. Once again, the Tenth declares the principle of enumerated power while the Ninth controls the interpretation of delegated power. 2. The New Deal and the Tenth Amendment Prior to 1937 By the time of the New Deal, a substantial body of law limited congressional power to regulate local commercial activities.312 As an alternative source of power, the proponents of progressive legislation began to make broader claims of federal authority beyond those expressly enumerated in the Constitution. According to this alternate view, it was the duty of the federal government to promote the “general welfare,” and this duty included broad authority to respond to the economic emergency of the Great Depression. This was not so much an interpretation of an enumerated power, which would raise Ninth Amendment concerns, as it was an assertion of an inherent federal power to act in times of emergency which raised issues under the Tenth. In A.L.A. Schechter Poultry Corporation v. U.S.,313 the government argued that its authority to regulate local labor conditions under the Live Poultry Act “must be viewed in the light of the grave national crisis with which Congress was confronted.”314 Writing for the Court, Chief Justice Hughes rejected this claim to unenumerated “emergency powers” as conflicting with the Tenth Amendment:315 Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary. Such assertions of extraconstitutional authority were anticipated and precluded by the explicit terms of the 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.'316 Having concluded that the unenumerated power claim violated the Tenth Amendment, Hughes proceeded to consider whether any enumerated federal power gave Congress the authority to purely intrastate commerce. The discussion at this point does not rely on the Tenth Amendment, but instead deploys a rule of constitutional interpretation that mandates the preservation of state regulatory authority: In determining how far the federal government may go in controlling intrastate transactions upon the ground that they 'affect' interstate commerce, there is a necessary and well-established distinction between direct and indirect effects. . . . If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the state over its domestic concerns would exist only by sufferance of the federal government. . . . [T]he distinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one, essential to the maintenance of our constitutional system. Otherwise, as we have said, there would be virtually no limit to the federal power, and for all practical purposes we should have a completely centralized government. We must consider the provisions here in question in the light of this distinction.317 In Carter v. Carter Coal Co.,318 the government again argued in favor of unenumerated power to regulate for the common good. Once again, the Court rejected the argument on the basis of the Tenth Amendment: Replying directly to the suggestion advanced by counsel . . . to the effect that necessary powers national in their scope must be found vested in Congress, though not expressly granted or essentially implied, this court said: 'But the proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the 10th Amendment. This Amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the national government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if, in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act.’ 319 As was the case in Schechter Poultry, when the Court turns to the interpretation of the Commerce Clause, it is not the Tenth Amendment which is applied, but instead the rule of construction from Schechter: The [Schechter] opinion, after calling attention to the fact that if the commerce clause could be construed to reach transactions having an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the state over its domestic concerns would exist only by sufferance of the federal government, we said: 'Indeed, on such a theory, even the development of the state's commercial facilities would be subject to federal control.'320 Although this left control of certain local maters to the states, the purpose was not to protect the “rights of states” but to preserve the separation of power between state and federal governments. State regulatory autonomy was not the states to give away: The determination of the Framers Convention and the ratifying conventions to preserve complete and unimpaired state self-government in all matters not committed to the general government is one of the plainest facts which emerges from the history of their deliberations. And adherence to that determination is incumbent equally upon the federal government and the states. State powers can neither be appropriated on the one hand nor abdicated on the other.321 One can hear echoes of James Madison’s veto of the “latitudinarian” Internal Improvements Bill: “the assent of the states . . . cannot confer the power.”322 Finally, in U.S. v. Butler,323 the Supreme Court interpreted the Tax and Spending Clause to authorize non-regulatory programs furthering the “general welfare.” Attempts to convert this authority into an unlimited power to regulate for the general welfare, however, violated the Tenth Amendment. We are not now required to ascertain the scope of the phrase 'general welfare of the United States' or to determine whether an appropriation in aid of agriculture falls within it. Wholly apart from that question, another principle embedded in our Constitution prohibits the enforcement of the Agricultural adjustment Act. The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. The tax, the appropriation of the funds raised, and the direction for their disbursement, are but parts of the plan. They are but means to an unconstitutional end. From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden. 324 Any attempt to go beyond enumerated powers, even in an emergency, triggered the protections of the Tenth Amendment. When it came to interpreting the scope of enumerated power, the Court followed what it believed was an interpretive imperative: Drawing a line between federal and state autonomy was required both by the term interstate commerce and by the Tenth Amendment which reserved power to regulate intra-state commerce to the states.325 Although the Supreme Court did not directly address the Ninth Amendment (as had lower federal courts326), it implicitly acknowledged that preserving the principles of the Tenth required an additional rule of construction. When the New Deal Court abandoned that rule, they also abandoned the Ninth and Tenth Amendments as substantive limits on federal power. B. The Rule Abandoned: The Ninth and Tenth Amendments As Truisms In the constitutional upheaval known as the New Deal Revolution of 1937,327 the doctrinal underpinnings which had informed judicial understanding of the Ninth and Tenth Amendments were swept away. A few months after his 1936 landslide election to a second term of office, President Roosevelt announced his “Court Packing Plan.”328 Whether in response to this threat to the Court’s independence, or simply due to a change of mind, Justice Roberts soon switched his vote and voted to uphold laws he had previously opposed as beyond federal power.329 His “switch in time” signaled the beginning of the New Deal Revolution.330 In a rapid succession of cases, the Supreme Court altered its interpretation of liberty of contract,331 rejected the authority of federal courts to construe state common law,332 abandoned non-delegation doctrine,333 and began to construct a new framework for protecting the individual rights listed in the first eight amendments.334 The last two provisions of the Bill of Rights, however, were abandoned.335 For the next thirty years, not a single successful invocation of either the Ninth or Tenth Amendments would be brought in any federal court. 1. Rejecting the Individual Right to Local Self-Government After the Supreme Court’s decision in Butler which prohibited coercive exercise of federal power to tax and spend, a number of claims were brought challenging New Deal legislation as “coercive” and in violation of the Ninth and Tenth Amendments. As of 1936, these claims were dismissed without discussion of either Amendment.336 By the Spring of 1937, it was clear the Supreme Court itself had abandoned its earlier limited interpretation of federal power. In N.L.R.B. v. Jones & Laughlin Steel Corp.,337 Justice Roberts switched sides in the dispute over the constitutionality of the New Deal and voted to uphold the federal Labor Relations Act and its protection of the right to local collective bargaining. Prior cases had held that local commercial activities generally had but an indirect effect on interstate commerce.338 In Jones & Laughlin, however, the Court abandoned that distinction, even while claiming to remain faithful to the idea that the interpretation of enumerated federal power must preserve the distinction between national and local control.339 One month after Jones & Laughlin, the Supreme Court upheld the Social Security Act against a challenge that, among other things, the Act “[coerced] the states in contravention of the Tenth Amendment or of restrictions implicit in our federal form of government.”340 Although Ninth Amendment claims were raised in the lower court,341 Justice Cardozo’s opinion in Charles C. Steward Mach. Co. v. Davis did not mention the Ninth.342 Instead, Justice Cardozo rejected the claim that the Act coerced the states in violation of the Tenth Amendment in part because the state had not objected to the Act.343 Cardozo thus abandoned the reasoning in Carter Coal—and that of James Madison--that the people have a right to decide certain matters at a local level, and that this right was not the state’s to give away.344 Not only did Cardozo implicitly reject the right of local self-government, he suggested that federal legislation in this case was justified in part because the states had failed to respond to a national emergency.345 Other New Deal decisions expressly rejected a political rights reading of the Ninth and Tenth Amendments. In Tennessee Elec. Power Co. v. Tennessee Val. Authority,346 private power companies sued to invalidate a federally financed dam project that resulted in the creation of several hydro-electric plants. Their claim was that the federal government’s sale of electricity in a local market violated the Ninth and Tenth Amendments on the grounds that it “will result in federal regulation of the internal affairs of the states, and will deprive the people of the states of their guaranteed liberty to earn a livelihood and to acquire and use property subject only to state regulation.”347 Writing for the Court, Justice Roberts concluded that mere federal participation in a local electricity market was not an exercise of “regulatory power” and therefore could not constitute “federal regulation of purely local matters reserved to the states or the people by the Tenth Amendment.”348 More broadly, Justice Roberts declared that even if the Act did exceed federal authority under the Ninth and Tenth Amendments, individuals had no standing to raise claims involving the rights of the states: The sale of government property in competition with others is not a violation of the Tenth Amendment. As we have seen there is no objection to the Authority's operations by the states, and, if this were not so, the appellants, absent the states or their officers, have no standing in this suit to raise any question under the amendment. These considerations also answer the argument that the appellants have a cause of action for alleged infractions of the Ninth Amendment.349 To Justice Roberts, by concluding that the plaintiffs lacked standing to raise Tenth Amendment claims this necessarily resolved the issue of standing under the Ninth Amendment. Neither amendment involved an enforceable individual right to limited federal power—even in cases where the federal government had over-stepped its authority. States would fare no better in cases where standing was granted. To the New Deal Court, the Ninth and Tenth Amendments had no effect on the construction of federal power. In United States v. Darby,350 the Court declared that it would uphold federal regulation of purely intrastate commerce if Congress reasonably had concluded that the activity in question affected interstate commerce.351 According to Justice Harlan Stone, Our conclusion is unaffected by the Tenth Amendment which provides: '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'. The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.352 Although Justice Stone rather downplayed pre-1937 cases that suggested a very different interpretation of federal power, his description of the Tenth Amendment is literally correct. It was not the Tenth Amendment that limited federal construction of enumerated powers. It was the rule of construction represented by the Ninth Amendment that limited the interpreted scope of federal power. Without such a limiting rule of construction, the Tenth remains in place, but represents a “null set” of reserved state power--federal power expands to occupy the space that otherwise would have been reserved. Justice Stone, however, did not address the Ninth Amendment, or the vast number of cases citing it alongside of a limiting rule of construction. Instead, he simply announced the restoration of John Marshall’s original vision of federal power.353 2 The Triumph of Marshall’s Opinion on the Bank of the United States By the time the Supreme Court decided Wickard v. Filburn in 1941,354 not even the Tenth Amendment warranted any discussion. Instead, Justice Jackson followed the lead of Darby and assumed the correctness of Chief Justice Marshall’s interpretation of federal power, noting that Marshall had “described the Federal commerce power with a breadth never yet exceeded.”355 Conceding that a number of cases since Marshall’s time had limited the scope of federal power, Jackson pointed to more modern cases which had acknowledged the economic effects of local activities: The Court's recognition of the relevance of the economic effects in the application of the Commerce Clause exemplified by this statement has made the mechanical application of legal formulas no longer feasible. Once an economic measure of the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be 'production' nor can consideration of its economic effects be foreclosed by calling them 'indirect.'356 Once the Court accepts “economic effects” as the measure of federal power, the fact that the activity is “local” is irrelevant. Implicit in Jackson’s approach is the assumption that there is no independent constitutional norm limiting federal power in cases where an activity has the requisite “economic effects.” This was Marshall’s approach, and the Court quotes his statement in McCulloch: “‘The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.’”357 According to Justice Jackson, federal power extends to all activities except those enumerated “limitations . . . prescribed in the Constitution.” In effect, this means that the only rights retained by the people are those expressly enumerated in the Constitution—precisely the result Madison and other founders believed they had prevented by adopting the Ninth Amendment.358 Following the lead of John Marshall in McCulloch and Gibbons, this was accomplished not by reinterpreting the Ninth Amendment, but by ignoring it. 3. Principles Without a Rule of Construction: United Federal Workers of America (CIO) v. Mitchell Despite the dramatic reconfiguring of federal power, courts throughout this period continued to read both the Ninth and Tenth Amendments as expressing a rule of construction limiting the scope of federal power.359 For example, in Woods v. Cloyd W. Miller Co.,360 the Supreme Court upheld the Housing and Rent Act of 1947 under Congress’ war powers. In doing so, however, the Supreme Court acknowledged that an overly broad reading of federal war powers, even if kept within the limits of the rest of the Bill of Rights, might nevertheless threaten the Ninth and Tenth Amendments: We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and the Tenth Amendments as well. There are no such implications in today's decision.361 The Court did not say such a reading would obliterate the Bill of Rights. In fact, after disposing of the Ninth and Tenth Amendment argument, the Court then went on to independently analyze whether the Act violated the substantive protections of the Fifth Amendment.362 The implication was that exercising war powers in times of peace theoretically threatened the principle of limited enumerated powers, with the Ninth and Tenth Amendments read as particular guardians of that principle (thus the threatened “obliteration” of both). The concern, however, was merely theoretical.363 Without a rule of interpretation limiting the actual construction of federal power, the expansion of federal power remained without constitutional restraint beyond specific restrictions such as those contained in the Bill of Rights. 364 Prior to the New Deal, the Ninth and Tenth Amendments generally were read in conjunction with a rule of construction limiting the interpretation of federal power. Enumerated power was interpreted in light of the people’s retained right to local self-government. Areas such as local commercial activity being presumptively a matter reserved to the states, the construction of federal power was limited accordingly. After the New Deal, particularly after decisions such as Darby and Wickard, determining the scope of federal power was uncoupled from any consideration of the retained rights of the states. Once a court established a reasonable link between a legislative act and an enumerated power, Ninth and Tenth Amendment claims necessarily failed. Already implicit in lower federal court decisions,365 the Supreme Court expressly adopted this “reverse” rule of construction in United Federal Workers of America (C.I.O.) v. Mitchell.366 In Mitchell, a group of federal employees challenged provisions of the Hatch Act that prohibited government workers from engaging in certain political activities. In addition to First and Fifth Amendment claims, the employees claimed the Act was a “deprivation of the fundamental right of the people of the United States to engage in political activity, reserved to the people of the United States by the Ninth and Tenth Amendments.”367 Writing for the Court, Justice Reed ruled that the Ninth and Tenth Amendment claims required no analysis of an independent right, but involved only questions of enumerated federal power.368 The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.369 Ninth Amendment scholars have criticized Reed’s treatment of the Ninth Amendment in Mitchell. Calvin Massey, for example, argues that Justice Reed’s opinion renders the Ninth “a mere declaration of a constitutional truism, devoid of any independent content, effectively rendered its substance nugatory and assigned to its framers an historically untenable intention to engage in a purely moot exercise.”370 Massey is correct, but his statement is ironic. Reed’s opinion does the same thing to the Tenth Amendment, without triggering any objection from Massey (or any other Ninth Amendment critic of Mitchell).371 What these criticisms miss is the clue embedded in Mitchell regarding the traditional meaning of the Ninth Amendment. Although criticized for pairing the Ninth Amendment with the Tenth and “confusing” them both, Reed’s opinion is but a modern example of a very old tradition that read both clauses as twin guardians of the people’s retained rights. Reed’s opinion adopts a post-New Deal reading of the Tenth Amendment, itself a clue that his reading of the Ninth Amendment also was a creature of the New Deal Revolution. Mitchell is not an example of the traditional reading of the Ninth Amendment.372 It is an example of the diminished reading of both the Ninth and Tenth Amendments which occurred in the constitutional revolution of 1937. 4. The Ninth Amendment as a Truism Mitchell’s reverse rule of construction was echoed in later cases. In U.S. v. Painters Local Union No. 481,373 the federal district court rejected a “boilerplate” claim which included Ninth and Tenth Amendment claims, noting: [T]he contention that the Act violates the Ninth and Tenth Amendments in that it invades rights reserved to the States is left wholly without substance if, as I have held above, the grant of powers to the Union under the Constitution includes either expressly or by implication the power which the Congress has exercised in this enactment. As was said in [Mitchell]: 'When objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.'374 Following the same approach in Roth v. United States,375 the Supreme Court dismissed a First, Ninth and Tenth Amendment claim that Congress had no power to ban obscene materials from the United States mail. According to the Court, having concluded that obscene materials not protected under the First Amendment, the issue became simply one of federal power to regulate the mail. Concluding that such power existed was enough to do away with the Ninth and Tenth Amendment claims without further discussion.376 A final example of the Mitchell reading of the Ninth Amendment occurred only one year before Griswold. In Heart of Atlanta Motel, Inc. v. United States,377 the Supreme Court upheld the federal Civil Rights Act of 1964 which banned private discrimination in places of public accommodation. The Act had been challenged as exceeding Congress’ power under the Commerce Clause and as a violation of the Fifth and Thirteenth Amendments.378 There was no claim regarding the Ninth or Tenth Amendments. The Supreme Court upheld the Act as a reasonable regulation of commerce, citing among other cases, Gibbons, Darby, and Jones & Laughlin.379 In his concurrence, Justice Black quoted Marshall in Gibbons: At least since [Gibbons] was decided in 1824 in an opinion by Chief Justice John Marshall, it has been uniformly accepted that the power of Congress to regulate commerce among the States is plenary, 'complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.'380 In a companion case handed down the same day, Katzenbach v. McClung,381 the Court dismissed a similar challenge to the Civil Rights Act, only this time the claim included alleged violations of the Ninth and Tenth Amendments.382 According to the Court, the decision in Heart of Atlanta “disposes of the challenges that the appellees base on the Fifth, Ninth, Tenth, and Thirteenth Amendments.”383 Heart of Atlanta, of course, did not contain any Ninth or Tenth Amendment claims. If the Ninth Amendment protects individual rights, the Court’s dismissal seems, at the very least, unexplained. On the other hand, under the Mitchell reading of the Ninth and Tenth Amendments, Katzenbach’s dismissal makes perfect sense. Under Mitchell, once power is conceded, any claim under the Ninth and Tenth Amendments automatically disappears. In Heart of Atlanta, the Court had established federal commerce power and thus answered any Ninth or Tenth Amendment claim raised in Katzenbach. The very brevity of the analysis in Katzenbach suggests the potency of the Mitchell rule. As the scope of the New Deal became clear, lower courts acquiesced to the Supreme Court’s rulings, but objected to the Court’s abandonment of limited federal power. In Henry Broderick, Inc. v. Riley,384 the Washington State Supreme Court dismissed a challenge to administrative decision making under the Unemployment Compensation Act. In his concurrence, Justice Millard of the Washington Supreme Court conceded that recent precedents controlled the outcome, but nevertheless quoted the “following apt challenging statements “ from a recent speech by Senator Pat McCarran lamenting the waning influence of the Ninth and Tenth Amendments: 'The last two items in the Bill of Rights are of tremendous importance. They are sentinels against overcentralization of government, monuments to the wisdom of the constitutional framers who realized that for the stable preservation of our form of government, it is essential that local governmental functions be locally performed. 'The ninth amendment to the Constitution provides that 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' 'The tenth amendment to the Constitution provides that: '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'. 'Many signs today seem to indicate that the wisdom of the philosophy which guided the framing of these amendments is being forgotten.385 Absent the interpretive restraint of a rule of construction, just as the state conventions feared, federal power expanded to the edge of specific restrictions.386 As Justice Stewart later would write, expanding upon a quote from Darby, “[t]he Ninth Amendment, like its companion the Tenth, . . . ‘states but a truism.’”387 C. The Last Days of the Historic Ninth Amendment 1. The Post-New Deal Ninth Amendment and Individual Rights The New Deal Revolution left unchanged the traditional rejection of the Ninth Amendment as a source of independent personal rights.388 Although there does appear to be a marked increase in Ninth Amendment individual rights claims in the period between 1937 and 1965, most of these claims cite the Ninth and Tenth Amendments alongside a number of other constitutional claims without analysis in a boilerplate fashion.389 In general, these claims appear to cite the Ninth and Tenth Amendments as general limitations on federal power.390 In any event, prior to the 1960s, all but one of these claims failed.391 Not only did courts reject Ninth Amendment individual rights claims, they cited the Ninth Amendment in support of decisions limiting expanded interpretation of federal rights.392 2. The Last Stand of the Traditional Ninth Amendment: Bute v. Illinois and the Doctrine of Incorporation The Lochner Court had interpreted the Due Process Clause of the Fourteenth Amendment to include some liberties listed in the Bill of Rights, such as freedom of speech,393 press,394 and the right to counsel,395 but resisted wholesale absorption of the Bill of Rights into the Fourteenth Amendment.396 The New Deal Court not only abandoned Lochnarian liberty of contract,397 for a brief time it considered abandoning Lochnarian textual rights such as freedom of speech as well.398 For some years following the New Deal, courts cited the Ninth and Tenth Amendments in support of their continued resistance to total incorporation. In Payne v. Smith,399 for example, the Washington Supreme Court refused to incorporate the Fifth Amendment’s right to indictment by grand jury for infamous crimes. In doing so, the court invoked the Ninth and Tenth Amendment’s preservation of “local rule” when it comes to state court procedures: This clause in the Fourteenth Amendment leaves room for much of the freedom which, under the Constitution of the United States and in accordance with its purposes, was originally reserved to the states for their exercise of their own police powers and for their control over the procedure to be followed in criminal trials in their respective courts. . . . The compromise between state rights and those of a central government was fully considered in securing the ratification of the Constitution in 1787 and 1788. It was emphasized in the 'Bill of Rights,' ratified in 1791. In the ten Amendments constituting such Bill, additional restrictions were placed upon the Federal Government and particularly upon procedure in the federal courts. None were placed upon the states. On the contrary, the reserved powers of the states and of the people were emphasized in the Ninth and Tenth Amendments. The Constitution . . . sought to keep the control over individual rights close to the people through their states.400 Resisting the expansion of incorporation doctrine on the basis of the Ninth and Tenth Amendments was no anomaly. In Payne, the Washington Supreme Court was simply echoing the views of the Supreme Court of the United States. In Bute v. Illinois,401 the Supreme Court considered whether allowing a defendant in a non-capital criminal prosecution to represent himself without inquiring into whether he desired or could afford an attorney violated his rights under the Fourteenth Amendment. Because the Sixth Amendment would have required the inquiry in federal court, the issue was whether this rule was to be incorporated against the states. In a five-four decision, Justice Harold Burton rejected the claim and provided an extended analysis of the Ninth and Tenth Amendments and their role in interpreting the scope of the Fourteenth Amendment's Due Process Clause. Because of the depth of his analysis, and also because this case is not cited in Ninth Amendment scholarship,402 much less analyzed, Justice Burton is quoted at length: One of the major contributions to the science of government that was made by the Constitution of the United States was its division of powers between the states and the Federal Government. The compromise between state rights and those of a central government was fully considered in securing the ratification of the Constitution in 1787 and 1788. It was emphasized in the 'Bill of Rights,' ratified in 1791. In the ten Amendments constituting such Bill, additional restrictions were placed upon the Federal Government and particularly upon procedure in the federal courts. None were placed upon the states. On the contrary, the reserved powers of the states and of the people were emphasized in the Ninth and Tenth Amendments. [footnote quoting the Ninth and Tenth Amendments] The Constitution was conceived in large part in the spirit of the Declaration of Independence which declared that to secure such 'unalienable Rights' as those of 'Life, Liberty and the pursuit of Happiness. * * * Governments are instituted among Men, deriving their just powers from the consent of the governed, * * *.' It sought to keep the control over individual rights close to the people through their states. While there have been modifications made by the States, the Congress and the courts in some of the relations between the Federal Government and the people, there has been no change that has taken from the states their underlying control over their local police powers and state court procedures. They retained this control from the beginning and, in some states, local control of these matters long antedated the Constitution. The states and the people still are the repositories of the 'powers not delegated to the United States by the Constitution, nor prohibited by it to the States * * *.' The underlying control over the procedure in any state court, dealing with distinctly local offenses such as those here involved, consequently remains in the state. The differing needs and customs of the respective states and even of the respective communities within each state emphasize the principle that familiarity with, and complete understanding of, local characteristics, customs and standards are foundation stones of successful self-government. Local processes of law are an essential part of any government conducted by the people. No national authority, however benevolent, that governs over 130,000,000 people in 48 states, can be as closely in touch with those who are governed as can the local authorities in the several states and their subdivisions. The principle of 'Home Rule' was an axiom among the authors of the Constitution. After all, the vital test of self-government is not so much its satisfactoriness weighed in the scales of outsiders as it is its satisfactoriness weighed in the scales of 'the governed.' While, under the Constitution of the United States, the Federal Government, as well as each state government, is at bottom a government by the people, nevertheless, the federal sphere of government has been largely limited to certain delegated powers. The burden of establishing a delegation of power to the United States or the prohibition of power to the states is upon those making the claim. This point of view is material in the instant cases in interpreting the limitation which the Fourteenth Amendment places upon the processes of law that may be practiced by the several states, including Illinois. In our opinion this limitation is descriptive of a broad regulatory power over each state and not of a major transfer by the states to the United States of the primary and pre-existing power of the states over court procedures in state criminal cases.403 In Bute, Justice Burton links the Ninth and Tenth Amendments with the “division of powers between the states and the Federal Government,” and the need to “keep the control over individual rights close to the people through their states.” Together, the Ninth and Tenth “reserved powers of the states and of the people.” One of those reserved powers is the power of “Home Rule.” Or, as earlier courts had phrased it, the right of a state “to determine for itself its own political machinery and its own domestic policies.”404 Even if this principle is expressed by the Tenth Amendment, preserving that principle required a rule of construction. The Court in Bute applies such a rule, noting that the principles underlying the Ninth and Tenth Amendment are “material in the instant cases in interpreting the limitation which the Fourteenth Amendment places upon the processes of law that may be practiced by the several states.” Even if the Supreme Court in a post-New Deal world no longer deployed the Ninth and Tenth as substantive restrictions on Congress, under Bute these Amendments continued to have a role in guiding the Court’s construction of enumerated rights.405 This, then, was the final synthesis of the Founding, Reconstruction, and the New Deal: Although no longer expressing substantive limits on the enumerated powers of Congress, the Ninth and Tenth Amendments nevertheless limited the courts own expansion of enumerated rights. Or, as the Ninth Amendment puts it: The enumeration in this constitution of certain rights (like those in the Fourteenth Amendment) shall not be construed to deny or disparage other rights retained by the people (such as the general right to local control of criminal procedure). As the Supreme Court gradually incorporated almost all of the Bill of Rights, including the criminal procedure provisions,406 this last remnant of the historic reading of the Ninth Amendment faded from view. Writing in the midst of the Warren Court’s incorporation of criminal procedure rights, a judge on the Ohio Court of Common Pleas wrote: I believe that a majority of the justices of the Supreme Court of the United States have, in recent years, erred grievously in finding, after more than a century and a half, that their present concepts of the provisions of the Bill of Rights of the Constitution of the United States, in nearly every conceivable detail, are applicable to the States. . . .To me it seems that our history irrefutably establishes the fact that our forefathers clearly understood that the States were to chiefly control our daily affairs and that the national government was to be one of delegated powers--not omnipotence. The grand design was to preclude a tyrannical national government--not to create completely impotent State governments. . . . Yet time and again, in recent years, I perceive a majority of our Supreme Court justices to have found some pretext for invalidating state action, in the face of overwhelming proof of criminal acts, by ignoring the 9th and 10th Amendments.407 More than just ignored, the Ninth Amendment and its history had been lost. IV. Griswold and the Birth of the Modern View of the Ninth Amendment A. Bennett Patterson’s Book “[T]here has been no direct judicial construction of the Ninth Amendment by the Supreme Court of the United States of America” The Forgotten Ninth Amendment (1955) Bennett Patterson’s book, The Forgotten Ninth Amendment,408 was not the first twentieth century work to focus on the Ninth.409 It has been the most influential. Containing a rather cautionary prologue by the retired Dean of Harvard Law School, Rosco Pound410 Patterson’s book was cited by courts even prior to Griswold411 and has been cited by almost every significant work on the Ninth Amendment since 1965.412 In words that would go on to shape the debate over the Ninth Amendment for years to come, Patterson announced “there has been no direct judicial construction of the Ninth Amendment by the Supreme Court of the United States of America” and that “[t]here are very few cases in the inferior courts in which any attempt has been made to use the Ninth Amendment as the assertion of a right.”413 Ultimately, Patterson identified and briefly discussed five Supreme Court decisions, and a few cases from lower state and federal courts.414 Conceding that “[t]here are a number of cases which briefly mention the Ninth Amendment by grouping it with the Tenth Amendment,” Patterson nevertheless decided that “these decisions do not actually discuss the Ninth Amendment, but actually discuss the Tenth Amendment.”415 According to Patterson, these cases must have really about the Tenth and not the Ninth because they involved the construction of federal power, not the protection of individual rights.416 Accordingly, he did not cite, much less analyze any of these decisions. What it lacked in analysis, Patterson’s book made up for in timing. The first work to present the Ninth Amendment in a light acceptable to a post-New Deal world,417 Patterson’s book influenced discussion of the Ninth Amendment for decades to come. Scholars and judges of every stripe accepted Patterson’s claim regarding a paucity of case law, as well as his suggestion that past judicial opinions which cite both the Ninth and Tenth Amendment are really about the Tenth and have nothing relevant to say about the Ninth. B. Griswold v. Connecticut By the 1960s, the Supreme Court had shed its Bute-era resistance to broad incorporation of the Bill of Rights.418 Thus, when the Court decided Griswold, it already had abandoned the last application of the Ninth Amendment as a rule for limiting the interpretation of the Constitution.419 Still, even if no longer a substantive restriction on the Court’s interpretation of enumerated federal powers and rights, there remained one hundred and fifty years of jurisprudence linking the purpose of the Ninth with the principles of the Tenth. This link had been assumed by the Supreme Court itself only a year prior to Griswold in the Court’s rejection of Ninth and Tenth Amendment claims in Kazenbach.420 In a concurring opinion that would trigger the modern debate over the Ninth Amendment, Justice Goldberg simply asserted that this jurisprudence did not exist. Writing only a month before the end of his short tenure on the Supreme Court, Goldberg mused that the “Court has had little occasion to interpret the Ninth Amendment”421 Citing the work of Bennett Patterson,422 who himself had found five Supreme Court cases mentioning the Ninth Amendment, Goldberg declared that “[a]s far as I am aware, until today this Court has referred to the Ninth Amendment only in [three cases] United Public Workers v. Mitchell, Tennessee Electric Power Co. v. TVA, and Ashwander v. TVA.”423 Not only did Goldberg fail to mention the Court’s reference to the Ninth Amendment only a year previous, or the substantial discussion of the Ninth and Tenth in Bute, he also failed to cite all the Supreme Court cases listed in Patterson’s book.424 Building on Justice Douglas’ brief citation to the Ninth Amendment in his lead opinion,425 Justice Goldberg argued that the Ninth Amendment expressed the Founders’ recognition of fundamental rights beyond those listed in the Constitution and their belief that such rights could be enforced by federal courts against state laws regulating contraception.426 Ironically, in support of this proposition Goldberg cited the writings of James Madison and Joseph Story.427 Obviously, he did not cite Madison’s speech on the Bank of the United States describing the Ninth Amendment as intended to prevent a “latitude of interpretation” to the injury of the states. Nor did he recognize Story’s statement in Houston, regarding the letter and spirit of the Ninth Amendment as protecting the reserved powers of the states. Instead, Goldberg argued that refusing to strike down a state law banning the distribution of contraceptives to married couples because it is not mentioned in the Constitution would be “to ignore the Ninth Amendment and to give it no effect whatsoever.”428 To the extent this seemed to conflict with the Founders’ intentions that the Bill of Rights apply only against the federal government, Goldberg argued that the Fourteenth Amendment prohibits states from abridging fundamental rights, and that this would have been understood to include fundamental rights retained under the Ninth Amendment.429 In dissent, Justice Potter Stewart argued that the majority was wrong to suggest the Ninth was more than a truism: The Ninth Amendment, like its companion the Tenth, which this Court held 'states but a truism that all is retained which has not been surrendered,' [citing United States v. Darby] was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.430 This is the New Deal vision of the Ninth Amendment. To Justice Stewart, the Ninth and Tenth Amendment were unenforceable statements of principle. This had been the general approach to both the Ninth and Tenth Amendments since Darby was decided in 1941. Although it was not true that no other Justice had ever suggested a different meaning for the Ninth, Stewart was correct to suggest that Madison would have been surprised by Douglas’ and Goldberg’s use of the Ninth. But Madison also would have been surprised by Stewart’s preference that the Ninth not be used at all. In his dissent, Justice Hugo Black derided Goldberg’s “recent discovery” of the Ninth Amendment, thus implicitly agreeing with Goldberg that there had been little previous judicial construction of the Clause.431 Accusing the majority of returning to the discredited jurisprudence of the Lochner Court,432 Black argued that “every student of history knows” the purpose of the Ninth Amendment was “to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication.”433 Black then noted the irony of using the Ninth to interfere with the right to local self-government: [T]he peculiar phenomenon that for a period of a century and a half no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs.434 A number of scholars have criticized Justice Black’s dissent.435 According to John Hart Ely, “Black’s response to the Ninth Amendment was essentially to ignore it,”436 and he accused Black of being inconsistent in his refusal to follow “original understanding” even if “they didn’t like where it led.”437 In light of newly discovered evidence of the original meaning of the Ninth Amendment, buttressed by one hundred and fifty years of jurisprudence, it is clear that of all the justices in Griswold, Justice Black’s opinion came the closest to the original meaning of the Ninth. It is literally true that the Ninth Amendment was “enacted to protect state powers against federal invasion.” Nor was this original intent modified by the Fourteenth Amendment, whose framers eschewed the Ninth Amendment as any kind of “privilege or immunity.” This does not mean that the Court was wrong to discover and enforce a general right to Privacy. It does mean that of all the provisions in the Constitution to draft in support of an expansive interpretation of the Fourteenth Amendment’s Due Process Clause, there could not be a less appropriate choice than the Ninth Amendment. Despite their disagreement over the outcome of the case, Justices Goldberg and Stewart agreed on one critical matter regarding the Ninth Amendment: Neither Justice wished to enforce the Clause. Justice Stewart read the Ninth as no more than a truism. Justice Goldberg, despite his belief that the Court had authority to enforce unenumerated rights, nevertheless declined to read the Ninth as a source of such rights.438 Even though the Supreme Court has identified and enforced unenumerated rights, it has never done so based on its reading of the Ninth Amendment.439 In terms of its express treatment by the Supreme Court, the Ninth Amendment has never recovered from the New Deal. Conclusion: Preserving the Space Between National Powers and Rights The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. Justice Arthur Goldberg, Griswold v. Connecticut. As originally conceived, the Ninth Amendment prevents the nationalization of the space between enumerated federal powers and enumerated federal rights. As a rule of interpretation limiting the construction of federal powers and rights, the Ninth Amendment holds back the encroaching tide of federal jurisdiction and maintains areas of local or state autonomy. Without this interpretive restraint, federal power threatens to expand right up to the threshold of enumerated federal rights, thus leaving the Tenth Amendment no more than a truism preserving a null set of “reserved” powers. This is how the Ninth was understood at its adoption and this is how it was applied for more than one hundred and fifty years. The two articles, The Lost Original Meaning and The Lost Jurisprudence, have followed the history of the Ninth Amendment from its inception to its seeming demise at the hands of the New Deal Court. Rooted in state convention calls for a rule of construction limiting the interpretation of federal power, Madison’s draft of the Ninth Amendment expressly prohibited the constructive enlargement of federal power. In his speech on the constitutionality of the Bank of the United States, Madison explained how the Ninth was adopted to answer the concerns of the state conventions and he linked its purpose to that of the Tenth Amendment. The Tenth limited the government to enumerated powers, and the Ninth prohibited latitudinarian interpretation of those powers to the injury of the states. The Madisonian reading of the Ninth Amendment was echoed by Justice Story in Houston v. Moore, the first Supreme Court discussion of the Ninth Amendment. Story’s reading of the Ninth Amendment as a rule of construction preserving the retained rights of the states initiated a jurisprudence that would last a century. It was only in the aftermath of the New Deal restructuring of federal power that this jurisprudence came to an end, the Ninth Amendment along with the Tenth at that time rendered but truisms. The New Deal, however, is not the end of the story. John Ely once described the Ninth Amendment “that old constitutional jester.”440 Perhaps so, for as much as we have been tricked into missing its history, we may also have been tricked into missing its current use. Even if their source has been forgotten, the principles enshrined by the Ninth Amendment continue to inform the Supreme Court’s construction of the Constitution. Consider, for example, Chief Justice Rehnquist’s opinion in United States v. Lopez.441 Reviving the tradition of limiting the expansion of federal commerce power into areas traditionally under state control, Rehnquist wrote: Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty. But, so long as Congress' authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause always will engender "legal uncertainty.” . . . To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.442 In United States v. Morrison,443 Chief Justice Rehnquist again deployed a rule of construction limiting the construction of federal power to the injury of the states: Lopez emphasized, however, that even under our modern, expansive interpretation of the Commerce Clause, Congress' regulatory authority is not without effective bounds. "[E]ven [our] modern-era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits. In Jones & Laughlin Steel, the Court warned that the scope of the interstate commerce power 'must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.'"444 In Alden v. Maine,445 the Supreme Court ruled that Congress’ powers under Article I of the United States Constitution could not be construed so broadly as to allow Congress to subject non-consenting states to private suits for damages in state courts. Although generally read as an Eleventh Amendment case, Justice Kennedy’s opinion was based upon his reading of the retained rights of the states: The Eleventh Amendment makes explicit reference to the States' immunity from suits "commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const., Amdt. 11. We have, as a result, sometimes referred to the States' immunity from suit as "Eleventh Amendment immunity." The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as the Constitution's structure, its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments. . . . Any doubt regarding the constitutional role of the States as sovereign entities is removed by the Tenth Amendment, which, like the other provisions of the Bill of Rights, was enacted to allay lingering concerns about the extent of the national power. The Amendment confirms the promise implicit in the original document: "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." 446 Whether or not these cases reflect the most reasonable interpretation of federal power or the Tenth and Eleventh Amendment, the rule of construction applied in Lopez, Morrison, and Alden echoes the rule of construction traditionally associated with the Ninth Amendment. All of these opinions deploy a rule of construction in order to preserve the retained rights and powers of the states. Although a number of scholars have criticized this jurisprudence as unsupported by either text or history,447 an appreciation of the original meaning and historic application of the Ninth Amendment shows it to be grounded in both. Linking the jurisprudence of federalism to the Ninth Amendment not only grounds these cases in the text of the Constitution, it also has the potential to apply in a number of areas not generally associated with only one side of the political aisle. For example, determining whether the federal government may regulate intrastate noncommercial use of marijuana for medicinal purposes seems particularly well suited to Ninth Amendment analysis.448 The federalism jurisprudence of the Rehnquist Court is generally understood as based on that Court’s reading of the Tenth Amendment. This is reasonable, given that the Court itself has linked its rule of construction to the Tenth.449 But in many ways, ascribing the rule of construction deployed in these cases to the Tenth Amendment seems no different than Judge Felch rewriting Story’s opinion in Houston to make it refer to the Tenth rather than the Ninth Amendment. It is the Ninth, not the Tenth, which literally provides a rule of interpretation limiting the construction of federal power in order to protect the retained right of the people to local self-government.450