The lost original meaning of the ninth amendment

Kurt T. Lash

Research output: Contribution to journalReview articlepeer-review

Abstract

This Article presents previously missed or unrecognized evidence regarding the original meaning of the Ninth Amendment. Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. James Madison's initial draft of the Ninth Amendment expressly adopted language suggested by the state conventions, and he insisted that the final draft expressed the same rule of construction desired by the states. The altered language of the final draft, however, prompted former Virginia Governor Edmund Randolph to halt his state's efforts to ratify the Bill of Rights due to his concern that the Ninth no longer reflected the demands of the state convention. Antifederalists used Randolph's concerns to delay Virginia's, and thus the country's, ratification of the Bill of Rights for two years. While ratification remained pending in Virginia, Madison delivered a major speech in the House of Representatives explaining that the origin and meaning of the Ninth Amendment in fact were rooted in the proposals of the state conventions and that the Ninth guarded against a "latitude of interpretation" to the injury of the states. Although the Ninth's rule of construction distinguishes it from the Tenth Amendment's declaration of principle, Madison and other legal writers at the time of the Founding viewed the Ninth and Tenth Amendments as twin guardians of our federalist structure of government. Over time, the Tenth Amendment also came to be understood as expressing a federalist rule of construction. The original federalist view of the Ninth Amendment, however, remained constant and was repeated by bench and bar for more than one hundred years.

Original languageEnglish (US)
Pages (from-to)331-429
Number of pages99
JournalTexas Law Review
Volume83
Issue number2
StatePublished - Dec 1 2004

ASJC Scopus subject areas

  • Law

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