James Madi­son and the ‘ac­ro­batic his­tory’ of the Ninth Amend­ment

The Washington Times Daily - - CELEBRATING FREEDOM - By Dr. Lynn Uzzell

The his­tory of con­sti­tu­tional in­ter­pre­ta­tion is no­to­ri­ous for its oc­ca­sional con­tor­tions of speech and logic. But in the case of the Ninth Amend­ment, his­tory has been truly ac­ro­batic. Whereas the orig­i­nal pur­pose of this amend­ment was to guard against ex­pan­sions of fed­eral power, its re­cent in­ter­pre­ta­tions have tended (you guessed it) to ex­pand fed­eral authority.

When the Con­sti­tu­tion was first be­ing de­bated dur­ing the Rat­i­fi­ca­tion pe­riod of 1787-88, many An­tifed­er­al­ists de­nounced the plan of gov­ern­ment be­cause it did not con­tain any bill of rights. Sev­eral Fed­er­al­ists, in­clud­ing James Madi­son, coun­tered that a bill of rights was not only un­nec­es­sary in a con­sti­tu­tion of lim­ited pow­ers, it was even “dan­ger­ous, be­cause an enu­mer­a­tion which is not com­plete is not safe.”

The Fed­er­al­ists ar­gued that any enu­mer­a­tion of rights would un­avoid­ably im­ply pow­ers that had never been granted. For in­stance, if the Framers were to add a pro­vi­sion declar­ing that Congress had no power to abridge the right of free speech, that pro­hi­bi­tion would im­ply that Congress would have pos­sessed that power with­out the pro­hi­bi­tion. And the Framers did not wish to im­ply that Congress pos­sessed any pow­ers ex­cept the ones that had been enu­mer­ated.

When Madi­son wrote to Thomas Jef­fer­son about the prospects of ad­ding a bill of rights, he con­fessed: “My own opin­ion has al­ways been in fa­vor of a bill of rights, pro­vided it be so framed as not to im­ply pow­ers not meant to be in­cluded in the enu­mer­a­tion.”

And when propos­ing a bill of rights to the First Congress, Madi­son ac­knowl­edged that this fear — “that those rights which were not sin­gled out” would be inse­cure by im­pli­ca­tion — was “one of the most plau­si­ble ar­gu­ments I have ever heard urged against the ad­mis­sion of a bill of rights into this sys­tem.” But he as­sured Congress that his pro­posal for what would even­tu­ally be­come the Ninth Amend­ment should pre­vent any such mis­in­ter­pre­ta­tion of the Con­sti­tu­tion.

There­fore, the Ninth Amend­ment (like the 10th Amend­ment) was al­ways in­tended to be noth­ing more than a rule of con­struc­tion: a guide for un­der­stand­ing how the Con­sti­tu­tion was meant to be in­ter­preted.

Madi­son’s ini­tial pro­posal for the Ninth Amend­ment makes these in­ten­tions clear: “The ex­cep­tions here or else­where in the Con­sti­tu­tion, made in fa­vor of par­tic­u­lar rights, shall not be so con­strued as to di­min­ish the just im­por­tance of other rights re­tained by the peo­ple, or as to en­large the pow­ers del­e­gated by the Con­sti­tu­tion; but ei­ther as ac­tual lim­i­ta­tions of such pow­ers, or as in­serted merely for greater cau­tion” (em­pha­sis added).

How­ever, Congress stream­lined Madi­son’s word­ing by re­mov­ing the clauses about the en­large­ment of fed­eral pow­ers.

Vir­ginia del­e­gate Edmund Ran­dolph was in­censed when saw the re­vised ver­sion, be­liev­ing that Congress had re­moved the most im­por­tant part of the amend­ment. Vir­ginia’s ob­jec­tions to the fi­nal word­ing of the Ninth Amend­ment ac­tu­ally de­layed that state’s rat­i­fi­ca­tion of all the amend­ments for two years, which de­layed rat­i­fi­ca­tion of the en­tire Bill of Rights.

Madi­son was flum­moxed try­ing to un­der­stand the ba­sis of Vir­ginia’s ob­jec­tions, be­cause he be­lieved that the pro­tec­tion of in­di­vid­ual rights and the pro­tec­tion against ex­pan­sions of fed­eral pow­ers were merely two sides of the same coin: “the distinc­tion,” in­so­far as Madi­son could see it, was “al­to­gether fan­ci­ful.”

Alas, among Madi­son’s most charm­ing blind spots was this one: He earnestly be­lieved that Amer­i­cans could al­ways be trusted to in­ter­pret the Con­sti­tu­tion in ac­cor­dance with its in­tended mean­ing.

Madi­son’s faith was proved dis­as­trously mis­placed with re­cent in­ter­pre­ta­tions of the Ninth Amend­ment. In

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