The Power of Nine: Federalists, Antifederalists, and Natural Law Synthesis in the Ninth Amendment, Part Four
Part Four in a Four-Part Series
The Bill of Rights and the Ninth Amendment
In the late 1780s, arguments against a Bill of Rights were properly reasoned in Natural Law just as arguments for a Bill of Rights had been. An exploration of this will be discussed below. What must first be understood beforehand, however, is that—to some reasonable degree—the Bill of Rights is, by design, a list—in part—of undemocratic principles set out to protect individuals. “The supremacy of the people does not secure the rights of individuals and minorities against the majority…a bill of rights in a republican form is to serve as a check against majority faction.” Why then, some may ask, would anyone argue against a Bill of Rights?
Federalist 84 states, “bills of rights… are not only unnecessary in the proposed Constitution, but would be dangerous… For why declare that things shall not be done [by Congress] which there is no power to do?” Federalist James Wilson made the same argument at the Pennsylvania Ratifying Convention on November 28th, 1787. “If we attempt an enumeration [of rights], everything that is not enumerated is presumed to be given. The consequence is that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.” This is, at the very least, sound argumentation, and certainly underscores a belief in Natural Law theory. It is an understandable and reasonable claim that the listing of rights could set a negative precedent.
James Madison soon enough proposed a list of enumerated rights to be added to the Constitution during the earliest days of the new federal government. Madison, himself, had not seen a need for a bill of rights, but his friend Thomas Jefferson argued in a letter to Madison in late 1787 that “a bill of rights is what the people are entitled to against every government on earth, general or particular and what no just government should refuse, or rest on inference.”Jefferson’s reasoning resonated and convinced Madison to champion a bill of rights during the first session of the newly-established House of Representatives in 1789. Against the protests of other Federalists, Madison sought the addition of a Bill of Rights to appease the concerns Antifederalists had made during debates over ratification. During his floor speech, Madison stated:
“It has been objected… that, by enumerating particular exceptions to the grant of [federal] power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.”
As a result, among the amendments Madison proposed was the prototype which would, with some separation and modification, become the Ninth and Tenth Amendments of the United States Constitution. The proposal tied together the issue of retained rights and the powers left to the states and the people. Eventually, the matter of rights retained by the people and powers reserved to the states were unglued and made into two separate amendments. In this regard, the Ninth and Tenth Amendments are unique, as they are the only ones that were the result of the ratification debates specifically. Unlike the first eight amendments that assert explicit individual rights, the Ninth and Tenth Amendments were informed by the concerns espoused by Federalists as well as Antifederalists. The Ninth Amendment, however, is exceptional because it addresses the Natural Law assertion of unenumerated rights specifically. The Ninth Amendment states that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Ratified in 1791 as part of the first ten amendments, known as the Bill of Rights, it makes clear the Natural Law premise of the framers.
Ninth Amendment Scholarship and Legal Precedent
Adding to the Ninth Amendment’s unique nature and legacy is the long state of dormancy in which it rested for well over a century and a half. Though the amendment was ratified in 1791, it would not receive much study by legal theorists, political scientists, or historians until the twentieth century. In the 1920s, political scientist and Princeton professor, Edward S. Corwin, discussed the Ninth Amendment and its relation to Natural Law in some of his work. Corwin deconstructed the nature of the nation’s devotion to the Constitution and found the legitimacy of it not in the legal positivism emerging in twentieth century political thought, but in the Natural Law enlightenment values underpinning the nation’s founding. Corwin stated that “the legality of the Constitution, its supremacy, and its claim to be worshipped, alike find common standing ground on the belief in a law superior to the will of human governors.”
Despite Corwin’s scholarship, no monograph dedicated to the exclusive study of the Ninth Amendment was published until 1955, by Bennet B. Patterson. The title of Patterson’s book alone was quite revealing: The Forgotten Ninth Amendment. In it, Patterson asserted the amendment’s relationship to individual rights against the federal government as well as the states. He argued that a “careful analysis of the Ninth Amendment will reveal that the Ninth Amendment cannot be classified as a restrictive clause at all, because it is on the contrary a great declaration of the rights of natural endowment.” This view is alternately challenged and championed by scholars in the twenty-first century, as is discussed below. Patterson, however, made clear his view that any interpretation that the Ninth Amendment merely left rights retained to the separate states, and not individuals, was wholly misguided. Such misunderstanding undermines the Natural Law tenet the amendment was designed to secure:
“We have a choice of the theory of liberty and rights by natural endowment as announced in the Declaration of Independence, and again in the Ninth Amendment, and in the other liberty documents, or we have the choice of the theory that all of our inherent and fundamental rights were surrendered to State governments and that the governments of the States are the creators of our rights and liberties.”
Patterson articulates that any presumption that the Ninth Amendment’s reference to retained rights somehow alludes to state powers is disingenuous. Such a claim undermines the Natural Law concerns shared by Federalists and Antifederalists of the 1780s. This flawed claim, further discussed below, is also absurd because the Ninth Amendment addresses rights retained by the people while the Tenth Amendment addresses powers reserved to the states. The rights retained connects to state powers thesis is thus not worthy of any serious consideration. This, however, has not stopped some scholars in the twenty-first century from reclaiming and re-asserting new versions of the argument, as will be discussed momentarily. Patterson, however, in 1955, was a voice in the wilderness regarding Ninth Amendment scholarship, and similar scholarship would not achieve substantial significance for several more years.
The Ninth Amendment was similarly avoided in the world of American jurisprudence until the second half of the twentieth century. Suddenly, however, in the Supreme Court case of Griswold v. Connecticut (1965), which concerned the use of birth control among married couples, the court’s majority ruled that a right of privacy emanated from certain constitutional protections. More explicitly, in a concurring opinion, Justice Arnold Goldberg cited the Ninth Amendment in his support of the court’s ruling. One hundred and seventy-four years after it was ratified, the Ninth Amendment and its assertion of Natural Law was proclaimed by the United States Supreme Court. The ramifications were enormous on subsequent cases. For example, a turning point was made in Griswold which set the precedence for federal abortion rights in the Roe v. Wade (1973) decision, as well as free speech/free press issues in Richmond Newspapers, Inc. v. Virginia (1980).
The Ninth Amendment became a matter of discussion again in the 1980s during the confirmation hearings of Robert Bork, who was nominated to the Supreme Court by President Ronald Reagan in 1987. During the hearings, Bork was asked for his views concerning the Ninth Amendment. His negative view toward the Ninth Amendment providing legal protection for unenumerated rights was among the factors which sunk his nomination. Bork answered, “I do not think you can use the Ninth Amendment unless you know something of what it means… if you had an amendment that says ‘congress shall make no’ and then there is an ink blot and you cannot read the rest of it… I do not think the court can make up what might be under the ink blot if you cannot read it.” Bork’s nomination was an utter failure, and his dismissiveness toward the Ninth Amendment—and thus, toward Natural Law—played no small part in his undoing. As Stephen Macedo stated just a year later, in 1988, “Judge Bork’s unwillingness to regard the ninth amendment as anything more than an unintelligible aberration seriously hurt his case in the Senate Judiciary Committee.” The Ninth Amendment thus had gone from something ignored in American jurisprudence for the better part of two centuries, to a litmus test for Supreme Court confirmation. This trend did not continue, however, and the vocal and overt reverence toward the Ninth Amendment seen in the Supreme Court in the 1960s and 1970s, and the Senate Judiciary Committee in 1987, soon disappeared from sight as quickly as it had emerged in 1965. Though the Ninth Amendment has flown under the radar in the decades since, it is not truly gone. Since Griswold, the Ninth Amendment has been asserted by the court over a thousand times.
The debate over the Ninth Amendment’s meaning continued into the twenty-first century, with some scholars resurrecting the argument that the amendment doesn’t protect individual unenumerated rights. Kurt T. Lash, for example, Professor of Law at University of Richmond, has proclaimed, “Instead of being read as a source of individual rights, courts developed the Ninth [Amendment] as a tool for preserving state autonomy.” There are some serious problems with this thesis, however, and Lash has trouble proving his claim. Furthermore, such an interpretation renders the Tenth Amendment moot, as it addresses precisely the issue Lash purports the Ninth does. The Tenth Amendment states 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.” Also, Lash misses entirely the historical context of the framers’ devotion to Natural Law and suspicion of overtly democratic systems. Randy Barnett, a critic of Lash’s collective-rights/state powers thesis, maintains that opposition “to majoritarianism, also derisively called ‘democracy’ in this [founding] period, in the form of legislative supremacy was repeatedly voiced at the Constitutional Convention.” Barnett adds that it is not at all surprising, considering the framers’ fear of majoritarian power, legislative or otherwise, that the Bill of Rights took on “a decidedly individualist cast.” Barnett appears to understand the Natural Law ideology the framers, both Federalist and Antifederalist, were appealing to when they designed the Ninth Amendment.
Thus, this is why it can be said that the Ninth Amendment best represents Natural Law synthesis between the Federalists and the Antifederalists. A presumption of preexisting rights on both sides of the ratification divide informed both the arguments for a Bill of Rights and for why such a listing of rights could be potentially hazardous. The Ninth Amendment addresses both concerns implicitly by nodding to the Natural Law creed of both factions. As stated previously, when James Madison wrote the Ninth Amendment, he himself had gone through a transformation. As a Federalist, he had himself argued against the inclusion of a Bill of Rights. However, he came to terms with the fact that the legitimacy of the Constitution and the new federal government could be at stake without a Bill of Rights. Madison also received much the same argument of the need for such protections by his mentor, Thomas Jefferson. Thus, the Natural Law argument for a Bill of Rights combined with the Natural Law argument against it, synthesizing in the Ninth Amendment of the U.S. Constitution. Barnett notes that the “Ninth Amendment was supposed to ensure that the eight [preceding] amendments protecting rights were not exclusive.” By folding the Ninth Amendment into the other protected rights enumerated, Madison not only satisfied Antifederalist concerns over a lack of a Bill of Rights, but he also addressed Federalist concerns about including one. This synthesis, through the Ninth Amendment, legitimized both the U.S. Constitution and the Bill of Rights on Natural Law grounds.
The ideological lesson of the American founding is seen in the writings of Federalists and Antifederalists alike. They never rejected democratic values outright or abandoned the principle that legitimate government derives from the consent of the governed. Yet, they were able to improve upon this notion by asserting that democracy is, in and of itself—and in its purest form, also a tyranny. Both those who created the Constitution and those who demanded a Bill of Rights did so by resolutely defending the rights of the individual. “Hence the Constitution and especially the Bill of Rights place [rights] beyond the reach of the majority.” Doing so, they established a more robust democracy by affirming Natural Law values.
Critics of the Natural Law thesis may be prone to criticize the founders for lacking modern sensibilities of racial and gender equality. Some of the framers, including Jefferson, Mason, and Madison, can be derided as ideological hypocrites for asserting the equality of all men while participating in the institution of slavery. Such criticisms are wholly acceptable and warranted. Criticisms, however, become self-defeating when they then attempt to attack Natural Law for this moral shortcoming. It is an illogical and absurd notion. For the fact is that such shortcomings show a failure in the consistent execution of Natural Law practice and does not invalidate Natural Law itself. It is a mistake to confuse the message with the messengers.
Natural Law informed the creation of the United States Constitution as well as the Bill of Rights, and the document’s most explicit expression of Natural Law theory is the Ninth Amendment. The Ninth Amendment’s unique place as an enumerated right which protects unenumerated rights is ironic as it is exceptional. The fact that the amendment was not utilized explicitly in American law until the second half of the twentieth century further reveals its unique position in American constitutional law and academic scholarship.
To underscore the paradox of a strong democracy built upon the protection of individual liberty, the words of John Adams again become appropriate. John Adams was, after all, a strong supporter for the rule of law as well as independence of the courts. Yet, it was John Adams, the man who had likened democracy to the tyrannical roasting of people alive, who pointed to the essence of the intertwined nature of American liberal democracy; the individual and the collective. As Bernard Bailyn acknowledges, “For John Adams an essential point was that the commons, or the democracy, of society shared too in the execution of laws [with the elites] through the institution of trial by jury...” Adams recognized, despite his histrionic rhetoric about democracy, that it was the democratic participation of citizens in the jury, as well as the independence of the courts, which strengthened society and established justice. It is the marriage of the two that makes the crucial difference. The jury process democratizes the justice system while the independence of the courts shield it, to some extent at least in its design, from political agendas; agendas fed by constituencies and voters which are then channeled through elected representatives. There is, then, a dichotomy that exists between the democratic process of the will of the people in trial courts and the protection of minority interests in appellate courts—most specifically the Supreme Court—which do not utilize juries. This shows again how the system of American government is a thoughtful balance of both democratic and undemocratic principles.
Democracy, at its best, represents the will of the people. At its worst, it oppresses minority factions. Constitutional protections of individual rights safeguard against such oppression. It was in the nineteenth and twentieth centuries that challenges to violations of Natural Law, including slavery, the suppression of free speech, and other fundamental individual rights arose and the brilliance of American liberalism was essentially realized. Many today, including religious groups, the LGBT community, Pro-Choice advocates, and free speech activists, owe a debt to the independence of the courts, the Natural Law tenet enshrined in the Ninth Amendment, and other undemocratic facets of the United States structure of government. It has protected freedoms, including freedoms which have not historically had the support of the majority. The protection of individual liberties, long held as libertarian values, have established protections for political progressives as well, and this should be remembered.
Whether it was Centinel’s declaration of the right to worship as one’s conscience required, Cato’s warnings of government’s tendency toward evil, or Publius’s assertion that government should be impervious to the ephemeral whims of the electorate, their contributions are extraordinary. Both supporters and opponents of the United States Constitution understood the delicate balance between the will of the people and the rights of the individual. That understanding embodies the Ninth Amendment. The balance of these two values, with proper consideration to each, is essential to a lasting liberal democracy.
Alexander Hamilton and James Madison were the architects of the proposed Constitution. They argued for a stronger national government both at the Philadelphia convention and (with John Jay) in a series of essays called The Federalist. While they championed the ratification of the new constitution, they saw no need for—and even questioned the wisdom of—having a Bill of Rights.
Though unified in their support of ratification in the late 1780s, Hamilton and Madison became prominent members of opposing political parties in the United States within a handful of years.
Mercy Otis Warren was a Massachusetts playwright whose poems and plays preceded and predicted the anti-monarchist sentiment of the American Revolution. Warren was against ratification of the Constitution due to, among other matters, its lack of term limits for office-holders.
George Mason left the Philadelphia convention, refusing to sign the Constitution, because of a lack of a Bill of Rights. Mason became a vocal opponent of ratification on these grounds and, for this, is known historically as the Father of the Bill of Rights.
This political cartoon by Amos Doolittle from 1787 reveals the desire by some to support ratification of the Constitution in order to strengthen the national economy. In the cartoon, a wagon—representing the new nation—is stuck in mud and unable to escape immobility. Among the aims of the proposed national government was Hamilton’s desire to encourage the growth of industry. Another goal of the new Constitution was to uniform the currency and stabilize the nation’s monetary system.
Neither Thomas Jefferson nor John Adams was in attendance at the Constitutional Convention in 1787. Both men were acting as official diplomats for the new nation abroad (Jefferson in France and Adams in England). Despite their absence, the two friends and political rivals in many ways represented the philosophical pillars of the American Revolution’s ideology. Jefferson believed in the necessity of a Bill of Rights and the importance of local governance while Adams argued for a strong central government which would bind the American people together.
Jefferson and Adams soon returned home to become prominent members of the first political administration after the Constitution’s ratification. Adams was elected the first Vice President, and President George Washington appointed Jefferson as the first Secretary of State. Thomas Jefferson and John Adams soon became leaders of the first two American political parties, the Democratic Republicans and the Federalists, respectively.
 Storing, What the Anti-Federalists Were FOR, 68.  Publius, “Federalist No. 84,” 1788, The Federalist Papers, edited by Clinton Rossiter. 478-488 (New York: Mentor, 1961), 476.  James Wilson, “Pennsylvania Ratifying Convention Speech, 28, November 1787,” Founders Documents. University of Chicago. press-pubs.uchicago/founders/documents/v1ch14s27.html.  Thomas Jefferson, Letter to James Madison from Thomas Jefferson, December 20, 1787, Founders Online, National Archives, http://founders.archives.gov/documents/Madison/01-10-02-0210.  James Madison, “Amendments to the Constitution,” June 8, 1789, Founders Online, National Archives, http://founders.archives.gov/documents/Madison/01-12-02-0126.  “Ninth Amendment (ratified 1791),” U.S. Constitution, The Federalist Papers, edited by Clinton Rossiter (New York: Mentor, 1961), 523.  Edward S. Corwin, “The ‘Higher Law’ Background of American Constitutional Law,” originally published in 1928, reprinted in The Rights Retained by the People Vol. 1, Randy Barnett, ed. (Fairfax: George Mason University Press, 1989), 71.  Bennet B. Patterson, The Forgotten Ninth Amendment, originally published in 1955, reprinted excerpt from The Rights Retained by the People: The History and Meaning of the Ninth Amendment Vol. 1 (Fairfax: George Mason University Press, 1989), 110.  Patterson, The Forgotten Ninth Amendment, 114.  Griswold v. Connecticut, 381 U.S. 479 (1965).  Robert Bork, Supreme Court Nomination Hearings Before the Senate Judiciary Committee, September 18, 1987, excerpts reprinted in Rights Retained by the People Vol. 2, Randy Barnett, ed. (Fairfax: George Mason University Press, 1993), 1.  Stephen Macedo, “Reasons, Rhetoric, and the Ninth Amendment,” reprinted in The Rights Retained by the People Vol. 2, Randy Barnett, ed. (Fairfax: George Mason University Press, 1993), 151.  Randy Barnett, The Rights Retained by the People Vol. 1 (Fairfax: George Mason University Press, 1989), vii.  Kurt T. Lash, “The Lost Jurisprudence of the Ninth Amendment,” Texas Law Review 83, no. 3 (February 2005): 5, http://constitution.org/9ll/schol/kurt_lash_juris_9th.pdf.  “Tenth Amendment (ratified 1791),” U.S. Constitution, The Federalist Papers, edited by Clinton Rossiter (New York: Mentor, 1961), 524.  Randy Barnett, “Kurt Lash’s Majoritarian Difficulty: A Response to ‘A Textual-Historical Theory of the Ninth Amendment.” Stanford Law Review 60, no. 4 (February 2005): 943, http://www.jstor.org/stable/40040404.  Ibid., 944.  Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton: Princeton University Press, 2004), 172.  Francis Edward Devine, "Absolute Democracy or Indefeasible Right: Hobbes Versus Locke," The Journal of Politics 37, no. 3 (1975): 737-738, http://www.jstor.org/stable/2129323.  Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Belknap Press of Harvard University Press, 1967), 74.