They’re all wrong. Their errors derive from not understanding the Ninth Amendment’s background and unfamiliarity with an intervening change in the English language.
The Ninth Amendment reads as follows:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Translated from formal 18th century English into colloquial 21st century English, that means:
Yo! Readers! This Constitution gives the feds some specific powers. To see how far each power goes, check out the wording. This Constitution also has general exceptions that limit all or some powers. Don’t get so fixated on the exceptions that you forget the limits in the original wording!
- Federal powers are limited both by the wording of the original grants and by broad exceptions that apply to all or many of those grants.
- The amendment tells the reader to take into account both kinds of limits—not just the exceptions.
- The Ninth Amendment is a reader guide, not a substantive change in the Constitution. In this respect, it’s like the Tenth and Eleventh Amendments. Lawyers call such a guide a “rule of construction.” (Note the amendment’s phrase “shall not be construed.”)
The Original Limits
The Constitution grants many powers to the federal government and to its officials and agencies. The best-known list of powers is in Article I, Section 8, but there are many more scattered throughout the document.Generally, when you give someone power to do something, you limit his authority. Suppose you tell a real estate agent, “Find a buyer for my house.” You have just granted the agent power to find a buyer for the house. But you haven’t given the agent authority to find a buyer for your car. The words of the grant define its limits.
‘That’s Still Too Much Power!’ Critics Say
On Sept. 17, 1787, the framers revealed their proposed Constitution to the general public. Objections came in from far and wide. A common theme was that the Constitution would give too much authority to the central government.Critics—Patrick Henry among them—demanded additional exceptions to federal authority. They wanted exceptions to protect natural rights, such as freedom of speech and freedom of religion. They also wanted protections for long-treasured “privileges” (benefits created by government), such as trial by jury and the privilege against self-incrimination.
The Constitution’s Supporters: ‘A Bill of Rights Could Be Dangerous!’
Most of the Constitution’s supporters didn’t think a bill of rights was necessary. They thought the limits in the enumerated powers provided enough protection. They also argued that adding a list of exceptions could be dangerous. Their reason derived from two standard guidelines that courts and lawyers use for interpreting legal documents.The first of these guidelines is that if an item is omitted from a list, normally you can assume the omission is intentional and the item, therefore, is excluded. By way of illustration, imagine your spouse sends you to the store with a shopping list. It reads:
Bread
Nuts
Fruit
Lettuce
The words suggest a limit: Barring a family custom to the contrary, you don’t have to buy meat.
The second guideline is a variation on the first. It, too, applies to lists—specifically lists of exceptions. It says that exceptions increase your confidence in the general rule. Suppose the list reads:
Bread
Nuts
Fruit
Lettuce, but not romaine or leaf lettuce
The exceptions for romaine and leaf lettuce increase your confidence that you may buy any other type of lettuce. In common language, “The exception proves the rule.”
The Constitution’s supporters—James Madison among them—pointed out that a long list of exceptions to the authority of the federal government (i.e., a bill of rights) might promote the idea that the federal government could regulate everything not on that list. For example, a specific ban on controlling the press might encourage courts to expand Congress’s powers to encompass control over businesses other than the press. A government lawyer could argue that the addition of the bill of rights actually expanded Congress’s authority elsewhere.
Working to Avert the Danger
To get the Constitution ratified, however, its sponsors had to promise a bill of rights. They then faced the question of how to add a bill of rights while still emphasizing the importance of the document’s other limits on power?A suggestion came from the Virginia ratifying convention, which had witnessed the debate between critics such as Henry and supporters like Madison.
Observe that word, “construed:” The purpose of this suggestion was not to change the Constitution’s meaning, but how it should be “construed.”
After Virginia, four more state conventions ratified the Constitution: New York, North Carolina, Rhode Island, and Vermont. All four recommended similar phrasing.
On June 8, 1789, Madison introduced his proposed bill of rights in the new federal Congress. It featured this passage:
The Change in the English Language
Notice that unlike the five state resolutions, Madison’s draft mentioned “rights” as well as “powers.” Was that significant? Not really. Madison, like the rest of us, sometimes repeated himself, and that’s what he did here.Congress condensed and cleaned up Madison’s draft. It cured the redundancy by keeping “rights” and striking “powers.” It could have struck “rights” and kept “powers” with the same effect.
Besides 18th-century English usage, there’s further evidence that the final language referring to “rights” meant the same thing as the state convention resolutions referring to “powers.”
Disregard of the Ninth Amendment
Historically, constitutional amendments have been powerful tools of reform. Other than the 18th (formally repealed), every amendment ever adopted retains at least some effect today. Except for the Ninth.Biden is correct that the court should restore the Ninth Amendment. Enforcing it wouldn’t protect abortion, as he claims; rather, it would reduce the federal government to its constitutional limits. I don’t think the president would much care for that.
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