The term ‘‘retained’’ rights appears once in the Constitution in the Ninth Amendment, which reads: ‘‘The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.’’ The historical evidence shows that the term referred to natural or inherent rights—what today might be called ‘‘human rights’’—and that, in this context, natural rights were ‘‘liberty rights,’’ as opposed to positive claims on government. The Ninth Amendment mandates that these liberty rights not be disparaged or denied, thereby strongly suggesting they be treated in the same manner as those rights that were enumerated.
When explaining to the House of Representatives the nature of the various rights contained in the amendments he proposed be made to the text, Representative James Madison stated that ‘‘[i]n [some] instances, they specify rights which are retained when particular powers are given up to be exercised by the Legislature.’’ Madison’s notes for this part of his speech read: ‘‘Contents of Bill of Rhts.... 3. Natural rights retained as speach [sic].’’ For Madison, then, even some of the rights enumerated in the Bill of Rights, such as the freedom of speech, were ‘‘retained’’ or natural rights. Additional evidence that the term ‘‘retained’’ rights referred to natural rights can be found in the deliberations of the select committee that the House of Representatives appointed to draft amendments to the Constitution. A draft bill of rights authored by Madison’s fellow committee member Roger Sherman began as follows: ‘‘The people have certain natural rights which are retained by them when they enter into Society....’’ Understanding exactly why the Ninth Amendment was included in the Constitution will further help to establish what was meant by the natural rights ‘‘retained by the people.’’
When Anti-Federalist opponents of the proposed constitution objected that it lacked a bill of rights, its Federalist defenders argued vociferously that any effort to enumerate rights would be dangerous because the rights of the people were literally boundless. James Wilson, a member of the constitutional convention and the first professor of law at the University of Pennsylvania, was an ardent adherent to natural rights. Nevertheless, when defending the Constitution against those who complained about the absence of a bill of rights, Wilson explained, ‘‘[T]here are very few who understand the whole of these rights.’’ None of the classical natural rights theorists, he said, claim to provide ‘‘a complete enumeration of rights appertaining to the people as men and as citizens.... Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.’’ And before the Pennsylvania ratification convention, Wilson observed:
In all societies, there are many powers and rights, which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, 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.
The same argument was made by Charles Pinckney in the South Carolina House of Representatives:
[W]e had no bill of rights inserted in our Constitution: for, as we might perhaps have omitted the enumeration of some of our rights, it might hereafter be said we had delegated to the general government a power to take away such of our rights as we had not enumerated.
Future Supreme Court Justice James Iredell told the North Carolina ratification convention: ‘‘Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.’’
What conception of rights explains all these statements? The claim that natural rights are unenumerable and dangerous to enumerate makes complete sense if the terms ‘‘inherent rights’’ or ‘‘natural rights’’ are used as a kind of synonym for ‘‘liberties.’’ The term ‘‘retained’’ rights itself supports the view that natural rights are liberty rights. For these are rights that people have against each other before they form a government; they are not the ‘‘positive’’ rights created by government. That ‘‘natural rights’’ was synonymous with ‘‘liberties’’ is exemplified in the official letter to Congress by the members of the Constitutional Convention who wrote that ‘‘[i]ndividuals entering into society must give up a share of liberty to preserve the rest.... It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved.’’ Others also used the terms interchangeably. In a speech to the Connecticut ratification convention, Oliver Wolcott observed: ‘‘What is government itself but a restraint upon the natural rights of the people? What constitution was ever devised that did not operate as a restraint on their original liberties?’’ (all emphases added).
Understanding natural rights as liberty rights explains their unbounded nature. For the founders, natural rights define a private domain within which persons may do as they please, provided their conduct does not encroach upon the rightful domain of others. As long as their actions remain within this domain, other persons—including government officials— should not interfere without a compelling justification. Because people have a right to do whatever they please within the boundaries defined by natural rights, the rights retained by the people are limited only by their imagination and could never be completely specified or enumerated.
To be clear, not all constitutional rights are liberty rights. Without question, the Constitution creates positive rights and imposes on the government enforceable duties to respect these rights. But the ‘‘rights ... retained by the people’’ to which the Ninth Amendment refers are liberty rights.
When Anti-Federalists objected to the absence of a bill of rights, Federalists responded, not only that enumerating certain rights would be dangerous because the rights or liberties of the people were unenumerable and any rights that would be omitted would be rendered insecure, but also that a bill of rights was unnecessary because the Congress was had only limited powers. ‘‘Why, for instance,’’ asked Hamilton, ‘‘should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?’’ Nevertheless, the Federalists were forced to promise a bill of rights to obtain enough support for ratification.
When James Madison sought to honor this commitment in the first Congress, he needed to solve the difficulty that Federalists had asserted just two years earlier. Here is how Madison stated the problem when he introduced his proposed amendments to the House:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of 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.
Madison then referred his colleagues to the portion of his proposal that read:
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.
Madison’s placement of this provision is revealing. He proposed putting it at the end of the list of specific individual rights which he proposed be inserted in Article 1, Section 9 immediately after the two individual rights already listed there—the rights of habeas corpus and the rights against bills of attainder and ex post facto laws—but before the other prohibitions of government power listed in Section 9 that are not easily conceived as individual rights, such as the prohibition on granting titles of nobility. This placement suggests that ‘‘retained’’ rights refers to the same sorts of individual liberty rights that were explicitly enumerated in the constitution and this injunction was on a par with the other provisions in that section.
The wording of the original proposal also conveys information about the nature of both enumerated and unenumerated rights. Due to his tendency to run parallel ideas together in a single sentence, Madison’s original proposal is a bit difficult to follow. When disentangled, it shows that the rights enumerated in the Bill of Rights were of at least two kinds. First were those rights that provided additional or ‘‘actual limitations’’ on the delegated powers beyond those that already existed. For example, prior to its amendment, the Constitution did not require jury trials in civil cases. In his speech to the House, Madison categorized these actual limitations as ‘‘positive rights’’ and gave the example of trial by jury. Second were those rights that were enumerated ‘‘merely for greater caution.’’ As Madison explained, these refer to ‘‘those rights which are retained when particular powers are given up to be exercised by the Legislature.’’
Therefore, from how Madison used the term ‘‘retained’’ rights, we know that the ‘‘other’’ unenumerated rights ‘‘retained by the people’’ mentioned in the Ninth Amendment fall into the second category of his original proposal. They are the natural rights ‘‘which are retained when particular powers are given up to be exercised by the Legislature.’’ A very few of these rights were included in the Bill of Rights ‘‘for greater caution’’ but most were left unenumerated.
Madison’s speech to the House also clarifies that constitutional rights, whether enumerated or unenumerated, can limit both the ends of government and also the means by which the legitimate ends of government are executed. As Madison explained (in another sentence combining parallel ideas), ‘‘the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.’’ Disentangling this passage, we find that ends constraints ‘‘limit ... the powers of Government’’ by specifying when ‘‘the Government ought not to act.’’ Means constraints ‘‘qualify the powers of Government’’ by specifying when ‘‘Government ought ... to act only in a particular mode.’’
In addition to placing ‘‘actual’’ or additional limits on the means by which government can accomplish its legitimate ends, constitutional rights provide a ‘‘redundant’’ or cautionary safeguard in the event that delegated powers of government are given an overly expansive interpretation. Constitutional rights help hold government to its legitimate enumerated ends in two ways. Rights can prevent the adoption of an expansive interpretation of enumerated powers in the first instance. Failing this, once a power has been expansively interpreted, the direct judicial protection of enumerated and unenumerated rights hold government within some limits.
Madison himself used the Ninth Amendment to check an expansive construction of necessary and proper clause during the debate over the constitutionality of the national bank. Near the end of his speech he observed: ‘‘The latitude of interpretation required by the bill is condemned by the rule furnished by the Constitution itself.’’ As one authority for this ‘‘rule’’ of interpretation, Madison cited the Ninth Amendment (then pending ratification as the Eleventh Amendment):
The explanatory amendments proposed by Congress themselves, at least, would be good authority with them; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended for.... He read several of the articles proposed, remarking particularly on the 11th [the Ninth Amendment] and 12th [the Tenth Amendment], the former, as guarding against a latitude of interpretation; the latter, as excluding every source or power not within the Constitution itself. (Emphasis added)
Thus, for Madison, the Ninth and Tenth Amendments each played distinct roles. The Tenth Amendment is authority for the claim that Congress could only exercise a delegated power. The exercise of a power not there, he said, ‘‘involves the guilt of usurpation.’’ In contrast, Madison viewed the Ninth Amendment as preventing providing a loose construction of these powers when legislation affected the rights retained by the people. Even ‘‘if the power were in the Constitution, the immediate exercise of it cannot be essential.’’
Three years later, in 1794, Madison would again argue in Congress that the unenumerated rights retained by the people directly constrained congressional power. When Congress sought to censure the activities of certain self-created societies for their participation in the Whiskey Rebellion earlier that year, Madison contended that: ‘‘When the people have formed a Constitution, they retain those rights which they have not expressly delegated.’’ Here Madison was asserting that the unenumerated retained right to hold opinions constrained the power of Congress to issue a censure, in the same manner as ‘‘the liberty of speech, and of the press.’’ Indeed, ‘‘the censorial power is in the people over the Government, and not in the Government over the people.’’ Strong words on behalf of supporters of insurrection.
The uses of the Ninth Amendment by its author, James Madison, show that, like the few natural rights that were enumerated, the unenumerated rights retained by the people provide a twofold check on government power. Their existence argues against a latitudinarian interpretation of enumerated powers when those powers are used to restrict the liberties of the people; and the direct protection of the liberties of the people also reinforces limits on both the ends of government and the means by which these ends can legitimately be pursued.
The Ninth Amendment does not merely refer to these ‘‘retained’’ unenumerated natural rights and affirm their existence; it also mandates how they are to be treated: they are not to be ‘‘denied or disparaged.’’ On its face, this wording compels the conclusion that enumerated and unenumerated liberties are to be treated equally. To the degree that enumerated rights receive protection from Congress, so too should those that were left unenumerated. In contrast, today the Supreme Court employs a ‘‘presumption of constitutionality’’ toward all legislation except that which infringes upon some, but not all, of the enumerated rights and a few unenumerated rights the Court has deemed to be ‘‘fundamental.’’ Unless a fundamental liberty is violated, the benefit of the doubt goes to the government. This approach violates the Ninth Amendment’s mandate to equally protect of all liberties, whether enumerated or unenumerated.
It must be remembered that, like the rest of the Bill of Rights, the Ninth Amendment originally applied only to the federal government. For many reasons, including the existence of slavery, Congress and the federal courts were given only very limited powers in the Constitution to protect the liberties of citizens from infringement by their own state governments. The Fourteenth Amendment changed all this. In the privileges or immunities clause we find the jurisdiction of the federal government expanded to protect from infringement by states the very same natural liberty rights referred to in the Ninth Amendment as well as other positive rights created by the Constitution itself.
Both of these now ignored protections of retained rights could be implemented by adopting a presumption of liberty that would afford the benefit of the doubt to any rightful exercise of liberty by an individual and place the burden on the government to show its restriction is both necessary and proper. How such a doctrine might work is suggested by the Supreme Court’s decision in Lawrence v. Texas (2003), striking down a state statute criminalizing homosexual ‘‘sodomy’’ under the Fourteenth Amendment. Texas’s sole justification for its prohibition was that the conduct in question was ‘‘immoral.’’ The Court in Lawrence found this justification inadequate because the actions banned neither harmed others, nor took place in the public sphere where government must balance competing uses by different citizens. Justice Kennedy’s opinion in Lawrence is especially noteworthy because it protected liberty, rather than privacy, without any discussion of whether that liberty was ‘‘fundamental.’’ Having identified the conduct as ‘‘liberty,’’ it then placed the burden on the government to justify its restriction. Because, it was unable to do so, the statute was stricken and the retained rights of same-sex couples was protected.
RANDY E. BARNETT
References and Further Reading
Cases and Statutes Cited