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Why Madison's Phrase About Enlarging Federal Power Was Removed From the Ninth Amendment
Andrew Hyman

Thanks to Mike Rappaport for discussing the Ninth Amendment with me.  He quotes Madison’s draft of June 8, 1789:

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.]

Professor Rappaport says that, because the italicized language was ultimately removed, “it is hard to argue that the Ninth Amendment merely protects against the expansion of Congress’s powers.”  But it does not seem obvious to me that that phrase was removed because Congress was unconcerned about enlarging delegated power.  Rather, it  looks more like the language was tightened up, perhaps because the second phrase about enlargement of powers was deemed redundant, or instead because of a desire to merge the two phrases, which related respectively to disparagement of rights and outright surrender of rights.

Either way, the phrase was not removed because the framers were unconcerned about inadvertent enlargement of delegated power.  There is just too much evidence that they did want to prevent inadvertent enlargement of delegated power.   For example, as I already mentioned, Madison wrote to George Washington on December 5, 1789 (after Congress had already shortened Madison's draft)  that the Ninth Amendment would ensure that the enumerated powers “shall not be extended.”  Likewise, Hardin Burnley was present during the Virginia debate over ratifying the Ninth Amendment, and said that “by protecting the rights of the people & of the states, an improper extension of power will be prevented….”

But all of that is inside baseball compared to the final text of the Ninth Amendment.  That text plainly does not impede interpreting the enumeration of powers in a way that denies or disparages rights retained by the people.  Thus, the amendment does not establish that any unenumerated natural rights are exceptions to the enumerated powers.  The U.S. Supreme Court was correct to say in U.S. Public Workers v. Mitchell, 330 U.S. 75 (1947): "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."

Of course, many of the rights safeguarded by the Ninth Amendment are natural rights outside the scope of enumerated powers.  For example, the secular right to wear a hat or to cremate the dead were understood as falling outside the federal powers listed in the unamended Constitution, and therefore the Ninth Amendment ensured they would remain so.  For this reason, I suspect Mike Rappaport and I don’t really disagree about very much here.   At least, there is considerable overlap between the so-called “federalism model” and “natural rights model” of the Ninth Amendment.

If a statute seems to violate unenumerated natural rights, then courts can adopt a clear statement rule, requiring Congress to be very explicit.  But I do not think the Ninth Amendment is needed for that.  On the other hand, if the Ninth Amendment is incorrectly interpreted as a fount of unenumerated exceptions to the enumerated powers, then courts would likely go well beyond a clear statement rule, and would simply decline to apply the statutes even if they are 100% clear.