LOYOLA LAW SCHOOL
(LOS ANGELES)



Legal Studies Paper No. 2004-24
Jan 2005



The Lost Jurisprudence of the Ninth Amendment


Professor Kurt Lash


















This paper can be downloaded without charge from the
Social Science Research Network (SSRN) electronic library at:
http://ssrn.com/abstract=615701


Volume 83, Number 3, February 2005

Articles

The Lost Jurisprudence of the Ninth Amendment

Kurt T. Lash*

It is widely assumed that the Ninth Amendment languished in constitutional obscurity
until it was resurrected by Justice Arthur Goldberg in the 1965 case, Griswold v. Connecticut .
In fact, the Ninth Amendment played a significant role in some of the most important
constitutional disputes in our nation's history, including the scope of exclusive versus
concurrent federal power, the authority of the federal government to regulate slavery, the
right of the states to secede from the Union, the constitutionality of the New Deal, and the
legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment.
The second of two articles addressing the lost history of the Ninth Amendment,
The Lost
Jurisprudence
takes a comprehensive look at the Ninth Amendment jurisprudence that
flourished from the early nineteenth to the mid-twentieth century. Though long assumed never
to have received significant attention from the Supreme Court, the first discussion and
application of the Ninth Amendment was, in fact, by Supreme Court Justice and constitutional
treatise author Joseph Story. In a passage unnoticed since the nineteenth century, Justice
Story interpreted and applied the Ninth Amendment precisely the way James Madison and the
state ratifying conventions intended--as a rule of construction preserving the retained right of
local self-government. Ignored by the framers of the Fourteenth Amendment, the Ninth
Amendment and its attendant rule of construction were deployed by courts throughout the
nineteenth and early twentieth centuries to limit the interpretation of federal powers and
rights. Ubiquitously paired with the Tenth Amendment, the Ninth suffered the same fate as the
Tenth at the time of the New Deal, when both were rendered mere "truisms" in the face of
expansive constructions of federal power. By 1965, the Ninth was assumed to exist in a
doctrinal and historical vacuum, an assumption that no one has questioned until now.

I. Introduction......................................................................................................................2
II.
Beginnings: The Ninth Amendment in Antebellum America ..........................................7
A.
The Federalist Reading of the Ninth Amendment ..................................................7
B. The
Unenumerated Rights Cases............................................................................8
C. Retaining
the
Concurrent Power of the States ......................................................13
D. Justice
Story
and
Houston v. Moore.....................................................................17
1. Houston
v. Moore .......................................................................................19
2.
The Influence of Story's Opinion ...............................................................26
3.
The Silence of Justice Story........................................................................33

* Professor of Law and W. Joseph Ford Fellow, Loyola Law School, Los Angeles. B.A.,
1989, Whitman College; J.D., 1992, Yale Law School. My thanks to Rick Hasen and Larry Solum
for their thoughts and suggestions. I am deeply endebted to my wife, Kelly, and my three children,
Katherine, Nathaniel, and Benjamin, whose patient love and support sustained me through this
extraordinary project.
2
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4.
The Significance of Houston v. Moore .......................................................39
E.
The Ninth Amendment and "the Enumeration . . . of Certain Rights"..................41
F. Slavery..................................................................................................................42
G.
Summary: The Ninth Amendment from Founding to the Civil War ....................46
III. Reconstruction
and
the Ninth Amendment ....................................................................46
A.
The Ninth and Fourteenth Amendments...............................................................46
B.
The Rule of (Re)Construction ..............................................................................55
1.
The Legal Tender Cases..............................................................................56
2.
The Slaughterhouse Cases: Preserving the Rule of Construction ...............60
3. Hans
v.
Louisiana .......................................................................................64
C. Congressional
Power,
Individual Rights, and the Ninth Amendment, 1868�
1930......................................................................................................................66
1. The General Structure of Ninth Amendment Claims in the
Progressive Era ...........................................................................................66
2.
The Rule of Construction and Defining the Retained Rights of the
People .........................................................................................................69
3.
Mistaking the Tenth Amendment for the Ninth ..........................................72
4.
Distinguishing the Ninth from the First Eight Amendments.......................75
5.
The Ninth Amendment and Individual Rights ............................................76
IV. The New Deal Transformation of the Ninth Amendment ..............................................82
A.
The Rule in Transition..........................................................................................82
1.
The New Deal and the Ninth Amendment Prior to 1937 ............................82
2.
The New Deal and the Tenth Amendment Prior to 1937............................86
B. The
Rule
Abandoned............................................................................................90
1.
Rejecting the Individual Right to Local Self-Government..........................91
2.
The Triumph of Marshall's Opinion on the Bank of the United States.......95
3.
Principles Without a Rule of Construction: United Federal Workers
of America (CIO) v. Mitchell ....................................................................95
4.
The Ninth Amendment as a "Truism" ........................................................99
C.
The Last Days of the Historic Ninth Amendment .............................................. 103
1.
The Post-New Deal Ninth Amendment and Individual Rights ................. 103
2.
The Last Stand of the Traditional Ninth Amendment: Bute v. Illinois
and the Doctrine of Incorporation.............................................................106
V.
Griswold and the Birth of the Modern View of the Ninth Amendment ....................... 110
A. Bennett
Patterson's Book ................................................................................... 110
B. Griswold
v. Connecticut..................................................................................... 111
VI. Conclusion: Retaining the Space Between National Powers and National Rights ....... 115

I.
Introduction
It is widely assumed that the Ninth Amendment1 languished in
constitutional obscurity until it was resurrected by Justice Arthur Goldberg in
1965.2 In his concurring opinion in
Griswold v. Connecticut , Justice

1. "The enumeration in the Constitution of certain rights shall not be construed to deny or
disparage others retained by the people." U.S. CONST. amend. IX.
2
. See EDWARD DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 64 (1957)
("There is no occasion for amazement when the fact comes to light that apparently there has never
been a case decided which turned upon the Ninth Amendment. It has been invoked by litigants only
ten times and in each instance without success."); CALVIN R. MASSEY, SILENT RIGHTS: THE NINTH
AMENDMENT AND THE CONSTITUTION'S UNENUMERATED RIGHTS 9�10 (1995) [hereinafter
MASSEY, SILENT RIGHTS] ("Very little effort has been devoted to doctrinal argument for the simple
reason that a majority of the Supreme Court has never relied upon the Ninth Amendment as the

2004]
The Lost Jurisprudence
3

Goldberg announced that "this court has had little occasion to interpret the
Ninth Amendment."3 Pointedly citing Bennett Patterson's 1955 book
The
Forgotten Ninth Amendment
, Goldberg announced that he had located only
three prior Supreme Court discussions of the Ninth Amendment, none of
which offered much help.4 There being no precedent to guide the Court,
Goldberg consulted what he believed was the original understanding of the

basis for any decision.");
id. at 224 n.17. ("Only seven Supreme Court cases prior to Griswold dealt
in any fashion with the Ninth Amendment."); BENNETT B. PATTERSON, THE FORGOTTEN NINTH
AMENDMENT 27 (1955) ("There has been no direct judicial construction of the Ninth Amendment
by the Supreme Court of the United States of America. There are very few cases in the inferior
courts in which any attempt has been made to use the Ninth Amendment as the basis for the
assertion of a right."); PROCESSES OF CONSTITUTIONAL DECISIONMAKING 113 (Paul Brest et al.
eds., 4th ed. 2000) ("The title of Bennett Patterson's 1995 book, The Forgotten Ninth Amendment,
accurately captures the status of this provision of the Bill of Rights throughout most of our
constitutional history."); Eric M. Axler,
The Power of the Preamble and the Ninth Amendment: The
Restoration of the People's Unenumerated Rights
, 24 SETON HALL LEGIS. J. 431, 442 (2000)
("While the Amendment began as an important condition to the states' ratification of the
Constitution, it subsequently went unnoticed by the Supreme Court for 174 years."); Randy E.
Barnett,
Introduction: James Madison's Ninth Amendment , in 1 THE RIGHTS RETAINED BY THE
PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT vii (Randy E. Barnett ed.,
1989) [hereinafter RIGHTS RETAINED BY THE PEOPLE] ("For all but the last quarter of a century the
amendment lay dormant, rarely discussed and justifiably described as `forgotten' in the one book
devoted to it."); Raoul Berger,
The Ninth Amendment , 66 CORNELL L. REV. 1, 1 (1980) ("Justice
Goldberg rescued [the Ninth Amendment] from obscurity in his concurring opinion in
Griswold v.
Connecticut ."); id. at n.3. ("Prior to Griswold . . . the court had few occasions to probe the meaning
of the Ninth Amendment."); Russell L. Caplan,
The History and Meaning of the Ninth Amendment ,
69 VA. L. REV. 223, 223�24 (1983) ("After lying dormant for over a century and a half, the ninth
amendment to the United States Constitution has emerged from obscurity to assume a place of
increasing, if bemused, attention. . . . Ninth Amendment analysis has proceeded in three stages. In
the first stage, which lasted until 1965, the amendment received only perfunctory treatment from
courts and commentators.");
id. at 224 n.5 ("During this first period there were only the most
glancing judicial and scholarly references to the ninth amendment, with no explicit construction of
the amendment by the Supreme Court in the seven cases that represent the sum total of the Court's
pronouncements on the amendment prior to 1965."); Knowlton H. Kelsey,
The Ninth Amendment of
the Federal Constitution
, 11 IND. L.J. 309, 319 (1936) ("There seems to be no case that decides the
scope of the Ninth Amendment even in part. In decisions where it is mentioned, it is either grouped
with the Tenth Amendment in decisions based upon or involving the latter, and hence concerning
reservation or denial of power, or it is merely classified as one of the first ten which are held to be
limitations on national and not on state power. No case has been found that uses the Ninth
Amendment as the basis for the assertion or vindication of a Right."); Mark C. Niles,
Ninth
Amendment Adjudication: An Alternative to Substantive Due Process Analysis of Personal
Autonomy Rights
, 48 UCLA L. REV. 85, 89 (2000) ("N]o Supreme Court decision, and few federal
appellate decisions, have relied on the Ninth Amendment for support."); Norman Redlich,
Are
There "Certain Rights . . . Retained by the People"?
, 37 N.Y.U. L. REV. 787, 808 (1962) ("The
Ninth Amendment has been mentioned in several cases but no decision has ever been based on it.")
(citing cases listed in PATTERSON,
supra at 27�35); Chase J. Sanders, Ninth Life: An Interpretive
Theory of the Ninth Amendment
, 69 IND. L.J. 759, 769 (1994) ("[U]ntil 1965, the Court mentioned
the Ninth Amendment in fewer than ten cases. In all but one of these, the references were brief and
passing."); Eugene M. Van Loan, III,
Natural Rights and the Ninth Amendment , 48 BYU L. REV. 1,
1 n.3 (1968) (citing only two pre-1900 cases, Van Loan concludes that "[i]n the few cases where
anything more than a cursory reference to the ninth appeared, it was lumped with the tenth, as an
innocuous rule of construction limiting the federal government to its delegated powers").
3
. Griswold , 381 U.S. at 490.
4
. Id. at 490 n.6.

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Founders. After quoting Madison's speech introducing the Bill of Rights to
the House of Representatives and Joseph Story's
Commentaries , Goldberg
concluded that "[t]hese statements of Madison and Story make clear that the
framers did not intend that the first eight amendments be construed to
exhaust the basic and fundamental rights which the Constitution guaranteed
to the people."5 Although Justices Hugo Black and Potter Stewart dissented,
they agreed that the Ninth had been little used, and they derided their fellow
Justice's "recent discovery" of the Clause.6 Since
Griswold , a lively
scholarly debate has emerged over the meaning of the Ninth. All sides in this
debate believe that the Amendment received little judicial construction prior
to 1965.7
In fact, there is a surprisingly rich history of legal interpretation and
judicial application of the Ninth Amendment prior to
Griswold . Beginning
in 1789 and extending to 1964, the Ninth Amendment played a significant
role in some of the most important constitutional disputes in our nation's
history, including the ratification of the Bill of Rights, the constitutionality of
the Bank of the United States, the scope of exclusive versus concurrent
federal power, the authority of the federal government to regulate slavery, the
right of states to secede from the Union, the constitutionality of the New
Deal, and the legitimacy and scope of incorporation doctrine.
In the first of two articles on the lost history of the Ninth Amendment,
The Lost Original Meaning ,8 I presented previously missed or mislabeled
evidence regarding the adoption and early understanding of the Ninth
Amendment. Responding to calls from state conventions, including those
from his home state of Virginia, Madison's draft of the Ninth Amendment
expressed a rule of interpretation preventing the constructive enlargement of
enumerated federal power.9 Although the final draft used the language of
retained rights, Madison insisted that the provision continued to protect the

5
. Id. at 490.
6
. Id. at 518�19 (Black, J., dissenting). Justice Black noted:
My Brother Goldberg has adopted the recent discovery that the Ninth Amendment as
well as the Due Process Clause can be used by this Court as authority to strike down all
state legislation which this Court thinks violates "fundamental principles of liberty and
justice," or is contrary to the "traditions and (collective) conscience of our people."
Id. (citing PATTERSON, supra note 2, at 4).
7
. See supra note 2. Occasionally, some scholars acknowledge historical references to the
Ninth Amendment, but these references are dismissed as not really involving the Ninth
Amendment.
See PATTERSON, supra note 2, at 32 ("There are a number of cases which briefly
mention the Ninth Amendment by grouping it with the Tenth Amendment. However, these
decisions do not actually discuss the Ninth Amendment, but actually discuss the Tenth
Amendment."); Van Loan,
supra note 2, at 1 n.3 ("In the few cases where anything more than a
cursory reference to the ninth appeared, it was lumped with the Tenth, as an innocuous rule of
construction limiting the federal government to its delegated powers.").
8. Kurt T. Lash,
The Lost Original Meaning of the Ninth Amendment , 83 TEXAS L. REV. 331
(2004) [hereinafter Lash,
The Lost Original Meaning ].
9
. Id. at 360�62.

2004]
The Lost Jurisprudence
5

states from unduly broad interpretations of federal power.10 In a critical
speech before the House of Representatives, Madison linked the Ninth
Amendment to the demands of the state conventions and explained that the
purpose of the Ninth was to "guard[] against a latitude of interpretation"
while the Tenth Amendment "exclude[ed] every source of power not within
the constitution itself."11
This second Article,
The Lost Jurisprudence , takes up where the first
left off. It takes a comprehensive look at the Ninth Amendment
jurisprudence that flourished from the early nineteenth century to the mid-
twentieth century. This jurisprudence is divided into three periods: Founding
to Civil War, Reconstruction to the New Deal, and Post-New Deal to
Griswold v. Connecticut .
During the first of these periods, Founding to the Civil War, courts
interpreted the Ninth Amendment precisely along the lines anticipated by
James Madison and insisted upon by the state ratifying conventions. Instead
of being read as a source of individual rights, courts deployed the Ninth as a
tool for preserving state autonomy. Of particular concern was the degree to
which states could exercise concurrent authority over matters falling within
the scope of enumerated federal power. In a previously unrecognized
discussion of the Ninth Amendment, Justice Joseph Story described how the
Ninth mandates a limited construction of federal power in order to preserve
the concurrent powers of the states. Story's reading of the Ninth Amendment
echoed that of James Madison, and his opinion, though lost to us today,
remained influential for more than a century.
Given its role in preserving states' retained rights, the Ninth
Amendment inevitably became entangled with the struggle over the southern
institution of slavery. Both slave and free states attempted to use the Ninth
Amendment to defend local regulations regarding slavery. No one, however,
attempted to use the Ninth as a source of individual rights on behalf of the
enslaved. Given their common deployment application as states' rights
provisions, it is no surprise that John Bingham left both the Ninth and Tenth
Amendments off his list of privileges or immunities protected against state
action by the Fourteenth Amendment.
In the period from Reconstruction to the New Deal, courts and
commentators continued to cite the Ninth Amendment in conjunction with
the Tenth as one of the twin guardians of state autonomy. Instead of reading
the Ninth Amendment as foreshadowing the newly protected privileges or
immunities of United States citizens, courts applied the rule of construction
represented by the Ninth to
limit the interpretation of Fourteenth Amendment
rights. As the country moved into the new century and began to experiment
with greater centralized control of labor and industry, the Ninth and Tenth

10
. Id. at 361.
11. James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791),
in JAMES
MADISON: WRITINGS 489 (Jack N. Rakove ed., 1999).

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Amendments continued to serve as barriers against the expansion of federal
power. So closely aligned were the Ninth and Tenth Amendments that courts
regularly combined their language and treated them as expressing a single
principle of limited federal power. More and more, the Tenth Amendment
was read to contain its own rule of construction, obviating the need to
separately analyze the Ninth. Nevertheless, in every case in which the Ninth
was discussed, courts continued to follow the Madisonian reading of the
Amendment.
In the third and final period discussed in this article, the New Deal to
Griswold , the traditional reading of the Ninth Amendment disappeared
during the dramatic reconfiguration of federal power that occurred after
1937. Although initially relied upon by courts in resistance to President
Roosevelt's attempts to regulate the national economy, both the Ninth and
Tenth Amendments were reduced to no more than truisms by Justice
Robert's "switch in time." Free from the restraining rule of construction
previously associated with the Ninth Amendment, the Supreme Court
expanded the scope of federal power without regard to the impact on state
regulatory autonomy.
The expansion of regulatory power at the time of the New Deal required
a concomitant reduction in the Court's previously broad interpretation of
liberty under the Due Process Clause. After 1937, the issue became how to
reconstruct that liberty in light of the New Deal Court's general deference to
the political process. In particular, having limited due process liberty to the
rights listed in the text of the Bill of Rights, the New Deal Court had to
decide whether all of the Bill of Rights should be incorporated against the
states. It was here that the traditional doctrine of the Ninth Amendment
made its last stand. Applying a rule of construction based on the Ninth and
Tenth Amendments, the Supreme Court initially resisted incorporation
claims in order to preserve the states' retained rights to establish local rules
of criminal procedure. As the Court gradually incorporated most of the Bill
of Rights, this final application of the traditional Ninth Amendment also
faded away.
By the time Bennett Patterson wrote his book,
The Forgotten Ninth
Amendment , in 1955, almost all traces of the traditional Ninth Amendment
had disappeared. James Madison's speeches and the Supreme Court's early
opinions dealing with the Ninth Amendment had long been lost, and the vast
jurisprudence of the Ninth Amendment was dismissed as really having to do
with the Tenth Amendment. Thus, when Justice Arthur Goldberg penned his
opinion in
Griswold v. Connecticut, the Ninth Amendment appeared to exist
in a doctrinal and historical vacuum.
This Article concludes by considering the possibility that, even if the
traditional understanding of the Ninth Amendment until now has been lost,
the rule of construction represented by the Ninth lives on. Although
generally associated with the Tenth Amendment, the federalism
jurisprudence of the contemporary Supreme Court echoes the same rule of

2004]
The Lost Jurisprudence
7

construction originally associated with the Ninth. Thus, when contemporary
courts rule in favor of state autonomy, whether in regard to commerce or
state authorized medicinal use of marijuana, they are echoing the voices of
countless judges who throughout our constitutional history have sought to
protect the retained right of the people to local self-government.
II. Beginnings: The Ninth Amendment in Antebellum America
A. The Federalist Reading of the Ninth Amendment
The reader is presumed to have already read the first of these two
articles on the lost history of the Ninth Amendment. However, because the
history presented in the first article plays an important role in understanding
the jurisprudence that this Article recovers, a brief review is in order.
The state conventions that insisted on adding a Bill of Rights
specifically suggested the addition of two separate amendments: One
declaring the principle of enumerated federal power with all nondelegated
power being reserved to the states, and the second declaring a rule of
construction limiting the interpretation of enumerated federal power.
Madison's proposed draft of the Bill of Rights included two provisions that
mirrored the amendments suggested by the state conventions: a declaration
of reserved nondelegated power and a rule of construction that prohibited the
undue extension of federal power and preserved the people's retained
rights.12 Ultimately, these would become our Ninth and Tenth Amendments.
The final draft of the Tenth Amendment added the words "or to the
people" but otherwise remained the same as Madison's original draft. The
final draft of the Ninth Amendment, however, dropped the extension of
power language while keeping the language of retained rights. Although
Madison insisted that the meaning of the Ninth Amendment had not changed,
the Virginia Assembly was not convinced and delayed its ratification of the
Bill of Rights due to its concern that the demand for a rule limiting the
interpretation of enumerated federal power had been ignored.13 Other states,
however, quickly ratified ten out of twelve proposed amendments, including
what we know as the Ninth and Tenth.
While the Bill remained pending in Virginia, James Madison delivered
a speech on the floor of the House of Representatives in which he explained
the origin and meaning of the Ninth and Tenth Amendments. According to
Madison, these amendments were intended to limit the federal government's
ability to interfere with matters belonging under local or state control,
including mining, agriculture, and commerce. The Ninth Amendment in
particular prohibited any "latitude of interpretation" unduly extending the
powers of the federal government into matters retained by the people of the

12. Lash,
The Lost Original Meaning , supra note 8, at 360.
13
. Id. at 371�75.

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several states.14 Later that same year, Virginia abandoned its objections to
the Ninth Amendment and ratified what we know as the Bill of Rights.15
This history, recounted in the first article, reveals the origins of the
Ninth Amendment as a tool for limiting federal intrusion into matters
believed best left under local control. Both the Ninth and Tenth
Amendments guarded the principle of federalism by preserving the retained
right of the people to local self-government. The amendments, however,
differed in application. The Tenth Amendment ensured that the federal
government could exercise only those powers enumerated in the
Constitution, with all other powers generally reserved to the states. In
theory, however, enumerated federal power could be so broadly construed as
to allow the federal government to regulate all matters not specifically placed
out of bounds by the Bill of Rights. The Ninth Amendment addressed this
concern by ensuring that the rights enumerated in the Bill would not be
construed as the only limits on federal power. The effect of the provision, as
Madison explained in his letters and speeches, was to prevent any
interpretation of enumerated federal power that would allow federal authority
to extend into subjects left, as a matter of right, to the sovereign control of
the people of the several states.
Over time, the Tenth Amendment also came to be read as expressing a
rule of construction limiting the interpretation of federal power. No one
disputed Madison's federalist reading of the Ninth Amendment, however,
and both bench and bar continued to cite the Ninth as a federalism-based rule
of interpretation for more than one hundred years. Before exploring those
cases in depth, however, we should first consider the dog that did not bark:
judicial interpretation of the Ninth Amendment as a source of unenumerated
individual rights.
B. The Unenumerated Rights Cases
Nineteenth century cases discussing the Ninth Amendment as a source
of unenumerated rights are extremely rare.16 Prior to the Civil War, there
appear to have been only three attempts by litigants to raise such claims.17

14
. Id. at 384�93.
15
. Id. at 379�84.
16. I have found no clear evidence that any party even made such a claim before a state court
during this period. One possible exception is In re
Graduates , 11 Abb. Pr. 301, 322 n.4 (N.Y. Sup.
Ct. 1860), but the reference to the Ninth is obscure and made in passing.
17. One other possible unenumerated rights reference may be found in Justice Baldwin's circuit
court opinion in
Magill v. Brown , 16 F. Cas. 408 (C.C.E.D. Pa. 1833) (No. 8,952). In the midst of
his 44 page opinion, Justice Baldwin briefly refers to the "personal rights . . . protected by the 2d
and 3d clauses of section 9, art. 1, of the constitution, and the 9th amendment."
Id. at 428.
Although Baldwin describes the Ninth as protecting "personal rights," this is not inconsistent with a
federalist reading of the Ninth. St. George Tucker also referred to the Ninth as protecting personal
rights, but with a decidedly states' rights spin.
See Lash, The Lost Original Meaning , supra note 8,
at 396�97. In this regard, it is significant that Baldwin links the Ninth to restrictions on the federal
government in Article I, � 9 and
not to the restrictions on the states in Article I, � 10. Baldwin

2004]
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9

All of these attempts were rejected by the courts. In 1799, an American
citizen named Jonathan Robins was accused of committing murder on the
high seas aboard a British war ship.18 Under a treaty with Great Britain,
Robins was to be extradited to Great Britain for prosecution.19 Robins fought
the extradition on the grounds that it denied him his constitutional right to
trial by jury.20 According to Robins's attorney, both the Ninth and Tenth
Amendments reserved to the people the right to trial by jury.21 The court
rejected the claim without specifically discussing the Ninth and Tenth
Amendments, instead summarily stating that "[t]he objections made to the
treaty's being contrary to the constitution, have been so often and so fully
argued and refuted, that I was in hopes no time would have been occupied on
that subject." 22
In
Holmes v. Jennison , a Canadian citizen, accused of a murder
committed in Canada, was arrested in Vermont.23 On his own initiative, the
Governor of Vermont directed the state court to deliver the prisoner to
Canadian authorities, despite the fact that there was no extradition treaty in
force between the United States and Great Britain, the sovereign authority
over Canada.24 In his argument before the Supreme Court, former Governor
C. P. Van Ness25 argued that the current Governor's unilateral action violated

himself was a controversial figure on the Court whose opinions were described by fellow Justice
Joseph Story as "so utterly wrong in principle and authority, that I am sure he cannot be sane." J.
Strory to J. Hopkinson, May 9, 1833, Hopkinson Papers,
reprinted in 3�4 G. EDWARD WHITE,
HISTORY OF THE SUPREME COURT, THE MARSHALL COURT AND CULTURAL CHANGE, 1815�35, at
298 (1988).
18. United States v. Robins, 27 F. Cas. 825, 826 (D.C.S.C. 1799) (No. 16, 175).
19
. Id.
20
. Id. at 828.
21. According to Robins' attorney:
[Natural rights] not given up, formed a sacred residuum in the hands of the people, and
which are unalienable by any act of legislation: that this was no visionary theory of
ancient writers, but is the true and modern ground of all social union: and it is fully
recognized in our free constitution; for by article 12th, of the amendments to our
constitution, it is declared, "that all 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." And the 11th section declares, "the enumeration in the constitution of
certain rights, shall not be construed to deny or disparage others retained by the
people."
Id. at 828�29.
22
. Id. at 832.
23. 39 U.S. (14 Pet.) 540, 540 (1840).
24
. Id. at 541�42.
25. When he was governor, Van Ness had been told by the U.S. State Department not to hand
over the prisoner because an extradition treaty was still under negotiation.
See CARL B. SWISHER,
HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE TANEY PERIOD, 1836�1864, at
175 (1974) (noting that Van Ness, "meticulous about the exercise of constitutional powers," refused
to honor extradition requests from the Governor of Canada, instead referring the request to
Secretary of State Henry Clay). Apparently, when the governorship changed hands, the new
governor was willing to extradite even without a federal treaty.
See id . (indicating that other
governors treated extradition requests as a matter of their own discretion).

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the defendant's right to due process under the Fifth Amendment.26 Calling
on the Court to reverse its recent decision in
Baron v. Baltimore ,27 Van Ness
argued that the people retained inherent personal rights that should be
respected by all governments, state and federal.28 He distinguished the
retained rights of the Ninth Amendment from the reservation of powers in
the Tenth and argued that not only were such rights recognized in the Ninth
Amendment, but also that the Bill of Rights should be read as granting the
federal government power to protect these rights against state intrusion.29
The Court rejected this attempt to reverse
Baron and dismissed the case for
want of jurisdiction without discussing Van Ness's interpretation of the
Ninth and Tenth Amendments or his remarkable argument that the original
Bill of Rights was a source of federal regulatory power.30
Instead of viewing the Ninth as protecting unenumerated rights, the
Supreme Court during this period appeared to presumptively treat Ninth
Amendment claims as involving the proper interpretation of federal power.
In
Roosevelt v. Meyer , Meyer wished to pay a debt he owed Roosevelt in
notes issued by the United States.31 There being some question whether the
United States government had the power to issue such notes, the two parties
went to state court seeking a judgment regarding the validity of the notes.32
According to the record:

26
. Holmes , 39 U.S. at 555.
27
. Id.
28
. Id. at 556.
29. According to Van Ness:
But the distinction which I have endeavoured to establish between the limitations
of power and the declarations of rights, is adopted in the clearest manner in the
Constitution itself. The ninth article of the amendments declares, that "the enumeration
in the Constitution of certain rights, shall not be construed to deny or disparage others
retained by the people." And the tenth article provides, 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." Here we see that the framers of these
amendments had no idea of confounding the limitations of power, and the declarations
of rights; but treated each as distinct from the other. If the amendments had treated
only of the former, certainly the reservation, both to the states and to the people, in the
tenth article, would have answered every purpose. But the ninth article was deemed
necessary as it regarded the rights declared to exist, in order to prevent the people from
being deprived of others by implication, that might not be included in the enumeration.
It appears clear to my mind, then, that the provision in the Constitution to which I
have referred, instead of limiting the powers of the general government, directly calls
into action those powers for the protection of the citizen.
Id. at 557.
30. In all of the cases I have discovered that discussed the Ninth and Tenth Amendments, Van
Ness's argument was the sole attempt to distinguish rights under the Ninth from powers under the
Tenth.
But see John Choon Yoo, Our Declaratory Ninth Amendment , 42 EMORY L.J. 967, 1004�06
(1993) (discussing Van Ness's argument as evidence of an individual rights reading of the Ninth
Amendment).
31. 68 U.S. (1 Wall.) 512, 513 (1863).
32. The notes had been issued according to an 1862 act that declared the notes should be
"`lawful money and a legal tender in payment of all debts, public and private,' except duties on

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[Roosevelt]
relied upon certain provisions in the Constitution of the
United States, namely Article I, section 8, clause 5, of the said
Constitution, and Articles 5, 9, and 10 of the amendments thereof, the
effect of which, as the said respondent
insisted , was, that the debt,
owing to the said respondent upon and by virtue of the bond and
mortgage mentioned in the submission of the case, could not be paid
against the will of the said creditor in anything but gold or silver
coin . . . .33
The highest court of New York ruled that the notes were valid legal
tender, and Roosevelt appealed to the United States Supreme Court. There,
Meyer argued that the appeal should be dismissed on the grounds that the
Supreme Court lacked jurisdiction to hear the case.34 Section 25 of the
Judiciary Act of 1789 granted the Supreme Court appellate jurisdiction
"where is drawn in question the construction of any clause of the
Constitution, or of a . . . statute of . . . the United States, and the decision is
against the title, right, privilege, or exemption specially set up or claimed by
either party under such clause of the said Constitution."35 According to
Meyer, because the state court had
upheld the validity of the Act, the
Supreme Court had no jurisdiction to hear the appeal.36 Although Roosevelt
had included the Fifth, Ninth, and Tenth Amendments in his original claim,
Meyer argued that these constitutional provisions were cited only in support
of Roosevelt's main argument that Congress had no power to issue the
notes.37 The Supreme Court agreed and dismissed the appeal for want of
jurisdiction.38 The Court thus treated Roosevelt's Ninth Amendment claim
not as an unenumerated right, but as a rule for construing federal power
under the Bankruptcy Clause.39

imports, and interest on the Federal debt."
Id. at 513 (emphasis omitted) (quoting Act of Feb. 25,
1862, ch. 33, � 1, 12 Stat. 345). The controversy over legal tender would continue after the civil
war.
See infra section III(B)(1) (discussing the Legal Tender Cases ).
33
. Roosevelt , 68 U.S. at 514�15.
34
. Id. at 515�16.
35
. Id. at 512�13 (alteration in original).
36
. Id. at 515.
37
. Id. at 515�16.
38
. Id. at 517.
39. Roosevelt himself apparently recognized the problem and thus focused on the Fifth
Amendment, not the Ninth, in his argument before the Supreme Court.
Id. at 516. In the post-Civil
War decision,
Trebilcock v. Wilson , 79 U.S. (12 Wall.) 687 (1871), the Supreme Court viewed the
denial of jurisdiction in
Roosevelt as error. Id. at 692�93. According to Justice Field in Trebilcock ,
the claim could be construed as involving the right to be paid in specie under a proper construction
of the Ninth and Tenth Amendments.
Id. at 693�94. This was a denial of right involving the
construction of the Fifth, Ninth, and Tenth Amendments and thus sufficient to satisfy the
jurisdiction requirements of Section 25 of the Judiciary Act.
Id. at 693. Trebilcock does not dispute
the
Meyer Court's view that the Ninth and Tenth can be used to determine the scope of federal
power; it only asserts that claims under the Fifth, Ninth, and Tenth Amendments raise rights
sufficient to trigger jurisdiction.

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Finally, while riding circuit in New Hampshire only two years after
joining the Supreme Court, Justice Joseph Story decided
Society for the
Propagation of the Gospel v. Wheeler
.40 Wheeler involved a state law that
allowed tenants to recover the value of improvements. The claim was that
the law was:
[I]n contravention of the 2d, 3d, 12th, 14th and 20th articles of the bill
of rights, in the constitution of New Hampshire; and of the 10th
section of the first article, and the 9th article of the amendments, of the
constitution of the United States; and is also repugnant to natural
justice; and is therefore void.41
Justice Story dismissed the constitutional claim:
In respect also to the constitution of the United States, the statute in
question cannot be considered as void. The only article which bears on
the subject, is that which declares, that no state shall pass `any ex post
facto law, or law impairing the obligation of contracts.' There is no
pretence of any contract being impaired between the parties before the
court. The compensation is for a tort, in respect to which the
legislature have created and not destroyed an obligation. Nor is this an
ex post facto law within this clause of the constitution, for it has been
solemnly adjudged, that it applies only to laws, which render an act
punishable in a manner, in which it was not punishable, when it was
committed. The clause does not touch civil rights or civil remedies.
The remaining question then is, whether the act is contrary to the
constitution of New Hampshire.42
In this passage, Story ignores the Ninth Amendment claim, despite the
alleged violation of natural rights. Even though the case involved a claim of
natural justice, Story viewed the Ninth Amendment as having no "bear[ing]
on the subject."43 It is only after Story expressly moved from considering the
federal Constitution to issues of state law that he addressed "natural
justice."44 The implication is that, to Story, natural rights were a matter of
state law and not a judicially enforceable aspect of the federal Ninth
Amendment.45
The rarity and universal rejection of attempts to read the Ninth
Amendment as a source of libertarian rights tracks the original understanding
of the Ninth as a rule protecting the retained collective rights of the people of
the several states. It is not that the Founding generation rejected the idea of

40. 22 F. Cas. 756 (C.C.D.N.H. 1814) (No. 13,156).
41
. Id. at 766.
42
. Id. at 767 (internal citations omitted).
43
. See id.
44
. Id. at 767�68.
45. For a general discussion of how the original understanding of the Ninth Amendment relates
to the Founding-era understanding of natural rights, see Lash,
supra note 8, at 401�10.

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13

individual natural rights. Far from it.46 But claims of natural rights were
presumptively matters of state law, distinct from the limitations on federal
power imposed by the Ninth Amendment.47 The initial application of the
Ninth would come not in support of libertarian rights, but in support of the
concurrent powers of state government.
C. Retaining the Concurrent Power of the States
In all other cases not falling within the classes already mentioned, it
seems unquestionable that the states retain concurrent authority with
Congress, not only upon the letter and spirit of the eleventh
amendment of the constitution, but upon the soundest principles of
general reasoning.48
A critical issue in the early republic was determining the nature of
federal power. If deemed exclusive, this would preclude state authority over
any matter within the potential reach of the federal government. For
example, federal authority to regulate interstate commerce had the potential
to deny the states authority to regulate
any matter touching commercial
affairs. Because it was a hotly contested issue during the ratification debates,
Alexander Hamilton in
The Federalist Papers sought to placate antifederalist
concerns by limiting exclusive federal authority to "three cases":
[Ind] The principles established in a former paper teach us that the
states will retain all
pre-existing authorities which may not be
exclusively delegated to the federal head; and that this exclusive
delegation can only exist in one of three cases: where an exclusive
authority is, in express terms, granted to the Union; or where a
particular authority is granted to the Union and the exercise of a like
authority is prohibited to the States; or where an authority is granted to
the Union with which a similar authority in the States would be utterly
incompatible.49
Under Hamilton's approach, much depends on the third case and how
one arrives at the conclusion that state power is "utterly incompatible" with
federal authority. Those advocating the maximum degree of state autonomy
argued for strict construction of federal power in cases involving matters
traditionally under state control. In 1803, for example, St. George Tucker
wrote that state governments "retain every power, jurisdiction and right not
delegated to the United States, by the constitution, nor prohibited by it to the
states."50 According to Tucker, the principles of the Ninth and Tenth

46
. See Lash, The Lost Original Meaning , supra note 8, at 401�10 (discussing judicial
recognition and protection of natural rights as a matter of state law).
47
. Id.
48. Houston v. Moore, 18 U.S. (5 Wheat) 1, 49 (1820) (Story, J., dissenting).
49. THE FEDERALIST No. 82, at 492 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
50. St. George Tucker,
View of the Constitution of the United States , in 1 BLACKSTONE'S
COMMENTARIES: WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE

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Amendments required that "the powers delegated to the federal government,
are, in all cases, to receive the most strict construction that the instrument
will bear, where the rights of a state or of the people, either collectively, or
individually, may be drawn in question."51
In the early 1800s, other courts echoed Tucker's view that the Ninth and
Tenth Amendments called for a narrow construction of federal power. In
1816, South Carolina courts were faced with the question whether states have
the authority to prosecute persons passing counterfeit federal coins.52
Although the Constitution expressly empowers the federal government to
punish counterfeiters,53 it was not clear whether this express enumeration
should be interpreted to prohibit the states from punishing persons
passing
counterfeit coins. Writing for the South Carolina Supreme Court, Judge
Grimke noted that the Constitution does not expressly grant Congress the
power to punish persons passing counterfeit coins.54 Applying a rule of
construction based on the Ninth and Tenth Amendments, Judge Grimke
concluded that this, then, was a power retained by the states:
[I]t does not appear that the power of punishing persons for passing
counterfeit coin, knowing it to be counterfeit, was either expressly
given to the Congress of the United States, or divested out of the
individual States. Now the 9th section of the amendments to the
constitution, as agreed to by the several States, and which has now
become a component part of the constitution, declares, that the
enumeration in the constitution of certain rights, shall not be construed
to deny or disparage others retained by the people; and in the 10th
section of the same, it is further provided, that the powers not
delegated to the United States by the constitution, nor prohibited by it
to the State, are reserved to the States, respectively, or to the people.
When we examine the powers conceded by the individual states, we
find no enumeration of this power given to Congress, and when we
review the powers denied to the individual States, we discover no
mention whatever of their being divested of this power. The individual
States were in possession of this power before the ratification of the
constitution of the United States; and if there is no express declaration
in that instrument, which deprives them of it, they must still retain it,
unless they should be divested thereof by construction or
implication.55

FEDERAL GOVERNMENT OF THE UNITED STATES; AND THE COMMONWEALTH OF VIRGINIA 141 (St.
George Tucker ed., Augustus M. Kelley 1969) (1803) [hereinafter TUCKER, BLACKSTONE'S
COMMENTARIES].
51
. Id. at 154.
52. State v. Antonio, 3 S.C.L. (1 Brev.) 562 (1816).
53. U.S. CONST. art. I, � 8, cl. 6 ("[Congress shall have power] [t]o provide for the Punishment
of counterfeiting the Securities and current Coin of the United States.").
54
. Antonio , 3 S.C.L. (1 Brev.) at 567�68.
55 . Id.

2004]
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15

Grimke read the Ninth and Tenth Amendments as applying to powers
exercised by the states prior to the adoption of the Constitution.56 If such
powers are not expressly granted to the federal government or divested from
the states, then under the Ninth Amendment, enumerated federal power
should be interpreted in a manner retaining such rights to the states. Other
courts repeated this idea of retained state power. In
Livingston v. Van Ingen ,
the state of New York had granted a ferry monopoly to Robert Livingston
and Robert Fulton57 by virtue of their "new and advantageous" mode of
transportation.58 A competitor claimed that granting such monopolies was an
exclusive power of the federal government under its enumerated powers to
"promote the progress of science and useful arts" and to regulate interstate
commerce.59 Livingston's counsel Thomas A. Emmet60 responded that the
federal government had only such power as was expressly granted and that
all other powers were reserved to the states under the Ninth and Tenth
Amendments.61

56. From Judge Nott's dissent in this case, it appears the Ninth Amendment was the primary
clause relied on to support concurrent jurisdiction:
The advocates for a concurrent jurisdiction derive no support from the amendment of
the constitution which has been relied on. It does not say that the powers not expressly
delegated, &c., shall be reserved; but that the enumeration of certain rights shall not be
construed to deny or disparage others retained by the people; and whether by express
or necessary implication, the effect is the same.
Id. at 578 (Nott, J., dissenting).
57. This monopoly would be the subject of a great deal of litigation.
See, e.g. , Gibbons v.
Ogden, 22 U.S. (9 Wheat.) 1 (1824). In
North River Steamboat Co. v. Livingston , 1 Hopk. Ch. 170
(N.Y. Ch. 1824), Livingston argued that neither the Ninth nor Tenth Amendment reserved powers
or rights to the states, but only to "the people." Thus, the state had no right to interfere with his
ferry operations from one place to another in New York waters.
See id. at 182�84. The court
ignored his argument, ruling instead that his ferry run was protected under the holding of
Gibbons v.
Ogden
, since it involved stops on both the New York and New Jersey sides of the water. Id. at 227�
28.
58. 9 Johns. 507, 508 (N.Y. 1812).
59
. Id. at 515.
60. Thomas Emmet argued a number of important cases in state and federal court, including the
Supreme Court, between 1815 and 1824.
See 3�4 WHITE, supra note 17, at 204�14. The
culmination of his legal career was his argument before the Supreme Court in
Gibbons v. Ogden .
Id. at 210�11; see also infra note 112 and accompanying text.
61. According to Emmet:
In the year 1789, certain amendments to the constitution were proposed; and of the
articles adopted, the ninth and tenth were, "that the enumeration in the constitution of
certain rights, shall not be construed to deny or disparage others retained by the
people." 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."

The convention of this state adopted the constitution with the explanation given by
General
Hamilton, who was a member, that no powers were conferred on congress but
such as were explicitly given by the constitution.
Livingston , 9 Johns. at 550�51.

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The highest court of New York, under the leadership of Chancellor
Kent, upheld the monopoly.62 Judge, and later Supreme Court Justice, Smith
Thompson concurred in an opinion based on the Tenth Amendment, but used
language that combined the Ninth (retained rights) and Tenth (nondelegated
powers):
It is an undeniable rule of construction, applicable to the constitution
of the United States, that all powers and rights of sovereignty,
possessed and enjoyed by the several states, as independent
governments, before the adoption of the constitution, and which are
not either expressly, or by necessary implication, delegated to the
general government, are retained by the states.63
As the nineteenth century progressed, the need to define the line
between exclusive and concurrent federal power was diminished somewhat
by court decisions that narrowed the scope of federal power to regulate
interstate commerce.64 For example, in 1863 the Supreme Court of Indiana
ruled that Congress had no authority to regulate intrastate commerce, thereby
obviating the issue of concurrent state power over the same activity.65 Once
again, the court's interpretation of the scope of federal power was informed
by principles expressed in the Ninth and Tenth Amendments:
In the case at bar, it may, for the sake of the argument, be conceded,
that Congress not only possesses the power, but the exclusive right, to
regulate commerce among the several States, including the pilotage of
vessels engaged in said commerce; and still the facts, so far as the
record shows them, do not make a case falling strictly within the
principle of the points thus conceded, because not involved. And why?
The ninth amendment to the Constitution is as follows: "The
enumeration in the Constitution of certain rights, shall not be
construed to deny or disparage others retained by the people," and
tenth: "The powers not delegated to the
United States by the
Constitution, nor prohibited by it to the States, are reserved to the

62
. Id. at 590.
63
. Id. at 565. Judge Thompson goes on:
This has been the uniform understanding of the ablest jurists, ever since the formation
of that government; and it is a rule indispensably necessary, in order to preserve
harmony in the administration of the different governments, and prevent that collision
which a partial consolidation is peculiarly calculated to produce. This was the object
contemplated and intended to be secured by the tenth article of the amendments of the
constitution, which declares, 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. If, then, the grant of the right or privilege claimed by the appellants,
would, before the adoption of the constitution, have been a legitimate exercise of state
sovereignty, it would, I think, under the rule of construction which I have suggested, be
a strained interpretation of that instrument, to say such sovereignty has been thereby
surrendered by the state.
Id.
64
. See infra notes 300�326 and accompanying text.
65. Barnaby v. State, 21 Ind. 450, 452�53 (1863).

2004]
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17

States respectively, or to the people." The power conferred upon
Congress to regulate commerce, it will not, we suppose, in view of
these provisions, be contended, give jurisdiction over the navigable
waters of a State, except as regards intercourse with other States of the
Union, or with a foreign country.66
In other cases, however, the conflict between state and federal
jurisdiction would be unavoidable. Those cases forced a determination of the
degree to which state power ran concurrent with federal authority--an issue
which called for the application of the Ninth Amendment.
D. Justice Story and Houston v. Moore
The tandem application of the Ninth and Tenth Amendments illustrated
in the previous cases was repeated throughout the nineteenth century, with
both clauses generally read as related expressions of state autonomy.67 Given
the Ninth Amendment's role in preserving local autonomy, it is not
surprising to find it generally paired with the Tenth. Occasionally, however,
issues arose that seemed particularly suited for application of one or the other
amendments. The Alien and Sedition Act controversy, for example, was
particularly subject to a Tenth Amendment critique because Congress sought
to exercise a nonenumerated power.68 The construction of enumerated
powers, on the other hand, seems particularly suited for the application of the
Ninth Amendment. Although the Tenth reserves nondelegated powers to the
states, the issue of concurrent state power involves matters concededly within
Congress's delegated powers. The issue is the degree to which that
enumerated power denies or disparages the existence of concurrent state
authority. Accordingly, in one of the Supreme Court's most influential
opinions on the exclusivity of enumerated federal power, it was the Ninth,
not the Tenth, that informed the Court's interpretation of the Constitution.
Joseph Story's dissenting opinion in
Houston v. Moore contains the
earliest discovered discussion of the Ninth Amendment by a Supreme Court
Justice. Although written in dissent, Justice Story's analysis was influential

66
. Id.
67. In
State v. Brearly , counsel for the state argued that jurisdiction to issue writs of habeas
corpus against the U.S. military was a power retained by the states under the Ninth and Tenth
Amendments. 5 N.J.L. 639, 643 (N.J. 1819). Though Judge Southard concluded that some matters
are within the exclusive jurisdiction of the federal courts, he further explained:
There are other questions, where the state and federal courts both have jurisdiction.
They are such as existed and were the subjects of state cognizance and judicial notice
before the formation of the general government, and are given to the
United States , but
altogether without words of exclusion used in application to the state. They are
possessed by the federal courts because expressly given; they are retained by the states
upon the impregnable ground that they have never been surrendered.
Id. at 644; see also Henry Bickel Co. v. Wright's Adm'x, 202 S.W. 672, 674 (Ky. 1918) ("[T]he
ninth and tenth amendments reserve to the states all powers not expressly delegated.").
68. For a discussion of Tenth Amendment objections to the Alien and Sedition Act, see Lash,
The Lost Original Meaning , supra note 8, at 410�13.

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for the next one hundred years. It was cited by later Supreme Court justices
and many state and federal courts as they continued to struggle with the line
between state and federal power. In the countless articles and treatises
discussing the Ninth Amendment, however, not one discusses Story's
analysis of the Ninth Amendment in
Houston . Despite the importance of the
case,69 it is not hard to understand why it was missed: Justice Story referred
to the Ninth as the "eleventh amendment."70 This is not a mistake. James
Madison also referred to the Ninth as the Eleventh in his letters and in his
speech on the Bank of the United States.71 This usage reflects an early
convention which referred to the first ten amendments according to their
position on the original list of twelve.72 In 1803, St. George Tucker
published his treatise on the American Constitution, in which he referred to
the Ninth and Tenth Amendments as "Articles 11 and 12."73 The same year
Story wrote his opinion in
Houston , John Taylor published Construction
Construed
, in which he referred to the Ninth and Tenth Amendments as the
"eleventh and twelfth."74 As late as 1833, the Supreme Court referred to the
Seventh Amendment as the Ninth--its place on the original list.75 Over time,
the convention changed and "Articles Three through Twelve" became known
as the Bill of Rights and were renumbered One through Ten. This change in
convention, however, has had the effect of obscuring Justice Story's
important discussion of the Ninth Amendment in
Houston . Rescued from

69
. Houston and its progeny account for roughly 25% of the Supreme Court's total
jurisprudence on the Ninth Amendment. The case receives significant attention in G. Edward
White's
History of the Supreme Court . See 3�4 WHITE, supra note 17, at 535�41. Although at one
point White quotes Story's reference to the "eleventh amendment," White does not discuss whether
Story was referring to the Ninth.
Id. at 572.
70. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 49 (1820) (Story, J., dissenting).
71. James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791),
in
WRITINGS,
supra note 11, at 489.
72
. See, e.g. , Letter from James Madison to George Washington (Dec. 5, 1789), in THE
COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES AND ORIGINS 661 (Neil H. Cogan
ed., 1997) [hereinafter THE COMPLETE BILL OF RIGHTS] (referring to the Ninth Amendment as the
"eleventh").
73
. See TUCKER, BLACKSTONE'S COMMENTARIES, supra note 50, at 151, 154.
74. JOHN TAYLOR, CONSTRUCTION CONSTRUED AND CONSTITUTIONS VINDICATED 46
(Leonard W. Levy ed., Da Capo Press 1970) (1820). According to Taylor:
The eleventh amendment prohibits a construction by which the rights retained by the
people shall be denied or disparaged; and the twelfth reserves to the state respectively
or to the people the powers not delegated to the United States, not prohibited to the
states. The precision of these expressions is happily contrived to defeat a construction,
by which the origin of the union, or the sovereignty of the states, could be rendered at
all doubtful.
Id. (emphasis omitted).
75. Livingston v. Moore, 32 U.S. (7 Pet.) 469, 551 (1833) (referring to the current Seventh
Amendment as the "ninth Article of the amendments of the constitution of the United States");
see
also
Ex parte Burford, 7 U.S. (3 Cranch) 448, 451 (1806) (referring to the Fourth Amendment as
the "6th article of the amendments to the constitution").

2004]
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19

obscurity,76 Story's opinion stands as the Supreme Court's first and most
relied upon discussion of the Ninth Amendment as an independent principle
of constitutional law.77
1. Houston v. Moore .--Houston involved a state prosecution for failure
to perform federal militia duty.78 Pennsylvania law provided that "every
non-commissioned officer and private, who shall have neglected or refused
to serve when called into actual service," would be courtmartialed by the
state and punished according to the federal militia law of 1795.79 In 1814,
President Madison instructed the Governor of Pennsylvania to supply
militiamen for the war against Great Britain. Houston, a private enrolled in
the Pennsylvania militia, refused to join up with his detachment and was
prosecuted and fined according to state law.80 Houston's defense was that
Pennsylvania law in this instance was "contrary to the constitution of the
United States," particularly Article I, Section 8, Clauses 15 and 16 of the
Constitution, which grants Congress authority over the militia.81 According
to Houston, federal power over the militia was "exclusive of state authority,"
and thus the states had no concurrent power to create courts martial and
impose penalties for violating federal militia law, even when Congress had
failed to create its own courts martial.82

76
. Houston v. Moore actually has been hiding in plain sight. In addition to being cited on the
issue of concurrent state power,
Houston has long been a part of discussions regarding militias and
the Second Amendment.
E.g. , Michael A. Bellesiles, The Second Amendment in Action , 76 CHI.-
KENT L. REV. 61, 99 n.319 (2000); J. Norman Heath,
Exposing the Second Amendment: Federal
Preemption of State Militia Legislation
, 79 U. DET. MERCY L. REV. 39, 39�40 (2001); David B.
Kopel,
The Supreme Court's Thirty-Five Other Gun Cases: What the Supreme Court Has Said
About the Second Amendment
, 18 ST. LOUIS U. PUB. L. REV. 99, 183 (1999) (calling Story's
citation to the "fifth" amendment a "typo" but not mentioning his citing the "eleventh"). Other
language by Story in
Houston regarding the Court's lack of power to expand the Constitution has
also been cited in discussions of the power of the Supreme Court.
See, e.g. , Raoul Berger, New
Theories of "Interpretation": The Activist Flight From the Constitution
, 47 OHIO ST. L.J. 1, 9
(1986) ("Understandably, Justice Story emphasized, `we are not at liberty to add one jot of power to
the national government beyond what the people have granted by the constitution.'").
77. Although Story's reference to the Ninth has been obscured, the case itself continues to be
cited by the Supreme Court.
See, e.g. , Tafflin v. Levitt, 493 U.S. 455, 458�59 (1990).
78. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 49 (1820). For an excellent discussion of
Houston 's underlying facts from a non-Ninth Amendment point of view, see David B. Kopel, The
Second Amendment in the Nineteenth Century
, 1998 B.Y.U. L. REV. 1359, 1379�84.
79
. Houston , 18 U.S. at 58.
80
. Id. at 2.
81
. Id. at 47. Clause 15 allows Congress "[t]o provide for calling forth the Militia to execute
the Laws of the Union, suppress Insurrections and repel Invasions." U.S. CONST. art. I, � 8, cl. 15.
Clause 16 allows Congress "[t]o provide for organizing, arming, and disciplining, the Militia, and
for governing such Part of them as may be employed in the Service of the United States, reserving
to the States respectively, the Appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress." U.S. CONST. art. I, � 8, cl. 16.
82
. Houston , 18 U.S. at 4.

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In response, the state argued that concurrent state power should be
assumed on the grounds of state sovereignty. Citing the New York court's
decision in
Livingston v. Van Ingen ,83 Houston's lawyer declared:
The necessity of a concurrent jurisdiction in certain cases results from
the peculiar division of the powers of sovereignty in our government;
and the principle, that all authorities of which the states are not
expressly devested in favour of the Union, or the exercise of which, by
the states, would be repugnant to those granted to the Union, are
reserved to the states, is not only a theoretical consequence of that
division, but is clearly admitted by the whole tenor of the
constitution.84
Writing for a splintered majority, Justice Bushrod Washington ruled that
Congress had not provided federal courts with exclusive jurisdiction in these
kinds of matters and upheld Houston's conviction.85 Justice Story dissented
on the ground that federal militia law applicable to this case contemplated a
federal--not a state--court martial.86 In his opinion, Story articulated
principles of construction for determining whether federal power was
concurrent or exclusive. He began by stating the importance of the case to
issues of state sovereignty:
Questions of this nature are always of great importance and delicacy.
They involve interests of so much magnitude, and of such deep and
permanent public concern, that they cannot but be approached with
uncommon anxiety. The sovereignty of a state in the exercise of its
legislation is not to be impaired, unless it be clear that it has
transcended its legitimate authority; nor ought any power to be sought,
much less to be adjudged, in favour of the United States, unless it be
clearly within the reach of its constitutional charter.87
Story then noted that a constitutional grant of power does not necessarily
deny states concurrent authority over the same subject. His reasoning here
deserves to be presented in full:
The constitution containing a grant of powers in many instances
similar to those already existing in the state governments, and some of
these being of vital importance also to state authority and state
legislation, it is not to be admitted that a mere grant of such powers in

83. 9 Johns. 507, 508 (N.Y. 1812).
84
. Houston , 18 U.S. at 8.
85
. Id. at 28. In his opinion, Justice William Johnson found no reason for the case to have been
heard by the Court; the state prosecution was ancillary to federal law--not in conflict with it--and
the United States had not complained.
Id. at 33 (Johnson, J., concurring). Johnson did not believe
Houston was subject to federal law at all prior to his reaching the "place of rendezvous."
Id. at 36
(Johnson, J., concurring).
86
. Id. at 68�69 (Story, J., dissenting). In his dissent, Story had "the concurrence of one of my
brethren."
Id. at 76 (Story, J., dissenting). The Justice most likely to have concurred was Chief
Justice John Marshall.
See 3�4 WHITE, supra note 17, at 537. [cu pending--white]
87
. Id. at 48 (Story, J., dissenting).

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21

affirmative terms to Congress, does,
per se , transfer an exclusive
sovereignty on such subjects to the latter. On the contrary, a
reasonable interpretation of that instrument necessarily leads to the
conclusion that the powers so granted are never exclusive of similar
powers existing in the states, unless where the constitution has
expressly, in terms, given an exclusive power to Congress, or the
exercise of a like power is prohibited to the states, or there is a direct
repugnancy or incompatibility in the exercise of it by the states.[88]
The example of the first class is to be found in the
exclusive legislation
delegated to Congress over places purchased by the consent of the
legislature of the state in which the same shall be, for forts, arsenals,
dock-yards, &c.; of the second class, the prohibition of a state to coin
money or emit bills of credit; of the third class, as this court have
already held, the power to establish an uniform rule of naturalization,
and the delegation of admiralty and maritime jurisdiction. In all other
cases not falling within the classes already mentioned, it seems
unquestionable that the states retain concurrent authority with
Congress
, not only upon the letter and spirit of the eleventh
amendment of the constitutio
n, but upon the soundest principles of
general reasoning. There is this reserve, however, that in cases of
concurrent authority, where the laws of the states and of the Union are
in direct and manifest collision on the same subject, those of the
Union being `the supreme law of the land,' are of paramount
authority, and the state laws, so far, and so far only, as such
incompatibility exists, must necessarily yield.
Such are the general principles by which my judgment is guided in
every investigation on constitutional points. I do not know that they
have ever been seriously doubted. They commend themselves by their
intrinsic equity, and have been amply justified by the opinions of the
great men under whose guidance the constitution was framed, as well
as by the practice of the government of the Union. To desert them
would be to deliver ourselves over to endless doubts and difficulties;
and probably to hazard the existence of the constitution itself.89
The context of the discussion initially makes Story's reference to the
Eleventh Amendment puzzling. The Eleventh Amendment restricts the
jurisdiction of federal courts to hear claims by individuals against states.90 In
this passage, however, Story is not discussing federal court jurisdiction, but
the proper construction of federal legislative power. This, as we have seen,
raises issues under the Ninth but not the Eleventh Amendment. The
reference makes sense, however, if Story is understood to be using the early

88. To this extent, Story appears to track Hamilton's argument in
Federalist 82 . See supra note
49.
89
. Houston , 18 U.S. at 48�50 (Story, J., dissenting) (second and third emphasis added)
(footnotes omitted).
90. U.S. CONST. amend. XI.

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convention of referring to provisions in the Bill of Rights according to their
position on the originally proposed list of amendments.91 Read this way, the
passage not only makes sense, it becomes a textbook case for how to apply
the Ninth Amendment's rule of construction.
One of the original purposes of the Ninth Amendment was to prevent
the Bill of Rights from being construed to suggest that congressional power
extended to all matters
except those expressly restricted.92 As Joseph Story
would later write in his
Commentaries on the Constitution :
[The Ninth Amendment] was manifestly introduced to prevent any
perverse, or ingenious misapplication of the well known maxim, that

91. Additional evidence that Story is using the early convention comes later in his opinion
when he refers to the Second Amendment as the "Fifth."
See Houston , 18 U.S. at 52�53 (Story, J.,
dissenting) ("The fifth amendment to the constitution, declaring that `a well regulated militia being
necessary to the security of a free State, the right of the people to keep and bear arms shall not be
infringed,' may not, perhaps, be thought to have any important bearing on this point."). This
reference clearly indicates that Story is using some different method of numbering the amendments,
but this particular passage raises a mystery of its own. If Story were using the early convention, he
would have referred to the Second as the Fourth Amendment. The fact that he calls it the Fifth
raises the possibility of transcription error. In fact, some commentators have referred to Story's
Fifth Amendment reference in this case as a "typo."
See Kopel, supra note 76, at 183 (calling
Story's citation to the "fifth" amendment a "typo," but not mentioning Story's reference to the
"eleventh"). But if the "fifth" was a transcription error, this calls into question whether his
"eleventh amendment" reference also was in error. This, however, is not likely. The reference to
the "fifth" makes no sense unless this was a case of transposing an intended reference to the Fourth
(now our Second) into a reference to the "fifth." The terms "Fourth" and "Fifth" are closely enough
related to explain the error. Story's references to the eleventh amendment, however, need no such
explanation. It makes perfect sense in the context of the discussion (other courts also believed
issues of concurrent state power raised Ninth Amendment issues), and it fits with the common
convention described in the text. In fact, viewing his references to the Eleventh under the
convention helps to explain the mistaken reference to the "fifth." Additional support for the view
that his reference to the "fifth" but not his reference to the "eleventh," was a mistake, is seen in how
this passage was treated in later court decisions. Story's reference to the eleventh amendment is
quoted in briefs to the Supreme Court, and by Supreme Court Justices themselves, in later cases
without correction or any indication that the reference is mistaken.
See infra notes 108�151.
Lawyers before the Court in
Gibbons v. Ogden , 22 U.S. (9 Wheat) 1, 130�31 (1824), for example,
quoted Story's reference to the Eleventh Amendment, at a time when Justice Story was on the
bench. Story rejected their claim in that case, but neither he nor the litigants indicated that the
reference was mistaken in any way. The reporter's reference to the "fifth"
Amendment in Houston ,
on the other hand, is never quoted again by any litigant or any court--state or federal.

92. In his speech introducing draft amendments to the House of Representatives, Madison
addressed concerns regarding the addition of a Bill of Rights:
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 may be guarded against. I have attempted it, as gentlemen may see by
turning to the last clause of the 4th resolution.
James Madison, Speech in Congress Proposing Constitutional Amendments,
reprinted in
WRITINGS,
supra note 11, at 448�49. The "last clause of the 4th resolution" referred to by Madison
was an early draft of the Ninth Amendment.
See Lash, The Lost Original Meaning , supra note 8, at
360 (detailing the drafting history of the Ninth Amendment).

2004]
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23

an affirmation in particular cases implies a negation in all others; and

converso
, that a negation in particular cases implies an affirmation in
all others. The maxim, rightly understood, is perfectly sound and safe;
but it has often been strangely forced from its natural meaning into the
support of the most dangerous political heresies. The amendment was
undoubtedly suggested by the reasoning of the Federalist on the
subject of a general bill of rights.93
In
Houston , the defendant was attempting just such a "political heresy."
One of Houston's arguments was that the sole power of the states to regulate
on matters involving the militia was contained in the "reservation" clause of
Article I, Section 8, Clause 16.94 That clause, after granting Congress power
to organize and discipline the militia, reserved to the states "the Appointment
of the officers, and the Authority of training the Militia according to the
discipline prescribed by Congress."95 According to Houston, this reservation
implied that all power not expressly reserved to the states was exclusively in
the hands of Congress.96 Story rejected this argument, applying the rule of
construction he believed declared by the Ninth Amendment:
It is almost too plain for argument, that the power here given to
Congress over the militia, is of a limited nature, and confined to the
objects specified in these clauses; and that in all other respects, and for
all other purposes, the militia are subject to the control and
government of the State authorities. Nor can the reservation to the
States of the appointment of the officers and authority of the training
the militia according to the discipline prescribed by Congress, be
justly considered as weakening this conclusion. That reservation
constitutes an exception merely from the power given to Congress `to
provide for organizing, arming, and disciplining the militia;' and is a
limitation upon the authority, which would otherwise have developed
upon it as to the appointment of officers.
But the exception from a
given power cannot, upon any fair reasoning, be considered as an
enumeration of all the powers which belong to the States over the
militia.
[97] What those powers are must depend upon their own
constitutions; and what is not taken away by the Constitution of the
United States, must be considered as retained by the States or the
people
. The exception then ascertains only that Congress have not, and
that the States have, the power to appoint the officers of the militia,
and to train them according to the discipline prescribed by Congress.

93. 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES � 1898
(Fred B. Rothman & Co. 1991) (1833) [hereinafter STORY, COMMENTARIES (1991 reprinting)].
94
. Houston , 18 U.S. at 4�6.
95. U.S. CONST. art. I, � 8, cl. 16.
96
. Houston , 18 U.S. at 4 (stating that Houston argued that "the constitutional power of
Congress over the militia, is
exclusive of State authority").
97. At this point in the online Westlaw transcription of the case there is an error: "What those
powers are must other. Nor has Harvard College any surer title than constitutions." The text quoted
above is taken from the
United States Reports and contains no noticeable errors.

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Nor does it seem necessary to contend, that the power `to provide for
organizing, arming, and disciplining the militia,' is exclusively vested
in Congress. It is merely an affirmative power, and if not in its own
nature incompatible with the existence of a like power in the States, it
may well leave a concurrent power in the latter.98
This previously unnoticed text, marred by a transcription error in the
online Westlaw version,99 deserves a place alongside Madison's speech on
the Bank of the United States in terms of the historical understanding of the
Ninth Amendment. Having announced that determining the scope of
exclusive federal power must be guided by the letter and spirit of the Ninth
Amendment, Story then applies the rule of construction he describes in
Commentaries as mandated by the Ninth. That rule forbids construing a
reservation of rights to suggest that all other rights are surrendered. In this
case, the enumeration of certain rights--the state's right to appoint officers--
must not be construed to deny or disparage other rights retained by the
states--the right to create courts martial.
Story's opinion in
Houston describes the Ninth Amendment as limiting
the interpreted scope of federal power in order to preserve state regulatory
autonomy. This echoes James Madison's description of the Ninth as
"guarding against a latitude of interpretation" of federal power to the injury
of the people's retained rights.100 Federal power is thus prevented from
intruding into matters retained by the people who remain free to delegate that
power to their state government as they see fit.101 James Madison nominated
Joseph Story to the Supreme Court. Thus, when Story notes that his "general
principles . . . have been amply justified by the opinions of the great men
under whose guidance the constitution was framed," one cannot help but
think of Story's patron.102
As we shall see, courts throughout the nineteenth century echoed
Story's federalist reading of the Ninth Amendment, generally pairing it with

98
. Houston , 18 U.S. at 51�52 (Story, J., dissenting). Note that in this passage Story links the
principles expressed by the Ninth and Tenth Amendments. The Ninth limits the construction of
federal power (in this case as not exclusive), while the Tenth reserves all nondelegated power to the
states.
99
. See supra note 97.
100. James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791),
reprinted
in WRITINGS, supra note 11, at 489.
101. In his
Commentaries , Story wrote:
Being an instrument of limited and enumerated powers, it follows irresistibly, that what
is not conferred, is withheld, and belongs to state authorities, if invested by their
constitutions of government respectively in them; and if not so invested, it is retained
BY THE PEOPLE, as a part of their residuary sovereignty.
JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 712 (Carolina
Academic Press 1987) (1833) [hereinafter STORY, COMMENTARIES (1987 reprinting)].
102. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 50 (1820) (Story, J., dissenting).

2004]
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25

the Tenth.103 In
Houston , however, Story cites the Ninth Amendment alone
as the constitutional basis for his rule of construction limiting the scope of
federal authority. The issue in
Houston was the degree to which the
enumerated power of the federal government displaced the power of the
states to establish courts martial. This was not an issue of individual rights,
but one of competing (or concurrent) powers. The fact that Story believed
the "letter and spirit" of the Ninth Amendment applied in such a situation
indicates that Story, like Madison, viewed the retained rights of the Ninth
Amendment through a federalist lens. The Ninth limited the extension of
enumerated federal power into areas of local concern retained by the people
as a matter of right. To Story, constraining federal power (as opposed to
guarding particular rights) was the central purpose of the Ninth.104 Most
strikingly, and uniquely among constitutional treatise writers, the chapter in
Story's Commentaries on the Ninth Amendment is titled "Non-Enumerated
Powers ."105 The title aptly describes his approach in Houston , where the
Ninth was used to preserve the nonenumerated power of the states to
concurrently discipline the militia. As we shall see, Story may have come to
regret his opinion in
Houston , especially as it appeared to conflict with the
Marshall's Court's broad interpretations of federal power.106 Nevertheless,

103. In the 1835 Tennessee case,
State v. Foreman , the state of Georgia passed an act allowing
state courts jurisdiction over certain crimes committed within the Cherokee nation. In an attempt to
escape prosecution, the defendant argued that federal treaties with the Cherokee denied state courts
jurisdiction to hear such cases even when the crimes were committed within the state's borders.
The state responded that if this were the correct reading of the federal treaties, those treaties would
be void under the Ninth and Tenth Amendment:
The states, by empowering the executive, with the advice and consent of the senate, to
make treaties, did not surrender into their hands a power which could annihilate the
states; for if by a treaty with the Indians, or any other nation, the treaty-making power
can deprive the states of one attribute of sovereignty (not expressly surrendered), it can
deprive them of all; and if jurisdiction, in express terms, were guaranteed to the
Indians, and the right taken from the states, by the treaty, it would be void, because the
exercise of this branch of jurisdiction is not one of the enumerated powers parted with
by the states, but is, in fact, reserved to them by the 9th and 10th amendments to the
Constitution.
A treaty the subject-matter of which violates the Constitution, or surrenders to other
powers the individual and reserved rights of the states, is a nullity.
Argument of George S. Yerger, State v. Foreman, 16 Tenn. (8 Yer.) 543 app. at 560�61 (1835).
The state of Georgia thus believed that states had both "reserved powers and rights" under the Ninth
and Tenth Amendments. The state court concluded the treaty allowed state court jurisdiction
without discussing the Ninth or Tenth Amendments.
Id. at 334�37.
104. In his
Commentaries , Story recounted the debates over adding a Bill of Rights and the
Federalists' warning that doing so "might even be dangerous, as by containing exceptions from
powers not granted it might give rise to implications of constructive power." 1 STORY,
COMMENTARIES (1991 reprinting),
supra note 93, at 277.
105. 3 STORY, COMMENTARIES (1991 reprinting),
supra note 93, at 751. The chapter heading
for Story's discussion of the Tenth Amendment is "Powers Not Delegated."
See id. at 753. The
same chapter headings are used in the one-volume abridged version of the Commentaries which
Story prepared almost at the same time as the three-volume work. STORY, COMMENTARIES (1987
reprinting),
supra note 101, at 711, 713.
106
. See infra notes 125�128 and accompanying text.

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Story never disavowed or modified in any way his original analysis of the
Ninth Amendment in
Houston v. Moore .
2. The Influence of Story's Opinion.-- Story's reading of the Ninth
amendment in
Houston echoed that of St. George Tucker who also read the
Ninth (which he too referred to as the "Eleventh") as expressing a rule of
construction limiting the interpreted scope of federal power. In his 1803
edition of
Blackstone's Commentaries , Tucker wrote that under the Ninth
and Tenth Amendments, "the powers delegated to the federal government,
are, in all cases, to receive the most strict construction that the instrument
will bear, where the rights of a state or of the people, either collectively, or
individually, may be drawn into question."107 This strict construction of
enumerated federal power came under fire as Chief Justice John Marshall
sought to establish a far broader reading of federal authority.
a. Gibbons v. Ogden .-- Four years after Houston was decided,
lawyers before the Supreme Court quoted significant portions of Story's
opinion in one of the most important cases regarding federal power in the
nineteenth century,
Gibbons v. Ogden .108 Gibbons involved yet another
dispute over New York's grant of a steam navigation monopoly to Robert
Fulton and Robert Livingston. The New York courts having previously
upheld the monopoly in cases such as
Livingston v. Van Ingen, 109 the
monopoly now was challenged on the ground that it interfered with
Congress's exclusive power to regulate interstate commerce.110 The case,
according to G. Edward White, has been "acknowledged as the high point of
advocacy on the Marshall Court."111 Thomas A. Emmet112 represented
Fulton and Livingston and their assignee, Aaron Ogden. In his lengthy
argument before the Court, Emmet claimed that states retained concurrent
power to regulate commerce and cited Tucker's Ninth and Tenth
Amendment based rule of construction,113 (now) Justice Thompson's opinion
in
Livingston v. Van Ingen ,114 and Story's opinion in Houston v. Moore .115
According to Emmet, concurrent state power to regulate commerce must give

107. TUCKER, BLACKSTONE'S COMMENTARIES,
supra note 50, at 154.
108. 22 U.S. (9 Wheat.) 1, 130�31 (1824).
109. 9 Johns. 507, 561 (N.Y. 1812).
110
. Gibbons , 22 U.S. at 17.
111. 3�4 WHITE,
supra note 17, at 211.
112. Emmet's name is misspelled in the United States Reports.
See Gibbons , 22 U.S. at 79.
113
. Id. at 86.
114
. Id. Thompson was appointed to the Supreme Court in 1823. Due to his daughter's death,
Thompson did not join the Court until February 10, 1824, the day after the arguments in
Gibbons
had concluded.
See Norman R. Williams, Gibbons, 79 N.Y.U. L. Rev. 1398, 1429�30 (2004); see
also
1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 607 (1928); David
P. Currie,
The Constitution in the Supreme Court: State and Congressional Powers , 1801�1835 , 49
U. CHI. L. REV. 887, 944 n.399 (1982).
115
. Gibbons , 22 U.S. at 86.

2004]
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27

way only in cases involving a direct conflict between state and federal
regulation.116 On this point, Emmet quotes that portion of Justice Story's
opinion in
Houston that refers to the "11th Amendment."117 There is no
indication that Emmet believed that Story's reference to the Eleventh was in
error,118 and there is no attempt by Emmet to link the passage to his
discussion of the Tenth Amendment several pages earlier in his brief.119 As
in
Houston , this is a freestanding Ninth Amendment argument in favor of a
limited reading of federal power. Nor is it surprising that Emmet picked up
on Story's Ninth Amendment argument--Emmet had made the same
argument himself before the New York courts
prior to Story's opinion in
Houston , relying then on Tucker's Ninth and Tenth Amendment-based rule
of construction.120 Nor was Emmet's reading idiosyncratic. His co-counsel
Thomas Oakley also referred to Story's eleventh amendment passage in
Houston .121 Although his argument in Gibbons regarding the Tenth
Amendment has been recognized, scholars have completely missed Thomas
Emmet's reliance on the Ninth.122
In striking down the state monopoly, Chief Justice John Marshall did
not directly address either the Ninth or Tenth Amendments. Instead, he
rejected Ogden's argument that Congress lacked power to grant Gibbons a
coasting license and went on to rule that the state monopoly was in direct
conflict with the federal license and thus invalid under the Supremacy
Clause.123 Rather than grapple with Emmet's Ninth Amendment argument,

116
. Id. at 130�31. Emmet made a similar argument in North River Steamboat Co. v.
Livingston :
What, then is this trade which congress can regulate? It is that carried on from within
the geographical limits of one state to within those of another. It has no relation to the
trade or contracts between individuals. How can congress regulate the trade and
intercourse between man and man, even though they should reside in different states or
countries? Its regulations can only act on commerce as a mass, carried on between two
tates or nations. This trade thus defined together with foreign trade, is all that it belongs
to congress to regulate; the rest remains to the states, under the domination of internal
trade, and which it is not therefore necessary to define. It includes all that is not taken
by the constitution out of the general mass of commerce. It belongs to the states
individually, not because the constitution has given it to them--for that instrument
gives nothing whatsoever to the states--but because it appertains to sovereign power,
and has not been delegated to congress; and the grants of power which are made to
congress, so far as they may interfere with the rights of states, are to receive the
strictest construction.
1 Hopk. Ch. 170, 217�18 (N.Y. Ch. 1824) (citing TUCKER, BLACKSTONE'S COMMENTARIES,
supra
note 50, at 154).
117
. Gibbons , 22 U.S. at 130�31.
118. Emmet could have, for example, paraphrased the passage without quoting.
119
. Id. at 87.
120
. See supra note 116.
121
. Gibbons , 22 U.S. at 41 n.a.
122
. See, e.g. , Currie, supra note 114, at 944 n.396. I have not discovered any scholarly
reference to Emmet's Ninth Amendment argument or to his quoting Story's opinion from
Houston .
123
. Gibbons , 22 U.S. at 240. Justice Story was on the Court at the time of Gibbons , but wrote
no opinion. Even if Story still held the views he announced in
Houston , he would have agreed with

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or his colleague's opinion in
Houston , Marshall simply denied there was any
provision in the Constitution which restricts the interpretation of enumerated
power:
This instrument contains an enumeration of powers expressly granted
by the people to their government. It has been said, that these powers
ought to be construed strictly.[124] But why ought they to be so
construed? Is there one sentence in the constitution which gives
countenance to this rule? In the last of the enumerated powers, that
which grants, expressly, the means for carrying all others into
execution, Congress is authorized "to make all laws which shall be
necessary and proper" for the purpose. But this limitation on the
means which may be used, is not extended to the powers which are
conferred; nor is there one sentence in the constitution, which has been
pointed out by the gentlemen of the bar, or which we have been able
to discern, that prescribes this rule.125
In his earlier opinion in
McCulloch v. Maryland , Marshall similarly ignored
the Ninth Amendment despite its key role in James Madison's original
argument against the Bank.126 In
Gibbons, Marshall once again ignores the
Ninth, despite Emmet's reference to the Ninth and Justice Story's opinion in
Houston .127 Instead, Marshall announced that Congress' power to regulate
commerce is "complete in itself, may be exercised to its utmost extent, and
acknowledges no limitations, other than are prescribed in the constitution."128
What was implicit in
McCulloch was now express in Gibbons : The powers of
the federal government were to be construed as having no limits beyond
those expressly "prescribed in the constitution." The conflict between
Marshall's rule of construction and the language and purpose of the Ninth

the result in
Gibbons ; Story believed that the federal commerce power was exclusive. See David P.
Currie,
The Constitution in the Supreme Court: Contracts and Commerce, 1836�1864 , 1983 DUKE
L.J. 471, 476.
124. This is probably a reference to St. George Tucker's argument regarding "strict
construction."
125
. Gibbons , 22 U.S. at 187�88. Marshall continues in a passage that also seems directed at
Tucker's argument:
Powerful and ingenious minds, taking, as postulates, that the powers expressly granted
to the government of the Union, are to be contracted by construction, into the
narrowest possible compass, and that the original powers of the States are retained, if
any possible construction will retain them, may, by a course of well digested, but
refined and metaphysical reasoning, founded on these premises, explain away the
constitution of our country, and leave it, a magnificent structure, indeed, to look at, but
totally unfit for use. They may so entangle and perplex the understanding, as to obscure
principles, which were before thought quite plain, and induce doubts where, if the mind
were to pursue its own course, none would be perceived. In such a case, it is peculiarly
necessary to recur to safe and fundamental principles to sustain those principles, and
when sustained, to make them the tests of the arguments to be examined.
Id. at 222.
126
. See Lash, The Lost Original Meaning , supra note 8, at n.405.
127. An opinion Marshall most likely joined.
See supra note ___.
128
. Gibbons , 22 U.S. at 196.

2004]
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29

Amendment is striking. Despite the Ninth's declaration that enumerated
restrictions on power are not to be read as exhaustive, Marshall reads them in
just such a manner. In fact, during his entire tenure on the Supreme Court,
Marshall never once referred to the Ninth Amendment, despite repeated
references to it by bench and bar as a rule prohibiting expansive readings of
federal power.
b. New York v. Miln.--Although John Marshall declined to
address the Ninth Amendment, other Justices were not so reticent. When
serving on New York's highest court, future Supreme Court Justice Smith
Thompson had given a sympathetic ear to Thomas Emmet's Ninth
Amendment arguments in
Livingston v. Van Ingen .129 In New York v.
Miln
,130 Justice Thompson adopted those arguments as his own. Miln
involved a New York statute which required ship captains to furnish local
authorities with a list of all passengers being brought into the state. The
Supreme Court upheld the state law,131 with Justice Story dissenting on the
grounds that this was a regulation of commerce belonging exclusively to the
federal government.132 In his concurrence, Justice Thompson disagreed with
Story's view of state power in the case and quoted Story's own words in
Houston in support of concurrent state power to regulate commerce:
[Concurrent state power] is fully recognised by the whole court, in the
case of Houston v. Moore. . . . Mr. Justice Story, who also dissented
from the result of the judgment, is still more full and explicit on this
point. The constitution, says he, containing a grant of powers, in many
instances similar to those already existing in the state governments;
and some of these being of vital importance also to state authority and
state legislation, it is not to be admitted, that a mere grant of such
powers, in affirmative terms, to congress, does,
per se , transfer an
exclusive sovereignty on such subjects to the latter. On the contrary, a
reasonable interpretation of that instrument necessarily leads to the
conclusion that the powers so granted are never exclusive of similar
powers existing in the states; unless [citing exceptions] . . . . In all
other cases, not falling within the classes already mentioned, it seems
unquestionable that the states retain concurrent authority with
congress; not only upon the letter and spirit of the eleventh
amendment of the constitution, but upon the soundest principle of
reasoning.133
In his earlier
Van Ingen opinion, then-Judge Thompson cited the Tenth
Amendment in support of his view of concurrent state power.134 In
Miln ,

129
. See supra note 63 and accompanying text.
130. New York v. Miln, 36 U.S. (11 Pet.) 102 (1837).
131
. Id. at 143.
132
. Id. at 161 (Story, J., dissenting).
133
. Id . at 150�51 (Thompson, J., concurring).
134
. See supra note 63 and accompanying text.

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however, Justice Thompson says nothing about the Tenth Amendment,
despite its role in the opinions of other Justices.135 Instead, Justice
Thompson is content to let Story's construction of the Ninth Amendment
suffice as textual grounding for the proper rule of interpretation.136
c. Prigg v. Pennsylvania .-- Other Justices, as well as high ranking
executive officials, also embraced Story's reading of the Ninth Amendment
in
Houston . In Prigg v. Pennsylvania , the Supreme Court struck down
Pennsylvania's personal liberty law of 1826 on the grounds that it interfered
with the enforcement of the federal Fugitive Slave Act and the Constitution's
Fugitive Slave Clause.137 In defense of the law, Pennsylvania's Attorney
General, Ovid F. Johnson, argued that federal law should not be read to
displace all state regulation on the subject of fugitive slaves. In support of
his argument, Johnson quotes Story's position in
Houston :
Supposing the power to pass laws on the subject of fugitive slaves to
be concurrent, the learned counsel on the other side contended that it
had been exercised by Congress; that the whole ground of legislation
was provided for; that the right of the states was thereby superseded,
and that the act of Assembly of Pennsylvania was absolutely void. To
all these positions, he would answer, in addition to what had already
been advanced, that Congress had not covered the whole ground; . . . .
He could not, on this branch of the case fortify his argument with
stronger reason or authority than by quoting the words of Mr. Justice
Story, in the case of
Houston v. Moore . On this basis, he did not fear
to let it rest. "The constitution, containing a grant of powers in many
instances similar to those already existing in the state governments,
and some of these being of vital importance also to state authority and
state legislation, it is not to be admitted that a mere grant of such
powers in affirmative terms to Congress, does, per se, transfer an
exclusive sovereignty on such subjects to the latter. On the contrary, a
reasonable interpretation of that instrument necessarily leads to the
conclusion that the powers so granted are never exclusive of similar
powers existing in the states, unless where the Constitution has
expressly in terms given an exclusive power to Congress, or the
exercise of a like power is prohibited to the states, or there is a direct

135. Both Justice Barbour's opinion for the Court and Justice Baldwin's individual opinion,
taken from his
Constitutional Views , reference the Tenth Amendment. See Miln , 36 U.S. at 132;
HENRY BALDWIN, A GENERAL VIEW OF THE ORIGIN AND NATURE OF THE CONSTITUTION AND
GOVERNMENT OF THE UNITED STATES, 181�97 (photo. reprint 2000) (1837).
136. In his dissent, Story does not disavow his earlier opinion in
Houston , but argues that
Gibbons established the exclusive power of Congress to regulate matters affecting interstate
commerce.
Miln , 36 U.S. at 154�56 (Story, J., dissenting). For a discussion of Story's "silence" in
Miln , see infra subpart II(D)(3).
137. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 612 (1842) ("The [Fugitive Slave Clause]
manifestly contemplates the existence of a positive unqualified right on the part of the owner of the
slave, which no state law or regulation can in any way qualify, regulate, control, or restrain.").

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31

repugnancy or incompatibility in the exercise of it by the states." And
also, "In all other cases not falling within the classes already
mentioned, it seems unquestionable, that the states retain concurrent
authority with Congress, not only on the letter and spirit of the
eleventh amendment of the Constitution, but upon the soundest
principles of general reasoning."138
In his opinion striking down the Pennsylvania law, Justice Story did not
dispute the Attorney General's reading of
Houston . Instead, Story argued
that the power to regulate on the subject of fugitive slaves was exclusively
federal in nature. Here, Story referred not to his own opinion in
Houston , but
to Chief Justice Marshall's formulation in
Sturges v. Crowninshield that
"[w]herever the terms in which a power is granted to Congress, or the nature
of the power require, that it should be exercised exclusively by Congress, the
subject is as completely taken from the state legislatures, as if they had been
forbidden to act."139
Although Story did not repute (or even acknowledge) his earlier
approach in
Houston , his reasoning seemed to weaken Houston 's
presumption of concurrent state power. In a separate opinion, Justice Peter
Daniel noted the departure. Although concurring in the judgment, Daniel
nevertheless felt "constrained to dissent from some of the principles and
reasonings which that majority in passing to our common conclusions, have
believed themselves called on to affirm."140 Arguing that states had
concurrent power to regulate on the subject of fugitive slaves, Justice Daniel
quoted Story's passage in
Houston v. Moore , including Story's statement
regarding the "eleventh amendment."141
d. Smith v. Turner .-- Justice Daniel would find another occasion to
quote Story's
Houston dissent in Smith v. Turner ,142 one of the so-called
Passenger Cases.143 In
Smith , the Supreme Court struck down a state tax on
incoming sea passengers,144 drawing a dissent from Justice Daniel. Daniel
began his analysis of the Constitution by announcing two principles: First,

138
. Id. at 600�01. Johnson later cites the Tenth Amendment in support of the Pennsylvania
law.
See id. at 602 ("These cases are clearly left to the guardianship of the states themselves. The
tenth article of the amendments to the constitution assures this right; and self-respect, if not self-
protection, demands its exercise.").
139
. Id. at 622 (quoting Sturges v. Crowinshield, 17 U.S. (4 Wheat.) 122, 193).
140
. Id. at 650 (Daniel, J., concurring).
141
. Id. at 654 (Daniel, J., concurring). Daniel misquotes Story, but not in a manner that
undermines the point. Daniel states: "In all other cases not falling within the classes already
mentioned, it seems unquestionable that the states retain concurrent authority with Congress, not
only under the eleventh amendment of the Constitution, but upon the soundest principles of general
reasoning."
Id. Daniel drops Story's language regarding the "letter and spirit." See supra text
accompanying note 89.
142. 48 U.S. (7 How.) 283, 498 (1849) (Daniel, J., dissenting).
143. The other case was
Norris v. City of Boston , 45 Mass. (4 Met.) 282 (1842).
144
. Smith , 48 U.S. at 409.

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under the Tenth Amendment, Congress has only delegated power, and
second, those powers are subject to a limiting rule of construction.145
Rejecting statements in an earlier case by Justice Baldwin that federal power
over commerce was exclusive,146 Daniel invoked Justice Story's opinion in
Houston :
In opposition to the opinion of Mr. Justice Baldwin, I will place the
sounder and more orthodox views of Mr. Justice Story upon this claim
to exclusive power in Congress, as expressed in the case of Houston v.
Moore with so much clearness and force as to warrant their insertion
here, and which must strongly commend them to every constitutional
lawyer. The remarks of Justice Story are these:--"Questions of this
nature are always of great importance and delicacy . . . ."147
Daniel proceeds to quote this entire section of Story's opinion,
including Story's reference to the "eleventh amendment."148 Justice Daniel
then remarks that "[h]ere, indeed, is a commentary on the Constitution
worthy of universal acceptation."149 No one in the majority responded to
Daniel's point regarding the "clearness and force" of Story's opinion in
Houston , nor did they dispute Story's interpretation of the Ninth
Amendment.150 Instead, Justice Grier simply defended his decision to
invalidate the state law against criticism that he had engaged in a
latitudinarian interpretation of federal power.151

145
. Id. at 496 (Daniel, J., dissenting). According to Daniel:
1st. Then, Congress have no powers save those which are expressly delegated by the
Constitution and such as are necessary to the exercise of powers expressly delegated.
2d. The necessary auxiliary powers vested by art. 1, sec. 8, of the Constitution cannot
be correctly interpreted as conferring powers which, in their own nature, are original,
independent substantive powers; they must be incident to original substantive grants,
ancillary in their nature and objects, and controlled by and limited to the original grants
themselves.
Id. (citations omitted). To these, he adds a third principle: "The question, whether a law be void for
its repugnancy to the Constitution, ought seldom, if ever, to be decided in the affirmative in a
doubtful case."
Id. Justice Daniel's second point seems related to James Madison's argument in his
speech on the Bank of the United States. According to Madison, unenumerated "necessary and
proper" powers (ancillary powers) should not include "great and important powers." Important
powers such as these required their own specific enumeration.
See Lash, The Lost Original
Meaning
, supra note 8, at 389.
146
. Smith , 48 U.S. at 498. (Daniel, J., dissenting) (referring to Groves v. Slaughter , 40 U.S.
(15 Pet.) 449, 511 (1841).
147
. Id. at 498 (quoting Houston v. Moore, 18 U.S. (5 Wheat.) 1, 48 (1820) (Story, J.,
dissenting)).
148. In this instance, Daniel's quotation is correct.
149
. Smith , 48 U.S. at 499 (Daniel, J., dissenting).
150. Story's tenure on the Court ended with his death in 1845.
151
. Smith , 48 U.S. at 459. According to Grier:
The Constitution of the United States, and the powers confided by it to the general
government, to be exercised for the benefit of all the States, ought not to be nullified or
evaded by astute verbal criticism, without regard to the grand aim and object of the
instrument, and the principles on which it is based. A constitution must necessarily be
an instrument which enumerates, rather than defines, the powers granted by it.
While

2004]
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33

Given that
Houston included the Supreme Court's first discussion of the
Ninth Amendment penned by no less a Justice than Joseph Story and that it
was quoted in its entirety by later litigants and Supreme Court justices,152 it
seems surprising that this interpretation of the Ninth Amendment has gone so
long unnoticed. In fact, Story's approach to concurrent state powers has
remained influential throughout the history of the Supreme Court. Numerous
state and federal courts have cited it in cases struggling to define the line
between state and federal power, and the Supreme Court itself continues to
favorably cite
Houston in cases involving questions of concurrent state
power.153 Over time, however,
Houston 's connection to the Ninth
Amendment has been forgotten. Ironically, the sad fate of Story's opinion in
Houston v. Moore may have been welcomed by Story himself.
3. The Silence of Justice Story .--
In his
View of the Constitution of the United States , Tucker had read the
Ninth and Tenth Amendments as together creating a rule of strict
interpretation regarding the construction of federal power.154 According to
Tucker:
As [a federal compact] it is to be construed strictly, in all cases where
the antecedent rights of a
state may be drawn in question [citing the
12th Amendment]; as a social compact it ought likewise to receive the
same strict construction, wherever the right of personal liberty, of
personal security, or of private property may become the subject of
dispute; because every person whose liberty or property was thereby
rendered subject to the new government, was antecedently a member
of a civil society to whose regulations he had submitted himself, and
under whose authority and protection he still remains, in all cases not
expressly submitted to the new government. [citing the 11th and 12th
Amendments]. The few particular cases in which he submits himself

we are not advocates for a latitudinous construction , yet "we know of no rule for
construing the extent of such powers other than is given by the language of the
instrument which confers them, taken in connection with the purpose for which they
are conferred."
Id. (emphasis added).
152. Story's reference to the Eleventh Amendment was cited in other courts as well.
See
Commonwealth v. Nickerson, 128 N.E. 273, 276 (Mass. 1920);
In re Booth, 3 Wis. 1, 75�76 (1854)
(Crawford, J., dissenting); Crow v. State, 14 Mo. 237, 326�27 (1851) (Napton, J., dissenting) In
Crow , Judge Napton prefaced his quote of Story's Eleventh Amendment by noting:
The general rule on this subject has been aptly and forcible expressed by Judge Story,
in Houston v. Moore and as that distinguished jurist has not been supposed to have any
disposition to enlarge the powers of the States at the expense of any just right of the
federal government, I prefer to adopt his views, expressed in his own language, as the
basis of further investigation.
Crow , 14 Mo. at 326�27 (citation omitted).
153
. See Tafflin v. Levitt, 493 U.S. 455, 458�59 (1990) (citing Justice Washington's opinion in
Houston v. Moore ).
154. TUCKER, BLACKSTONE'S COMMENTARIES,
supra note 50, at 151.

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to the new authority, therefore, ought not to be extended beyond the
terms of the compact, as it might endanger his obedience to that state
to whose laws he still continues to owe obedience; or may subject him
to a double loss, or inconvenience for the same cause.155
When Story cited the Eleventh Amendment as a federalist rule of
construction in
Houston , he did so in a legal context in which both bench and
bar would have been familiar with Tucker's similar federalist construction of
the "Eleventh."156 Tucker's reading was not controversial and, as the last
section showed, it was warmly embraced by states' rights advocates in the
years that followed.
But Tucker's strict construction of federal power was directly at odds
with the broad interpretation of federal power pressed by John Marshall in
cases like
McCulloch v. Maryland and, especially, Gibbons v. Ogden . In
Gibbons , despite the Ninth Amendment argument raised by Thomas Emmet,
Marshall nevertheless declared "nor is there one sentence in the constitution"
that called for a strict construction of federal power.157 Perhaps because
Story's use of the Ninth in
Houston conflicted with Marshall's absolute
statement in
Gibbons , it fell into disfavor among those supporting Marshall's
nationalist reading of the Constitution.
Treatise writers William Rawle and James Kent published their
respective works on American constitutional law after the Supreme Court
issued its opinion in
Gibbons . Like other constitutional treatises written in
the 1820s and early 1830s, those of Rawle and Kent were more nationalist in
their interpretations of federal power than were earlier works like those of St.
George Tucker.158 Both writers acknowledged Story's earlier opinion in
Houston, but both omitted his reference to the Ninth Amendment. For
example, in his
View of the Constitution , William Rawle paraphrased Story's
language in
Houston in his discussion of the concurrent jurisdiction of state
courts,159 but he omits Story's specific reference to the "eleventh
amendment."160 Similarly, in his 1826
Commentaries on American Law ,

155
. Id. Randy Barnett cites Tucker's rule of strict construction regarding federal interference
with personal rights in support of an unenumerated natural rights reading of the Ninth Amendment.
See BARNETT, RESTORING THE LOST CONSTITUTION, supra note 2, at 241�42. As the above shows,
Tucker placed both the Ninth and Tenth Amendments in a decidedly federalist context. Tucker
could not possibly have been referring to individual natural rights if the Ninth was meant to prevent
interference with, or adding to, an individual's prior obligations to the state.
156. According to Saul Cornell, Tucker's Commentaries was "an instant publishing success"
and "became the definitive American edition of Blackstone until midcentury." SAUL CORNELL,
THE OTHER FOUNDERS 263 (1999).
157. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 187�88 (1824).
158
. See White, supra note __, at 86�95.
159. WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA
205 (photo. reprint 2003) (2d ed. 1829).
160. Using language that tracks Story's language in
Houston almost verbatim, Rawle writes:
The Constitution containing a grant of powers in many instances similar to those
already existing in the state governments, and some of these being of vital importance

2004]
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35

James Kent cited Story's opinion in
Houston and described it as having
"defined with precision the boundary line between the concurrent and
residuary powers of the states, and the exclusive powers of the union."161
Kent then closely paraphrased Story's actual opinion in
Houston , but omitted
Story's reference to the Ninth.162 James Kent and Joseph Story had begun
corresponding with one another in 1819,163 and Story later praised this
particular section of Kent's
Commentaries (which, in turn, praised Story).164
Whatever the reasons for Kent's failure to include Story's reference to the
Ninth, it would not have gone unnoticed by Story. Most likely, Story
approved of the omission, because he himself ultimately abandoned the idea
that the Ninth Amendment played any role in restricting the interpretation of
federal power.
When Joseph Story published his
Commentaries on the Constitution in
1833, he dedicated the work "to the Honorable John Marshall," whose
"expositions of constitutional law enjoy a rare and extraordinary authority.
They constitute a monument of fame far beyond the ordinary memorials of

to state authority and state legislatures, a mere grant of such powers, in affirmative
terms to congress, does not
per se transfer an exclusive sovereignty on such subjects to
the latter.
On the contrary, the powers so granted would not be exclusive of similar powers
existing in the states, unless the Constitution had expressly given an exclusive power to
congress, or the exercise of a like power were prohibited to the states, or there was a
direct repugnancy or incompatibility in the exercise of it by the states. . . .
In all other cases not falling within these classes the states retain concurrent
authority. [Here, Rawle omits Story's reference to the Eleventh Amendment.]

There is this reserve, however, that in cases of concurrent authority where the laws
of the states and of the United States are in direct and manifest collision on the same
subject, those of the United States being the supreme law of the land are of paramount
authority, and the state laws so far, and so far only, as such incompatibility exists must
necessarily yield [citing
Houston v. Moore , 5 Wheat. 48. Per Story, J.].
Id. at 204�05. In addition to omitting Story's reference to the Ninth Amendment, Rawle also
omitted the Ninth and Tenth Amendments from his description of constitutional restrictions on the
federal government.
Id. at 135. The omission of the Ninth Amendment from this list is significant
because Rawle believed the restrictions of the first eight amendments also bound the states.
See id.
at 135�36;
see also AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION
145 (1998) (discussing Rawle). Rawle apparently read both the Ninth and Tenth Amendments in a
federalist light. Although Rawle's work is known for its defense of secession, Rawle shared
Marshall's nationalist approach to federal power. For example, Rawle indirectly criticizes Tucker's
strict construction of federal power,
see RAWLE, supra note 159, at 31 ("A strict construction,
adhering to the letter, without pursuing the sense of the composition, could only proceed from a
needless jealousy, or rancorous enmity."), and he expressly praises Marshall's opinion in
Gibbons .
Id. at 82.
161. JAMES KENT,
Lecture XVIII , in 1 COMMENTARIES ON AMERICAN LAW 365 (1826).
162
. Id. at 366 ("In all other cases, the states retain concurrent authority with Congress [Kent
omits Story's reference to the Eleventh Amendment], except where the laws of the states and of the
union are in direct and manifest collision on the same subject . . . .").
163. 3�4 WHITE,
supra note 17, at 105.
164. 1 STORY, COMMENTARIES (1991 reprinting),
supra note 93, at 424 n.1 (noting that, after
citing
Gibbons , "Mr. Chancellor Kent has given this whole subject of exclusive and concurrent
power a thorough examination; and the result will be found most ably stated in his learned
Commentaries, Lecture 18").

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political and military glory."165 In addition to refuting states' rights theories
such as those advanced by James Madison and Thomas Jefferson in their
Virginia and Kentucky Resolutions,166 Story spends considerable time
refuting Tucker's "strict construction" theory of federal power. Tucker
himself had based his arguments on the writings of Vattel, and the Ninth and
Tenth Amendments.167 Story strongly criticizes Tucker's reliance on Vattel
and the Tenth Amendment,168 but he says nothing about Tucker's reliance on
the Ninth. Instead, Story treats Tucker's Ninth Amendment-based "social
compact" argument as if it were based on
nothing at all .169
As the proper alternative to Tucker's strict construction approach, Story
presents Chief Justice Marshall's formulation of federal power in
McCulloch
and
Gibbons . First, Story presents an extended quote from Gibbons
including Marshall's assertion that there is not a single sentence in the
Constitution that suggests a limited reading of federal power.170 Story then
goes on to adopt Marshall's reasoning in
McCulloch , which construes the
enumeration of rights in Article I, Section 9 to suggest an otherwise broad
degree of federal power--despite the obvious conflict with the clear demand
of the Ninth Amendment.171 Having established the proper approach to
federal power, Story next addressed the concurrent powers of the states. In
Houston , Story suggested that a limited reading of exclusive federal power
was supported by the letter and spirit of the "eleventh amendment." In his
Commentaries , Story paraphrases his opinion in Houston , but, as had Rawle
and Kent, he omits his reference to the Ninth Amendment.172 Story does not
modify or correct the earlier reference, he simply does not repeat it, despite
numerous citations to the very page in
Houston that includes the reference.
Having committed himself to Marshall's view that there is no text
suggesting a limited reading of federal power, Story embarks on a lengthy
discussion of the variety of ways state power must give way before federal
authority. Following Marshall's lead in
McCulloch and Gibbons , Story's

165
. Id. at iii.
166
. See, e.g. , id. at 287 n.1, 289 n.1.
167. TUCKER, BLACKSTONE'S COMMENTARIES,
supra note 50, at 151.
168. 1 STORY, COMMENTARIES (1991 reprinting),
supra note 93, at 393.
169
. See id. at 396. Story states:
When it is said, that the constitution of the United States should be construed strictly,
viewed as a social compact, whenever it touches the rights of property, or of personal
security, or liberty, the rule is equally applicable to the state constitutions in the like
cases. The principle, upon which this interpretation rests,
if it has any foundation , must
be, that the people ought not to be presumed to yield up their rights of property or
liberty, beyond what is the clear sense of the language and the objects of the
constitution.
Id. (emphasis added).
170
. Id. at 401�02.
171
. Id. at 413�15. For a discussion of how Marshall's approach in McCulloch conflicts with
the Ninth Amendment, see Lash,
The Lost Original Meaning , supra note 8, at 417�22.
172. 1 STORY, COMMENTARIES (1991 reprinting),
supra note 93, at 421�22.

2004]
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37

interpretation of federal power is unfettered by any restrictive rule of
construction, much less by the Ninth Amendment. In essence, Story argues
that states retain only those powers that are left over after a proper
interpretation of federal power.173 This is a restatement of the Tenth
Amendment and, in fact, Story asserts that his rules "are confirmed by the
positive injunctions of the tenth amendment."174 The critical issue, of course,
involved determining what constitutes a reasonable interpretation of federal
power--a subject James Madison and St. George Tucker believed was
addressed by the Ninth Amendment. Not only did Story avoid addressing
Tucker's Ninth Amendment argument when criticizing Tucker's rules of
interpretation, he remained silent regarding his own use of the Ninth in
Houston as a rule of construction.
Despite these omissions, remnants of Story's earlier federalist reading
of the Ninth still can be found in his
Commentaries . Story places his
discussion of the Ninth Amendment in a chapter entitled "Non-Enumerated
Powers."175 When one considers the common contemporary description of
the Ninth Amendment as guarding unenumerated
rights ,176 Story's title is
startling. It shows that Story agreed with Madison that preserving retained
rights amounts to the same thing as preserving local power against undue
federal intrusion. It also explodes the myth that the Ninth deals only with
rights while the Tenth deals only with powers.177 If nothing else, Story's
heading should put to rest that erroneous categorical assumption. Given
Story's nationalist approach to federal power, his description of the Ninth

173
. Id. at 431�33.
174
. Id. at 433. In his section on the Tenth Amendment, Story cites, among other cases,
Houston v. Moore and the page in that case containing the "eleventh amendment" passage. The cite
is out of place; it has nothing to do with the specific proposition discussed in the text (involving the
decision to not add the word "expressly" to the Tenth Amendment), and its inclusion remains
obscure. One could argue that this cite raises the possibility that the
Houston reference to the
"eleventh amendment" was a mistaken reference to the Tenth. I believe this is unlikely, however,
for a number of reasons. First, the cite itself makes no sense, even in terms of the Tenth
Amendment discussion to which it is linked. Second, Story cites to this specific page in
Houston
repeatedly in his
Commentaries . See, e.g., id. at 424 n.2, 428 n.2. Despite these numerous citations,
however, Story never once suggests that the page contains an error. Moreover, neither lawyers nor
courts believed the passage contained any error, for they quoted it in briefs and judicial opinions.
The fact that the passage was embraced by others and never corrected by Story suggests that it did
not contain an obvious error. It did, however, contain an application of the Ninth Amendment that
Story no longer advocated.
175. 3 STORY, COMMENTARIES (1991 reprinting),
supra note 93, at 751. The chapter heading
for Story's discussion of the Tenth Amendment is "Powers Not Delegated."
See id. at 753. The
same chapter headings are used in the one-volume abridged version of the Commentaries that Story
prepared almost at the same time as the three-volume work. STORY, COMMENTARIES (1987
reprinting),
supra note 101, at 711, 713.
176
. See, e.g. , THE COMPLETE BILL OF RIGHTS, supra note 72, at 627 (labeling the chapter on
the Ninth Amendment as "Unenumerated Rights Clause").
177. This point seems well established by Madison's description of the Ninth Amendment in
his speech on the Bank of the United States.
See Lash, The Lost Original Meaning , supra note 8, at
387�90. Story's chapter heading for the Ninth simply makes the point as clear as is historically
possible.

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takes on even greater significance as, in effect, an admission against interest.
Story shared John Marshall's broad interpretation of congressional power
and he had no incentive to describe any clause in the Constitution as limiting
federal authority if the issue was in doubt. If anything, one would expect a
nationalist like Story to try and minimize the impact of the Ninth
Amendment on federal power and, in fact, this may have been Story's intent.
Although Story indicates that the role of the Ninth is to preserve the
non-enumerated powers of the states, he says nothing about the Ninth serving
as a rule for construing
federal power. Instead, he appears to treat the Ninth
as a mere restatement of principles declared by the Tenth Amendment. In
the index to his Commentaries under the heading "Rights Reserved to the
States and People," Story refers the reader to his discussion of the Ninth
and
Tenth Amendments.178 Under the heading "Reserved Powers and Rights of
the People," Story refers the reader to the same amendments.179 Clearly,
Story believed that the the Ninth and Tenth Amendments expressed related
principles of limited federal authority. Story was unwilling, however, to
follow his earlier approach in
Houston and read the Ninth as constraining the
interpreted scope of enumerated federal power.
The tension between his words in
Houston and his later nationalist
interpretation of the Constitution was noticed by his colleagues on the bench,
who in cases like
Miln and Prigg quoted Story's own words in Houston as a
remonstrance against his nationalist vision of federal power. Still, in his
judicial opinions, Story remained silent. He neither corrected nor modified
his earlier view of the "eleventh amendment" nor did he address Ninth
Amendment-based readings of the Constitution like those proposed by St.
George Tucker. Like Marshall, Story chose to ignore the Ninth Amendment,
rather than debate its meaning.
Although later courts continued to cite Story's opinion in
Houston , they
often echoed his
Commentaries and omitted his language regarding the

178. 3 STORY, COMMENTARIES (1991 reprinting),
supra note 93, at 774.
179
. Id. at 773. A similar collapsing of the Ninth and Tenth Amendments can be found in Peter
Du Ponceau's,
A Brief View of the Constitution of the United States 44�45 (1834). Treating the
Ninth as if it were a single clause with the Tenth, Du Ponceau remarks:
The enumeration in the constitution of certain rights, is not to be construed to deny or
disparage others retained by the people; and 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. This article differs from a similar one in the
confederation in this, that the word
expressly is here left out, which leaves room for
implied powers, without the admission of which the constitution could not be carried
into effect.
Id. Like Story, Du Ponceau treats the Ninth as no more than a declaration of the enumerated powers
theory of federal power. Also like Story, and as is generally found in the treatises of the late 1820s
and 30s, Du Ponceau minimizes the impact of both the Ninth and Tenth Amendments on federal
power. As did all treatise writers of antebellum America, however, Du Ponceau assumed the Ninth
was linked to the Tenth as a statement regarding the limited powers of the federal government.

2004]
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39

"eleventh amendment."180 As the convention for referring to the Bill of
Rights changed, Story's earlier reference to the eleventh amendment became
ever more obscure. In time, Story's opinion in
Houston came to be
associated with principles underlying the Tenth Amendment.181 For
example, in the 1843 Michigan case,
Harlan v. People ,182 Judge Felch wrote
his own version of Story's opinion, replacing the "eleventh amendment" with
the Tenth. After citing Story's opinion in
Houston , Judge Felch wrote:
And it is affirmed, by the same authorities, that a mere grant of power
in affirmative terms, does not,
per se, transfer an exclusive
sovereignty on such subjects to the Union. In all cases not falling
within either of the classes already mentioned, the states retain either
the sole power, or a power which they may exercise concurrently with
congress. This results not only from the general principles on which
the Union is founded, but is within the letter of the tenth article of the
amendments to the constitution, which declares 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."183
This passage is taken straight from Story's opinion; Felch simply
changed "letter and spirit of the eleventh amendment" to "the letter of the
tenth."184 Felch either believed Story made a mistake, or he agreed with
Story's later position that the issue was best considered through the lens of
the Tenth. In either event, Story's reference to "the eleventh" and its
significance to the early understanding of the Ninth Amendment was,
literally, erased.
4. The Significance of Houston v. Moore. -- Although long forgotten as
an opinion dealing with the Ninth Amendment, Justice Story's opinion in
Houston v. Moore is significant for a number of reasons. Judges and scholars
seeking the original meaning of the Ninth Amendment have often turned to
the views of James Madison and Joseph Story.185 Until now, however, the

180
. E.g. , United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 548 n.30 (1944);
Norfolk & W.R. Co. v. Commonwealth, 24 S.E. 837, 838 (Va. 1896); Helm v. First Nat'l Bank of
Huntington, 43 Ind. 167, 169 (1873).
181
. See Keller v. U.S., 213 U.S. 138, 145 (1909) (quoting a different passage from Story's
opinion in
Houston v. Moore and associating his reasoning with the Tenth Amendment). The story
of how the Tenth Amendment came to replace the Ninth as a rule of construction deserves a
separate treatment.
See Kurt T. Lash, Madison's Celebrated Report: The Roots of Federalism and
the Transformation of the 10th Amendment (Jan. 14, 2005) (manuscript on file with the author).
182. 1 Doug. 207 (Mich. 1843).
183
. Id. at 211.
184. Compare Story's opinion in
Houston v. Moore , 18 U.S. (5 Wheat.) 1, 49 (1820).
185
. E.g ., Griswold v. Connecticut, 381 U.S. 479, 489�90 (1965) (Goldberg, J., concurring).
Scholarly references to Madison and Story in works discussing the Ninth Amendment are
ubiquitous. For only a few such examples, see LEONARD LEVY, ORIGINS OF THE BILL OF RIGHTS
244, 246�60 (1999) (discussing Story and Madison); MASSEY, SILENT RIGHTS,
supra note 2, at
146�47, 168 nn.172�73 (discussing Madison and Story); THOMAS B. MCAFFEE, INHERENT RIGHTS,

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views of these Founding-era figures remained critically incomplete.

Although his
Commentaries linked the Ninth to the Tenth Amendment as a
statement of principle,
Houston v. Moore suggests Justice Story's original
views on how the Ninth Amendment actually should be applied. Written
within the lifetime of those who drafted and ratified the Clause, Story's
opinion illuminates the general understanding of the Ninth Amendment in
the period immediately following its adoption. Story's reading of the Ninth
was not contradicted by any other Justice and his specific analysis of the
Ninth Amendment was quoted by Supreme Court justices and the finest
lawyers in the United States. Moreover, no other account of the Ninth
Amendment was proposed by any Justice on the Court at the time or for the
next one hundred and fifty years--a phenomenon which strongly suggests
that Story's opinion presented the commonly accepted view of the Ninth as a
federalism-based rule of construction, even if the application of that rule was
sporadic. Indeed, Story and Marshall's later reluctance to even acknowledge
the Ninth makes sense if it was widely regarded as a rule supporting state
autonomy. Finally, because Story's opinion in
Houston adopts the
Madisonian reading of the Ninth Amendment--a reading itself based on
proposals from the state conventions--
Houston v. Moore establishes a link
between the state conventions, Madison's interpretation of the Ninth
Amendment, and the common understanding of the Ninth in the period
following its adoption.186 This approach viewed the Ninth as actively
limiting the construction of delegated federal power in the service of state
autonomy.
Houston v. Moore also illustrates how the Ninth Amendment could be
closely related to the Tenth and yet still retain an independent role in
constitutional interpretation.
Houston did not examine whether enumerated
federal power existed. The issue was whether concededly delegated federal
power should be construed in a manner that disparaged the concurrent rights
of the states. Answering this question required a rule of interpretation, and it
is the Ninth, not the Tenth, which expressly provides such a rule. The
ultimate fate of
Houston v. Moore , however, raises an intriguing possibility.
Scholars have often dismissed historical references to the Ninth Amendment
because they believed that such references really were about the Tenth.187
Judge Felch's rewriting of Story's
Houston analysis in Harlan v. People
suggests that the opposite may be true: Past cases that refer to the Tenth
Amendment may really be about the Ninth.

THE WRITTEN CONSTITUTION, AND POPULAR SOVEREIGNTY: THE FOUNDERS' UNDERSTANDING 79
(2000) (discussing Madison); Randy E. Barnett,
Introduction: James Madison's Ninth Amendment ,
in 1 THE RIGHTS RETAINED BY THE PEOPLE, supra note 2, at 1 (discussing Madison); Knowlton H.
Kelsey,
The Ninth Amendment of the Federal Constitution , in 1 RIGHTS RETAINED BY THE PEOPLE,
supra note 2, at 102�03 (discussing Story).
186
. See generally Lash, The Lost Original Meaning , supra note 8.
187
. See, e.g. , PATTERSON, supra note 2, at 32.

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41

As the rest of this Article explains, later courts did not share the
Marshall Court's reluctance to cite and rely on the Ninth Amendment.
Marshallian nationalism was eventually replaced by decidedly states' rights
oriented interpretations of the Constitution. Marshall's approach to the Ninth
and Tenth Amendments would return, however, in the constitutional
upheaval known as the New Deal.188
E. The Ninth Amendment and "the Enumeration . . . of Certain Rights"
Just as the principle of state autonomy suggested a limited reading of
enumerated federal power, that same principle supported a limited reading of
constitutional restrictions on the
states . John Marshall himself, prior to his
opinions in
McCulloch and Gibbons , acknowledged the role of federalism in
interpreting the provisions in Article I, Section 10. For example, in
Trustees
of Dartmouth College v. Woodward
, Chief Justice Marshall wrote of the need
to limit the potential scope of the Impairment of Contract Clause in order to
avoid interfering with the "internal concerns of a state."189 He noted:
[E]ven marriage is a contract, and its obligations are affected by the
laws respecting divorces. That the clause in the constitution, if
construed in its greatest latitude, would prohibit these laws. Taken in
its broad, unlimited sense, the clause would be an unprofitable and
vexatious interference with the internal concerns of a state, would
unnecessarily and unwisely embarrass its legislation, and render
immutable those civil institutions, which are established for purposes
of internal government, and which, to subserve those purposes, ought
to vary with varying circumstances. . . .
The general correctness of these observations cannot be controverted.
That the framers of the constitution did not intend to restrain the states
in the regulation of their civil institutions, adopted for internal
government, and that the instrument they have given us, is not to be so
construed, may be admitted.190
Even as ardent a nationalist as John Marshall believed that the framers
intended a limited construction of constitutional rights in order to avoid
"restrain[ing] the states in the regulation of their civil institutions." Although
Marshall does not cite the Ninth Amendment, his approach follows both the
letter and spirit of the Ninth by limiting the construction of an enumerated
power or right--in this case, freedom from impaired contracts--to preserve
other rights retained by the people, such as local control of civil institutions.
Later courts recognized the relation between Marshall's words in
Dartmouth

188
. See infra section IV(B)(2).
189. 17 U.S. (4 Wheat.) 518, 628 (1819).
190
. Id. at 627�28.

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and the rule of construction expressed by the Ninth Amendment and they
cited
Dartmouth accordingly.191
Antebellum courts generally were not as reluctant as John Marshall to
recognize the Ninth Amendment as limiting the construction of enumerated
rights against the states. In
Anderson v. Baker ,192 the Supreme Court of
Maryland declined to give an expansive reading to Article I, Section 10's
prohibition of ex post facto laws, citing as justification the Ninth and Tenth
Amendments:
Prohibitions on the States, are not to be enlarged by construction. To
do so, would violate the spirit and object of the 9th and 10th
amendments to the Constitution of the United States, viz.: "The
enumeration in the Constitution of certain rights, shall not be
construed to deny or disparage others retained by the people. 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." These were intended to prevent argumentative
implications of power not delegated; to exclude any interpretation by
which other powers should be assumed beyond those which are
granted.193
The idea that the Ninth Amendment and its attendant rule of
construction limited the scope of rights-bearing provisions as well as power-
granting provisions would prove particularly significant in the next great
period of constitutional law, when courts had to reconcile the federalism
principles of the Founding with the individual rights provisions of the
Fourteenth Amendment.194
F. Slavery
I shall support the Amendts. proposed to the Constitution that any
exception to the powers of Congress shall not be so construed as to
give it any powers not
expressly given, & the enumeration of certain
rights shall not be so construed as to deny others retained by the
people--& the powers not delegated by this Constn. nor prohibited by
it to the States, are reserved to the States respectively; if these
amendts. are adopted, they will go a great way in preventing Congress
from interfering with our negroes after 20 years or prohibiting the

191
. See George v. Bailey, 274 F. 639, 640�44 (W.D.N.C. 1921); see also infra notes 323�326
and accompanying text.
192. 23 Md. 531 (1865). The case upheld the right of a state to alter its constitution to impose
restrictions on the franchise (a test oath in this case) against a claim that this violated the ex post
facto restriction in Article I, Section 10.
Id. at 624�25.
193
. Id. at 624.
194
. See infra notes 273�288 and accompanying text.

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43

importation of them. Otherwise, they may even within the 20 years by
a strained construction of some power embarrass us very much.195
As a rule of construction preserving the autonomy of the states, the
Ninth Amendment was caught up in the struggle over slavery from its very
beginning. Throughout the antebellum period, courts struggled to find what
Madison referred to as the "just equilibrium" between national and local
powers.196 Cases decided by the nationalist Marshall court, such as
Martin v.
Hunters' Lessee
,197 were resisted by some state courts as violating the
balance established by the Ninth and Tenth Amendments. In
The Ohio ,198 for
example, future Chief Justice of the Ohio Supreme Court, T.W. Bartley,
relied on the Ninth and Tenth Amendments in an opinion rejecting the
authority of the Supreme Court to review state court opinions:
We may here promise, that it is a settled rule of interpretation, founded
on sound reason, that every written instrument conferring limited and
expressly defined powers must be strictly construed; and that to
warrant the exercise of special authority thus delegated, the grant of it,
must appear affirmatively and distinctly to be within the terms of the
prescribed limits. If this rule be important in any instance, it is so in its
application to the written constitution of a government of limited and
expressly defined powers. If the exercise of doubtful authority,
derived by vague and far-fetched construction and implication, be
warranted or allowed, a written constitution will be of but little
consequence as a restraint upon ambition and cupidity. The rigid
application of the strict rule of construction above mentioned, is also
authoritatively required by the ninth or tenth additional amendatory
articles of the constitution, declaring that the powers not expressly
delegated, are reserved, and that the enumeration of certain rights in
the constitution shall not be construed to deny or disparage those
retained. Without this express requirement of a strict construction, the
constitution would not have been adopted by the states.199
In 1856, having been elevated to Chief Justice of the Ohio Supreme
Court, Bartley repeated his view that the Ninth Amendment protected the
right of the states to maintain the peculiar institution of slavery. In
Anderson
v. Poindexter
, the Ohio Supreme Court ruled that slaves automatically

195. Letter from William L. Smith to Edward Rutledge (Aug. 10, 1789),
in CREATING THE
BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 273 (Helen
E. Veit et al. eds., 1991) [hereinafter CREATING THE BILL OF RIGHTS].
196. Letter from James Madison to Spencer Roane (May 6, 1821),
in WRITINGS, supra note 11,
at 773.
197. 14 U.S. (1 Wheat.) 304 (1816).
198. Stunt v. The Steamboat Ohio, 3 Ohio Dec. Reprint 362 (Hamilton Dist. Ct. 1855).
199
. Id. at 365�66. Although Bartley's decision was reversed on appeal, see The Ohio v. Stunt,
10 Ohio St. 582, (Ohio 1856), the next year, Judge Bartley joined the Ohio Supreme Court as Chief
Justice and issued the same opinion in dissent.
See Piqua Bank v. Knoup , 6 Ohio St. 342, 347�48
(Ohio 1856) (Bartley, C.J., dissenting).

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became free once they set foot on the free soil of Ohio.200 Concurring in the
judgment, Bartley disagreed with the reasoning of the Court which he
believed was overly dismissive of state rights:
Having guaranteed to the people of each state inviolability in their
rights of private property, and security in their domestic tranquility;
having declared that the powers enumerated in the constitution should
not be construed to deny or disparage the rights retained by the people;
and having guaranteed the sovereignty and independence of each state,
subject only to the powers delegated to the confederacy, [the people of
the several states] recognized the relation of master and servant,
secured the return of fugitives from servitude.201
Bartley thus adopts the Madisonian reading of the Ninth which prohibits the
construction of federal power to the injury of the people's retained rights--
rights which Bartley believed included the right to chattel slavery.
Although Bartley invoked the Ninth Amendment on behalf of slavery,
state autonomy was a two-way street. In
Mitchell v. Wells , the Supreme
Court of Mississippi ruled that a former slave who had been freed in Ohio
had no enforceable rights in Mississippi courts.202 In his dissent, Judge
Handy criticized the majority's refusal to recognize the rights of Ohio
citizens and raised the Ninth and Tenth Amendments as establishing the
reserved "rights and powers" of the people of the several states:
The 9th and 10th amendments to the Constitution of the United States
reserve to the people of the several States the rights and powers not
enumerated in that instrument, and delegated to the confederacy, nor
prohibited to the States; and the right of an inhabitant or subject of any
State, not enumerated, remains as a sovereign power reserved to the
State, and to be exercised by those entitled to her protection according
to the principles applicable to the relations of independent nations.203
Protecting state autonomy, however, inexorably led to the legal
entrenchment of slavery. In
Willis v. Jolliffee , a certain E.W. took one of his
slaves, Amy, and her seven children to Ohio with the intention of setting
them free.204 His will dictated that his estate was to be executed in trust for
Amy and her children.205 Tragically, E.W. died the moment he arrived with
Amy and her children at the wharf in Cincinnati.206 Not having yet been
freed, Amy remained a slave under South Carolina law and, according to the
trial court, Amy could not inherit E.W.'s estate.207 The opinion cited a

200
. See Anderson v. Poindexter, 6 Ohio St. 622, 631 (1856).
201
. Id. at 686 (Bartley, C.J., concurring) (emphasis omitted).
202. Mitchell v. Wells, 37 Miss. 235, 264 (1859).
203
. Id. at 283�84.
204. Willis v. Jolliffee, 32 S.C. Eq. (11 Rich. Eq.) 447, 450�51 (1860).
205
. Id. at 448.
206
. Id. at 450.
207
. Id. at 491.

2004]
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45

number of constitutional provisions, including the Ninth and Tenth
Amendments, in support of its conclusion that the Constitution anticipated
state recognition of slavery as a "property" right.208
Supreme Court Justice John Campbell took a similar view in his
concurring opinion in
Dred Scott v. Sandford .209 In Dred Scott , the Supreme
Court struck down the Missouri Compromise on the ground that Congress
had no authority to ban slavery from the territories. One of the issues in the
case was the scope of power delegated by the provision permitting Congress
"to dispose of and to make all needful rules and regulations respecting the
territory or other property belonging to the United States."210 The
Government argued that "all" meant
all and that it "include[d] all subjects of
legislation in the territory."211 Campbell's response was that such a
construction of congressional power would destroy the concept of limited
enumerated power expressed by the Ninth and Tenth Amendments.
According to Campbell:
The people were assured by their most trusted statesmen `that the
jurisdiction of the Federal Government is limited to certain
enumerated objects, which concern all members of the republic,' and
`that the local or municipal authorities form distinct portions of
supremacy, no more subject within their respective spheres to the
general authority, than the general authority is subject to them within
its own sphere.' Still, this did not content them. Under the lead of
Hancock and Samuel Adams, of Patrick Henry and George Mason,
they demanded an explicit declaration that no more power was to be
exercised than they had delegated. And the ninth and tenth
amendments to the Constitution were designed to include the
reserved
rights of the States
, and the people, within all the sanctions of that
instrument, and to bind the authorities, State and Federal, by the
judicial oath it prescribes, to their recognition and observance. Is it
probable, therefore, that the supreme and irresponsible power, which
is now claimed for Congress over boundless territories, the use of
which cannot fail to react upon the political system of the States, to its
subversion, was ever within the contemplation of the statesmen who
conducted the counsels of the people in the formation of this
Constitution?212

208
. Id. at 477. The decision was reversed on appeal without a discussion of either the Ninth or
Tenth Amendments.
Id. at 517.
209. 60 U.S. (19 How.) 393 (1856).
210
. Id. at 509.
211
. Id. at 600.
212
. Id. at 511 (Campbell, J. concurring). Although Chief Justice Taney's lead opinion in Dred
Scott discussed constitutional protection of unenumerated property rights protected under the Due
Process Clause of the Fifth Amendment, Taney did not cite the Ninth Amendment in support of
these unenumerated rights.
Id. at 450. Only Justice Campbell raised the Ninth Amendment and did
so only in regard to the scope of enumerated federal power.

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G. Summary: The Ninth Amendment from Founding to the Civil War
The jurisprudence of the Ninth Amendment in the antebellum period is
both plentiful and consistent. Following the approach of James Madison,
courts at all levels read the Ninth Amendment as a rule of construction
preserving the right to local self-government. Generally deployed in tandem,
both the Ninth and Tenth Amendments were understood to express related
principles of state autonomy. Although related, the amendments were not
redundant; the Ninth played a unique role in limiting the construction of
enumerated powers and rights. It was not a passive declaration of
enumerated power, but an active substantive restriction on the interpretation
of federal power.
Although bench and bar were in general agreement regarding the
meaning of the Ninth Amendment, influential Justices such as John Marshall
ignored the Ninth in major cases interpreting the scope of federal power.
Marshall in particular discounted the idea that any provision in the
Constitution suggested a substantive limit on the construction of enumerated
federal authority. Marshall never articulated an alternate reading of the
Ninth; he simply ignored it. Judicial opinions that did address the Ninth,
however, read it in line with Justice Story's analysis in
Houston v. Moore .
As had Madison in his speech on the Bank of the United States, Justice Story
in his
Houston dissent applied the Ninth as a federalist rule of construction.
Although Story later seemed to reduce the Ninth Amendment to a
restatement of principles declared by the Tenth, this in itself is telling. The
initial dispute over the Ninth Amendment was not between federalist and
libertarian readings of the Clause, but between passive and active federalist
rules of construction. The Madisonian view, shared by St. George Tucker,
Justice Smith Thompson, and advocates like Thomas Emmet, read the Ninth
as an active federalist constraint on the interpretation of federal power.
Although initially sharing this view, Justice Story ultimately adopted the
more nationalist views of James Kent and John Marshall and presented the
Ninth in his Commentaries as a passive restatement of the federalist principle
of enumerated power. Despite this disagreement, however, every court and
every scholar who addressed the Ninth Amendment in the first great period
of constitutional law read the Ninth in
pari materia with the Tenth as one of
the twin guardians of federalism. As the nineteenth century progressed, it
would be the original Madisonian understanding of the Ninth and Tenth that
would prevail, at least until the dawn of the New Deal.
III. Reconstruction and the Ninth Amendment
A. The Ninth and Fourteenth Amendments
The struggle over slavery and a bloody Civil War gave rise to a new
birth of freedom, one that dramatically altered the original balance of power
between the federal government and the states. Whereas the original Bill of

2004]
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47

Rights applied only to the federal government, the Fourteenth Amendment
introduced significant new restrictions on the states and bound them to
respect the "privileges or immunities" of citizens of the United States.213
Although the Supreme Court has interpreted the Due Process Clause to
incorporate most of the provisions in the Bill of Rights,214 contemporary
constitutional historians suggest that the Privileges or Immunities Clause is
more likely to have been the intended vehicle of incorporation.215
If, in fact, the framers of the Fourteenth Amendment intended to
incorporate the Bill of Rights, this signaled a changed understanding of the
nature of the Bill itself.216 For example, the First Amendment's
Establishment Clause was originally intended not only to prevent federal
religious establishment, but also to
protect state religious establishments
from federal interference.217 If the Fourteenth Amendment was intended to

213
. See U.S. CONST. amend. XIV, � 1.
214
. See infra notes 469�485 and accompanying text (discussing the Ninth Amendment and the
doctrine of incorporation).
215
. E.g. , AMAR, supra note 160, at 181�214; MICHAEL KENT CURTIS, NO STATE SHALL
ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS 2 (1986). Earlier scholarship
had generally been skeptical regarding any intent to incorporate the Bill of Rights.
E.g. , Raoul
Berger,
Incorporation of the Bill of Rights: Akhil Amar's Wishing Well , 62 U. CIN. L. REV. 1
(1993); Charles Fairman,
Does the Fourteenth Amendment Incorporate the Bill of Rights? The
Original Understanding
, 2 STAN L. REV. 5, (1949); Lino A. Graglia, " Interpreting the
Constitution
" : Posner on Bork , 44 STAN. L. REV. 1019, 1033�34 (1992). Although my own work
tends to support the conclusions of Curtis and Amar,
see, e.g. , Kurt T. Lash, The Second Adoption
of the Establishment Clause: The Rise of the Nonestablishment Principle
, 27 ARIZ. ST. L.J. 1085
(1995) [hereinafter Lash,
The Second Adoption of the Establishment Clause ]; Kurt T. Lash, The
Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth
Amendment
, 88 NW. U. L. REV. 1106 (1994) [hereinafter Lash, The Second Adoption of the Free
Exercise Clause
], this Article does not address the merits of the incorporation argument. Instead,
this Part focuses on the issue of whether the Ninth Amendment was understood in a manner that
made it as likely to be considered a "privilege or immunity" of United States citizens as the rights
listed in the first eight amendments.
A separate issue involves whether the Privileges or Immunities Clause was understood to protect
unenumerated individual rights. A good argument can be made that it was intended to do so.
See
AMAR,
supra note 160, at 280; Kurt T. Lash, Two Movements of a Constitutional Symphony: Akhil
Reed Amar's
The Bill of Rights, 33 U. RICH. L. REV. 485, 492 (1999) [hereinafter Lash, Two
Movements of a Constitutional Symphony
]. If so, then an originalist interpretation of the
Constitution must reconcile the Ninth and Fourteenth Amendments and determine the degree to
which the Fourteenth altered the original protections of the Ninth. I can only partially address these
issues; a complete analysis requires a separate article.
216. Professor Akhil Amar suggests the Bill of Rights underwent a process of "refined
incorporation" through which some, but not all, of the liberties in the original Bill were absorbed
into the Fourteenth, thereby changing their focus from protecting federalism to safeguarding
individual liberty.
See AMAR, supra note 160, at 215�30.
217
. See Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment , 101 YALE L.J.
1193, 1201 (1992) (suggesting that one of the original purposes of the Bill of Rights was to protect
existing freedoms of the state as well as individuals, such as the freedom of the states to establish
churches); Daniel O. Conkle,
Toward a General Theory of the Establishment Clause , 82 NW. U. L.
REV. 1113, 1132 (1988) (claiming that at the time of the adoption of the First Amendment, six
states continued to maintain or authorize established religions); Kurt T. Lash,
Power and the Subject
of Religion
, 59 OHIO ST. L.J. 1069, 1099�1100 (1998) ("There is a general consensus among legal

48
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incorporate the Establishment Clause against the states, this would mean that
nonestablishment had come to be understood as a national freedom and not
just a jurisdictional rule of federalism.218
Recently, a number of constitutional scholars have argued that similar
transformations occurred in regard to a number of liberties listed in the Bill
of Rights. Michael Kent Curtis, for example, has traced the growing calls for
freedom of speech against state action that were triggered by widespread
suppression of abolitionist speech.219 Akhil Amar has examined how drafters
of the Fourteenth Amendment believed, contrary to Supreme Court
precedent, that the liberties listed in the first eight amendments as a matter of
natural right should be protected against abridgment by the states.220 In my
own work, I have argued that, by the time of Reconstruction, certain
principles of religious liberty came to be understood as privileges or
immunities.221
It is possible that the Ninth Amendment similarly evolved during the
antebellum period. Even if originally understood as limiting federal power in
the service of state autonomy, by 1868 the common understanding of the
Ninth could have changed. If the rule of construction of the Ninth
Amendment was understood as a personal rights guarantee at the time of the
adoption of the Fourteenth Amendment, then the new understanding of the
Clause is as capable of being incorporated against the states as is freedom of
speech or any other personal freedom listed in the Bill of Rights. In fact, at
least two members of the Reconstruction Congress apparently read the Ninth
in this manner.222

historians that at least one of the purposes of the Establishment Clause was to protect state religious
establishments from federal interference." (footnote omitted)).

218
. See Lash, The Second Adoption of the Establishment Clause , supra note 215, at 1105. But
see generally STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL
PRINCIPLE OF RELIGIOUS FREEDOM (1995).
219. MICHAEL KENT CURTIS, FREE SPEECH, "THE PEOPLE'S DARLING PRIVILEGE,"
STRUGGLES FOR FREEDOM OF EXPRESSION IN AMERICAN HISTORY 194�215 (2000); CURTIS,
supra
note 215, at 30�31.
220
. See AMAR, supra note 160, at 181�87.
221. Lash,
The Second Adoption of the Establishment Clause , supra note 215, at 1151�52;
Lash,
The Second Adoption of the Free Exercise Clause , supra note 215, at 1146�49.
222. In an 1866 speech, Senator James Nye noted:
In the enumeration of natural and personal rights to be protected, the framers of the
Constitution apparently specified everything they could think of--"life," "liberty,"
"property," "freedom of speech," "freedom of the press," "freedom in the exercise of
religion," "security of person," &c.; and then, lest something essential in the
specifications should have been overlooked, it was provided in the ninth amendment
that "the enumeration in the Constitution of certain rights should not be construed to
deny or disparage other rights not enumerated." This amendment completed the
document. It left no personal or natural right to be invaded or impaired by construction.
All these rights are established by the fundamental law.
CONG. GLOBE, 39th Cong., 1st Sess. 1072 (1866). John Yoo quotes this passage and concludes that
"[t]his statement shows that the Reconstruction Congress adopted the antebellum interpretation of
the Ninth Amendment among the states as a guarantee of minority civil rights, not of majoritarian

2004]
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49

Some Ninth Amendment scholars have made an argument along these
lines. Professor John Yoo, for example, concedes the original federalist
understanding of the Bill of Rights, including the Ninth Amendment.
Between the Founding and the Civil War, however, a number of states
adopted provisions in their state constitutions that mirror the language of the
federal Ninth Amendment. Yoo argues that these state constitutional
provisions, which limit the powers of the
state , suggest a new understanding
of the language and meaning of the Ninth Amendment.223
Although it is possible that the common understanding of the Ninth
Amendment in 1868 rendered it an appropriate candidate for incorporation,
the bulk of historical evidence makes it more likely that the Ninth
Amendment, like the Tenth, was not understood to protect individual rights
from state action. To begin with, even those historians who support
incorporation in general do not believe that the Tenth Amendment was
incorporated by the Fourteenth Amendment.224 As a clause expressly
protecting states' rights, incorporating the Tenth
against the states is
logically impossible. But, as the last Part has shown, the Ninth Amendment
was read in
pari materia with the Tenth consistently throughout the
antebellum period. From the controversy over the Bank of the United States,

political ones." Yoo,
supra note 30, at 1026. As the last Part shows, however, the common
antebellum understanding of the Ninth was as a federalism-based rule of construction. Moreover, if
Nye's views represented those of the 39th Congress, then the framer of Section 1 of the Fourteenth
Amendment, John Bingham, almost certainly would have included the Ninth on his list of privileges
or immunities. He did not do so. This is not to deny that other members might have shared Nye's
interpretation. See, for example, the 1872 speech by Senator Sherman that refers to the Ninth as a
source of unenumerated rights in support of congressional power to pass the 1875 Civil Rights Act.
CONG. GLOBE, 42d Cong., 2d Sess. 843 (1872). But, finding some interpretations along these lines
is not surprising. Even in the antebellum period, some attempts were made to read the Ninth as a
source of unenumerated rights.
See supra note 17 and accompanying text. Alongside these
sporadic attempts to read the Ninth in this manner, however, are far more numerous statements on
(and applications of) the Ninth as a federalist rule of construction. In fact, other members of the
Reconstruction Congress continued to follow the antebellum understanding of the Ninth and Tenth
as twin guardians of state autonomy.
See CONG. GLOBE, 39th Cong., 1st Sess. 2467 (1866)
(recording a statement by Rep. Boyer, during the debates about a constitutional amendment to deny
voting rights for those who aided the Confederacy, in which Boyer points to the Ninth and Tenth
Amendments as prohibiting the Federal government from "trampl[ing] upon" the southern States by
disenfranchising the large majority of their voting population). In sum, in the antebellum period the
public may have come to read the first eight amendments as expressing individual, not collective,
rights. There is no evidence such a transformation of public opinion occurred in regard to the
federalist nature of the Ninth and Tenth Amendments. Although some members of the
Reconstruction Congress may have read the Ninth to protect individual rights, the framers of the
Fourteenth Amendment apparently did not. Nor is there any evidence that the public who ratified
the Fourteenth Amendment broadly understood the Ninth to express libertarian rights applicable
against the states.
223. Yoo,
supra note 30, at 1009; see also AMAR, supra note 160, at 280 (describing the
adoption of "baby Ninth Amendments" by several states before 1867 and suggesting that "[w]hat
began as a federalism clause intertwined with the Tenth Amendment soon took on a substantive life
of its own, as a free-floating affirmation of unenumerated rights").
224
. E.g. , AMAR, supra note 160, at 280; Amar, supra note 217, at 1197; Yoo, supra note 30, at
1023�24.


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to the struggle over exclusive federal power, to Campbell's concurrence in
Dred Scott , the Ninth and Tenth Amendments were understood as joint
expressions of state autonomy. States' rights theorists like St. George Tucker
and John Taylor had expressly linked the Ninth and Tenth Amendments as
dual expressions of federalism.225 William Rawle, in his
A View of the
Constitution
, listed and discussed the first eight amendments as the
Constitution's "Declaration of Rights,"226 which Rawle believed were
applicable to both federal and state governments.227 Neither the Ninth nor
the Tenth, however, made Rawle's list of rights.
In fact, by 1868, these two amendments were regularly distinguished
from the first eight. The Confederate Constitution, for example, adopted the
first eight amendments word for word, but placed the Ninth and Tenth in a
separate section and reworded the Ninth to reflect the common understanding
of the Clause: "The enumeration, in the Constitution, of certain rights shall
not be construed to deny or disparage others retained by the people of the
several States."228 Nor was this a special construction of the southern
states.229 Abolitionists, for example, had long called for a reevaluation and a
broadening of individual liberty,230 but they ignored the Ninth Amendment as
either a source of rights or as textual support for additional individual
rights.231 If the Ninth had been considered even indirect support for
individual rights against the states, then its omission from abolitionist
arguments is inexplicable. Of all people in antebellum America, abolitionists

225
. E.g. , TAYLOR, supra note 74, at 46; TUCKER, BLACKSTONE'S COMMENTARIES, supra note
50, at app. 307�08; Lash,
The Lost Original Meaning , supra note 8, at 396�99.
226. RAWLE,
supra note 159, at 120.
227 . See id . ("A declaration of rights, therefore, properly finds a place in the general
Constitution, where it equalizes all and binds all.").
228. C.S.A. CONST. art. VI, � 5 (1861),
reprinted in 3 SOURCES AND DOCUMENTS OF UNITED
STATES CONSTITUTIONS: NATIONAL DOCUMENTS 1826�1900, at 125, 137 (Donald J. Musch &
William F. Swindler eds., 1985). John Yoo believes that adding the language "of the several states"
to the Ninth Amendment in the Confederate Constitution is indirect proof of an individual rights
reading of the federal Ninth Amendment.
See Yoo, supra note 30, at 1008. However, as the last
Part showed, state courts had already read the federal Ninth in exactly the same way.
229. John Marshall himself used the same formulation when discussing the people's reserved
powers. In
Sturges v. Crowninshield , Marshall wrote:
When the American people created a national legislature, with certain enumerated
powers, it was neither necessary nor proper to define the powers retained by the states.
These powers proceed, not from the people of America, but from the people of the
several states; and remain, after the adoption of the constitution, what they were before,
except so far as they may be abridged by that instrument.
17 U.S. 122, 193 (1819). According to Marshall, the Tenth Amendment reserved nondelegated
powers to the States or to "the people of the several states."
Id. Presumably, the same reasoning
would apply to the people's retained rights under the Ninth. Rights were retained not to the people
of America, but to the people of the several states.
230
. See AMAR, supra note 160, at 161 ("Beginning in the 1830's, abolitionist lawyers
developed increasingly elaborate theories of natural rights, individual liberty, and higher law . . . .").
231
. See Sanford Levinson, Constitutional Rhetoric and the Ninth Amendment , 64 CHI.-KENT
L. REV. 131, 144 (1988) (noting that the Ninth Amendment was not cited as a restriction on state
power by radical antislavery lawyers).

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51

had the greatest incentive to use every possible constitutional argument
available in the cause against slavery. In fact, abolitionists relied on the
Declaration of Independence, natural law, biblical exegesis, common law, as
well as a libertarian reading of most of the Bill of Rights;232 they relied on
almost everything
except the Ninth Amendment.233 Similarly, judicial
decisions such as
Calder v. Bull ,234 Fletcher v. Peck ,235 and Terret v.
Taylor
236--decisions that explored the existence of enforceable natural
rights--never raised the Ninth Amendment as a potential source of
unenumerated rights.237 Instead, slave owners from the beginning saw the
Ninth as protecting the states' right to maintain slavery.238 Even the drafter
of Section 1 of the Fourteenth Amendment, John Bingham, distinguished the
Ninth and Tenth from the first eight amendments in regard to privileges or
immunities protected by the Fourteenth Amendment.239 Other members of
the 39th Congress also described the personal rights protected by the
Fourteenth Amendment to be expressed in the first eight amendments.240
The Ninth and Tenth Amendments, on the other hand, were cited in
support of the right of the states to secede from the Union. On December 31,
1860, only a few days after South Carolina voted to secede, Louisiana
Senator and future Confederate Secretary of War, Judah P. Benjamin, rose to
address the Senate.241 Laying out the case for secession, Senator Benjamin
recounted the debates over the ratification of the Constitution.242 Benjamin
reminded the Senate that proponents of ratification in states like New York
and Virginia had "failed until they proposed to accompany their ratifications

232
. See AMAR, supra note 160, at 161, 239 (pointing out that abolitionists developed
elaborate, declaratory theories of natural rights, individual liberty, and higher law starting in the
1830s and that federalism and majoritarianism were replaced by libertarianism as the "dominant,
unifying theme of the First Amendment's freedoms" by the 1860s).
233. For examples of abolitionists citing only the first eight amendments, see WILLIAM M.
WIECEK, THE SOURCES OF ANTISLAVERY CONSTITUTIONALISM IN AMERICA, 1760�1848, at 267
(1977) (quoting Gerrit Smith).
234. 3. U.S. (3 Dall.) 386 (1798).
235. 10 U.S. (6 Cranch) 87 (1810).
236. 13 U.S. (9 Cranch) 43 (1815).
237
. See Levinson, supra note 231, at 144. Although these cases did not raise the Ninth as a
source of unenumerated rights, Justice Chase's opinion in
Calder appears to adopt the rule of
construction represented by the Ninth Amendment.
See Lash, The Lost Original Meaning , supra
note 8, at 403.
238
. See Letter from William L. Smith to Edward Rutledge (Aug. 10, 1789), in CREATING THE
BILL OF RIGHTS,
supra note 195 (suggesting that if the Ninth and Tenth amendments were adopted,
"[T]hey [would] go a great way in preventing Congress from interfering with our negroes after 20
years or prohibiting the importation of them").
239. CONG. GLOBE, 39th Cong., 1st Sess. 1089 (1866) (statement of Rep. Bingham).
240
. See CONG. GLOBE, 39th Cong., 1st Sess. 2467 (1866) (statement of Rep. Boyer); CONG.
GLOB., 39th Cong., 1st Sess. 2765�66 (1866) (statement by Sen. Howard);
see also AMAR, supra
note 160, at 226 ("[B]oth Bingham and Howard seemed to redefine `the Bill of Rights' as
encompassing only the first eight rather than ten amendments . . . . ").
241. CONG. GLOBE, 36th Cong., 2d Sess. 212 (1860) (statement of Rep. Benjamin).
242
. Id. at 214.

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with amendments that should prevent its meaning from being perverted, and
prevent it from being falsely construed."243 The "false construction" to
which Benjamin referred was one that consolidated the states into a single
national government--an interpretation prevented by the adoption of the
Ninth and Tenth Amendments:
So, sir, we find that not alone in these two conventions, but by the
common action of the States, there was an important addition made to
the Constitution by which it was expressly provided that it should not
be construed to be a General Government over all the people, but that
it was a Government of States, which delegated powers to the General
Government. The language of the ninth and tenth amendments to the
Constitution is susceptible of no other construction:
"The enumeration in the Constitution of certain rights shall not
be construed to deny or disparage others retained by the people."
"The powers not delegated to the United States.[ . . .]"244
Right up until the adoption of the Fourteenth Amendment, the Ninth
continued to be linked with the Tenth as one of the twin guardians of
federalism. For example, in 1863, in the midst of a violent national struggle
over fundamental rights, the Indiana Supreme Court cited the Ninth
Amendment in an opinion rejecting a claim that the federal government had
exclusive jurisdiction over navigable waters within a state:
In the case at bar, it may, for the sake of the argument, be conceded,
that Congress not only possesses the power, but the exclusive right, to
regulate commerce among the several States, including the pilotage of
vessels engaged in said commerce; and still the facts, so far as the
record shows them, do not make a case falling strictly within the
principle of the points thus conceded, because not involved. And why?
The ninth amendment to the Constitution is as follows: "The
enumeration in the Constitution of certain rights, shall not be
construed to deny or disparage others retained by the people," and
tenth: "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."245
Even states whose constitutions were amended to add provisions
mirroring the Ninth Amendment continued to read the federal Ninth in
conjunction with the Tenth. In 1865, for example, the Supreme Court of
Maryland declined to give an expansive reading to the federal Constitution's
ban on ex post facto laws, on the grounds that "prohibitions on the states, are

243
. Id. Benjamin continued, "[A]nd in two of the States especially--the States of Virginia and
New York, the ratification was preceded by a statement of what their opinion of its true meaning
was, and a statement that, on that construction, and under that impression, they ratified it."
Id.
244
. Id.
245. Barnaby v. State, 21 Ind. 450, 452 (1863).

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not to be enlarged by construction."246 This interpretive rule was required
according to the "spirit and object of the 9th and 10th Amendments."247
Only a few years earlier, Maryland had added a provision to its Declaration
of Rights which mirrored the federal Ninth Amendment.248 However the
Maryland state court might have interpreted its own version of the Ninth, it is
clear that adding such a provision to the state constitution had no effect on
the court's understanding of the
federal Ninth Amendment.
Instead of modifying their readings of the Ninth Amendment in the
direction of libertarian rights, judicial opinions in the 1860s emphasized the
links between the Ninth and Tenth Amendments. In the 1864 case
Philadelphia & Railroad Co. v. Morrison , a federal court considered a
challenge to Congress's power to issue notes as legal tender.249 Although he
withdrew from the case and left the judgment to circuit-riding Supreme Court
Justice Grier,250 Judge Cadwalader published an opinion in which he
emphasized the federalism-based goal of the Ninth and Tenth Amendments:
In determining the application of the incidental power of legislation,
the ninth and tenth amendments of the constitution must be
considered. The ninth provides that the enumeration in the constitution
of certain rights shall not be construed to deny or disparage others
retained by the people; the tenth provides that the powers not
delegated by the constitution, to the United States, nor prohibited by it
to the states, are reserved to the states respectively or to the people.
These two amendments, whether their words are to be understood as
restrictive or declaratory, preclude everything like attribution of
implied residuary powers of sovereignty, or ulterior inherent rights of
nationality, to the government of the United States. Therefore the
constitution confers no legislative powers except those directly
granted, and those which may be appropriate as incidental means of
executing them.
. . . .
. . . That the amendments were thus intended for security against
usurpations of the national government only, and not against
encroachments of the state governments, may be considered a truism.

246. Anderson v. Baker, 23 Md. 531, 624 (1865). The case upheld the right of a state to alter
its constitution to impose restrictions on the franchise (a test oath in this case) against a claim that
this violated the ex post facto restriction in Article I, Section 10.