The Lost Original Meaning of the Ninth Amendment

Abstract:     
This article presents previously unrecognized evidence regarding the original meaning of the Ninth Amendment. Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. James Madison's initial draft of the Ninth Amendment expressly adopted the language suggested by the state conventions and he insisted the final draft expressed the same rule of construction desired by the states. In an episode previously unnoticed by scholars, the altered language of the final draft of the Ninth Amendment prompted Virginia Governor Edmund Randolph to bring to a halt his state's efforts to ratify the Bill of Rights, due to his concern that the Ninth no longer reflected the demands of the state conventions. Anti-Federalists used Randolph's concerns to delay Virginia's, and thus the Country's, ratification of the Bill of Rights for two years. While ratification remained pending in Virginia, Madison delivered a major speech in the House of Representatives explaining that the origins and meaning of the Ninth Amendment in fact were rooted in the proposals of the state conventions, and that the Ninth itself guarded against a latitude of interpretation to the injury of the states. That speech, given in opposition to the chartering of national bank, was but one of many occasions in Madison's long career in which he would object to latitudinarian constructions of the Constitution - constructions that he believed were forbidden by the rule provided in the Constitution itself, the Ninth Amendment.

Accepted Paper Series