Why The Ninth Amendment Protects Federal Limits, Not Hidden Rights

A single sentence in the Bill of Rights has fueled decades of confusion, debate, and hot takes—so we went back to the source to make sense of it. We trace the Ninth Amendment from the founding-era fight over a federal Bill of Rights to James Madison’s original, clearer draft, and show how its real job is to keep the federal government within its enumerated lane rather than serve as a grab bag of unlisted rights. Along the way, we unpack why the Amendment made perfect sense to early readers steeped in federalism, and why later courts stumbled once incorporation brought most of the Bill of Rights to bear on the states.

We walk through the Federalist case from James Wilson and Alexander Hamilton, the critics’ fear that enumerating rights could imply broader federal power, and Madison’s fix: a rule of construction that prevents the list of rights from enlarging national authority. That lens clarifies modern controversies. Should judges treat the Ninth as a source of enforceable rights against the states? Most justices have said no, warning that it would flip the Amendment’s purpose and strain federalism. We examine Robert Bork’s “inkblot” line, the real methodological challenge of identifying “other rights,” and why state courts—armed with their own Ninth-like clauses—face a different set of choices rooted in state constitutional tradition.

If you’ve ever wondered whether the Ninth Amendment hides secret rights or simply protects the Constitution’s structure, this conversation delivers a grounded answer. You’ll come away with a sharper grasp of the Amendment’s text, history, and function, plus a clearer view of how it fits with the Tenth, incorporation, and the ongoing push and pull between national power and state authority. If this helped reframe how you read the Ninth, follow the show, share it with a friend, and leave a quick review to tell us what you think.

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Chapters

• 1:32 Setting The Ninth Amendment Question
• 2:50 Federalism Context And Founding Debate
• 4:14 Madison’s Draft And Rule Of Construction
• 6:59 Incorporation Dilemma And State Power
• 9:25 Judicial Skepticism And The “Inkblot”
• 11:56 State Constitutions And Open Questions
• 12:27 Clarity Through History And Wrap

Transcript

SPEAKER_00: 0:46

Welcome back, everyone. Today we're talking again to Dr. Beyenberg about I think a very misunderstood amendment. Dr. Beyenberg, the Ninth Amendment says the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. What does this mean?

SPEAKER_01: 1:09

Yeah, this is one that I think is easy to lose track of what it's doing. So what it formally means, and again, remember, the Ninth Amendment is originally binding on the federal government. And that matters because at the time of the founding and for most of American history, the Ninth Amendment was thought of as effectively a pair with the tent. So it's a federalism provision, not an individual rights provision, is how it's traditionally thought of. So what does that mean, sort of in a little less abstract terms? Well, the Bill of Rights, as we've talked about in the earlier parts of the podcast the last couple weeks, is a set of basically guarantees of individual rights. And many of the critics of the Constitution, as we talked about, had said, we want a bill of rights. And the defenders of the Constitution said, well, the problem is that a bill of rights makes sense for your state governments, because your state governments are assumed to have all authority unless you've told them no. But the argument went uh particularly advocated by uh James Wilson in, and we'll talk more about James Wilson in a future session. But uh James Wilson is the first to really push this argument, and then it gets picked up probably more famously by Alexander Hamilton in Federalist 84. And they argue in a system in which the federal government only has limited and enumerated powers, we don't even need to write this in here because we've never given them, for example, a right to regulate freedom of speech, a right to quarter soldiers or something like an explicit power, the federal government. And the critics of the this argument effectively say, yeah, but you wrote in that there shouldn't be bills of attainder. There's a couple of other, there's a couple of things that seemingly are prohibited anyway. But more broadly, obviously there's going to be a commerce power, which means that you get to regulate smuggling. And if you're going to do smuggling, you get to have trials. Do your trials have to be by jury? Right. So effectively they asked for the kinds of guarantees where the federal government seemingly would have an enumerated power hook, right? Congress has the authority to declare war. Well, does that mean that you can regulate speech during wartime? So, you know, does the necessary and proper clause implementing these powers mean that the government could, in fact, trample on these rights? And so the Ninth Amendment is designed to deal with very a very specific problem, which is the Federalist 84 James Wilson argument of if we say the con you know Congress or the president can't do X, Y, and Z, does that invert the sort of whole logic of federalism and say that now that the federal government can do anything that you didn't specifically ban it, right? Does this now mean that Congress could regulate stuff unless you told it no? So it's dealing with this very, very narrow problem. And unfortunately, this is one of the places where Congress, when they were sort of trying to stylistically create the Bill of Rights, I think messed it up. Because the ratifying conventions, and we'll talk about this when we look at the 10th Amendment in a second, and what in this next podcast in the next couple of podcasts, the ratifying conventions requested uh particular amendments, and James Madison collected them and then sort of tweaked them, collected them, redrafted them. And his explanation or his draft language of the Ninth Amendment, I think makes a lot clearer what it's supposed to be doing. So he says, again, this is his draft. Congress then tries to compress it, but they compress it so much it becomes opaque. The exceptions here or elsewhere in the Constitution made in favor of particular rights shall not be construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution, but either as actual limitations of such powers or as inserted merely for greater caution. So again, that's too long. But Congress, basically, what the Madison's trying to say is just because we've written some rights that apply against the federal government doesn't undermine this idea that the federal government is one of fundamentally limited federal powers. And so we're going to write this in here just to say no, nobody in Congress, nobody in a court can say, well, you didn't say we couldn't do it, so now we can, right? So it's a rule of construction. It's effectively a rule, most fundamentally to courts to say, just because we wrote out a right doesn't mean Congress can do anything else. So that I think is pretty straightforward. The wrinkle comes if you are applying, and this will be another section we'll talk about, if you are applying the Bill of Rights to the states, because the states have the opposite assumption. Again, they can do whatever you they want unless you've told them no. If you think that the Ninth Amendment is basically just a federalism provision and it doesn't incorporate against the states, which is how most of the folks talking about incorporation originally said, then this is clean. This doesn't cause a problem. It's just the rule of talking about federal power. But if it applies to the states, you now are presented with a real complication. Now we have effectively a set of rights that are background assumptions that need to be applied against the states, despite their general presumption of authority. And that's where it gets really thorny. And this is why, generally speaking, most scholars and most justices on the Supreme Court take the position that the Ninth Amendment is not a construction, it's not an application against the states. Hugo Black, so Justice Arthur Goldberg sort of floats it as an aside, as a possible justification in trying to say why states shouldn't be able to regulate abortions. He says, look, the Ninth Amendment seemingly is another source of rights. And Hugo Black, I think, correctly says applying the having federal judges interpret and apply the Ninth Amendment against states seemingly inverts the whole purpose of it, which had been to basically keep the federal government constrained. And if now federal judges are saying, well, we didn't write this into the Bill of Rights, but we're going to discern some other sort of right and we're going to apply it against the states, then this causes some real complications of federalism. So again, there are some folks that have made the case that the Ninth Amendment should apply to the states. I think it's fair to say that's a minority position. It's not one that a majority of the court has ever taken. But the Ninth Amendment really does didn't have that much scholarship on it for a long time. But Robert Bork, whatever one thinks of him in other ways, got really a lot of grief for saying the Ninth Amendment is an inkblot, by which he meant, look, I'm a law professor. We haven't talked about that. I have no idea what it means because no law review article told me about it. And it but it was a defensible position because there just hadn't been that much scholarship about it, because it was generally recognized to be dealing with a very specific problem, which is James Wilson, Alexander Hamilton said, if you write out a Bill of Rights, you'll hollow out the enumerated powers. Then the Ninth Amendment, therefore, is just a nope, we still have fundamentally limited enumerated powers, even if we wrote a few out. So it's basically saying this creates a redundant check, reinforcing the idea of a limited federal government. So that's sort of what it's supposed to do. It's unfortunate that the language, sort of just as a straight read, doesn't the language isn't clear without the historical context. If you have the historical context, the Ninth Amendment is pretty clear. But without that, it's hard. So it's unfortunate that the drafters didn't sort of split the difference between the final text and James Madison, and just to say, you know, something along the lines of just because we've written rights doesn't enlarge the powers delegated by the Constitution to Congress. Like that phrase being left in there, I think, would have made this a lot clearer.

SPEAKER_00: 9:08

Sorry, I was gonna say thank you for telling us about the original text because I think that sometimes we get so caught in what we have now and what we're reading that this is the first time I've heard the original text. And when you read it, I was like, oh, well, that makes sense.

SPEAKER_01: 9:23

Yeah, it's it's actually quite clear. It's it's quite clear what it's supposed to do. Now, the one additional con law wrinkle is bizarre, a lot of states then wrote the Ninth Amendment into their own state constitution, which then opens up I say that, right? It opens up all those problems of like, well, how do judges decide what other rights are are these? You know, this this gets into all sorts of really complicated questions of constitutional interpretation. Is it other rights that were popular at the founding, other rights that seemingly are popular in history, other rights that sort of moral philosophers have articulated, natural law, some sort of religious tradition? Like, what do we decide include these other rights? Which again is part of why, as a practical reason, federal judges have said, like, nope, we're not touching that one. But the some of the state courts have basically been forced into that. So, yeah, that that but that's not a problem of the Ninth Amendment. The Ninth Amendment, it's pretty clear what it's supposed to do. What those state constitutions are supposed to do, well, state Supreme Court justices, I wish you the best.

SPEAKER_00: 10:26

And you said at the beginning that this is a federalism provision, with so when we talk about the Ninth and Tenth Amendment, you know, one through eight is a little bit different than nine and ten, correct?

SPEAKER_01: 10:39

There's a little bit of a wrinkle about whether the establishment clause is also quasi-federalism because states still continue to have state churches. But pretty clearly, by the time, certainly, of you know, the mid-19th century, that that argument falls away. So, yeah, one through eight are clearly dealing with Congress, and then after application by the 14th Amendment, which will be its own podcast session, those apply to the states. But the ninth and tenth are closer to structural provisions, which is also part of why in Madison's original draft, they were tucked, they were not with the one and eight, one through eight. They were going to be put into different parts of the constitution. Madison wanted the federal bill of rights or federal constitution or amendments to be more like a state constitution, where generally you just tuck the text in there, in which case, you know, that would have made a lot more sense if it's listed after a description of federal powers. But that's not what Congress did. So that's why without some historical context, the Ninth Amendment's really easy to squint at. And again, you can be sort of sympathetic to Robert Borg. It's like, I have no idea what that means. But if you have some context and you have that earlier language, I do think it's pretty straightforward what it's supposed to do.

SPEAKER_00: 11:50

Fantastic, Dr. Weinberg. Thank you so much.