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AMENDMENT VIII
Suggestions for Further Research
William F. Duker, The Right to Bail: A Historical
Inquiry, 42 Ala. L. Rev. 33 (1977)
Barry L. Johnson, Purging the Cruel and Unusual: The
Autonomous Excessive Fines Clause and Desert-
Based Constitutional Limits on Forfeiture after
United States v. Bajakajian, 2000 U. Ill. L. Rev.
461 (2000)
Calvin R. Massey, The Excessive Fines Clause and
Punitive Damages: Some Lessons from History, 40
Vand. L. Rev. 1233 (1987)
Hermine Herta Meyer, Constitutionality of Pretrial
Detention, 60 Geo. L.J. 1139 (1972)
Significant Cases
Pervear v. Commonwealth, 72 U.S. 475 (1866)
Wilkerson v. Utah, 99 U.S. 130 (1878)
In re Kemmler, 136 U.S. 436 (1890)
O’Neil v. Vermont, 144 U.S. 323 (1892)
Weems v. United States, 217 U.S. 349 (1910)
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459
(1947)
Stack v. Boyle, 342 U.S. 1 (1951)
Carlson v. Landon, 342 U.S. 524 (1952)
Trop v. Dulles, 356 U.S. 86 (1958)
Robinson v. California, 370 U.S. 660 (1962)
Schilb v. Kuebel, 404 U.S. 357 (1971)
Furman v. Georgia, 408 U.S. 238 (1972)
Estelle v. Gamble, 429 U.S. 97 (1976)
Gregg v. Georgia, 428 U.S. 153 (1976)
Woodson v. North Carolina, 428 U.S. 280 (1976)
Coker v. Georgia, 433 U.S. 584 (1977)
Ingraham v. Wright, 430 U.S. 651 (1977)
Lockett v. Ohio, 438 U.S. 586 (1978)
Rummel v. Estelle, 445 U.S. 263 (1980)
Hunt v. Roth, 648 F.2d 1148 (1981)
Rhodes v. Chapman, 452 U.S. 337 (1981)
Enmund v. Florida, 458 U.S. 782 (1982)
Solem v. Helm, 463 U.S. 277 (1983)
Schall v. Martin, 467 U.S. 253 (1984)
Ford v. Wainwright, 477 U.S. 399 (1986)
Tison v. Arizona, 481 U.S. 137 (1987)
United States v. Salerno, 481 U.S. 739 (1987)
Thompson v. Oklahoma, 487 U.S. 815 (1988)
Browning-Ferris Industries v. Kelco Disposal, Inc.,
492 U.S. 257 (1989)
Penry v. Lynaugh, 492 U.S. 302 (1989)
Stanford v. Kentucky, 492 U.S. 361 (1989)
Harmelin v. Michigan, 501 U.S. 957 (1991)
The Heritage Guide to the Constitution
Wilson v. Seiter, 501 U.S. 294 (1991)
Hudson v. McMillian, 503 U.S. 1 (1992)
Austin v. United States, 509 U.S. 602 (1993)
BMW of North America, Inc. v. Gore, 517 U.S. 559
(1996)
United States v. Bajakajian, 524 U.S. 321 (1998)
Atkins v. Virginia, 533 U.S. 976 (2001)
Ewing v. California, 538 U.S. 11 (2003)
Lockyer v. Andrade, 538 U.S. 63 (2003)
Gherebi v. Bush, 352 F.3d 1278 (9th Cir. 2003)
United States v. Goba, 240 F. Supp. 2d 242 (W.D.N.Y.
2003)
Roper v. Simmons, 125 S. Ct. 1183 (2005)
Rights Retained by the People
The enumeration in the Constitu-
tion, of certain rights, shall not be
construed to deny or disparage
others retained by the people.
(Amendment IX)


Over the past few decades, a number of schol-
ars and Justices, sometimes called noninterpre-
tivists, have defined the “rights retained by the
people” of the Ninth Amendment by various
formulas such as “the traditions of the people,”
“ordered liberty,” social justice, or current
notions of autonomy. Originalists take a differ-
ent perspective. Yet, even among originalists,
there are differences in interpretation. At pres-
ent there are three very different originalist the-
ories of the Ninth Amendment’s place in the
constitutional structure.
The view traditionally held among most
originalist scholars, as well as jurists and judges
at least until recently, distinguishes between the
purposes and functions of the Ninth and the
Tenth Amendments, finding them complemen-
tary but not redundant.
The Tenth Amendment—reserving to the
states or to the people of the several states the
powers not delegated to the United States gov-
ernment—was designed to confirm the sepa-
rate juridical competency of the respective
366
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The Heritage Guide to the Constitution
states in relation to a federal government of lim-
ited powers. The Framers of the amendment
drew some of its language from Article II of the
Articles of Confederation, though they careful-
ly retained legislative scope for congressional
power under the Necessary and Proper Clause.
McCulloch v. Maryland (1819).
According to the traditional view, the Ninth
Amendment was written to accomplish a dif-
ferent set of objectives: (1) to prevent the appli-
cation of the statutory rule of interpretation,
inclusio unius est exclusio alterius (the inclusion
of one thing necessarily excludes all others); (2)
to permit the Federalists to save face by affirm-
ing the argument they had made against the
necessity of a bill of rights; and (3) to confirm
the republican principles, espoused by Federal-
ists and Anti-Federalists alike, that the people
retain their communal right of self-governance.
A well-known rule of interpretation con-
cerned the Framers. During the ratifying con-
ventions, many Anti-Federalists demanded a
bill of rights. In answer, the defenders of the
Constitution asserted that a bill of rights was
not only unnecessary, but also dangerous. At the
North Carolina ratifying convention, James
Iredell (later Justice of the Supreme Court)
declared:
If we had formed a general legislature,
with undefined powers, a bill of rights
would not only have been proper, but
necessary; and it would have then operat-
ed as an exception to the legislative
authority in such particulars. It has this
effect in respect to some of the American
constitutions, where the powers of legis-
lation are general. But where they are
powers of a particular nature, and
expressly defined, as in the case of the fed-
eral Constitution before us, I think, for
the reasons I have given, a bill of rights is
not only unnecessary, but would be
absurd and dangerous.
In The Federalist No. 84, Alexander Hamilton
asserted that a bill of rights would “contain var-
ious exceptions to powers which are not grant-
ed” and that this “would afford a colourable pre-
367
AMENDMENT IX
text to claim more than were granted.” James
Wilson had declared: “If we attempt an enumer-
ation, every thing that is not enumerated is pre-
sumed to be given. The consequence is, that an
imperfect enumeration would throw all implied
power into the scale of the government, and the
rights of the people would be rendered incom-
plete.” When James Madison introduced his res-
olutions for the bill of rights to the House,
including what would become the Ninth
Amendment, he said:
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 intend-
ed to be assigned into the hands of the
General Government, and were conse-
quently insecure. This is one of the most
plausible arguments I have ever heard
against the admission of a bill of rights
into this system; but, I conceive, that it
may be guarded against.
Madison was, in other words, guarding against
the well-understood rule of inclusio unius est
exclusio alterius, whereby the very listing of cer-
tain rights as immune from congressional regu-
lation would necessarily imply a grant of gener-
al legislative power in Congress to legislate over
all others.
Madison’s proposed amendment, then, was
an attempt to avoid the result feared by James
Wilson, who contended that a bill of rights
“would imply that whatever is not expressed
was given, which is not the principle of the pro-
posed Constitution.” That Wilson believed that
the people’s fundamental rights were secured
by the Constitution’s grant of limited, enumer-
ated powers, is powerfully illustrated by his
frank admission that a freedom of the press
guarantee would have been essential had Con-
gress been granted the power to regulate liter-
ary publications. Indeed, Wilson concluded
that a free press guarantee would be essential
in the District of Columbia, where the power
The Guide 30 7/28/05 9:36 AM Page 368
AMENDMENT IX
of legislation would be “general,” rather than
limited and enumerated.
When the Virginia assembly debated the pro-
posed amendment, Edmund Randolph won-
dered at the phrasing of the Ninth Amendment.
He stated that he would rather have “a provision
against extending the powers of Congress” than
one giving “protection to rights reducible to no
definitive certainty.” In a letter to George Wash-
ington, Madison wrote that he thought Ran-
dolph’s proposed distinction between preventing
unenumerated powers and securing unenumer-
ated rights was “altogether fanciful.” He went on:
“If a line can be drawn between the powers grant-
ed and the rights retained, it would seem to be
the same thing, whether the latter be secured by
declaring that they shall not be abridged, or that
the former shall not be extended.”
An additional, and directly related, purpose
of the Ninth Amendment was to provide cover
for the Federalists’ most embarrassing gaffe
during the ratification debates. As noted above,
the Federalists had argued that the danger of a
bill of rights was that by listing certain rights, it
would change Congress into a legislature with
general legislative powers, permitting it to rule
on anything and everything not specifically pro-
hibited to it. The Anti-Federalists responded
that some prohibitions, such as the right of
habeas corpus and trial by jury in criminal
cases, had already been included. The Federal-
ists had no credible response and were forced to
accede to the demand for a bill of rights. But
when it came time to draft the amendments,
they crafted the Ninth to legitimate the argu-
ment they had made all along: the listing of cer-
tain rights does not give Congress the authority
to legislate over every subject not listed.
Finally, according to the traditional view, the
amendment confirmed the republican nature of
the Constitution and the federal government.
The “residual rights” retained by the people were
not a set of particularized rights that somehow
escaped the listing of the Bill of Rights. Rather,
they were rights that eighteenth-century Ameri-
cans thought of as inalienable, natural, commu-
nal, and political. Residual rights included the
right held most dear by all segments of Ameri-
can opinion from James Otis to George Wash-
368
The Heritage Guide to the Constitution
ington and beyond: the right of self-government.
In sum, the Ninth Amendment protected the
very liberty for which the Revolution was fought.
Otherwise it could plausibly be argued that the
listing of a few traditional rights was all the peo-
ple possessed, and that by ratifying the Constitu-
tion, they had thereby given everything else over
to the government.
The scholars affirming the traditional view
hold that the Ninth Amendment was written by
Federalists to accomplish Federalist aims: to
legitimize the interpretive arguments they had
made during the ratification debates and to
affirm their belief, shared by the Anti-Federal-
ists, in the sovereign authority of the people.
The traditionalists believe that some modern
conceptions that regard “rights retained by the
people” as an unenumerated list of particular
rights judicially discoverable and enforceable is
an anachronistic projection of modern theories
of rights, or worse, of political policies, into the
text of the Ninth Amendment. Rather, in their
view, the Ninth Amendment simply reinforces
the integrity of the constitutional structure and
the underlying sovereign authority of the peo-
ple. The amendment provides no independent
basis for judicial enforcement.
There is, however, a very different perception
of the Ninth Amendment among some modern
scholars. Generally of a libertarian point of
view, this group of originalists, such as Randy
Barnett, have argued that the Ninth Amend-
ment does indeed point to a set of judicially
enforceable unenumerated rights, often calling
them “natural rights,” rights that no govern-
ment can legitimately deny. They argue that the
Framers intended that such rights be protected,
and they point out that the amendment has
only become relevant recently because of its
application to the states through the Fourteenth
Amendment and because of the great expansion
of government intrusion at all levels into the
lives of individuals.
These scholars point to the acknowledged
fact that, although the Constitution limited
Congress to a set of enumerated powers, the
means available to Congress, through the Nec-
essary and Proper Clause, could permit it to
trench upon the rights of the people. Madison,
The Guide 30 7/28/05 9:36 AM Page 369
The Heritage Guide to the Constitution
in particular, saw the danger, and it was one of
the main reasons he changed his mind and vig-
orously pressed for a bill of rights in the First
Congress. Madison placed the text of what
would be the Ninth Amendment at the end of
the list of specific rights in order to demonstrate
that those rights were but a partial listing of all
the rights retained by the people against gov-
ernmental infringement. In the same letter
(quoted earlier) from Madison to Washington,
which the traditionalists believe supports their
view, Barnett asserts that Madison was distin-
guishing between the mechanisms of limiting
powers and of securing rights to the same end.
Barnett contends that the same understanding
was repeated in the work of an early interpreter
of the Constitution, St. George Tucker.
This originalist interpretation of the Ninth
Amendment differs from another latitudinari-
an view espoused by modern noninterpretivists
who do not limit their understanding of “rights
retained by the people” to the conceptions of
the Framers. On the contrary, libertarian origi-
nalist proponents of natural rights do not
believe in an “evolving Constitution,” but in one
that has the same force today as it did in 1791.
The originalist libertarians also reject that
idea that the “rights retained by the people” are
not judicially enforceable, for that would leave
Congress or the state legislatures in the position
of defining the extent of those rights. The more
principled strategy would be for the Court to
assume its appropriate position in enforcing all
of the Bill of Rights, including the Ninth
Amendment, by historical inquiry as to what
those liberties were that the Framers sought to
ensure. Some libertarian originalists assert that
the “liberty” so protected would include eco-
nomic or contractual rights, which the Court
once enforced, but no longer does.
Lastly, a new, third version of the meaning of
the Ninth Amendment has surfaced. In review-
ing the Ninth Amendment’s history, Kurt Lash
finds that Madison drafted it in specific
response to a number of state ratifying conven-
tions’ demands for a protection against constru-
ing the new federal government’s delegated
powers too broadly. Throughout the ratification
debates, the consistent Anti-Federalist plaint
369
AMENDMENT IX
from writers such as Brutus and the Federal
Farmer was that there were two enormous holes
in the Federalists’ assurance of the limited
nature of federal power: the Necessary and
Proper Clause and the Supreme Court. The for-
mer allowed Congress to invade areas left to the
states in furtherance of executing its delegated
powers. The latter allowed an organ of the fed-
eral government, the Supreme Court, to con-
strue Congress’s delegated powers as broadly as
possible.
Many states, including Virginia, drafted res-
olutions for a bill of rights that sought to cor-
rect those two deficiencies. In response, Madi-
son and the Congress drafted the Tenth Amend-
ment to affirm that the states retained all pow-
ers not delegated to the federal government. But
the Tenth Amendment would be ineffective if
the Congress and the Court construed the fed-
eral government’s delegated powers broadly
enough to undo residual state authority. Con-
sequently, the Ninth Amendment was drafted
to plug that hole: it mandates that the delegated
powers of Congress not be given a latitudinari-
an interpretation to the prejudice of the states.
Most recent scholarly interpretations of the
Ninth Amendment dwell on the “rights retained
by the people” language. The key words, how-
ever, are “shall not be construed.” Following the
urgings of the Virginia ratifying convention,
Madison’s draft of what would become the
Ninth Amendment read:
The exceptions, here or elsewhere in the
constitution, made in favor of particular
rights, shall not be construed as to dimin-
ish 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.
The Select Committee distilled Madison’s
language to the text that was sent to the states
for ratification:
The enumeration in this constitution of
certain rights shall not be construed to
The Guide 30 7/28/05 9:36 AM Page 370
AMENDMENT IX
deny or disparage others retained by the
people.
In the Virginia House of Representatives,
Edmund Randolph objected to the new phras-
ing and preferred wording that would have lim-
ited “extending the powers of Congress” rather
than protecting rights “retained by the people.”
But Madison saw no difference in the effect of
each phrase and thus affirmed that the reason
for the Ninth Amendment was not to expand
the power of the Court to find new rights, but
rather to restrict the ability of the Court to
expand the legislative powers of Congress.
Madison continued to maintain that that was
the central meaning of the Ninth Amendment
throughout his life, and his interpretation was
seconded by most commentators of the time.
The courts have not had much occasion to
construe the Ninth Amendment, but it seems
clear that from the time of its ratification until
the New Deal, the Ninth Amendment was
understood as a principle limiting the construc-
tion of federal power to the detriment of the
states. Nevertheless, it was not clear how much
bite the Ninth Amendment’s interpretive rule
had. In some important cases, such as McCul-
loch v. Maryland (1819), the Court ignored the
Ninth Amendment altogether. And in the Legal
Tender Cases (1871), the Court openly declared
that the limited nature of the Bill of Rights
demonstrated that Congress had unenumerat-
ed powers, a position directly at odds with what
every commentator affirms the Ninth Amend-
ment was at the very least designed to prevent.
After 1937, the Supreme Court abandoned
the effort to keep Congress within the bounds
of its delegated powers, and even as a back-
ground principle protecting the traditional
powers of the states and the people of the states,
the Ninth Amendment fell into desuetude. In
1965, however, in Griswold v. Connecticut, sev-
eral Justices of the Court revived the amend-
ment, not in its traditional sense, but rather as a
source for an “unenumerated rights” doctrine.
The current judicial view of the Ninth Amend-
ment is in some ways closer to the libertarian
interpretation than to the traditional view, as
when the Court protects the right to an abor-
370
The Heritage Guide to the Constitution
tion or to same-sex relations under an “autono-
my” rationale, Planned Parenthood of Southeast-
ern Pennsylvania v. Casey (1992), Lawrence v.
Texas (2003), even though the Court has not
enforced the economic rights that libertarians
believe the Ninth Amendment was designed
originally to protect.
Opposing the use of the Ninth Amendment
as an invitation for the Court to find new rights,
a number of Justices, such as Justice Antonin
Scalia, adhere to the traditional interpretation,
reading the Ninth Amendment as designed to
prevent the expansion of federal power seem-
ingly implied by the listing of prohibitions
within the Bill of Rights.
Thomas McAffee
See Also
Article I, Section 8, Clause 18 (Necessary and Proper
Clause)
Article VI, Clause 2 (Supremacy Clause)
Amendment X (Reserved Powers of the States)
Suggestions for Further Research
Randy E. Barnett, Restoring the Lost Consti-
tution: The Presumption of Liberty (2004)
Randy E. Barnett, The Rights Retained by the
People: The History and Meaning of the
Ninth Amendment (1989)
Raoul Berger, The Ninth Amendment, 66 Cornell L.
Rev. 1 (1980)
Kurt T. Lash, The Lost Jurisprudence of the Ninth
Amendment, 83 Tex. L. Rev. 597 (2005)
Kurt T. Lash, The Lost Original Meaning of the Ninth
Amendment, 83 Tex. L. Rev. 331 (2004)
Calvin R. Massey, Silent Rights: The Ninth
Amendment and the Constitution’s Unenu-
merated Rights (1995)
Thomas B. McAffee, Inherent Rights, the Writ-
ten Constitution, and Popular Sovereign-
ty: The Founders’ Understanding (2000)
Thomas B. McAffee, The Original Meaning of the
Ninth Amendment, 90 Colum. L. Rev. 1215 (1990)
Thomas B. McAffee, A Critical Guide to the Ninth
Amendment, 69 Temp. L. Rev. 61 (1996)
Susanna Sherry, The Founders’ Unwritten Constitu-
tion, 54 U. Chi. L. Rev. 1127 (1987)
The Guide 30 7/28/05 9:36 AM Page 371
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John C. Yoo, Our Declaratory Ninth Amendment, 42
Emory L.J. 967 (1993)
Significant Cases
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820)
Legal Tender Cases, 79 U.S. (12 Wall.) 457 (1871)
Griswold v. Connecticut, 381 U.S. 479 (1965)
Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833 (1992)
Lawrence v. Texas, 539 U.S. 558 (2003)
Reserved Powers of the States
The powers not delegated to the
United States by the Constitution,
nor prohibited by it to the States,
are reserved to the States respec-
tively, or to the people.
(Amendment X)


The Tenth Amendment expresses the princi-
ple that undergirds the entire plan of the origi-
nal Constitution: the national government pos-
sesses only those powers delegated to it. The
Framers of the Tenth Amendment had two pur-
poses in mind when they drafted it. The first was
a necessary rule of construction. The second
was to reaffirm the nature of the federal system.
Because the Constitution created a govern-
ment of limited and enumerated powers, the
Framers initially believed that a bill of rights was
not only unnecessary, but also potentially dan-
gerous. State constitutions recognized a general
legislative power in the state governments;
hence, limits in the form of state bills of rights
were necessary to guard individual rights
against the excess of governmental power. The
Constitution, however, conferred only the lim-
ited powers that were listed or enumerated in
the federal Constitution. Because the federal
government could not reach objects not grant-
ed to it, the Federalists originally argued, there
was no need for a federal bill of rights. Further,
the Federalists insisted that, under the normal
371
AMENDMENT X
rules of statutory construction, by forbidding
the government from acting in certain areas, a
bill of rights necessarily implied that the gov-
ernment could act in all other areas not forbid-
den to it. That would change the federal govern-
ment from one of limited powers to one, like
the states, of general legislative powers.
The Federalists relented and passed the Bill
of Rights in the First Congress only after mak-
ing certain that no such implication could arise
from the prohibitions of the Bill of Rights.
Hence, the Tenth Amendment—a rule of con-
struction that warns against interpreting the
other amendments in the Bill of Rights to imply
powers in the national government that were
not granted by the original document.
That interpretative rule was vital because
some of the provisions of the Bill of Rights pur-
port to limit federal powers that are not actual-
ly granted by the original Constitution and thus
might give rise to a (faulty) inference that the
Bill of Rights implied the existence of such pow-
ers. The First Amendment, for instance, states
that “Congress shall make no law . . . abridging
the freedom of speech, or of the press.” Did that
mean that the original Constitution had there-
fore granted Congress power to abridge those
freedoms? The Federalists did not think so,
which is why they initially opposed inclusion of
a bill of rights. As Alexander Hamilton observed
of the unamended constitutional text in The
Federalist No. 84: “Here, in strictness, the peo-
ple surrender nothing; and as they retain every-
thing they have no need for particular reserva-
tions. . . . Why, for instance, should it be said that
the liberty of the press shall not be restrained,
when no power is given by which restrictions
may be imposed?” Numerous other important
figures made similar statements during the rati-
fication debates. Obviously, the nation chose to
include the Bill of Rights, but only with the
Tenth Amendment as a bulwark against imply-
ing any alteration in the original scheme of enu-
merated powers. If Congress was not originally
delegated power to regulate speech or the press,
no such power is granted or implied by adop-
tion of the Bill of Rights.
Despite the Framers’ concerns and the clear
text of the Tenth Amendment, the Supreme