On Bill of Rights Day, Let’s Not Forget the 9th and 10th Amendments

Today, many Americans view those amendments as if they were the Constitution, which often prompted Justice Antonin Scalia to call the Bill of Rights “an afterthought.” His point was that the structural provisions in the original Constitution, not the Bill of Rights, were our main protections against overweening government. Still, in its 1789 transmittal letter to the states, Congress wrote that the proposed amendments were meant “to prevent misconstruction or abuse of the [Constitution’s] powers”—thus, to limit more clearly the powers of the political branches and, after the Fourteenth Amendment was added in 1868, those of the states as well.

We understand that when it comes to our familiar rights. Congress and the states cannot pass laws, otherwise legitimate, that restrict our speech or our religious practices, or that take our property for public use without paying us just compensation. But the final two amendments in the Bill of Rights have been largely ignored, even as they directly address Justice Scalia’s point. Echoing the Declaration of Independence and the Constitution’s Preamble, the Ninth and Tenth Amendments go together to give us the Constitution’s theory of legitimacy.

The Ninth Amendment says that the Constitution’s enumeration of certain rights “shall not be construed to deny or disparage others retained by the people.” We cannot “retain” what we don’t first have to be retained, the natural rights we never gave up when we created government. And echoing that, but in reverse, the Tenth Amendment says that the federal government has only those powers we delegated to it, as enumerated in the Constitution. The rest belong either to the states or to the people, never having been delegated to either level of government.

Unfortunately, the Tenth Amendment’s doctrine of enumerated powers, meant originally to be the very foundation of limited government, was eviscerated by the New Deal Supreme Court following Franklin Roosevelt’s 1937 threat to pack the Court with six new members. And the Ninth Amendment’s promise to protect both enumerated and unenumerated rights has produced a muddled body of law, in part because Court conservatives, rightly fearing that liberals would use it to find specious rights, have largely ignored the amendment, thus rendering themselves sometime originalists.

More recently, however, the conservatives have begun rethinking things. Thus, in 1995, Chief Justice William Rehnquist began his opinion in United States v. Lopez with words that hadn’t been heard since the New Deal constitutional revolution. “We start with first principles. The Constitution creates a Federal Government of enumerated powers.” In the years since, Court conservatives have continued in that vein, challenging Congress’s assertions of power, albeit only at the margins.

On the rights side, things have been more complicated. Court liberals have led the way in finding unenumerated rights: to sell and use contraceptives, to marry someone of a different race or of the same sex, to have an abortion, and more. But they have no theory of the matter remotely connected to the Constitution. Yet neither have the conservatives. At most, they’ve said that if an unenumerated right is “deeply rooted in this Nation’s history and tradition” it can be recognized. But many of these “new” rights are not so grounded. Moreover, this is mere legal positivism, inconsistent with the Constitution’s natural rights foundations as implicitly recognized by both the Ninth and Tenth Amendments.

But in his recent opinion for the Court in Dobbs v. Jackson, overturning Roe v. Wade, Justice Samuel Alito moved toward developing a constitutionally sound theory of unenumerated rights. As he wrote, the unenumerated right claimed in abortion cases is “critically different” from the rights at issue in most other unenumerated rights cases, because the question here is whether the statute at issue is protecting another life. Reasonable people can reasonably disagree about that and about where to draw a line in the matter. Those decisions, however, belong to the states under their general police power, the main function of which is to draw such lines in service of protecting the rights on both sides of the question. It is not for the Court to draw those lines, as the Dobbs Court said.

It’s altogether different, however, with the right to sell and use contraceptives, or to marry someone of a different race or of the same sex, or to send one’s child to a non-governmental school, or to engage in business in contravention of a state “convenience and necessity” statute limiting competition. What rights do state statutes prohibiting such actions protect?

That is the question Justice Alito almost reached, but to do that he would have needed to flip the presumptions, consistent with the basic theory of the Constitution: to ask not whether the plaintiff can find his right “in” the Constitution—the question that has ever distracted conservatives fearing liberal judicial activism—but whether the state, once a plaintiff has made a prima facie case showing that the statute at issue restricts his liberty, can justify its statute as a proper exercise of its power to protect rights. Not only do many such statutes fail to protect rights, but they violate rights that violate no other rights in turn. The Constitution rests on a presumption of liberty. Those in the founding generation who demanded that a bill of rights be added meant for each of those amendments to be respected, especially those that speak to the very foundations of our Constitution, the Ninth and Tenth Amendments.