Jeffrey Wernick ScheerPost
Many people ignore the Ninth Amendment. James Madison wrote it, and he wrote it to answer an objection he had raised himself. During ratification, Madison and Hamilton opposed adding a bill of rights, and their reason was precise. Enumerating rights is dangerous, because listing some implies the government may touch whatever went unlisted. When Madison drafted the amendments anyway, he wrote the answer directly into them. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Constitution enumerates powers to the government. Limited. And enumerated. Specifically. The individual rights retained by the people are not enumerated, and they cannot be, because they are the residual, everything not granted away. So the document reads differently depending on which party you ask about. If the Constitution is silent on a government power, the government does not have that power. With respect to the people, the converse. If the Constitution is silent on a right, the people retain it. Silence belongs to the people. That is the Constitution’s default rule. The Tenth Amendment states it for powers. The Ninth states it for rights. The same rule, stated twice.
Twice was not enough.
Liberty and power occupy the same space. Every human act falls in one of two columns: within the citizen’s retained freedom, or within the government’s granted authority. The total is fixed. This is a zero-sum game. Every expansion of government beyond its enumerated powers necessarily reduces the liberty retained by the people. Not an abstraction. A transfer. An implied power is not conjured from nothing. It is subtracted from someone. When the commerce power grew to reach the wheat a farmer grew for his own table, that acreage of human decision moved from the people’s column to the government’s, and no amendment authorized the transfer. The founders understood the accounting. Modern doctrine denies it. Modern doctrine holds that the government’s column can grow while nobody’s shrinks. That is false. It is false the way 2 plus 2 equals 5 is false.
Now consider what the courts did with the two sentences that state this design.
The Tenth Amendment was declared a “truism” by the Supreme Court in 1941. A tautology. A sentence that changes nothing.
The Ninth received harsher treatment. At his 1987 confirmation hearing, Robert Bork compared it to an inkblot: if a clause’s meaning cannot be discerned, a judge should not enforce it. An Article III judge, nominated to the Supreme Court, announced that the Constitution contains a sentence he intended not to read. The Senate rejected Bork. The judiciary adopted his inkblot. The man lost the seat. His theory won the Court. In more than two centuries, the Ninth Amendment has almost never been enforced as an independent source of rights. The clause Madison wrote to prevent a specific misreading has been neutralized by exactly that misreading.
The neutralization required two moves, and both are now settled doctrine. First, the default rule was inverted. Madison wrote silence to run against the government. Today silence runs for it, twice. When a citizen asserts an unenumerated right, courts apply rational-basis review, the standard under which the government nearly always wins. When the government asserts an unenumerated power, courts imply it into existence, and the government wins again. The citizen loses both ways. The government wins both ways. That is the entire modern doctrine of silence. Second, the courthouse was sealed. The Ninth says the rights are retained. Standing doctrine says no citizen may enforce them when everyone’s rights shrink together. Between those two propositions, the modern administrative state found its constitutional shelter.
Since 1789 the powers column has grown. By implication, by emergency, by precedent stacked on precedent. Not one of those expansions was accompanied by an amendment transferring the corresponding rights from the people. The Constitution requires an amendment for every such transfer. There have been thousands of transfers and no amendments. Every one of them took from the people’s column, and the two clauses that prohibit exactly this were declared a truism and an inkblot.
Madison wrote two sentences that state the entire theory of the Constitution. Powers are enumerated. Rights are retained. Silence belongs to the people. The judiciary’s settled position is that neither sentence does anything. That position has a consequence the courts never state: if the Ninth and Tenth Amendments are empty, then the government’s powers are whatever it says they are, and the people retain whatever is left when it finishes. That is the exact constitution the founders believed they were preventing.
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