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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Episode Transcript

SPEAKER_00 (00:00):
Welcome back, everyone.
Today we're talking again to Dr.
Beyenberg about I think a verymisunderstood amendment.
Dr.
Beyenberg, the Ninth Amendmentsays the enumeration in the
Constitution of certain rightsshall not be construed to deny
or disparage others retained bythe people.
What does this mean?

SPEAKER_01 (00:22):
Yeah, this is one that I think is easy to lose
track of what it's doing.
So what it formally means, andagain, remember, the Ninth
Amendment is originally bindingon the federal government.
And that matters because at thetime of the founding and for
most of American history, theNinth Amendment was thought of

(00:43):
as effectively a pair with thetent.
So it's a federalism provision,not an individual rights
provision, is how it'straditionally thought of.
So what does that mean, sort ofin a little less abstract terms?
Well, the Bill of Rights, aswe've talked about in the
earlier parts of the podcast thelast couple weeks, is a set of
basically guarantees ofindividual rights.

(01:05):
And many of the critics of theConstitution, as we talked
about, had said, we want a billof rights.
And the defenders of theConstitution said, well, the
problem is that a bill of rightsmakes sense for your state
governments, because your stategovernments are assumed to have
all authority unless you've toldthem no.

(01:25):
But the argument went uhparticularly advocated by uh
James Wilson in, and we'll talkmore about James Wilson in a
future session.
But uh James Wilson is the firstto really push this argument,
and then it gets picked upprobably more famously by
Alexander Hamilton in Federalist84.
And they argue in a system inwhich the federal government

(01:46):
only has limited and enumeratedpowers, we don't even need to
write this in here because we'venever given them, for example, a
right to regulate freedom ofspeech, a right to quarter
soldiers or something like anexplicit power, the federal
government.
And the critics of the thisargument effectively say, yeah,
but you wrote in that thereshouldn't be bills of attainder.

(02:07):
There's a couple of other,there's a couple of things that
seemingly are prohibited anyway.
But more broadly, obviouslythere's going to be a commerce
power, which means that you getto regulate smuggling.
And if you're going to dosmuggling, you get to have
trials.
Do your trials have to be byjury?
Right.
So effectively they asked forthe kinds of guarantees where
the federal government seeminglywould have an enumerated power

(02:29):
hook, right?
Congress has the authority todeclare war.
Well, does that mean that youcan regulate speech during
wartime?
So, you know, does the necessaryand proper clause implementing
these powers mean that thegovernment could, in fact,
trample on these rights?
And so the Ninth Amendment isdesigned to deal with very a
very specific problem, which isthe Federalist 84 James Wilson

(02:53):
argument of if we say the conyou know Congress or the
president can't do X, Y, and Z,does that invert the sort of
whole logic of federalism andsay that now that the federal
government can do anything thatyou didn't specifically ban it,
right?
Does this now mean that Congresscould regulate stuff unless you
told it no?
So it's dealing with this very,very narrow problem.

(03:16):
And unfortunately, this is oneof the places where Congress,
when they were sort of trying tostylistically create the Bill of
Rights, I think messed it up.
Because the ratifyingconventions, and we'll talk
about this when we look at the10th Amendment in a second, and
what in this next podcast in thenext couple of podcasts, the

(03:37):
ratifying conventions requesteduh particular amendments, and
James Madison collected them andthen sort of tweaked them,
collected them, redrafted them.
And his explanation or his draftlanguage of the Ninth Amendment,
I think makes a lot clearer whatit's supposed to be doing.
So he says, again, this is hisdraft.

(03:58):
Congress then tries to compressit, but they compress it so much
it becomes opaque.
The exceptions here or elsewherein the Constitution made in
favor of particular rights shallnot be construed as to diminish
the just importance of otherrights retained by the people,
or as to enlarge the powersdelegated by the Constitution,

(04:20):
but either as actual limitationsof such powers or as inserted
merely for greater caution.
So again, that's too long.
But Congress, basically, whatthe Madison's trying to say is
just because we've written somerights that apply against the
federal government doesn'tundermine this idea that the
federal government is one offundamentally limited federal
powers.
And so we're going to write thisin here just to say no, nobody

(04:43):
in Congress, nobody in a courtcan 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, mostfundamentally to courts to say,
just because we wrote out aright doesn't mean Congress can
do anything else.
So that I think is prettystraightforward.
The wrinkle comes if you areapplying, and this will be

(05:08):
another section we'll talkabout, if you are applying the
Bill of Rights to the states,because the states have the
opposite assumption.
Again, they can do whatever youthey want unless you've told
them no.
If you think that the NinthAmendment is basically just a
federalism provision and itdoesn't incorporate against the
states, which is how most of thefolks talking about

(05:29):
incorporation originally said,then this is clean.
This doesn't cause a problem.
It's just the rule of talkingabout federal power.
But if it applies to the states,you now are presented with a
real complication.
Now we have effectively a set ofrights that are background
assumptions that need to beapplied against the states,
despite their generalpresumption of authority.

(05:49):
And that's where it gets reallythorny.
And this is why, generallyspeaking, most scholars and most
justices on the Supreme Courttake the position that the Ninth
Amendment is not a construction,it's not an application against
the states.
Hugo Black, so Justice ArthurGoldberg sort of floats it as an

(06:10):
aside, as a possiblejustification in trying to say
why states shouldn't be able toregulate abortions.
He says, look, the NinthAmendment seemingly is another
source of rights.
And Hugo Black, I think,correctly says applying the
having federal judges interpretand apply the Ninth Amendment
against states seemingly invertsthe whole purpose of it, which

(06:31):
had been to basically keep thefederal government constrained.
And if now federal judges aresaying, well, we didn't write
this into the Bill of Rights,but we're going to discern some
other sort of right and we'regoing to apply it against the
states, then this causes somereal complications of
federalism.
So again, there are some folksthat have made the case that the
Ninth Amendment should apply tothe states.

(06:52):
I think it's fair to say that'sa minority position.
It's not one that a majority ofthe court has ever taken.
But the Ninth Amendment reallydoes didn't have that much
scholarship on it for a longtime.
But Robert Bork, whatever onethinks of him in other ways, got
really a lot of grief for sayingthe Ninth Amendment is an
inkblot, by which he meant,look, I'm a law professor.
We haven't talked about that.

(07:13):
I have no idea what it meansbecause no law review article
told me about it.
And it but it was a defensibleposition because there just
hadn't been that muchscholarship about it, because it
was generally recognized to bedealing 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

(07:35):
still have fundamentally limitedenumerated powers, even if we
wrote a few out.
So it's basically saying thiscreates a redundant check,
reinforcing the idea of alimited federal government.
So that's sort of what it'ssupposed to do.
It's unfortunate that thelanguage, sort of just as a
straight read, doesn't thelanguage isn't clear without the

(07:57):
historical context.
If you have the historicalcontext, the Ninth Amendment is
pretty clear.
But without that, it's hard.
So it's unfortunate that thedrafters didn't sort of split
the difference between the finaltext and James Madison, and just
to say, you know, somethingalong the lines of just because
we've written rights doesn'tenlarge the powers delegated by
the Constitution to Congress.

(08:18):
Like that phrase being left inthere, I think, would have made
this a lot clearer.

SPEAKER_00 (08:22):
Sorry, I was gonna say thank you for telling us
about the original text becauseI think that sometimes we get so
caught in what we have now andwhat we're reading that this is
the first time I've heard theoriginal text.
And when you read it, I waslike, oh, well, that makes
sense.

SPEAKER_01 (08:37):
Yeah, it's it's actually quite clear.
It's it's quite clear what it'ssupposed to do.
Now, the one additional con lawwrinkle is bizarre, a lot of
states then wrote the NinthAmendment into their own state
constitution, which then opensup I say that, right?
It opens up all those problemsof like, well, how do judges
decide what other rights are arethese?

(09:00):
You know, this this gets intoall sorts of really complicated
questions of constitutionalinterpretation.
Is it other rights that werepopular at the founding, other
rights that seemingly arepopular in history, other rights
that sort of moral philosophershave articulated, natural law,
some sort of religioustradition?
Like, what do we decide includethese other rights?
Which again is part of why, as apractical reason, federal judges

(09:21):
have said, like, nope, we're nottouching that one.
But the some of the state courtshave basically been forced into
that.
So, yeah, that that but that'snot a problem of the Ninth
Amendment.
The Ninth Amendment, it's prettyclear what it's supposed to do.
What those state constitutionsare supposed to do, well, state
Supreme Court justices, I wishyou the best.

SPEAKER_00 (09:39):
And you said at the beginning that this is a
federalism provision, with sowhen we talk about the Ninth and
Tenth Amendment, you know, onethrough eight is a little bit
different than nine and ten,correct?

SPEAKER_01 (09:52):
There's a little bit of a wrinkle about whether the
establishment clause is alsoquasi-federalism because states
still continue to have statechurches.
But pretty clearly, by the time,certainly, of you know, the
mid-19th century, that thatargument falls away.
So, yeah, one through eight areclearly dealing with Congress,
and then after application bythe 14th Amendment, which will

(10:13):
be its own podcast session,those apply to the states.
But the ninth and tenth arecloser to structural provisions,
which is also part of why inMadison's original draft, they
were tucked, they were not withthe one and eight, one through
eight.
They were going to be put intodifferent parts of the
constitution.
Madison wanted the federal billof rights or federal
constitution or amendments to bemore like a state constitution,

(10:35):
where generally you just tuckthe text in there, in which
case, you know, that would havemade a lot more sense if it's
listed after a description offederal powers.
But that's not what Congressdid.
So that's why without somehistorical context, the Ninth
Amendment's really easy tosquint at.
And again, you can be sort ofsympathetic to Robert Borg.
It's like, I have no idea whatthat means.

(10:56):
But if you have some context andyou have that earlier language,
I do think it's prettystraightforward what it's
supposed to do.

SPEAKER_00 (11:04):
Fantastic, Dr.
Weinberg.
Thank you so much.