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This chapter discusses how the transfigured Ninth Amendment, although used in support of a broad conception of individual freedom, has become a far smaller provision than that envisioned by its framers and has been rendered altogether unenforceable as an independent provision in the Bill of Rights. It describes how the Ninth Amendment has played an important role in matters involving the Supreme Court of the United States.

This chapter focuses on the Alien and Sedition Acts. The present chapter and the previous chapter on the Eleventh Amendment illustrate something generally missed—or misrepresented—about republican constitutional theory in the early republic. The so-called compact theory of the Constitution, the idea that the Constitution represents a compact between the states and the national government, is often presented as having emerged out of the proslavery ideology of the 1830s and viewed in opposition to the (entirely) more reasonable theories of Chief Justice John Marshall. This school of constitutional history places the initial seeds of southern secessionist theory in the naive hands of James Madison and Thomas Jefferson, who embraced the inflammatory language of states' rights and interposition in their Virginia and Kentucky Resolutions. According to this view, compact theory is a post hoc political invention that departs from the original understanding of the Constitution and that arose years after the founding as part of a political effort to displace the Federalist Party in the election of 1800.

This chapter begins with a discussion of the important role played by Justice Arthur Goldberg in one of the most famous decisions of the 20th-century Supreme Court, Griswold v. Connecticut. It then considers the New Deal Court's reversal of a broad spectrum of constitutional doctrines from roughly 1937 to 1941. The modern restoration of unenumerated rights is then discussed.

This chapter begins with a fairly exhaustive account of the use of the Ninth Amendment in state and federal courts prior to the New Deal. There is nothing new here in terms of theory: one finds the same analysis of the Ninth Amendment already developed in prior chapters repeated over and over again in state and federal courts throughout the Progressive era. There is a purpose, however, to including this history. One of the most durable myths about the Ninth Amendment is that it attracted little attention prior to the modern Supreme Court's discovery of the Ninth in Griswold v. Connecticut. The present discussion puts this myth permanently to rest. The second half of the chapter helps explain how the myth arose in the first place.

This chapter addresses just how the federalist vision of the Ninth Amendment presented in Chapters 2 and 3 fits with the actual text of the amendment and how the amendment fits alongside the Tenth Amendment. Doing so requires both a deeper and a broader look at the amendment. Deeper, because it requires revisiting some earlier points about the final language of the text; broader, because it expands our vision beyond the Ninth Amendment and considers aspects of the original Tenth Amendment that also may have been forgotten or lost.

This chapter continues the discussion of the history of the Ninth Amendment and eventually takes it to the one place where no history of it can be found—the judicial opinions of Chief Justice John Marshall. It is argued that different people used the Ninth Amendment in different ways. Some read the amendment as significantly restricting federal power; others insisted that the amendment placed few if any constraints on federal power. But these are differences of degree, not kind. Every court and commentator who took a position on the Ninth Amendment in the initial decades of the Constitution—whether Federalist or Anti-Federalist or Democratic-Republican, nationalist or states' rightist, drafter or ratifier—all described the Ninth as echoing the same federalist principles as the Tenth. Rather than considering the original meaning of the Ninth Amendment, the chapter focuses on what happened to the original meaning of the Ninth Amendment.

The Ninth Amendment has had a remarkably robust history, playing a role in almost every significant constitutional debate in American history, including the controversy over the Alien and Sedition Acts, the struggle over slavery, and the constitutionality of the New Deal. Until very recently, however, this history has been almost completely lost due to a combination of historical accident, mistaken assumptions, and misplaced historical documents. Drawing upon a wide range of primary sources, most never before included in any book on the Ninth Amendment or the Bill of Rights, this book recovers the lost history of the Ninth Amendment and explores how its original understanding can be applied to protect the people's retained rights today. The most important aspect of this book is its presentation of newly uncovered historical evidence which calls into question the currently presumed meaning and application of the Ninth Amendment. The evidence not only challenges the traditional view regarding the original meaning of the Ninth Amendment, it also falsifies the common assumption that the Amendment lay dormant prior to the Supreme Court's “discovery” of the clause in Griswold v. Connecticut . As a history of the Ninth Amendment, the book recapitulates the history of federalism in America and the idea that local self-government is a right retained by the people. This issue has particular contemporary salience as the Supreme Court considers whether states have the right to authorize medicinal use of marijuana, refuse to assist the enforcement of national laws like the Patriot Act, or regulate physician-assisted suicide. The meaning of the Ninth Amendment has played a key role in past Senate confirmation hearings for Supreme Court justices and the current divide on the Court regarding the meaning of the Ninth Amendment makes it likely the subject will come up again during the next set of hearings.

This chapter begins by presenting the most commonly told story about the historical Ninth Amendment. It argues that the Ninth Amendment did not emerge unsought out of the unique mind of James Madison. Like the rest of the Bill of Rights, the origins of the Ninth Amendment are found in concerns raised by the ratifiers in the state conventions. The chapter turns to the drafting of the Ninth Amendment and considers terms that the founding generation likely viewed rather differently from the way we understand them today. It concludes with a discussion of the dual nature of retained rights.

Assuming that an accurate understanding of U.S. constitutional history can assist us in our effort to understand and apply our Constitution today, this chapter addresses the question of whether restoring the lost history of the Ninth Amendment would make any difference to this fundamental task of citizenship. It argues that the Ninth Amendment's future as an enforceable provision in the Bill of Rights depends on our national commitment to maintaining a Madisonian balance between state and national power.

This chapter focuses on the Eleventh Amendment. The amendment represented the first act of popular sovereignty under the new Constitution, and it demanded that federal courts respect the rule of strict construction promised by the Federalists and declared in the Bill of Rights. The history recounted in this chapter provides important independent support for the idea that the founding generation understood “the people” of the Ninth and Tenth Amendments to refer to the sovereign people in the states—people who had delegated away important powers with the adoption of the Constitution, but who nevertheless retained their sovereign existence after 1787. This understanding of retained sovereignty included important assumptions about the proper construction of delegated federal power, including the delegated power of federal courts.

This chapter considers the events surrounding the ratification of the Ninth Amendment. Topics covered include James Madison's 1791 Speech on the Bank of the United States, redrafting of Madison's original bill of rights, Roger Sherman's draft bill of rights, and Madison's speech opposing the First Bank of the United States.

This chapter discusses the use of the Ninth Amendment in the years preceding the Civil War and the potential impact of the Reconstruction Amendments, particularly the Fourteenth Amendment. It seeks to reconcile the principles informing the original Constitution with the new more libertarian principles of the Thirteenth, Fourteenth, and Fifteenth Amendments.