"The Lost History of the Ninth Amendment (I): The Lost Original
Meaning"
BY: KURT T. LASH
Loyola Law School (Los Angeles)
Document: Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=505482
Paper ID: Loyola-LA Public Law Research Paper No. 2004-5
Date: February 2004
Contact: KURT T. LASH
Email: Mailto:[EMAIL PROTECTED]
Postal: Loyola Law School (Los Angeles)
919 South Albany Street
Los Angeles, CA 90015-1211 UNITED STATES
Phone: (213) 736-1137
Fax: (213) 380-3769
Paper Requests:
Contact Bridget Klink, Mailto:[EMAIL PROTECTED] or Loyola
Law School, Law Review & Academic Forum Coordinator, 919 South
Albany Street, Los Angeles, CA 90015, USA. Phone: (213)
736-1407, Fax: (213) 381-6783.
ABSTRACT:
This article presents previously unrecognized evidence regarding
the original meaning of the Ninth Amendment. Obscured by the
contemporary assumption that the Ninth Amendment is about rights
while the Tenth Amendment is about powers, the historical roots
of the Ninth Amendment can be found in the state ratification
convention demands for a constitutional amendment prohibiting
the constructive enlargement of federal power.
James Madison's initial draft of the Ninth Amendment expressly adopted
the language suggested by the state conventions and he insisted the
final draft expressed the same rule of construction desired by
the states. In an episode previously unnoticed by scholars, the
altered language of the final draft of the Ninth Amendment
prompted Virginia Governor Edmund Randolph to bring to a halt
his state's efforts to ratify the Bill of Rights due to his
concern that the Ninth no longer reflected the demands of the
state conventions.
Anti-Federalists used Randolph's concerns to delay Virginia's, and thus
the Country's, ratification of the Bill of Rights for two years. While
ratification remained pending in Virginia, Madison delivered a major
speech in the
House of Representatives explaining that the origins and meaning
of the Ninth Amendment in fact were rooted in the proposals of
the state conventions, and that the Ninth itself guarded against
a latitude of interpretation to the injury of the states. That
speech, given in opposition to the chartering of national bank,
was but one of many occasions in Madison's long career in which
he would object to latitudinarian constructions of the Constitution -
constructions that he believed were forbidden by the rule provided in
the Constitution itself, the Ninth Amendment.
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tel. (651) 523-2142 St. Paul, Minnesota 55104-1284
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