The Inescapable Federalism of the Ninth Amendment

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this evidence poses to libertarian theories of the Ninth Amendment, Randy Barnett now argues that what evidence we have is consistent with both a libertarian and federalist reading of the Ninth Amendment and that remaining gaps in the historical record preclude a solely federalist reading of the Ninth. This article clarifies the distinction between the federalist and libertarian models of the Ninth Amendment and argues that the two models are in critical ways incompatible. In addition to critiquing Professor Barnett’s reading of the historical evidence, I also present newly discovered evidence of the original meaning of the Ninth which fills in critical gaps in the historical record and strongly supports an originally federalist understanding of the Amendment. The article concludes by distinguishing the Ninth from the Tenth Amendment and considering the potential impact of the Fourteenth Amendment on the meaning and scope of the Ninth