Denied and Disparaged: Applying the 'Federalist' Ninth Amendment

In the 1980's, Randy Barnett began a study of the Ninth Amendment. He concluded that it protected rights not listed in the Constitution. According to Barnett, the Ninth Amendment created a presumption of liberty, which placed the burden on the government to demonstrate that it was justified in infringing on liberties. Nevertheless, Barnett's work recently has been challenged as anachronistic and incomplete. In 2004, Kurt Lash claimed to have uncovered lost of the Ninth Amendment. He produced historical evidence showing that the Ninth and Tenth Amendments were intended to work together to protect state powers, rather than rights. Whereas the Tenth Amendment reserved powers to the states, the Ninth prohibited interpretations of enumerated power that disparaged those state rights. Lash and Barnett continue to discuss the Ninth Amendment, yet, until now, little has been written of their debate. In this Comment, I explore how Lash's model of the Ninth Amendment might be applied to the Supreme Court's federalism jurisprudence. My aim is twofold: first, to provide an objective summary of Barnett and Lash's recent debate to discern exactly what their two models of the Ninth Amendment entail; second, to demonstrate how the lack of a federalist Ninth Amendment might have forced the Court to stretch the Tenth and Eleventh Amendments beyond their text, inviting charges of judicial activism. In Part I, I trace the Ninth Amendment's history by focusing on Lash's and Barnett's emerging scholarship. In Part II, I explain how Barnett’s individual rights model has already been applied, albeit unsuccessfully, over the last fifty years. Finally, in Part III, I apply the model to Commerce Clause, Tenth Amendment, and Eleventh Amendment jurisprudence. I argue that the Court struggled in each to protect states from expanding federal power partly because the Ninth Amendment's federalist history had not yet been uncovered. Because the Court prevented broad interpretations of federal power, it needed a rule of construction that the Tenth Amendment's text could not supply. Under the model, however, the Ninth Amendment would provide such a rule. Therefore, the Court could have answered charges of judicial activism by citing the Ninth Amendment in addition to the Tenth. Ultimately, I conclude that, if Lash's historical analysis proves correct, then the Ninth Amendment could provide a check on federal power that is more rooted in constitutional text than existing protections of federalism.