Ninth Amendment To The United States Constitution - Adoption

Adoption

When the U.S. Constitution was sent to the states for ratification after being signed on September 17, 1787, the Anti-Federalists argued that a Bill of Rights should be added. One of the arguments the Federalists gave against the addition of a Bill of Rights, during the debates about ratification of the Constitution, was that a listing of rights could problematically enlarge the powers specified in Article One, Section 8 of the new Constitution by implication. For example, in Federalist 84, Alexander Hamilton asked, "Why declare that things shall not be done which there is no power to do?" Likewise, James Madison explained to Thomas Jefferson, "I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted" by Article One, Section 8 of the Constitution.

The Anti-Federalists persisted in favor of a Bill of Rights during the ratification debates, but also were against ratification, and consequently several of the state ratification conventions gave their assent with accompanying resolutions proposing amendments to be added. In 1788, the Virginia Ratifying Convention attempted to solve the problem that Hamilton and the Federalists had identified by proposing a constitutional amendment specifying:

That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.

This proposal ultimately led to the Ninth Amendment.

In 1789, while introducing to the House of Representatives nineteen draft Amendments, James Madison addressed what would become the Ninth Amendment as follows:

It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

Like Alexander Hamilton, Madison was concerned that enumerating various rights could "enlarge the powers delegated by the constitution." To attempt to solve this problem, Madison submitted this draft to Congress:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

This was an intermediate form of the Ninth Amendment that borrowed language from the Virginia proposal, while foreshadowing the final version.

The final text of the Ninth Amendment, like Madison's draft, speaks of other rights than those enumerated in the Constitution. The character of those other rights was indicated by Madison in his speech introducing the Bill of Rights (emphasis added):

It has been said, by way of objection to a bill of rights....that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation, but they are not as conclusive to the extent it has been proposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse.

The First through Eighth Amendments address the means by which the federal government exercises its enumerated powers, while the Ninth Amendment addresses a "great residuum" of rights that have not been "thrown into the hands of the government," as Madison put it. The Ninth Amendment became part of the Constitution on December 15, 1791 upon ratification by three-fourths of the states.