Limited Government

The Tenth Amendment (Amendment X) to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791.^[1] The Tenth Amendment explicitly states the Constitution’s principle of federalism by providing that powers not granted to the federal government nor prohibited to the states by the Constitution of the United States are reserved to the states or the people.

The Tenth Amendment is similar to an earlier provision of the Articles of Confederation: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”^[2] After the Constitution was ratified, some wanted to add a similar amendment limiting the federal government to powers “expressly” delegated, which would have denied implied powers.^[3] However, the word “expressly” ultimately did not appear in the Tenth Amendment as ratified, and therefore the Tenth Amendment did not reject the powers implied by the Necessary and Proper Clause.

When he introduced the Tenth Amendment in Congress, James Madison explained that many states were anxious to ratify this amendment, despite critics who deemed the amendment superfluous or unnecessary:

I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it. ^[4]

The states decided to ratify the Tenth Amendment, and thus declined to signal that there are unenumerated powers in addition to unenumerated rights.^[5][6] The amendment rendered unambiguous what had previously been at most a mere suggestion or implication.

The Tenth Amendment, which makes explicit the idea that the federal government is limited only to the powers granted in the Constitution, is often considered to be a truism. In United States v. Sprague (1931) the Supreme Court asserted that the amendment “added nothing to the [Constitution] as originally ratified.”

States and local governments have occasionally attempted to assert exemption from various federal regulations, especially in the areas of labor and environmental controls, using the Tenth Amendment as a basis for their claim. An often-repeated quote, from United States v. Darby, 312 U.S. 100, 124 (1941), reads as follows:

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers…..

The Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment. In the modern era, the Court has only done so where the federal government compels the states to enforce federal statutes. In 1992, in New York v. United States, 505 U.S. 144 (1992), for only the second time in 55 years, the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment. The case challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for states to comply with statutory obligations to provide for the disposal of low-level radioactive waste. The first two incentives were monetary. The third, which was challenged in the case, obliged states to take title to any waste within their borders that was not disposed of prior to January 1, 1996, and made each state liable for all damages directly related to the waste. The Court, in a 6–3 decision, ruled that the imposition of that obligation on the states violated the Tenth Amendment. Justice Sandra Day O’Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (i.e., by attaching conditions to the receipt of federal funds, see South Dakota v. Dole), or through the commerce power (by directly pre-empting state law). However, Congress cannot directly compel states to enforce federal regulations.

In 1997, the Court again ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997). The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Justice Antonin Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the act “forced participation of the State’s executive in the actual administration of a federal program,” it was unconstitutional.

According to the Tenth Amendment, the government of the United States has the power to regulate only matters delegated to it by the Constitution. Other powers are reserved to the states, or to the people (and even the states cannot alienate some of these). In modern times, the Commerce Clause has become one of the most frequently-used sources of Congress’ power, and thus its interpretation is very important in determining the allowable scope of federal government.

In the 20th century, complex economic challenges arising from the Great Depression triggered a reevaluation in both Congress and the Supreme Court of the use of Commerce Clause powers to maintain a strong national economy.

In Wickard v. Filburn (1942), in the context of World War II, the Court ruled that federal regulations of wheat production could constitutionally be applied to wheat grown for “home consumption” on a farm — that is, wheat grown to be fed to farm animals or otherwise consumed on the farm. The rationale was that a farmer’s growing “his own wheat” can have a substantial cumulative effect on interstate commerce, because if all farmers were to exceed their production quotas, a significant amount of wheat would either not be sold on the market or would be bought from other producers. Hence, in the aggregate, if farmers were allowed to consume their own wheat, it would affect the interstate market in wheat.

In Garcia v. San Antonio Metropolitan Transit Authority (1985), the Court changed the analytic framework to be applied in Tenth Amendment cases. Prior to the Garcia decision, the determination of whether there was state immunity from federal regulation turned on whether the state activity was “traditional” for or “integral” to the state government. The Court noted that this analysis was “unsound in principle and unworkable in practice,” and rejected it without providing a replacement. The Court’s holding declined to set any formula to provide guidance in future cases. Instead, it simply held “…we need go no further than to state that we perceive nothing in the overtime and minimum-wage requirements of the FLSA … that is destructive of state sovereignty or violative of any constitutional provision.” It left to future courts how best to determine when a particular federal regulation may be “destructive of state sovereignty or violative of any constitutional provision.”

In United States v. Lopez 514 U.S. 549 (1995), a federal law mandating a “gun-free zone” on and around public school campuses was struck down because, the Supreme Court ruled, there was no clause in the Constitution authorizing it. This was the first modern Supreme Court opinion to limit the government’s power under the Commerce Clause. The opinion did not mention the Tenth Amendment, and the Court’s 1985 Garcia opinion remains the controlling authority on that subject.

Most recently, the Commerce Clause was cited in the 2005 decision Gonzales v. Raich. In this case, a California woman sued the Drug Enforcement Administration after her medical marijuana crop was seized and destroyed by Federal agents. Medical marijuana was explicitly made legal under California state law by Proposition 215; however, marijuana is prohibited at the federal level by the Controlled Substances Act. Even though the woman grew the marijuana strictly for her own consumption and never sold any, the Supreme Court stated that growing one’s own marijuana affects the interstate market of marijuana. The theory was that the marijuana could enter the stream of interstate commerce, even if it clearly wasn’t grown for that purpose and it was unlikely ever to happen (the same reasoning as in the Wickard v. Filburn decision). It therefore ruled that this practice may be regulated by the federal government under the authority of the Commerce Clause.

The federal system limits the ability of the federal government to use state governments as an instrument of the national government, according to Printz v. United States, 521 U.S. 898 (1997). However, where Congress has the power to implement programs, or to regulate, there are sound reasons for the national government to encourage States to become the instruments of national policy, rather than to implement the program directly. One advantage is that state implementation of national programs places implementation in the hands of local officials who are closer to local circumstances. Another advantage is that implementation of federal programs at the state level tends to limit the growth of the national bureaucracy.

For this reason, Congress often seeks to exercise its powers by offering or encouraging the States to implement national programs consistent with national minimum standards; a system known as cooperative federalism. One example of the exercise of this device was to condition allocation of federal funding where certain state laws do not conform to federal guidelines. For example, federal educational funds may not be accepted without implementation of special education programs in compliance with IDEA. Similarly, the nationwide state 55 mph (90 km/h) speed limit, .08 legal blood alcohol limit, and the nationwide state 21-year drinking age were imposed through this method; the states would lose highway funding if they refused to pass such laws. See e.g. South Dakota v. Dole, 483 U.S. 203 (1987).

Several states have introduced various resolutions and legisiation in protest to federal actions.^[7] However, the Supreme Court has explicitly rejected the idea that the states can nullify federal law. In Cooper v. Aaron (1958), the Supreme Court of the United States held that federal law prevails over state law due to the operation of the Supremacy Clause, and that federal law “can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes . . . .”

State sovereignty resolutions (“10th Amendment resolutions”)

These resolutions attempt to reassert state sovereignty over any area not listed among the “enumerated powers” (i.e., any law based on an “expansive reading” of the Commerce Clause, the Necessary and Proper Clause, or the Supremacy Clause would, according to this resolution, be invalid).

• During 2009, “state sovereignty resolutions” or “10th Amendment Resolutions” were introduced in the legislatures of 37 states; in seven states the resolutions passed (Alaska, Idaho, North Dakota, South Dakota, Oklahoma, Louisiana, and Tennessee).
• During 2010, resolutions were introduced or reintroduced into the legislatures of 21 states; the resolution passed in seven states (Alabama, Arizona, Kansas, Nebraska, South Carolina, Utah, and Wyoming).^[8][9]
• A state sovereignty resolution has been prefiled for the upcoming 2011 session of the Texas Legislature (a prior 2009 resolution did not pass).

State sovereignty bills (“10th Amendment Bills”)

A “State Sovereignty Bill” is one step beyond a State Sovereignty Resolution. The bill would mandate action against what the state legislature perceives as unconstitutional federal legislation.

• During 2010 such legislation was introduced in six states (Florida, Georgia, Michigan, Missouri, New Hampshire, and Oklahoma); however, none made it past the introductory stage.^[10]

Firearms freedom legislation and federal gun laws nullification

This proposed legislation would “…declare that any firearms made and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce among the states”. The legislation would require that the firearm be prominently marked as being “Made in {name of state}” and further prohibit Federal regulation solely on the basis that “basic materials” and “generic and insignificant parts” of the firearm may have their origins from outside the state.

• Through 2010 resolutions have been introduced in the legislatures of 27 states that would The legislation passed in Montana and Tennessee in 2009 and in Arizona, Idaho, South Dakota, Utah, and Wyoming the following year.^[11] South Carolina has taken the issue one step further: in 2010 a bill was introduced which would effectively nullify all gun registration laws within the state.^[12]
• Texas has prefiled similar legislation for the upcoming 2011 legislative session (a similar bill did not pass in 2009).^[13]

Medical marijuana laws

As of March 2010, 14 states (Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington) have passed legislation which permit the use of medical marijuana.^[14] California Proposition 19 would have gone one step further, and legalize marijuana use by persons over age 21 for any purpose whatsoever;^[15] however, the state constitutional amendment did not pass.

The Obama administration announced in October 2009 that it advised federal prosecutors not to target medicinal marijuana users, or their suppliers, in states that have passed such laws.^[16][17]

REAL ID Act

As of March 2010, 25 states (beginning with Maine in 2007) have passed legislation and/or resolutions which opposed the REAL ID Act. Though the legislation is still on the books, its implementation has been delayed on several occasions and is currently not being enforced.^[18]

National health care nullification

As of March 2010, legislators in 30 states have introduced legislation which would declare certain provisions of any proposed national health care bill to be null and void within the state; the legislation passed in Arizona, Idaho, Utah, and Virginia.^[19] Such provisions include mandatory participation in such a system as well as preserving the right of a patient to pay a health care professional for treatment (and for the professional to accept it) outside of a single-payer system. Arizona’s legislation passed as a proposed constitutional amendment, to be submitted to the voters in 2010.  On February 1, 2010, the Virginia Senate took a stand against a key provision of a proposed federal health care overhaul, passing legislation declaring that Virginia residents cannot be forced to buy health insurance. On March 17, 2010, Idaho Governor C.L. “Butch” Otter signed a bill requiring the Attorney General to sue the Federal Government if Idaho residents are required to buy health insurance.^[21]

Oklahoma passed a constitutional amendment which would also declare a national healthcare bill to be null and void.

“Bring the Guard home”

As of March 2010, legislators in seven states have introduced legislation which would permit the Governor of the state to recall any National Guard troops from overseas deployments (such as in Iraq and Afghanistan); the bills failed in Maryland and New Mexico.^[22]

Constitutional tender

As of March 2010, legislators in seven states have introduced legislation which would seek to nullify federal legal tender laws in the state by authorizing payment in gold and silver or a paper note backed 100% by gold or silver; the legislation failed in Colorado and Montana.^[23]

“Cap-and-trade” nullification

As of March 2010, legislators in four states have introduced legislation which would nullify any proposed federal emissions regulation under the “cap-and-trade” model; none have advanced beyond the introductory stage.^[24]

State sovereignty and federal tax funds acts

As of March 2010, legislators in three states have introduced legislation which would require businesses (and in some cases, individuals) to remit their Federal tax payments to the state Treasurer (or equivalent body) for deposit into an escrow fund. If the state Legislature determined that a portion of the federal budget was not constitutional, or if the federal government imposed penalties or sanctions upon the state for creating the fund, then the money would be withheld.) None have advanced beyond the introductory stage.^[25]

“Sheriffs first” legislation

As of March 2010, legislators in three states have introduced legislation which would make it a crime for any federal agent to make an arrest, search, or seizure within the state without getting the advanced, written permission of the sheriff of the county in which the event would take place. The bills would provide for the following exceptions:

• actions on Federal property,
• a federal employee witnesses a crime requiring an immediate arrest,
• actions under either close pursuit or involving immigration,
• the person to be apprehended is either an elected county or state officer, an employee of the sheriff’s office, or
• the person to be apprehended has such close connections with the sheriff that s/he is likely to be notified by the sheriff of any impending action.^[26]

None have advanced beyond the introductory stage.^[27]

“Federal land” legislation

As of February 2010, legislators in Utah have introduced legislation to allow the use of eminent domain on federal land. Rep. Christopher Herrod has introduced the bill in a state where the Federal Government controls over 60% of the land. The effort has the full support of Republican Attorney General Mark Shurtleff, who would have to defend the law. The proposal includes setting aside $3 million for legal defense.^[28][29]

“Nullification of federal intrastate commerce regulation”

As of March 2010, legislators in four states have introduced legislation which would nullify federal regulation of commerce and activities which are solely within the boundaries of a state and which do not cross state lines. The Virginia legislation has passed one house.^[30]

“Sanctuary city”

Another form of protest against enforcement of immigration laws, several United States cities have declared themselves “sanctuary cities”, whereby they have ordered the local police department to specifically not work with United States Customs and Border Protection officials to arrest persons illegally residing within the boundaries of the city, and to not inquire as to a person’s immigration status, even if the person was arrested.

1. “The Bill of Rights: A Transcription”. United States National Archives and Records Administration. http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html. Retrieved 20 September 2010. 
2. Yale Law School Avalon Project. “Articles of Confederation from Yale University”. http://www.yale.edu/lawweb/avalon/artconf.htm#art2. Retrieved 2008-12-16. 
3. University of Chicago. “House of Representatives, Amendments to the Constitution”. http://press-pubs.uchicago.edu/founders/documents/amendXs6.html. Retrieved 2007-12-16. 
4. The Founders Constitution.
5. Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991): “The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time….”
6. Calabresi, Steven and Prakash, Saikrishna.  ”The President’s Power to Execute the Laws”, Yale Law Journal, Vol. 104 (1994): “The message of the Tenth Amendment is that expressio unius est exclusio alterius applies to lists of governmental powers.”
7. Johnston, Kirk. “States’ Rights Is Rallying Cry for Lawmakers” New York Times March 16, 2010
8. “10th Amendment Resolutions – Tenth Amendment Center”. Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/10th-amendment-resolutions/. Retrieved 2010-11-03. 
9. Not all states require gubernatorial assent of resolutions; in some states a resolution is deemed passed if both houses concur as to the language.
10. “10th Amendment Bills – Tenth Amendment Center”. Tenthamendmentcenter.com. 2009-11-16. http://www.tenthamendmentcenter.com/nullification/10th-amendment-bills/. Retrieved 2010-11-03. 
11. “Firearms Freedom Act Legislation – Tenth Amendment Center”. Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/firearms-freedom-act/. Retrieved 2010-11-03. 
12. “Raising the bar for Nullification – Tenth Amendment Center”. Tenthamendmentcenter.com. 2010-02-05. http://www.tenthamendmentcenter.com/2010/02/05/raising-the-bar-for-nullification/. Retrieved 2010-11-03. 
13. http://blog.tenthamendmentcenter.com/2010/11/firearms-freedom-act-introduced-in-texas/
14. “State Marijuana Legislation – Tenth Amendment Center”. Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/marijuana/. Retrieved 2010-11-03. 
15. “Nullification: Ballot Drive for Legal Pot in CA – Tenth Amendment Center Blog”. Blog.tenthamendmentcenter.com. 2009-09-23. http://blog.tenthamendmentcenter.com/2009/09/nullification-ballot-drive-for-legal-pot-in-ca/#. Retrieved 2010-11-03. 
16. David W. Ogden (19 October 2009). “Memorandum for Selected United States Attorneys – Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana” (PDF). United States Department of Justice. http://www.justice.gov/opa/documents/medical-marijuana.pdf. Retrieved 20 September 2010. 
17. “Obama Won’t Seek to Arrest Medical Pot Users”. Fox News. October 19, 2009. http://www.foxnews.com/politics/2009/10/19/obama-wont-seek-arrest-medical-pot-users. 
18. “Real ID Nullification Legislation – Tenth Amendment Center”. Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/real-id/. Retrieved 2010-11-03. 
19. “Health Care Freedom Act – Tenth Amendment Center”. Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/health-care/. Retrieved 2010-11-03. 
20. “Arizona HCR2014: National Health Care Nullification – Tenth Amendment Center”. Tenthamendmentcenter.com. 2009-06-26. http://www.tenthamendmentcenter.com/2009/06/26/arizona-hcr2014-national-health-care-nullification/. Retrieved 2010-11-03. 
21. Miller, John, AP (March 18, 2010). Idaho First to Sign Law against Health Care Reform. ABC News.
22. “Bring the Guard Home Legislation – Tenth Amendment Center”. Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/bring-the-guard-home/. Retrieved 2010-11-03. 
23. “Constitutional Tender Legislation – Tenth Amendment Center”. Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/constitutional-tender/. Retrieved 2010-11-03. 
24. “Cap and Trade Nullification Legislation – Tenth Amendment Center”. Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/cap-and-trade/. Retrieved 2010-11-03. 
25. “State Sovereignty and Federal Tax Funds Act – Tenth Amendment Center”. Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/federal-tax-funds-act/. Retrieved 2010-11-03. 
26. http://sheriffsfirst.com/
27. “Sheriffs First Legislation – Tenth Amendment Center”. Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/sheriffs-first-legislation/. Retrieved 2010-11-03. 
28. Vergaris, Brock, AP (February 11, 2010). Utah Lawmakers Want Federal Land Returned to State. ABC News.
29. Carltom, Jim (March 30, 2010). Federal Land Seizures Urged by Utah Governor. Wall Street Journal.
30. “Nullification of Federal Intrastate Commerce Regulation – Tenth Amendment Center”. Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/nullification-of-intrastate-commerce-regulation/. Retrieved 2010-11-03. 

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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 argument of Federalists 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?”^[1] 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”^[2] in 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:^[3]

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^[4] draft Amendments, James Madison addressed what would become the Ninth Amendment as follows:^[5]

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.”^[5] Here is the draft of the Ninth Amendment that Madison submitted to Congress in order to solve this problem:

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.^[5]

This was an intermediate form of the Ninth Amendment that borrowed language from the Virginia proposal, while foreshadowing the final version. Like Madison’s draft, the final text of the Ninth Amendment 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.^[5]

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.^[5] The Ninth Amendment became part of the Constitution on December 15, 1791 upon ratification by three-fourths of the states.

The Ninth Amendment has generally been regarded by the courts as negating any expansion of governmental power on account of the enumeration of rights in the Constitution, but the Amendment has not been regarded as further limiting governmental power. The U.S. Supreme Court explained this, in U.S. Public Workers v. Mitchell 330 U.S. 75 (1947): “If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.”

It is important, when discussing the history of the Bill of Rights, to realize the Supreme Court held in Barron v. Baltimore (1833) that it was enforceable by the federal courts only against the federal government, and not against the states. Thus, the Ninth Amendment originally applied only to the federal government, which is a government of enumerated powers.

Some jurists have asserted that the Ninth Amendment is relevant to interpretation of the Fourteenth Amendment. Justice Arthur Goldberg (joined by Chief Justice Earl Warren and Justice William Brennan) expressed this view in a concurring opinion in the case of Griswold v. Connecticut (1965):

The Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights…. I do not mean to imply that the …. Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government….While the Ninth Amendment – and indeed the entire Bill of Rights – originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the “liberty” protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U.S. 75, 94-95.

Subsequent to Griswold, some judges have tried to use the Ninth Amendment to justify judicially enforcing rights that are not enumerated. For example, the District Court that heard the case of Roe v. Wade ruled in favor of a “Ninth Amendment right to choose to have an abortion,” although it stressed that the right was “not unqualified or unfettered.” ^[6] However, Justice William O. Douglas rejected that view; Douglas wrote that, “The Ninth Amendment obviously does not create federally enforceable rights.” See Doe v. Bolton (1973). Douglas joined the majority opinion of the U.S. Supreme Court in Roe, which stated that a federally enforceable right to privacy, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”^[7]

The Sixth Circuit Court of Appeals stated as follows in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991):

[T]he ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution.

Professor Laurence Tribe shares this view: “It is a common error, but an error nonetheless, to talk of ‘ninth amendment rights.’ The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”^[8] Likewise, Justice Antonin Scalia has expressed the same view, in the dissenting opinion of Troxel v. Granville 530 U.S. 57 (2000):

The Declaration of Independence…is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.

In 2000, Harvard historian Bernard Bailyn gave a speech at the White House on the subject of the Ninth Amendment. He said that the Ninth Amendment refers to “a universe of rights, possessed by the people — latent rights, still to be evoked and enacted into law….a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law.”^[9]

Robert Bork, often considered an originalist, has likened the Ninth Amendment to an inkblot. Bork argued in The Tempting of America that, while the amendment clearly had some meaning, its meaning is indeterminate; because the language is opaque, its meaning is as irretrievable as it would be had the words been covered by an inkblot. According to Bork, if another provision of the Constitution were covered by an actual inkblot, judges should not be permitted to make up what might be under the inkblot lest any judges twist the meaning to their own ends (cf. * Underdeterminacy (law)).

Another originalist, Randy Barnett, has argued that the Ninth Amendment requires what he calls a presumption of liberty. Still others, such as Thomas B. McAffee, have argued that the Ninth Amendment protects the unenumerated “residuum” of rights which the federal government was never empowered to violate.^[10] Constitutional historian Jon Roland has argued that the Ninth Amendment included by reference all of the rights proposed by the state ratifying conventions, in addition to those enumerated in the first eight amendments.^[11]

According to Frederic Jesup Stimson, the framers of the Constitution and the Ninth Amendment intended that no rights that they already held would be lost through omission. Charles Lund Black took a similar position, though Stimson and Black respectively acknowledged that their views differed from the modern view, and differed from the prevalent view in academic writing.^[12][13]

Gun rights activists in recent decades have sometimes argued for a fundamental natural right to keep and bear arms that both predates the U.S. Constitution and is covered by the Constitution’s Ninth Amendment; according to this viewpoint, the Second Amendment only enumerates a pre-existing right to keep and bear arms.^[14]

The Ninth Amendment bars denial of unenumerated rights if the denial is based on the enumeration of certain rights in the Constitution, but does not bar denial of unenumerated rights if the denial is based on the enumeration of certain powers in the Constitution.^[15] It is to that enumeration of powers that the courts have said we must look, in order to determine the extent of the unenumerated rights mentioned in the Ninth Amendment.^[15]

(1) Alexander Hamilton, Federalist, no. 84, 575–81 (28 May 1788).

(2) James Madison, Letter to Thomas Jefferson (October 17, 1788). Madison often expressed this idea, for example in a letter to George Washington dated December 5, 1789 (“If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended”).

(3) Virginia Ratification Resolution (June 26, 1788).

(4) Amendments Offered in Congress by James Madison June 8, 1789

(5) ^{a b c d e} James Madison,Speech Introducing Bill of Rights (June 8, 1789).

(6) Roe v. Wade, 314 F. Supp. 1217 at 1223 (1970).

(7)  Roe v. Wade, 410 U.S. 113 (1973). Findlaw.com. Retrieved 2007-06-04.

(8) Laurence H. Tribe, American Constitutional Law 776 n. 14 (2nd ed. 1998).

(9) Bernard Bailyn, Remarks at White House Millennium Evening (2000).

(10) Thomas B. McAffee, Federalism and the Protection of Rights: The Modern Ninth Amendment’s Spreading Confusion, 1996 B.Y.U. Law Rev. 351.

(11) Jon Roland, Presumption of Nonauthority and Unenumerated Rights (2006).

(12) Frederic Jesup Stimson, The Law of the Federal and State Constitutions of the United States; Book One, Origin and Growth of the American Constitutions, 2004, Introductory, Lawbook Exchange Ltd, ISBN 1-58477-369-3. According to Stimson:

It was at first believed by our greatest judges and jurists that the whole English Constitution was implied in the Federal Constitution ; that there is, as it were, an unwritten Constitution which we inherited in America and which consisted, not only of the English Constitution where not expressly altered by our own, but of all matters of natural right and justice. Doubtless this is the intended meaning of the Ninth Amendment…. Such is not, perhaps, the modern view ; but the question has become, in fact, academic, for the reason that in 120 years of interpretation our Supreme Court has ever found some clause in the Federal Constitution into which to read any English constitutional principle not therein expressly altered.

(13) Charles Lund Black, A New Birth of Freedom, 1999, p. 10, Yale University Press, ISBN 0-300-07734-3. According to Black, “The Academic writing on this amendment seems to me in great part a multidirectional fluttering flight from the Amendment’s rather plain meaning….”

(14) Nicholas Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through The Ninth Amendment, 24 Rutgers L.J. 1, 64-67 (1992).

(15) ^{a b} United Public Workers v. Mitchell, 330 U.S. 75 (1947). See also Jenkins v. Commissioner of Internal Revenue, 483 F.3d 90 (2d Cir 2007).

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A Limited government is a government in which anything more than minimal governmental intervention in personal liberties and the economy is generally disallowed by law through a written Constitution.  The theory of limited government contrasts with the idea that government should intervene through regulation of property and wealth redistribution.

The United States Constitution limits the power of the Federal Government while establishing a Dual Federalist Republic.

In 1789,  the First United States Congress presented a series of ten amendments to the United States Constitution that are known today as the Bill Of Rights.  After enumerating specific rights retained by the people in the first eight amendments, the Ninth Amendment and the Tenth Amendment overall carved out the general principle of limited government.  Together, these two last Amendments highlight  the differences between the unenumerated and enumerated rights of the people and the States versus the expressly limited enumerated powers delegated to the federal government.  The Ninth Amendment states that the rights of the people do not have to be expressly written in the Constitution to be retained by the people, in other words, the enumeration in the Constitution of certain rights shall not be construed to deny or disparage other retained by the people.  Moroever, the Tenth Amendment codifies that any delegated powers of the federal government are only authorized to be performed so long as such delegated powers are expressly enumerated to the federal government specifically by the U.S. Constitution.   All powers not delegated, or enumerated, to the Federal Government in the Constitution are reserved to the States respectively, or to the People.

The U.S. Constitution limits the power of the government in several ways and prohibits the government from directly interfering with the States and the People in many key areas.

The United States has a rich tradition of state constitutionalism that offers insight into federal constitutionalism in the United States.  While state constitutions and the federal Constitution operate differently to create a  necessary tension for federalism to function well in a Dual Federalist Republic they all rest on the assumption that their legitimacy derives from the people, the sovereign authority.   

The Creation of Our Republic

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