The Rights Not Written Down

The Ninth Amendment is a rule of interpretation. It tells courts and officials how not to read the rest of the document: the fact that a right is listed does not mean the list is complete, and the absence of a right from the list is not an argument that the right does not exist.

The Tenth Amendment is a rule of inventory. Whatever power the Constitution did not hand to the federal government, and did not forbid to the states, stays where it was — with the states, or with the people themselves.

Both amendments are written in the language of what was retained rather than what was granted. That direction matters. The federal government in this scheme is a government of delegated powers; it has what was given to it and nothing more.

Neither amendment names a single right or a single power. That is why both are argued about constantly and litigated to a conclusion rarely: they set the frame within which other provisions are read.

The Ninth Amendment is a direct answer to a specific objection. During ratification, Federalists argued that adding a bill of rights was not merely unnecessary but risky. Alexander Hamilton, in Federalist No. 84, warned that enumerating rights would furnish a plausible pretext for claiming powers the government had never been given, since an exception implies a general rule.

James Madison took the objection seriously enough to answer it in the text. Introducing the amendments to Congress in June 1789, he explained that the enumeration could be guarded against by a clause providing that rights not listed were not thereby diminished. The Ninth Amendment is that clause.

The Tenth Amendment answered a different fear: that the new federal government would swallow the states by implication, particularly through the Necessary and Proper Clause. Several state ratifying conventions demanded a reservation of powers in almost these words before they would vote yes.

It is worth noticing what the founders did not do. They did not attempt to catalogue every liberty, and they did not pretend the federal-state boundary could be fixed once and for all. They wrote two default rules and left the working out to the future — a choice that produced two centuries of argument by design, not by accident.

The Ninth Amendment has never been the sole basis for striking down a law. Courts have treated it as interpretive support rather than an independent source of enforceable rights. Its most famous appearance is Justice Goldberg's concurrence in Griswold v. Connecticut (1965), which cited it to argue that marital privacy need not be listed to be protected.

Unenumerated rights that courts do enforce have generally been located in the Fourteenth Amendment's Due Process Clause instead, under the label substantive due process. That doctrine is genuinely contested across the legal spectrum: critics on the right have long called it judicial invention, and critics on the left have warned that a narrow reading of it leaves settled liberties exposed. Both objections are about the same problem — who decides which unlisted rights count.

The Tenth Amendment was described by the Supreme Court in United States v. Darby (1941) as stating but a truism, and for decades it did little independent work. That changed with a line of cases enforcing it as a structural limit: New York v. United States (1992) and Printz v. United States (1997) established the anticommandeering principle, holding that Congress may not compel states to enact a federal program or require state officers to administer federal law.

The limit on the limit is the Supremacy Clause. Where Congress acts within a delegated power, valid federal law prevails over conflicting state law, and the Tenth Amendment does not shield the state. Federalism disputes are therefore almost always arguments about the scope of a granted power — commerce, spending, taxation — rather than about the Tenth Amendment's own words.

There is also a spending qualification that decides many real cases. Congress may attach conditions to federal money, but National Federation of Independent Business v. Sebelius (2012) held that conditions may not be so coercive as to leave states no genuine choice. Persuasion by funding is permitted; compulsion by funding is not.

Finally, note the closing words of the Tenth Amendment: or to the people. Reserved power does not automatically mean state power. Some authority was never delegated to any government at all.

In 1942, an Ohio farmer named Roscoe Filburn planted more wheat than his federal allotment allowed under the Agricultural Adjustment Act. The excess was consumed on his own farm — fed to his livestock, milled for his family, saved for seed. None of it was sold, and none crossed a state line.

He was assessed a penalty and sued, arguing that wheat he never sold could not be regulated under the power to regulate commerce among the several states. In Wickard v. Filburn (1942), the Supreme Court unanimously upheld the regulation, reasoning that home consumption reduced the amount he would otherwise buy, and that the aggregate effect of many such farmers substantially affected interstate commerce.

Wickard became the high-water mark of federal commerce authority, and it illustrates the Tenth Amendment's practical mechanics precisely. Nothing in the opinion denied that undelegated powers are reserved; the holding was that this power had been delegated. The reservation is a remainder, and the size of the remainder depends on how the grant is read.

The pendulum has swung since. United States v. Lopez (1995) struck down a federal gun-free-school-zones law as beyond the commerce power, the first such holding in nearly sixty years, and Sebelius held that the individual mandate could not be sustained as a regulation of commerce. The boundary is not fixed, and it has moved in both directions under Congresses and Courts of every political composition.

These two amendments are the ones most often used as slogans, and the slogan usually depends on who currently controls which level of government. The same official who invokes state autonomy against a federal policy may demand federal preemption of a state policy the following year. The Constitution's text does not switch sides with the electoral calendar; arguments about it should not either.

A concrete test for any federalism claim: name the specific clause that grants the federal power at issue, or name the specific clause that forbids the state action at issue. If neither can be named, the argument being made is about policy preference, which is a legitimate thing to argue — just not a constitutional one.

For the Ninth Amendment, the honest question is harder. If unlisted rights exist, what disciplined method identifies them, and would you accept that method in the hands of judges appointed by a president you did not vote for? A rule for finding rights that only works when your side is selecting the judges is not a rule.

Both amendments also point at something citizens tend to forget: the final phrase of the Tenth is or to the people. Powers reserved to the people are exercised through voting, petition, service on juries and school boards, and ordinary participation in local government — the least dramatic and most available constitutional work there is.