Volume 9 A of the Encyclopedia of American Law.
VOLUME 9A: NINTH AND TENTH AMENDMENTS – UNENUMERATED RIGHTS AND FEDERALISM
The Leftovers
Introduction to Volume 10
The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Both amendments are about what the Constitution does not say. The Ninth Amendment says that the list of rights in the first eight amendments is not exhaustive. There are other rights, not written down, that the people retain. The Tenth Amendment says that the list of federal powers in Article I, Section 8 is not exhaustive of governmental power. What remains belongs to the states or the people.
The two amendments bookend the Bill of Rights. The First through Eighth Amendments list specific prohibitions on government. The Ninth Amendment says the list is not complete. The Tenth Amendment says the federal government has only the powers the Constitution gives it. Between them, they describe a constitutional order in which the federal government is limited, state governments have substantial authority, and individuals have rights that no government may violate—even if those rights are not written down.
The Ninth Amendment has had a strange history. For most of American history, it was a dead letter. The Court rarely cited it. When it did, the citation was usually cryptic. In Griswold v. Connecticut (1965), Justice Goldberg wrote a concurring opinion relying on the Ninth Amendment to strike down a state ban on contraceptives. But the majority relied on the Fourth and Fourteenth Amendments. The Ninth Amendment was a backup, not the main event.
The Tenth Amendment has had a more active career. It was the textual home for the doctrine of dual federalism—the idea that the states and the federal government operate in separate spheres. The Court used the Tenth Amendment to strike down federal laws that interfered with “essential” state functions. But that version of the Tenth Amendment died in 1937. The modern Tenth Amendment has less power. It forbids the federal government from commandeering state legislatures or executives. Beyond that, it is a truism: the federal government has only the powers the Constitution gives it.
This volume proceeds in two parts. Part One covers the Ninth Amendment: the history of unenumerated rights, the debate over whether the Ninth Amendment is a source of substantive rights, and the relationship between the Ninth Amendment and the Fourteenth Amendment. Part Two covers the Tenth Amendment: the early cases, the death of dual federalism, the revival of the Tenth Amendment in New York v. United States and Printz v. United States, and the anti‑commandeering doctrine.
PART ONE: THE NINTH AMENDMENT
Chapter 1: The Text and History
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
James Madison drafted the Ninth Amendment. He was worried that listing specific rights might imply that those were the only rights. The Anti‑Federalists had made this argument against the Constitution. They said: if you list some rights, the government will assume it has power over everything else. Madison wanted to prevent that inference.
The amendment says nothing about what those unenumerated rights are. It does not say that the courts must enforce them. It only says that the enumeration of some rights does not deny or disparage others.
The history is thin. The debates in Congress about the Ninth Amendment were brief. Madison gave an example: the right to travel, the right to contract, the right to marry. These rights were not listed anywhere in the Constitution, but they were nevertheless fundamental. The Ninth Amendment would protect them from being “denied or disparaged” simply because they were not mentioned.
Chapter 2: The Ninth Amendment as a Rule of Construction
For most of American history, the Court treated the Ninth Amendment as a rule of construction, not a source of rights. It meant: do not assume that the list of rights in the Bill of Rights is complete. If a right is not listed, that does not mean it does not exist. But the Court did not use the Ninth Amendment to discover new rights.
In United Public Workers v. Mitchell (1947), the Court said: “The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of Congress was authorized.”
That is a Tenth Amendment argument, not a Ninth. The Ninth Amendment is about rights; the Tenth is about powers.
Chapter 3: The Revival in Griswold
In Griswold v. Connecticut (1965), the Court struck down a state law banning contraceptives. The majority (Justice Douglas) found a right to privacy in the “penumbras” and “emanations” of the First, Third, Fourth, Fifth, and Ninth Amendments. The Ninth Amendment was listed among others. Douglas said: “The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’ This Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments.”
Justice Goldberg concurred. He relied squarely on the Ninth Amendment. He wrote: “The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.”
Goldberg then listed some of those rights: the right to travel, the right to marry, the right to raise one’s children as one sees fit, the right to privacy. He argued that the right to use contraceptives was among them.
The Griswold majority did not adopt Goldberg’s Ninth Amendment approach. Later cases relied on the Fourteenth Amendment’s Due Process Clause. The Ninth Amendment receded.
Chapter 4: The Ninth Amendment and the Fourteenth Amendment
After Griswold, the Court did not need the Ninth Amendment. The Fourteenth Amendment’s Due Process Clause was a more familiar vehicle for protecting unenumerated rights. In Roe v. Wade (1973), the Court did not mention the Ninth Amendment. The right to abortion was grounded in the Fourteenth Amendment.
In Bowers v. Hardwick (1986), the Court rejected a challenge to a state sodomy law. Justice White, writing for the majority, said: “The Court has no general authority to discover new rights in the Constitution that were not intended by the Framers.” He dismissed the Ninth Amendment in a footnote: “The Ninth Amendment obviously does not create any substantive rights. It is a rule of construction.”
Justice Blackmun, dissenting, responded: “The Ninth Amendment simply is not a rule of construction. It is a substantive guarantee of unenumerated rights.”
The disagreement has never been resolved. The Court has not revisited the question. The lower courts have split.
In Roe and Casey and Lawrence and Obergefell, the Court relied on the Fourteenth Amendment. The Ninth Amendment was mentioned in passing, but it was not the foundation. The Fourteenth Amendment had become the vehicle for unenumerated rights after the Court held that it incorporated the Bill of Rights against the states. The Ninth Amendment applies only to the federal government. The Fourteenth Amendment applies to the states. Most cases involving unenumerated rights arise against the states, not the federal government.
Chapter 5: The Right to Travel
The right to travel is the most firmly established unenumerated right. It is not listed in the Constitution. The Court has grounded it in the Privileges and Immunities Clause of Article IV, the Commerce Clause, and the Fourteenth Amendment. The Ninth Amendment has occasionally been mentioned.
In Kent v. Dulles (1958), the Court struck down a State Department policy denying passports to suspected communists. The Court said: “The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment.” The Court also cited the Ninth Amendment.
In Shapiro v. Thompson (1969), the Court struck down state laws that denied welfare benefits to new residents. The right to travel was “fundamental.” States could not penalize the exercise of that right.
The right to travel has three components: (1) the right to move freely between states, (2) the right to be treated as a welcome visitor in other states, and (3) the right to be treated as a citizen of a new state after establishing residence.
The right to travel is not absolute. The government may restrict travel for national security reasons. It may restrict travel during a pandemic. But any restriction must be narrowly tailored.
Chapter 6: The Right to Marry
The right to marry is also unenumerated. In Loving v. Virginia (1967), the Court struck down state laws banning interracial marriage. The Court relied on the Fourteenth Amendment. In Zablocki v. Redhail (1978), the Court struck down a state law requiring parents to obtain a court order before marrying if they were behind on child support. The Court said: “The right to marry is of fundamental importance for all individuals.”
In Obergefell v. Hodges (2015), the Court held that the right to marry extends to same‑sex couples. Justice Kennedy’s majority opinion relied on the Due Process Clause. The right to marry is “fundamental” because it is “inherent in the concept of individual autonomy” and because it is “a keystone of the social order.” The Ninth Amendment was not mentioned.
Chapter 7: The Right to Raise One’s Children
The right to direct the upbringing of one’s children is another unenumerated right. In Pierce v. Society of Sisters (1925), the Court struck down an Oregon law requiring all children to attend public schools. The Court said: “The child is not the mere creature of the State.” In Meyer v. Nebraska (1923), the Court struck down a law forbidding the teaching of foreign languages to young children. The right to “acquire useful knowledge” was protected.
In Troxel v. Granville (2000), the Court struck down a state law that allowed grandparents to petition for visitation over the objections of a fit parent. The Court said: “The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”
The right is not absolute. The state may intervene to protect a child from abuse or neglect. The state may require that children receive an education. But the burden is on the state to show that its intervention is necessary.
Chapter 8: The Right to Refuse Medical Treatment
In Cruzan v. Director, Missouri Department of Health (1990), the Court held that a competent person has a right to refuse life‑sustaining medical treatment. The right was grounded in the Fourteenth Amendment. The Court did not rely on the Ninth Amendment.
The right to refuse treatment is not absolute. The state may require vaccinations to prevent the spread of infectious disease. Jacobson v. Massachusetts (1905) upheld a mandatory smallpox vaccine law. The state may also require treatment for the mentally ill. But outside those exceptions, a competent adult may refuse any medical treatment, even if the refusal will lead to death.
Chapter 9: The Unenumerated Rights Debate
The existence of unenumerated rights is contested. Originalists argue that the Court should enforce only rights that are “deeply rooted in the Nation’s history and tradition.” That is the test from Washington v. Glucksberg (1997). Under that test, a right must be “objectively, deeply rooted in this Nation’s history and tradition” before the Court will protect it.
Non‑originalists argue that the Court must adapt the Constitution to modern conditions. The “evolving standards of decency” test from the Eighth Amendment has a parallel in the Fourteenth Amendment’s Due Process Clause. The Court should protect rights that are “fundamental to a free society,” even if those rights were not recognized at the Founding.
The Ninth Amendment is caught in the middle. If the Ninth Amendment protects unenumerated rights, then originalists must take it seriously. The text of the Ninth Amendment is an originalist’s proof that the Framers intended unenumerated rights to be protected. But originalists have not embraced the Ninth Amendment. Justice Scalia, the leading originalist of his time, wrote that the Ninth Amendment was “a rule of construction” that “does not create any substantive rights.”
Non‑originalists have also not embraced the Ninth Amendment. They have found the Fourteenth Amendment sufficient.
The Ninth Amendment remains a sleeping giant. It could be the basis for a wide range of rights that the Court has not yet recognized: the right to economic liberty, the right to use drugs, the right to assisted suicide. But the Court has shown no interest in using it.
PART TWO: THE TENTH AMENDMENT
Chapter 10: The Text and History
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Tenth Amendment was added to reassure the Anti‑Federalists that the federal government would not swallow the states. It says what the structure of the Constitution already implies: the federal government has only the powers the Constitution gives it. Everything else is left to the states or the people.
For most of American history, the Tenth Amendment was the primary textual basis for limiting federal power. The Court used it to strike down federal laws that intruded on “state sovereignty.” The doctrine was called “dual federalism.” The idea was that the federal government and the state governments operate in separate spheres. The federal government could not interfere with “essential” state functions.
Chapter 11: Dual Federalism and Its Demise
In Chisholm v. Georgia (1793), the Supreme Court held that a citizen of South Carolina could sue the State of Georgia. The decision provoked such an outcry that it was overruled by the Eleventh Amendment. The Tenth Amendment was not yet part of the Constitution.
The early Tenth Amendment cases were about federal power to charter banks. In McCulloch v. Maryland (1819), Chief Justice Marshall upheld the Second Bank of the United States. The Tenth Amendment was not a barrier. The bank was “necessary and proper” to carry out the federal government’s enumerated powers.
The Tenth Amendment got its teeth in the late nineteenth century. In United States v. E.C. Knight Co. (1895), the Court struck down the Sherman Antitrust Act as applied to a sugar monopoly. The Tenth Amendment reserved to the states the power to regulate manufacturing. The federal government could regulate only commerce, not manufacturing.
In Hammer v. Dagenhart (1918), the Court struck down a federal law banning child labor. The power to regulate child labor was reserved to the states.
The New Deal broke dual federalism. In NLRB v. Jones & Laughlin Steel Corp. (1937), the Court abandoned the manufacturing/commerce distinction. In United States v. Darby (1941), the Court overruled Hammer v. Dagenhart. The Tenth Amendment, the Court said, was “a truism” that “states but a truism that all is retained which has not been surrendered.”
Justice Stone wrote: “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.”
The Tenth Amendment had not been used to strike down a federal law since Darby—until 1976.
Chapter 12: The Revival – National League of Cities
In National League of Cities v. Usery (1976), the Court struck down a federal law extending minimum wage and overtime protections to state and local government employees. The law, the Court held, violated the Tenth Amendment because it “directly displaces the States’ freedom to structure integral operations in areas of traditional governmental functions.”
The test was: does the federal law regulate “states as states”? Does it address matters that are “indisputably attributes of state sovereignty”? Does it impair the state’s ability to structure its own operations?
National League of Cities lasted nine years. In Garcia v. San Antonio Metropolitan Transit Authority (1985), the Court overruled it. The Court held that the Tenth Amendment does not provide a “judicial enforceable limitation” on federal power. The states must protect themselves through the political process—through their representation in Congress.
Justice Blackmun, who had written the majority opinion in National League of Cities, wrote the majority opinion in Garcia. He said the distinction between “traditional” and “non‑traditional” state functions had proved unworkable. The Court could not draw the line.
The dissenters were furious. Justice Powell wrote: “Today’s decision effectively overrules National League of Cities and deprives the States of any judicial protection of their sovereignty.”
Chapter 13: The Anti‑Commandeering Doctrine
After Garcia, the Court found a new way to enforce the Tenth Amendment: the anti‑commandeering doctrine. The federal government may not commandeer state legislatures or state executives to implement federal programs.
Commandeering state legislatures. In New York v. United States (1992), the Court struck down a federal law that required states to take title to low‑level radioactive waste if they failed to provide for its disposal. The law did not force the states to regulate the waste. It gave them a choice: regulate the waste or take title to it. The Court held that this was still commandeering. The choice between two unpalatable options was not a real choice. The federal government could regulate the waste directly. It could not force the states to do its bidding.
Justice O’Connor wrote: “Congress may not simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”
Commandeering state executives. In Printz v. United States (1997), the Court struck down a provision of the Brady Handgun Violence Prevention Act that required state law enforcement officers to conduct background checks on gun buyers. The law did not require state legislatures to pass laws. It required state executives to act. The Court held that this was also commandeering. The federal government could run its own background checks. It could not conscript state officers to do the work.
Justice Scalia wrote: “The Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.”
The anti‑commandeering doctrine is not absolute. The federal government may encourage states to act by offering money. The spending power gives Congress a workaround. If Congress attaches conditions to federal grants, states may choose to accept the money and comply with the conditions. That is not commandeering; it is a voluntary choice.
South Dakota v. Dole (1987) upheld a federal law that withheld 5% of federal highway funds from states that did not raise their drinking age to 21. The condition was not coercive. It was a “relatively mild encouragement.”
Chapter 14: The Spending Power and the Tenth Amendment
The spending power is Congress’s workaround for the Tenth Amendment. Congress may not commandeer state legislatures, but it may offer them money. The states are free to accept or refuse.
The limits on the spending power come from Dole. The condition must: (1) be in the pursuit of the general welfare; (2) be stated unambiguously; (3) be related to the federal interest in the national program; and (4) not violate other constitutional provisions (like the First Amendment). The condition must also not be coercive.
In National Federation of Independent Business v. Sebelius (2012), the Court held that the Affordable Care Act’s expansion of Medicaid was coercive. The law threatened to withhold all Medicaid funding from states that did not expand Medicaid. The expansion would have covered millions of new people. The states had built their budgets around the existing Medicaid program. The threat to cut off all funding was a “gun to the head.” The Court held that the states could choose to expand or not, but if they did not expand, they would only lose the new funding, not all funding.
The distinction between encouragement and coercion is not clear. The Court has not struck down any other spending power condition as coercive.
Chapter 15: The Tenth Amendment and Federal Criminal Law
The Tenth Amendment does not limit the federal government’s power to criminalize conduct. Congress may criminalize any conduct that falls within its enumerated powers. The Commerce Clause gives Congress power to criminalize drug trafficking, gun possession, and other activities that affect interstate commerce. The Tenth Amendment does not reserve to the states a zone of “local” criminal activity.
In United States v. Morrison (2000), the Court struck down a provision of the Violence Against Women Act that created a federal civil remedy for gender‑motivated violence. The Court held that the law was not a valid exercise of the Commerce Clause because the activity was not “economic” and did not substantially affect interstate commerce. The Tenth Amendment was a factor. The Court was reluctant to federalize traditional state criminal law.
But in Gonzales v. Raich (2005), the Court upheld federal drug laws that prohibited the possession of medical marijuana under California law. The Tenth Amendment did not bar the application of federal law. The states could not legalize what Congress had prohibited.
Chapter 16: The Tenth Amendment Today
The Tenth Amendment is a reminder that the federal government has limited powers. But the limits are not enforced by the courts except in two situations:
- The anti‑commandeering doctrine. The federal government may not commandeer state legislatures or executives.
- The spending power limits. The federal government may not coerce states into accepting federal programs.
Outside those two areas, the Tenth Amendment is a “truism.” It states the obvious: the federal government has only the powers the Constitution gives it. But that obvious statement does not tell courts how to interpret the scope of those powers. The scope of the Commerce Clause, the Taxing Power, and the Spending Power are determined by those clauses themselves, not by the Tenth Amendment.
The Court has not used the Tenth Amendment to strike down a federal law under its enumerated powers since New York and Printz. The anti‑commandeering doctrine is not about the scope of federal power. It is about the means the federal government may use. Congress may regulate directly. It may not regulate through the states.
APPENDIX 1: GLOSSARY
Anti‑commandeering doctrine – The Tenth Amendment prohibits the federal government from compelling state legislatures or executives to implement federal programs.
Coercion – The limit on the spending power. If a condition on federal spending is coercive, it violates the Tenth Amendment.
Dual federalism – The theory that the federal government and state governments operate in separate spheres. The Tenth Amendment was the textual home for this theory.
Enumerated powers – The powers specifically granted to Congress in Article I, Section 8. The Tenth Amendment reserves all other powers to the states.
Spending power – Congress’s power to tax and spend for the general welfare. Congress may attach conditions to federal grants, as long as the conditions are not coercive.
Truism – The description of the Tenth Amendment after Darby. The amendment states a basic truth about the constitutional structure but does not itself limit federal power.
Unenumerated rights – Rights not listed in the Constitution. The Ninth Amendment protects them from being “denied or disparaged” simply because they are not listed.
APPENDIX 2: SELECT BIBLIOGRAPHY
Barnett, Randy E. “The Ninth Amendment: A Primer.” Cato Supreme Court Review 2006 (2007): 1.
Barnett, Randy E. The Structure of Liberty: Justice and the Rule of Law. Oxford University Press, 1998.
Calabresi, Steven G. “The Tenth Amendment After Printz and New York.” William & Mary Bill of Rights Journal 7 (1998): 1.
Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 7th ed. Wolters Kluwer, 2023 (Chapters 3 – Federalism; 11 – Ninth Amendment).
Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Harvard University Press, 1980 (Chapter 2 – The Ninth Amendment).
Lash, Kurt T. “The Lost Original Meaning of the Ninth Amendment.” Texas Law Review 83 (2004): 331.
Lash, Kurt T. The Lost History of the Ninth Amendment. Oxford University Press, 2009.
Merrill, Thomas W. “The Tenth Amendment and the Future of Federalism.” Harvard Journal of Law & Public Policy 15 (1992): 77.
Merrill, Thomas W. “The Anticommandeering Principle: A Positive Account.” Supreme Court Review 2018 (2019): 1.
Powell, H. Jefferson. “The Tenth Amendment: A Historical and Contemporary Analysis.” American Journal of Legal History 33 (1989): 101.
Siegel, Reva B. “The Constitutionalization of the Right to Privacy: The Ninth Amendment and the Unenumerated Rights.” University of Chicago Law Review 68 (2001): 1.
Tribe, Laurence H. American Constitutional Law. 3rd ed. Foundation Press, 2000.
Williams, Walter E. “The Tenth Amendment: A Truism with Teeth?” Pepperdine Law Review 25 (1998): 927.
Volume 9A covers the Ninth Amendment (the history of unenumerated rights, the revival in Griswold, the relationship with the Fourteenth Amendment, and specific unenumerated rights like travel, marriage, parenting, and medical refusal) and the Tenth Amendment (dual federalism, its demise, the anti‑commandeering doctrine, the spending power limits, and the modern Tenth Amendment).
Volume 10 A: The Reconstruction Amendments – 13th, 14th, and 15th Amendments?
