In 1987, Robert Bork testified before the Senate as a nominee for the Supreme Court. Time and again, he defended his views about the Constitution by invoking its original meaning. When asked about the Ninth Amendment, however, Bork was at a loss:

I do not think you can use the [N]inth [A]mendment unless you know...what it means. For example, if you had an amendment that says “Congress shall make no” and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot....

After the Bork hearings, Randy Barnett began a study of the Ninth Amendment. He concluded that it protected individual 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 justify its infringements on individual liberties.

One scholar, however, recently challenged Barnett’s work as anachronistic and incomplete. In 2004, Kurt Lash claimed to have uncovered “lost history” of the Ninth Amendment. He produced historical evidence that the Ninth and Tenth Amendments were intended to work together to protect state powers, rather than individual rights. Whereas the Tenth Amendment reserved powers to the states, the Ninth prohibited interpretations of enumerated power that disparaged those states’ rights. The debate between Lash and Barnett is ongoing, yet it has attracted little attention until now. Lash’s “federalism model” could have far-reaching consequences for federalism jurisprudence; its potential lies in linking the Ninth and Tenth Amendments. Indeed, the Supreme Court often has been criticized for invoking the Tenth Amendment to protect state sovereignty. The Tenth Amendment, critics say, is just a “truism,” declaring that states retain all powers not ceded to the federal government. Therefore, the argument goes, the Tenth Amendment cannot limit the power that was delegated to the federal government.

Despite that criticism, the Court has invoked the Tenth Amendment’s “spirit” on a number of occasions. In the 1970s and 1980s, it struck down statutes that interfered with “traditional” state functions. In the 1980s and 1990s, it protected state sovereign immunity in cases where the Eleventh Amendment’s text seemed not to apply. Finally, in 1995, the Court limited the commerce power for the first time in sixty years. In citing the Tenth Amendment, however, the Court consistently came under fire, from both academics and some of its own members, for protecting state sovereignty without textual or historical support.

In this Comment, I explore how Lash’s “federalism model” of the Ninth Amendment might be applied to the Supreme Court’s federalism jurisprudence. My aims are 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; and second, to demonstrate how the lack of a federalist Ninth Amendment might have forced the Court to stretch the scope of 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’sdeveloping scholarship. In Part II, I explain how Barnett’s “individual rights model” already has been applied, albeit unsuccessfully, over the last fifty years. Finally, in Part III, I apply the “federalism model” to Commerce Clause, Tenth Amendment, and Eleventh Amendment jurisprudence. I argue that the Court struggled in each instance to protect states from expanding federal power partly because the Ninth Amendment’s federalist history had not yet been uncovered. To prevent broad interpretations of federal power as it did, the Court needed a rule of construction that the Tenth Amendment’s text could not supply. Under the “federalism 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 are existing protections of federalism.

Denied and Disparaged: Applying the "Federalist" Ninth Amendment