The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

9th Amendment

The Inclusion of the 9th Amendment in the Bill of Rights

Rights Retained by the People vs. Restricting Powers of Congress

Madison’s full proposal for what would become the 9th Amendment was as follows:

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.

When the House Select Committee revised Madison’s proposal, they streamlined his phrases into the exact wording we find in the 9th Amendment: “The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” It passed through both Houses of Congress with no recorded debate of any significance.

Madison evidently believed that the streamlined version of the 9th Amendment made no difference to its meaning, since the first part and the second part of his own version were just two different ways of saying the same thing. Not everyone agreed. When the proposed amendments were debated in Virginia’s legislature, they adopted all but the last two with little fuss. Edmund Randolph, however, threatened to undo all their labors by leading the charge against what would become the 9th and 10th Amendments. He stated that he would rather the 9th Amendment state that the rights named in the Constitution should not be construed to extend the powers of Congress rather than stating the more indefinite principle that there were other rights “retained by the people.” Madison and others could not see “the force of this distinction.” It seemed but two ways of saying the same thing, since no “line can be drawn between the powers granted and the rights retained.” Nevertheless, our contemporary debates over the Ninth Amendment might have looked very different if the House had retained Madison’s original wording.