Document Type

Article

Publication Date

2001

Abstract

A standard view at the time of the adoption of the Constitution was that “a constitution does not in itself imply any more than a declaration of the relation which the different parts of the government have to each other, but does not imply security for the rights of individuals.” The drafters of the state constitutions had “assumed that government had all power except for specific prohibitions contained in a bill of rights.” When the federal Constitution was transmitted to the states by Congress, Nathaniel Gorham of Massachusetts defended the omission of a bill of rights based on the federal Constitution's unique system of enumerated powers, explaining that “a bill of rights in state governments was intended to retain certain power [in the people] as the legislatures had unlimited powers.” In this article, the author argues that an alternative understanding of the framers' design, then, is to understand the Ninth Amendment as a federalism-based provision designed to clarify that the people had “retained” as rights not only the limits on granted powers stated in the Bill of Rights, but also all they had not granted as powers to the federal government.

Publication Citation

1 Nev. L.J. 138 (2001).

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