Kurt Lash’s Majoritarian Difficulty

Randy Barnett Carmack Waterhouse Professor of Legal Theory Georgetown University Law Center.

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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.” When I first encountered these words as a student in Larry Tribe’s Constitutional Law class, I was amazed. Here was textual authorization for the protection of unenumerated rights—indeed, for Liberty!  I soon learned that the Supreme Court had cursorily dismissed the Amendment in a 1947 case:

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 the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.1

Not only does Justice Reed render the Ninth Amendment functionless in constitutional adjudication, he rather carelessly runs it together with the Tenth. 

At the time I began researching the original meaning of the Ninth Amendment in the 1980’s, it was still justly called “The Forgotten Ninth Amendment.”  Then came the nomination of Robert Bork to the Supreme Court and his infamous equation of the Ninth Amendment to an inkblot:

I do not think you can use the [N]inth [A]mendment unless you know something of 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 inkblot if you cannot read it.2

This was a shocking statement by someone committed to originalism.  Within months an extensive literature on the Ninth Amendment began to accumulate. 

In his book, The Tempting of America,3 Bork switched his inkblot metaphor to the Privileges or Immunities Clause of the Fourteenth Amendment.  In its place, he adopted Russell Caplan’s thesis that “the rights . . .  retained by the people” referred solely to rights recognized by state law, which could be altered at will by state governments.4 Apart from the fact the protection of these rights was never stated as a rationale for the Ninth Amendment, Caplan’s claim was contradicted by extensive evidence that the “rights . . . retained by the people” was a reference to natural rights.  Consider this amendment proposed by Roger Sherman while serving on the House Select Committee formed to draft a bill of rights, which begins: “The people have certain natural rights which are retained by them when they enter into Society. . . .”  After listing some of these rights, it concludes with the following injunction: “Of these rights therefore they Shall not be deprived by the Government of the united States.”5

Sherman’s draft explicitly linked the concept of “natural rights” with that of rights “retained” by “[t]he people.” The examples of these rights that follow include the undeniably individual rights of conscience, acquiring property, and of pursuing happiness and safety, freedom of speech, writing and publishing.  Sherman’s identification of these individual natural rights was commonplace.6  Another example can be found in the first paragraph of another proposed list of amendments as inscribed in the Senate Legislative Journals on September 8, 1789:  “That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”7

Sherman’s draft dramatically shows how those in Congress during the drafting process thought of natural rights.  First, natural rights were individual, personal or private rights, as evidenced by the examples enumerated by Sherman.  Second, at this level of generality, those who enter into social compacts cannot deprive or divest their posterity of these natural rights regardless of the powers they may delegate to government.  They are, in other words, inalienable.

In the 1990s, another Ninth Amendment theory was proposed.  Thomas McAffee claimed that the “rights . . . retained by the people” were simply any right that was left over after the enumeration of powers to the Congress.  What he called the “residual rights” model basically adopted the view of the Supreme Court in United Public Workers v. Mitchell.8  According to this model, the rights retained by the people were defined exclusively by examining the powers granted to Congress and added nothing to the analysis of the scope of these powers. 

This theory was largely abandoned after it was pointed out that James Madison, the author of the Ninth Amendment, employed it to limit the powers of Congress under the Necessary and Proper Clause during the Congressional debate over the first national bank.  To support his argument that the power to incorporate a bank, and grant it a monopoly, was beyond those granted to Congress under the Necessary and Proper Clause, Madison observed: “The latitude of interpretation required by the bill is condemned by the rule furnished by the Constitution itself.”9  As one authority for this “rule” of interpretation, Madison cited the Ninth Amendment.  “The explanatory amendments proposed by Congress themselves, at least, would be good authority with them; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended for.”10   Madison then “read several of the articles proposed, remarking particularly on the 11th [the Ninth Amendment] and 12th [the Tenth Amendment], the former, as guarding against a latitude of interpretation; the latter, as excluding every source or power not within the Constitution itself.”11

Madison’s use of the Ninth Amendment to oppose a latitudinarian constructions of federal power comprises a virtual refutation of the residual rights model.  Madison himself used the Ninth Amendment in a manner that is completely outside the only function that McAffee claimed it had.  Nor is Madison’s usage in his bank speech consistent with the state law rights model.  Although the national bank was opposed, in part, as an interference with the power of states to have their own banks, the state law rights model concerns the rights of individuals as protected by state bills of rights or the common law.  In making his Ninth Amendment argument, Madison referred to neither sorts of state law rights.

In recent years, Kurt Lash has become the latest scholar to question the natural rights reading of the Ninth Amendment, though he is careful not to deny that the “rights . . . retained by the people” refers to natural rights.  Instead, he contends that, in addition to individual natural rights, these rights include a collective right of majorities within the states to govern.  Actually, throughout his writings, Lash offers differing formulations of this alleged right, but they all share in common the protection of majorities within the states to regulate or prohibit at will the individual natural rights retained by the people.12

Elsewhere I comprehensively evaulate each of the proposed models of the Ninth Amendment in light of all the salient evidence of its original meaning.13  In this essay, I confine myself to explaining why it is highly unlikely that the public meaning of the rights retained by the people included a collective right of majorities to rule.

 
I.
The Antimajoritarianism of James Madison

Reading a right of state majoritarian rule into the Ninth Amendment is particularly odd given that this provision was conceived and formulated by one of the more antimajoritarian figures of the day: James Madison.  Indeed, in a variety of fora, Madison consistently expressed his view that popular majorities, especially those at the state level, were the principal threat to “private” or individual rights.  In a letter to Thomas Jefferson in the period between the drafting of the Constitution and the Bill of Rights, Madison explained:

Wherever the real power in a Government lies, there is the danger of oppression.  In our Governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.14

This concern for the violation of private individual rights by majorities in the state’s was reflected in Madison’s theory of faction.  “By a faction,” he famously wrote in Federalist No. 10, “I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”15

Madison had previously made a similar point to the Constitutional Convention itself in words that foretold his argument in Federalist No. 10. “In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger.”16  He then applied this insight to the abuses of legislative power in the states:

What has been the source of those unjust laws complained of among ourselves?  Has it not been the real or supposed interest of the major number?  Debtors have defrauded their creditors.  The landed interest has borne hard on the mercantile interest.  The holders of one species of property have thrown disproportion of taxes on the holders of another species.  The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure.17

Later he observed to the Virginia ratification convention that “on a candid examination of history, we shall find that turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions, which, in republics, have, more frequently than any other cause, produced despotism.”18

From his private letters, to speeches at the Constitutional Convention and the Virginia ratification convention, to The Federalist Papers, Madison consistently and clearly differentiates between, on the one hand, the power of the majority and, on the other, the private rights of individuals, as well as the aggregate interests of the people as a whole.  Yet Lash’s majoritarianism requires him to think that James Madison chose wording for a constitutional amendment the public meaning of which protected a right of a majority in the states to govern over the minority.  That’s a problem.

 
II.
The Antimajoritarianism of the Constitutional Convention

As a skeptic of majoritarianism, Madison was not alone.  Opposition to majoritarian rule, derisively called “democracy” in this period, was repeatedly voiced at the Constitutional Convention. As Elbridge Gerry, deputy from Massachusetts stated: “The evils we experience flow from the excess of democracy.”19  After listing a number of abuses, he admitted that he “was still however republican, but had been taught by experience the danger of the levilling spirit.”20  “Experience,” he claimed, “had shewn [sic] that the State legislatures drawn immediately from the people did not always possess their confidence.”21

Roger Sherman of Connecticut contended that the people “immediately should have as little to do as may be about the Government.”22 Virginian Edmond Randolph observed that “the general object was to provide a cure for the evils under which the U.S. laboured,” the origins of which “every man had found . . . in the turbulence and follies of democracy.”23 Gouverneur Morris, deputy from Pennsylvania, noted that “[e]very man of observation had seen in the democratic branches of the State Legislatures, precipitation—in Congress changeableness, in every department excesses against personal liberty private property & personal safety.”24  The only tepid defense of majoritarianism at the Convention came from Virginia’s George Mason who “admitted that we had been too democratic” in forming state governments but said he “was afraid that we should incautiously run into the opposite extreme.”25

In place of the legislative supremacy incorporated in state constitutions that led to majoritarian factionalism, the founders struggled to devise what they still called a “republican” form of government in which the people would not rule, but would check their agents in government who do by various mechanisms.  Given that the popularly-elected House was designed to be the most democratic branch, the desire by Convention delegates to cabin democratic majoritarianism was revealed most clearly during their discussion of the manner by which the President and, especially, the Senate was to be chosen.  As Edmond Randolph summarized the problem: “The democratic licentiousness of the State Legislatures proved the necessity of a firm Senate.  The object of this 2d branch is to controul the democratic branch of the National Legislature.”26   Gouverneur Morris agreed, observing that the object of the Senate was “to check the precipitation, changeableness, and excesses of”27 the House.  “The use of the Senate,” said Madison, “is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch.”28

Lash would have us believe that, immediately after this counter-majoritarian Constitution was adopted, the Federalist-dominated Congress would propose adding language to the Constitution the public meaning of which protected a constitutional right of majorities to rule in the states, the very sort of right they denied majorities at the national level.  Not very likely.

 
III.
The Antimajoritarianism of the Bill of Rights

Now it may well be true that opponents of the Constitution were more majoritarian than were the framers and the Federalists, and that a bill of rights was promised as a way of mollify their objections.  Primarily, however, a bill of rights was promised and proposed to assuage those in the middle who were moved by the antifederalists’ objection that the Constitution lacked a bill of rights—those who were persuaded to support the Constitution by the Federalists’ promise to adopt a Bill of Rights in the form of amendments after its adoption. 

These amendments were then drafted by antimajoritarian James Madison and approved by an antimajoritarian Federalist-dominated Congress.  Providing express protections of individual rather than states rights would deliver on the Federalists’ promise while avoiding, to the degree possible, undermining their fledgling new national government by the states.  So it is not at all surprising that the Bill of Rights took on a decidedly individualist cast.

Choosing language protecting individual private rights would satisfy the public’s concerns about the absence of a bill of rights, reinforce the national character of “the people” to which the Preamble referred, without threatening the fledgling national government’s power to reign in abusive state governments.  Of course, the fact that a protection of individual rights would protect not only the rights of a minority against abuses by majority factions but also the rights of the majority against abuses by minority factions is a feature rather than a bug of protecting individual rights.

Given the purposes of Madison and the other Federalists in Congress, we would expect the language of the Bill of Rights to be individualist, and it is.  Insofar as it protects the rights of the people, “the people” is used as a mass noun to refer to the plural of persons who constitute the body politic (as distinct from other persons who are not a part of this polity).  It explicitly distinguishes between “the people” and “the states” and, where it protects the rights of states in a federal system, it does not use the terms “the people” or “right” at all; it uses the terms “power” and “states.”

As the Federalists had previously argued, however, the enumeration in the Constitution of some individual rights would be dangerous to other individual rights not enumerated.  Why?  As Madison explained to Congress in his Bill of Rights speech, enumerating certain rights could later be taken as implying “that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure.”29 Once some individual rights were being protected, this danger needed to be ameliorated.

Among the numerous amendments recommended by state ratification conventions that Madison consulted in preparing his proposal, none addressed this specific Federalist concern.  All the similarly worded recommendations by the states concerned construing the powers defined in the unamended Constitution; they did not address the problem of construing the rights retained by the people in light of the enumeration of some of these rights that the state ratification conventions were proposing.  

As Madison explained to Congress, the Ninth Amendment was his solution to the Federalist objection to adding any bill of rights to the Constitution.30  This makes the Ninth Amendment sui generis in the Bill of Rights insofar as it was specifically designed by James Madison to respond, not to antifederalist concerns about the absence of a bill of rights, but to Federalist concerns about including one.  For this reason, reading the Ninth Amendment in light of antifederalist concerns or state proposals protecting states rights is a serious error. 

 
IV.
The Original Public Meaning of the Ninth and Tenth Amendments

The original public meaning of “the people” in the Ninth Amendment is illuminated by comparing it with “the people is used elsewhere in the Bill of Rights and the original Constitution.  In the Fourth Amendment, for example:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.31

The rights of “the people” to which the Fourth Amendment refers, though possessed by members of a polity, are entirely individual.  Individuals own their own bodies (“their persons), and their own “houses, papers, and effects.

Language matters.  That the language chosen for the Bill of Rights by Madison and the other Federalists in Congress had a decidedly individualist meaning is shown by the reception of the Ninth and Tenth Amendments in the Virginia legislature when it deliberated over whether to ratify these and the other amendments proposed by Congress.  To appreciate the significance of this debate, one must first examine two amendments that had been proposed to Congress by the Virginia ratification convention when it ratified the Constitution:

First, That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Foederal [sic] Government. . . .

Seventeenth, That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress.  But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.32

There is nothing in these proposals about the rights of the people, collective or otherwise.  They speak entirely in the language of the retained powers, jurisdictions, and rights of states, which is the language one would choose to protect a right of state governance.  Nor is there anything in Virginia’s proposals that deals with the problem for which the Ninth Amendment was Madison’s solution: how to avoid the danger to unenumerated rights when some subset of individual rights are expressly singled out for protection in a bill of rights.  Instead of dealing with the dangers of enumerating rights, these proposals solely concern the problems of limiting federal power and protecting the rights of states.  With respect to these issues, the Virginians said exactly what they meant.

Precisely because the Federalists in Congress proposed amendments with different wording and having a different public meaning, Virginia’s General Assembly initially rejected the Ninth and Tenth Amendments (then the eleventh and twelfth proposed “articles of amendments” respectively).33  In the Virginia senate, to which the amendments were then referred, a majority bemoaned the Ninth Amendment because it so greatly deviated from their state’s proposals for amendments as to be unrecognizable:

We do not find that the 11th article is asked for by Virginia or any other State; we therefore conceive that the people of Virginia should be consulted with respect to it, even if we did not doubt the propriety of adopting it; but it appears to us to be highly exceptionable.34

That the public meaning of the Ninth Amendment completely differed from the language previously proposed by Virginia is further reflected in this objection: “If it is meant to guard against the extension of the powers of Congress by implication, it is greatly defective, and does by no means comprehend the idea expressed in the 17th article of amendments proposed by Virginia . . . .”35

The Virginians read the Ninth Amendment as referring to individual or personal rights, not collective or majoritarian rights, equating “the rights of the people” with “personal rights”: 

[A]s it respects personal rights, [it] might be dangerous, because, should the rights of the people be invaded or called into question, they might be required to shew by the constitution what rights they have retained; and such as could not from that instrument be proved to be retained by them, they might be denied to possess.36

Sadly, their judgment of the effectiveness of the Ninth Amendment proved to be prescient, and succinctly summarizes how the Amendment has largely failed to achieve its purpose.

Equally inhospitable to a collective rights reading of “the people” in the Ninth Amendment was the Virginia majority’s objection to the wording of the Tenth Amendment (then the twelfth proposed article of amendment).  This they rejected because the words “or to the people” had been added to their proposal thereby changing its meaning to undercut rather than protect states rights:

We conceive that the 12th article would come up to the 1st article of the Virginia amendments, were it not for the words “or to the people.”  It is not declared to be the people of the respective States; but the expression applies to the people generally as citizens of the United States, and leaves it doubtful what powers are reserved to the State Legislatures.37

This objection echoed that of Virginia’s United States Senator, Richard Henry Lee:

By comparing the Senate amendments with [those] from below by carefully attending to the m[atter] the former will appear well calculated to enfeeble [and] produce ambiguity—for instance—Rights res[erved] to the States or the People—The people here is evidently designed fo[r the] People of the United States, not of the Individual States [page torn] the former is the Constitutional idea of the people—We the People &c. . . . [T]his mode of expressing was evidently calculated to give the Residuum to the people of the U. States, which was the Constitutional language, and to deny it to the people of the Indiv. State—At least that it left room for cavil & false construction—They would not insert after people therof—altho it was moved.38

Both of Virginia’s U.S. senators accompanied their joint report to the Governor of Virginia with their denial that the amendments proposed by Congress comported with the Virginia recommendations. “[I]it is with grief that we now send forward propositions inadequate to the purpose of real and substantial Amendments, and so far short of the wishes of our Country,”39 by which they meant Virginia.  “By perusing the Journal of the Senate, your Excellency will see, that we did, in vain, bring to view the Amendments proposed by our Convention, and approved by the Legislature.”40

So far as Lee and the majority in the Virginia senate were concerned, the public meaning of “the people” in the Tenth Amendment did not refer to a majoritarian or collective right of the people in the states to govern free of interference of the federal government.  To the contrary, they read it as protecting the powers reserved to the people “as citizens of the United States.”  The very language they desired to protect states rights was, however, eventually incorporated into another constitution.

The Constitution of the Confederate States of America contained two provisions that corresponded to the Ninth and Tenth Amendments but with significant additional language (in italics):

5.  The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people of the several States.

6. The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof.41

Had the original public meaning of the Ninth and Tenth Amendments been as collectivist and/or majoritarian as Lash claims, there would have been no need to alter their wording in this way to achieve a state-protective result, especially if Lash is correct about how subsequent courts interpreted the Ninth Amendment in the early Nineteenth Century.42  The Confederate constitution teaches what language would have been required to expressly protect collective or states rights, and it was not the language used in the Ninth and Tenth Amendments.

 
V.
Conclusion

Kurt Lash’s majoritarian vision of the “rights . . . retained by the people” is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, those who wrote the Constitution, and those Federalists in Congress who drafted and proposed the Bill of Rights.  Not coincidentally, Lash’s vision is contrary to the individualism of the other amendments constituting the Bill of Rights, and the public meaning of the Ninth Amendment as it was received during its ratification.43  A collectivist interpretation of the “rights . . . retained by the people” is anachronistic—a projection of contemporary majoritarianism onto a text which was and is most naturally read as referring to the natural rights retained by all individuals, and to these rights alone.dingbat

 

Acknowledgments:

Copyright © 2009 Stanford Law Review.

Randy E. Barnett is Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center.

This Editorial is based on the following full-length Article:   Randy E. Barnett, Kurt Lash’s Majoritarian Difficulty, 60 STAN. L. REV. 937 (2008). Click Here for the Full Version

  1. United Public Workers of America v. Mitchell, 330 U.S. 75, 95-96 (1947) (emphases added).
  2. Nomination of Robert H. Bork to be Associate Justice to the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. 249 (1987) (statement of Judge Robert H. Bork).
  3. ROBERT BORK, THE TEMPTING OF AMERICA 166 (1990).
  4. See Russell L. Caplan, The History and Meaning of the Ninth Amendment, 69 VA. L. REV. 223 (1983).
  5. Roger Sherman’s Draft of the Bill of Rights, in 1 THE RIGHTS RETAINED BY THE PEOPLE 351 (Randy E. Barnett ed., 1989).
  6. See Jeff Rosen, Note, Was the Flag Burning Amendment Unconstitutional?, 100 YALE L.J. 1073, 1075 (1991).
  7. 1 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS 1789-1791, at 160 (Linda Grant De Pauw ed., 1972).
  8. 330 U.S. 75 (1947).
  9. 1 ANNALS OF CONG. 1949 (1791) (statement of Rep. Madison) (emphasis added).
  10. Id. at 1951.
  11. Id.
  12. See Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment, 60 STAN. L. REV. 895, 906 (2008); Kurt Lash, The Lost Original Meaning of the Ninth Amendment, 83 TEX. L. REV. 331 (2004).
  13. See Randy E. Barnett, The Ninth Amendment: It Means What it Says, 85 TEX. L. REV. 1 (2006).
  14. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 1 LETTERS AND OTHER WRITINGS OF JAMES MADISON, FOURTH PRESIDENT OF THE UNITED STATES 425 (Phila., J.B. Lippincott & Co. 1867) (first and second emphases added).
  15. THE FEDERALIST No. 10, at 78 (James Madison) (Clinton Rossiter ed., 1961) (emphases added).
  16. JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 76 (Adrienne Koch ed., Ohio Univ. Press 1984) (1840) (statement of Madison) (emphases added).
  17. Id. at 77 (emphases added).
  18. 3 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 87 (1876) (statement of James Madison on June 16, 1788).
  19. MADISON, supra note 16, at 39 (statement of Elbridge Gerry).
  20. Id.
  21. Id. at 41.
  22. Id. at 39 (statement of Roger Sherman) (advocating that House members be chosen by state legislatures).
  23. Id. at 42 (statement of Edmund Randolph).
  24. Id. at 233 (statement of Governeur Morris).
  25. Id. at 39 (statement of George Mason) (advocating popular elections of Representatives to the House).
  26. Id. at 110 (statement of Edmund Randolph).
  27. Id. at 233 (statement of Governeur Morris).
  28. Id. at 83 (statement of James Madison).
  29. James Madison, Speech in Congress Proposing Constitutional Amendments, June 8, 1789), in WRITINGS 448-49 (Jack N. Rakove ed., 1999).
  30. Id. at 449 (“This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentleman may see by turning to the last clause of the fourth resolution {the precursor of the Ninth Amendment}.”)
  31. U.S. CONST. amend. IV (emphasis added).
  32. Amendments Proposed by the Virginia Convention (June 27, 1788), in THE COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES AND ORIGINS 675 (Neil H. Cogan ed., 1997).
  33. See Letter from Hardin Burnley to James Madison (Nov. 28 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1786-1870, at 219 (1905).
  34. Saturday, December 12, 1789, in JOURNAL OF THE SENATE OF THE COMMONWEALTH OF VIRGINIA 63 (Richmond, Thomas W. White 1828).
  35. Id.
  36. Id. at 63-64 (first and second emphases added).
  37. Id. at 64 (emphasis added).
  38. Letter of Richard Henry Lee to Patrick Henry (Sept. 14, 1789), in CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 295, 296 (Helen E. Veit, et al. eds., 1991).
  39. Letter of Richard Henry Lee & William Grayson to the Governor of Virginia (Sept. 28, 1789), in 5 DOCUMENTARY HISTORY OF THE CONSTITUTION, supra note 33, at 216.
  40. Id.
  41. CONFEDERATE CONST. art. VI, §§ 5, 6 (1861) (emphases added).
  42. See Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 TEX. L. REV. 597, 609 (2005).
  43. For an explanation of how Lash’s vision is also contrary to the individualist conception of popular sovereignty adopted in the text of the Constitution adopted by the Supreme Court in its first major constitutional decision, Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), and how it is contrary to the individualist interpretation of the Ninth Amendment by St. George Tucker, the one source he cites who actually uses the word “collective,” see Randy E. Barnett, Kurt Lash’s Majoritarian Difficulty, 60 STAN. L. REV. 937, 954-63 (2008).

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