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Amendment vs. Interpretation: Two Options for Supplementing the Text’s Enumeration of Rights and Powers

Amendment vs. Interpretation: Two Options for Supplementing the Text’s Enumeration of Rights and Powers

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Privacy and the American Constitution



adopted it would have provided direct support for Chief Justice Taney’s

Dred Scott claim that African-Americans were ineligible, as a matter of

original understanding, for United States citizenship.9 But a more general issue is at stake here, for Jefferson was concerned with textual

incompleteness—with the text’s silence on the issue of federal acquisition of territory beyond the country’s original boundaries. Incompleteness

is a relative term: a plan is incomplete when measured against a further

step that could have been taken but wasn’t. As far as the Constitution is

concerned, there are matters where this could have might be contested.

National expansion isn’t one of these issues, however, for the Articles of

Confederation, adopted in 1781, state that Canada may be incorporated

into the United States.10 Because the Philadelphia Convention could

have dealt with expansion as well, it’s reasonable to say that Jefferson

thought reproachfully about the framers’ failure to address the possibility

of national expansion given discussion of this prior to ratification.11

Another definitional point has to be considered in light of Jefferson’s

decision to bypass Article V, for Jefferson can be said to have opted for

interpretive supplementation to address the constitutional afterthought

of national expansion. Like incompleteness, afterthought is a relative term.

For afterthought, the key relational concept is forethought, a necessary

feature of planning. Article V offers a way to deal with planning failures.

Interpretive supplementation stands as an alternative to Article V,

though, provided the already-existing plan offers sufficient resources

for deriving an unmentioned right or power from those mentioned.

It’s in this sense that I use the term constitutional afterthought to talk

about matters such as privacy rights, rights of freedom of expression, a

right to travel, and of course the power to acquire territory from foreign

countries. Needless to say, many afterthoughts have been incorporated

into the text by means of Article V. There’s no need to speak of an amendment as a constitutional afterthought, however, for once a revision is



9



Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404 (1857).

Articles of Confederation, Article XI.

11

Gouverneur Morris commented on the Convention’s awareness of the possibility of national

expansion. See Max Farrand, The Framing of the Constitution of the United States 143–4 (2000).

10



Chapter 1: Constitutional Afterthoughts



29



adopted pursuant to Article V the text actually says what it could have said

in the first place.

In contrast, constitutional afterthought offers a useful way to think about

norms that have achieved constitutional standing by means of interpretive

supplementation. That is, we can say that constitutional afterthoughts are

concerned with matters that (i) could have been included in the text but

(ii) instead have been accorded authoritative status through interpretation

of already-existing provisions. If we return to the Louisiana Purchase, we

can see that it serves as a prime example of an early constitutional afterthought, for it established a norm, adopted in the absence of Article V

deliberation, that permits the federal government to acquire territory

whether or not it will be incorporated into the union of states. The

precedent Jefferson set supported acquisition by later generations of

territories that eventually became states—but also those that haven’t

(Puerto Rico and Guam, for instance). The text has never been amended

to record the fact that the federal government has this power, so one has to

rely on a constitutional genealogy—that is, one has to speak of norms of

governance that have emerged in the absence of Article V deliberation.

These norms are discoverable only by retrieving details of the past; they

can’t be discovered by consulting the text itself.

Because Jefferson expressed skepticism throughout his later life about

the constitutional propriety of the Louisiana Purchase,12 it’s hardly

surprising he never examined the premises of the exercise in supplementation needed to justify it. Somewhat more surprising, however, is the fact

that Madison failed to examine the interpretation/amendment tradeoff

during ratification debates. It’s only by examining shards of commentary

on other issues that we can reconstruct Madison’s pre-ratification position about whether to move from the said to the unsaid without reliance

on Article V. The best way to approach this issue is to examine the sense

in which founding-era lexicographers employed the word plan. After that,

it will be possible to consider Madison’s ratification-era commentary on

the constitutional plan as a scheme of government.



12



See Jefferson to John Colvin, September 20, 1810, supra note 7, at 11 Works 146.



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Eighteenth Century Lexicographers on the Nature of Planning

Dictionaries published at the time of the text’s ratification emphasized

the role of foresight in planning. They did so by treating afterthought as a

term that refers to planning failure, thus underscoring the importance of

the relationship between ex ante deliberation and ex post uncertainty

about what to do when a plan is silent concerning a given issue.

Consider first the definition lexicographers offered for plan. In defining it as a noun, Samuel Johnson’s 1755 Dictionary of the English

Language contains the following entries: “a scheme, a form, a model.”

In speaking of it as a verb, Johnson proposes: “to scheme, to form in

design.”13 Each of these entries emphasizes foresight, not merely purposive activity but also deliberation about the value of alternative courses of

conduct.

The 1828 edition of Noah Webster’s dictionary also emphasizes the

deliberative nature of planning. It does so, however, by noting two

different senses of the noun plan. Each sense is clearly indebted to

Johnson’s entries, but the distinction drawn by Webster emphasizes, as

the Johnson dictionary does not, the varying degrees of rigidity associated with plans. Webster’s first definition is concerned with plans

made for material objects: “A draught or form; properly the representation of any thing on a plane, as a map or chart, which is a representation

of some portion of land.” Webster’s second definition deals with plans of

a different kind, plans made not to represent material objects but to

engage in future conduct:

A scheme devised; a project; the form of something to be done existing in

the mind, with the several parts adjusted in idea, expressed in words or

committed to writing; as the plan of a constitution; the plan of a treaty;

the plan of an expedition.14



13



2 Samuel Johnson, A Dictionary of the English Language 354 (2nd ed. 1755).

Noah Webster, American Dictionary of the English Language (1828) at http://mshaffer.com/d/

word/plan.



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Chapter 1: Constitutional Afterthoughts



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It’s hardly surprising that Webster, a partisan of the Constitution,15

would have included a not-so-subtle reference to The Federalist’s characterization of it in his dictionary. Furthermore, it’s intriguing that

Webster’s second entry for plan emphasizes flexibility in a way the first

doesn’t. Architectural draughts must be precise. When drawing up a

plan for a building, an architect tries to anticipate in the ex ante exactly

what will exist in the ex post. If implementers honor a plan-as-draught,

there is no genealogy worth considering: the ideas adopted in the ex ante

are those realized in the ex post.

On the other hand, a genealogy is indeed possible for Webster’s alternative conception of a plan. Plans-as-schemes also involve foresight and

goal-setting. But schemes can allow for leeway in implementation, as can

plans for an expedition, thus making it necessary to consider ex ante events

to understand the scheme’s full significance. A drafter’s instruction that

people on an expedition stop at point A and then determine the best way to

reach point Z can be classified as an exercise in planning given the

importance placed on reaching Z, but the plan is deliberately incomplete

in that it assumes the possibility that discretion will be exercised in

implementing its terms. Only a narrative of implementation—a genealogy

undertaken after the event—will make it possible to grasp the actual

character of the scheme.

The Johnson and Webster entries for afterthought both focus on hindsight regret. Johnson’s is: “reflections after the act; expedients formed too

late.”16 Because Webster’s entry is “reflections after an act; later thought,

or expedient occurring too late,”17 it seems reasonable to suppose

that Webster followed Johnson here. When linked to plan-as-scheme,

this conception of afterthought-as-hindsight-regret suggests the possibility

of revision by means of interpretation—not revision of a plan’s

definite instructions, of course, for an implementer can claim fidelity to

a plan only by honoring punctiliously its precise instructions, but

instead revision through reconsideration of vague provisions that set a

direction but that don’t specify how to reach it. When a plan relies on

15



See Allen Snyder, Defining Noah Webster 80–1 (2002).

1 Johnson, supra note 13, at 96.

17

Webster, supra note 14, at afterthought.

16



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vague instructions, in other words, implementers can permissibly rely on

afterthoughts to reappraise the expectations of those adopting it provided

their new ideas are compatible with the indefinite language initially

employed.

The Premise of Incomplete Textual Specification Although

Madison spoke of the text as a plan, he frequently emphasized that it

was incomplete. His comments on both the Ninth and Tenth

Amendments establish that he considered the enumeration of rights

and that of powers to be non-exhaustive. This doesn’t mean, of course,

that Madison thought of interpretive supplementation as the appropriate remedy for incomplete textual specification. It does establish,

though, that he thought of the text as a scheme that initiates, but doesn’t

complete, the process of national governance.

Consider first Madison’s comments on federal power. Because Article I

states that Congress may make all laws “necessary and proper” for executing its enumerated powers, the text intimates the possibility of interpretive

derivation of unmentioned powers from those mentioned. Debate in the

House of Representatives in June 1789 underscored the significance of

this intimation. Discussion began with Madison’s introduction of the

Tenth Amendment, which provides: “The powers not delegated to the

United States by the Constitution, nor prohibited to it to the States, are

reserved to the States respectively, or to the people.” The scope of this

non-delegation provision is far from clear, for it might be said (a) that the

federal government may exercise its enumerated powers plus those that can

be derived from them as a matter of interpretive supplementation

(through reliance on the necessary-and-proper clause) or (b) that the

federal government may exercise only those powers specifically assigned

it (with the scope of the necessary-and-proper clause thereby cast in doubt

by the adoption of the Tenth Amendment).

Members of the founding generation were alert to the importance of this

distinction. Once Madison introduced the Tenth Amendment, Thomas

Tudor Tucker, a South Carolina congressman, proposed addition of the

word expressly to the text, with the result that it would read: “The powers

not expressly delegated by this Constitution. . . . ” Tucker’s proposal failed,



Chapter 1: Constitutional Afterthoughts



33



in part because Madison argued against it. “Because it [is] impossible,”

Madison stated in opposing Tucker,

to confine a Government to the exercise of express powers; there must be

admitted powers by implication, unless the Government descended to

recount every minutia.18



We can grasp the significance of Madison’s counterargument by

saying that the framers’ decision to omit the word expressly underscored

the importance of the premise of incomplete textual specification. A

parallel point is in order about rights. During the course of ratification

debates about the text proposed by the Philadelphia Convention, leading

Federalists such as James Wilson19 and Alexander Hamilton20 argued

against inclusion of a bill of rights in the text. If only federal powers are

enumerated, they claimed, interpreters could reasonably say that everything not mentioned should be treated as either a right or a power

granted to the states. But with an enumeration of rights, Wilson and

Hamilton noted, interpreters might rely on the principle of negative

implication—and so claim that the rights enumeration is exhaustive.

The issue of negative implication is directly addressed in the Ninth

Amendment, which states: “The enumeration in the Constitution of

certain rights, shall not be construed to disparage others retained by the

people.”21 At a minimum, this sentence relies on the premise of incomplete

textual specification. Does it establish something more? In particular, does

it establish that the rights “retained by the people” are of constitutional



18



For the Madison/Tucker exchange, see The Debates and Proceedings in the Congress of the United

States 790 (Joseph Gales, ed., 1834 [August 18, 1789]). For analysis of Tucker’s role in the

Antifederalist critique of the Constitution even after its adoption, see Fergus Bordewich, The First

Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the

Government 129 (2016).

19

See Wilson’s remarks to the Pennsylvania Ratifying Convention, as recorded in 2 The Debates in

the Several State Ratifying Conventions on the Adoption of the Federal Constitution 434–7 (Jonathan

Elliott, ed., 1836).

20

See The Federalist 84 (Alexander Hamilton), supra note 6, at 512–3.

21

U.S. Constitution, Amendment IX.



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Privacy and the American Constitution



standing? And does it further establish that the Ninth Amendment is the

textual source of unmentioned constitutional rights? These questions take

us from the negative point about incomplete specification to a (possible)

positive one. The text is certainly persuasive concerning the negative one.

On the other hand, the language of the Ninth Amendment can’t be said to

authorize interpreters to identify unenumerated constitutional rights.

Indeed, one might reasonably say that the rights “retained by the people”

to which the text refers are of non-constitutional standing, in which case

the Ninth Amendment can’t be said even to intimate the possibility of

further constitutional rights.

Because this is one possible reading of the Ninth Amendment, no

conclusive determination about its reference to rights “retained by

the people” is possible. Madison’s comments in introducing the Ninth

Amendment for debate in the House of Representatives suggest, however,

that he thought of the provision as pointing toward unmentioned rights of

constitutional standing. “It has been objected also against a bill of rights,”

Madison remarked in an allusion to the Wilson and Hamilton arguments

already noted,

that, by enumerating particular exceptions to the grant of power, it would

disparage those rights which were not placed in the enumeration; and it

might follow by implication, that those rights which were not singled out,

were intended to be assigned into the hands of the general Government

and were consequently insecure. This is one of the most plausible arguments I have ever heard against admission of a bill of rights into this

system; but I conceive, that it may be guarded against. I have attempted

it, as gentlemen may see by turning to the last clause of the fourth

resolution [now known as the Ninth Amendment].22



Even this remark doesn’t establish that Madison thought of the Ninth

Amendment as a source of unmentioned constitutional rights. All that

can be said with certainty is that during the course of House of

Representative debates over the Ninth and Tenth Amendments

Madison adamantly defended the premise of incomplete textual

22



Madison in Gales, ed., supra note 19, at 456 (June 8, 1789).



Chapter 1: Constitutional Afterthoughts



35



specification for purposes of constitutional interpretation. Each enumeration suggests something more. Because the text intimates the possibility of unmentioned powers and rights, one can grasp the degree of ex

ante uncertainty a reasonable reader of the text would have experienced

at the time of the founding. No uncertainty would have been possible

for provisions containing precise metrics (the number of senators per

state or the length of a presidential term, to cite two obvious examples).

But because the outer boundaries of powers and rights were unclear, one

could of course speak only of a scheme, not a draught, of government.

Ex Ante Remedies for Ex Post Uncertainty About the Terms of the

Plan During the course of ratification debates, Madison might have urged

Article V as the appropriate device for resolving uncertainty about the

scope of powers and rights. He didn’t, however. Instead, he argued for

sparing use of the amendment process, emphasizing that frequent reliance

on it would undermine respect for the Constitution. This doesn’t mean,

of course, that Madison favored interpretive supplementation over Article

V deliberation. Rather, it means that he left the remedy for incomplete

textual specification to the post-founding era—a momentously important

omission for the future course of American constitutionalism.

Consider first Madison’s remarks concerning Article V. Madison begins

The Federalist 49, his essay devoted to constitutional amendments, by

remarking that “[t]he author of Notes on the State of Virginia”—i.e.,

Thomas Jefferson—favored frequent constitutional conventions.

Madison then challenges Jefferson’s position. If the Constitution were to

be frequently revised, he writes, the effect would be to undermine public

respect for it. A “philosophical race of kings” might enjoy political stability

while modifying their constitution on numerous occasions. Given the

actual character of the American people, however,

frequent appeals [to Article V] would, in great measure, deprive the

government of that veneration which time bestows on everything and,

without which perhaps the wisest and freest of government would not

possess the requisite stability.23



23



The Federalist 49 (James Madison), supra note 6, at 313–4.



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Does this mean that Madison favored interpretive supplementation

over reliance on Article V for decisions about rights and powers not

mentioned in the text? This is a presentist question: it interrogates the

past in light of a contemporary concern, one that Madison didn’t

address directly in 1787–88. Madison did, however, comment on one

occasion in 1788 about the possibility of post-ratification resolution of

textual indefiniteness—and when he did he focused on interpretation,

not amendment, as the appropriate remedy for doubts about the scope

of government authority. In The Federalist 37, his essay on constitutional language, Madison concedes that the text’s provisions are often

obscure. He argues, though, that nothing better can be expected given

the complexity of the issues addressed. Indeed, everyday language is

often subject to “unavoidable inaccuracy,” Madison notes:

When the Almighty Himself condescends to address mankind in their

language, his meaning, luminous as it must be, is rendered dim and

doubtful by the cloudy medium through which it is communicated.24



Madison is commenting generally on language in this passage, not on

provisions that suggest the possibility of interpretive supplementation.

His remark on linguistic obscurity is pertinent to our concerns, however,

because the remedy he proposes quite clearly relies on interpretation, not

on Article V, to resolve doubts about the proper application of indefinite

textual provisions. “All new laws,” Madison writes,

though penned with the greatest technical skill, and passed on with the

fullest most mature deliberation, are considered more or less obscure and

equivocal, until their meaning be liquidated and ascertained by a series of

particular discussions and adjudications.25



Ratify now—and resolve obscurity later, Madison argues here. Even

more important, at least for our purposes, is Madison’s further admonition



24

25



The Federalist 37 (James Madison), supra note 6, at 229.

Id.



Chapter 1: Constitutional Afterthoughts



37



that obscurity should be resolved by means of interpretation—i.e., by

“particular discussions and adjudications.” On any reckoning, this is a

telling ex ante remark about how practice should proceed in the ex post,

particularly when considered in conjunction with his Federalist 49

warning against frequent reliance on Article V. But to insist that

Madison’s pre-ratification remarks indicate a preference for interpretive supplementation over an amendment for resolving uncertainty

about vague textual language is to attribute greater clarity to his

comments than is merited.26 Instead, only two points—one negative,

the other neutral—emerge unmistakably from his pre-ratification comments on the text as far as interpretive supplementation is concerned.

The negative one has to do with the principle of non-exhaustiveness.

The neutral point is that he was open to interpretive supplementation.

Madison didn’t comment on how an exercise in supplementation can

be justified. He did, however, clearly answer the whether question—

that is, he unmistakably indicated that norms of constitutional standing could be derived from the text by means of post-ratification

“discussions and adjudications.”



26



The argument advanced here is somewhat weaker with respect to rights than the one Randy

Barnett proposes, but it is considerably stronger than the one he proposes with respect to powers.

Concerning the former, Barnett remarks: “The original meaning of the terms of the Constitution

as amended—such as the Ninth Amendment or the Privileges or Immunities Clause [of the

Fourteenth Amendment]—might well authorize supplementation of its express terms in ways that

do not contradict their original meaning” (Randy Barnett, Restoring the Lost Constitution: The

Presumption of Liberty 108 (2004)). I have argued that the Ninth Amendment can’t be said to

authorize supplementation, though I have noted that, on one possible reading, it seems to

conceive this as possible. See supra notes 19–20 and accompanying text.

On the other hand, in speaking of the premise of incomplete textual specification as an

interpretive device that can be brought to bear on the text, I have considered the possibility of

supplementation of the enumeration of powers as well as rights. Barnett does not. His discussion

of the necessary and proper clause (in id. 153–90) contains nothing concerning powers that’s

comparable to his comment concerning the text’s implicit authorization of the enumeration of

rights. As my comments later in this chapter make clear, I think that the logic of powerssupplementation is not identical to the logic of rights-supplementation. But I also think that

the premise of incomplete specification is pertinent generally to powers as well as rights. The text,

in other words, is suggestive of both possibilities.



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Interpretive Supplementation

in the Immediate Post-Ratification Era:

The Madisonian Framework

The plan adopted in the late eighteenth century says nothing about

privacy, but it says nothing about a great many other matters of constitutional significance—among them, the president’s authority to dismiss

cabinet ministers,27 the federal government’s power to acquire territory

from foreign countries,28 the power to charter a national bank,29 the

power to issue paper money,30 the Court’s role as the final interpreter of

the Constitution’s meaning,31 and the right of individuals to engage in

interstate travel.32 Like privacy, each of these is now a matter of settled

constitutional law. Moreover, like privacy, the rights and powers just

noted are interpretive afterthoughts. They could have been included in

the text by means of Article V—but they weren’t.

Because different arguments were advanced at different times on

behalf of the interpretive afterthoughts just mentioned, it might be

contended that their status as components of the constitutional order

is attributable to political calculation, not constitutional principle. On

close inspection, though, one can see consistent patterns in the arguments that have been made on behalf of supplementary constitutional

norms. Powers derived from the text have been justified on teleological

grounds; they’ve been defended, in other words, as means that further

enumerated ends. In contrast, two different kinds of justifications have

been employed for unmentioned rights: one teleological (i.e., unmentioned rights have been characterized as means that further those mentioned), the other analogical (i.e., unmentioned rights have been said to

resemble those mentioned).

27



See Myers v. United States, 272 U.S. 52 (1926).

See Downes v. Bidwell, 182 U.S. 244 (1901).

29

See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

30

See Knox v. Lee, 79 U.S. (12 Wall.) 457 (1871).

31

See Cooper v. Aaron, 358 U.S. 1 (1958).

32

See The Passenger Cases, 48 U.S. (7 How.) 283 (1849).

28



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