Ninth, Tenth, Eleventh and Twelfth Amendments

The Ninth and Tenth Amendments were part of the Bill of Rights and speak in general terms about what the Constitution does not say. The Eleventh and Twelfth were the first amendments added afterward, each a direct answer to a specific event: a lawsuit and a deadlocked election.

That difference shapes their "first cases." The general amendments waited a long time for real work. The specific ones were tested quickly or, for the Twelfth, almost never in court. We start each section with the Constitution Annotated and then the opinions on Justia. Where no source calls a case "the first," we say "the earliest case we found."

The Ninth Amendment: rights the list leaves out

The National Archives transcription reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.U.S. Constitution, Amendment IX (National Archives transcription)

It is a rule about reading the Constitution: listing some rights does not mean unlisted rights do not exist. It names no right of its own, which is the main reason courts have been slow to use it.

The earliest cases: mentioned, then set aside

The Constitution Annotated says that Supreme Court cases before 1965 "contain little analysis of the Ninth Amendment." Litigants raised it, often paired with the Tenth Amendment, and the Court usually dismissed the claim with a sentence or two. (Constitution Annotated, Ninth Amendment Doctrine.)

The earliest case the Constitution Annotated lists is Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936). Preferred stockholders of the Alabama Power Company challenged the company's 1934 contract to sell transmission lines to the new Tennessee Valley Authority, a federal agency. They argued the contract was beyond federal power and cited the Ninth Amendment. Chief Justice Charles Evans Hughes noted the argument and explained that the amendment protects rights retained by the people but does not withdraw powers the Constitution grants to the federal government.

The same pattern shows up in United Public Workers v. Mitchell, 330 U.S. 75 (1947). Federal employees challenged the Hatch Act's limits on their political activity, invoking rights "reserved to the people by the Ninth and Tenth Amendments." Justice Stanley Reed's opinion held that the objection "must fail" because Congress was acting within a granted power.

So the earliest Supreme Court case we found discussing the Ninth Amendment is Ashwander (1936), and we found no Supreme Court holding resting on it alone.

Griswold v. Connecticut (1965): the amendment's best known moment

The case that put the Ninth Amendment into the public conversation was Griswold v. Connecticut, 381 U.S. 479 (1965). Connecticut law made it a crime to use contraceptives or to help someone else use them. Griswold, executive director of the Planned Parenthood League of Connecticut, and Dr. Buxton, its medical director and a Yale Medical School professor, were convicted as accessories and fined $100 each for giving married couples information and medical advice on preventing conception.

The Court reversed, 7 to 2. Justice William O. Douglas found a right of marital privacy in the "penumbras" of several guarantees, the Ninth Amendment among them. Justice Arthur Goldberg, joined by Chief Justice Earl Warren and Justice William Brennan, wrote a concurrence that spent several pages on the Ninth Amendment. Goldberg did not treat the amendment as an independent source of rights. As the Constitution Annotated summarizes it, he read the amendment as showing "a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated," and used it to support reading the Fourteenth Amendment's protection of liberty to cover marital privacy. Justices Hugo Black and Potter Stewart dissented.

Later, the district court in the case that became Roe v. Wade (1973) relied on the Ninth Amendment, but the Supreme Court placed that right in the Fourteenth Amendment's concept of personal liberty instead. Dobbs v. Jackson Women's Health Organization (2022) overruled Roe and, according to the Constitution Annotated, did not cast doubt on Griswold.

Incorporation note. Barron v. Baltimore, 32 U.S. 243 (1833) held that the Bill of Rights limited only the federal government. Because the Court has never treated the Ninth Amendment as a source of specific rights, it has no incorporation case of its own.

The Tenth Amendment: powers reserved to the states and the people

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.U.S. Constitution, Amendment X (National Archives transcription)

McCulloch v. Maryland (1819): the first full explanation

The Constitution Annotated says the Tenth Amendment "was infrequently invoked by the Court until the early twentieth century," and the earliest case it discusses at length is McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). (Constitution Annotated, Early Tenth Amendment Jurisprudence.)

Congress chartered the Second Bank of the United States in 1816, and the Bank opened a branch in Baltimore. In 1818 Maryland taxed banks not chartered by its legislature, the Bank refused to pay, and Maryland sued the branch cashier, James William McCulloch. Maryland's lawyer, Luther Martin, argued that the power to create a corporation such as a bank was reserved to the states by the Tenth Amendment, because the Constitution nowhere mentions banks. Chief Justice Marshall rejected the argument. His key observation was about one missing word. The Articles of Confederation had reserved to the states every power not "expressly" delegated. The Tenth Amendment leaves "expressly" out. That omission, Marshall reasoned, means nothing in the Constitution "excludes incidental or implied powers," and whether a power has been granted depends on "a fair construction of the whole instrument." The bank was upheld and Maryland's tax struck down. (The Necessary and Proper Clause side of this case is covered in lesson 3.)

Hammer v. Dagenhart (1918): the earliest big use as a shield we found

The earliest major case we found in which the Tenth Amendment helped strike down an Act of Congress is Hammer v. Dagenhart, 247 U.S. 251 (1918). A federal law of September 1, 1916 barred interstate shipment of goods made in factories that employed children below set ages or beyond set hours. A father sued in federal court in the Western District of North Carolina, for himself and for his two minor sons, who worked in a cotton mill in Charlotte, to stop enforcement of the law.

Justice William Day, writing for a 5 to 4 majority, held that manufacturing is not commerce and that Congress was using its commerce power to regulate labor conditions inside the states, a matter the Court said the Tenth Amendment reserved to the states. Justice Oliver Wendell Holmes dissented, joined by Justices Joseph McKenna, Louis Brandeis and John Clarke.

United States v. Darby (1941): "a truism"

The New Deal Court reversed course. In United States v. Darby, 312 U.S. 100 (1941), a Georgia lumber manufacturer was indicted under the Fair Labor Standards Act of 1938, which set minimum wages and maximum hours for workers producing goods for interstate commerce. The trial court quashed the indictment on the ground that the Act was unconstitutional. A unanimous Court, in an opinion by Justice Harlan Fiske Stone, upheld the Act and expressly overruled Hammer v. Dagenhart: "It should be, and now is, overruled."

Stone's description became famous: "The amendment states but a truism that all is retained which has not been surrendered." If Congress has a power, the amendment is no obstacle to it.

The modern revival: commandeering

In the 1990s the Court gave the amendment new work, focusing not on what Congress may regulate but on whether it may order state governments to do the regulating.

Five years later the Court applied the same idea to state and local officers. In Printz v. United States, 521 U.S. 898 (1997), two sheriffs, Jay Printz of Ravalli County, Montana, and Richard Mack of Graham County, Arizona, challenged the interim provision of the Brady Handgun Violence Prevention Act. It required local chief law enforcement officers to run background checks on handgun buyers. Justice Antonin Scalia, writing for a 5 to 4 majority, held that "The Federal Government may not compel the States to enact or administer a federal regulatory program," and that the background check duty "plainly runs afoul of that rule." Justice Stevens dissented, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.

For Idaho sheriffs and county officials, Printz is the case to know when a federal program asks for local help.

The Eleventh Amendment: a first case that produced an amendment

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.U.S. Constitution, Amendment XI, passed by Congress March 4, 1794, ratified February 7, 1795 (National Archives transcription)

Chisholm v. Georgia (1793): the case that started it

The Eleventh Amendment's story starts with a case decided before the amendment existed. In Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), Alexander Chisholm, a citizen of South Carolina, sued the State of Georgia in the Supreme Court to recover on a contract for supplies furnished to Georgia during the Revolution. Article III extends federal judicial power to controversies "between a State and Citizens of another State."

Georgia refused to appear. Four of the five held that a state could be sued by a citizen of another state and that the Court had jurisdiction. Justice James Iredell disagreed, reasoning that under the common law a sovereign could not be sued without its consent. (Constitution Annotated, Historical Background on the Eleventh Amendment.)

The reaction was fast. The Constitution Annotated reports that the amendment passed both houses by overwhelming votes in the first Congress to meet after Chisholm. It passed on March 4, 1794 and was ratified on February 7, 1795.

Hollingsworth v. Virginia (1798): the earliest case we found applying the amendment

The earliest Supreme Court case we found applying the new amendment is Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). The suit had been filed against Virginia before the amendment was adopted. Two questions came up.

First, did the amendment apply to cases already pending? The Court said yes: once the amendment was constitutionally adopted, no jurisdiction could be exercised "in any case, past or future" in which a state was sued by citizens of another state or by foreign citizens or subjects.

Second, was the amendment validly adopted, given that it was never presented to President Washington for signature? The lawyers challenging it argued that it "was never submitted to the president for his approbation" and was therefore void. The official report records Justice Samuel Chase's answer in a footnote: "The negative of the President applies only to the ordinary cases of legislation," and the President "has nothing to do with the proposition, or adoption, of amendments to the Constitution." (The Article V side of this case is covered in lesson 7.)

Hans v. Louisiana (1890): beyond the text

Read literally, the Eleventh Amendment bars suits against a state by citizens of another state or of a foreign country. What about a state's own citizens? In Hans v. Louisiana, 134 U.S. 1 (1890), a Louisiana citizen sued his own state in federal court over bond interest that Louisiana's 1879 constitution had cancelled, claiming a violation of the Contract Clause.

Justice Joseph Bradley, writing for the Court, held that a state cannot be sued in federal court by its own citizen without its consent, even when the case arises under federal law. Bradley said the amendment "actually reversed" Chisholm. Justice John Marshall Harlan concurred in the result but wrote that Chisholm had been correctly decided under the Constitution as it then stood.

What came after: officers, Congress, and an Idaho lake

In Ex parte Young, 209 U.S. 123 (1908), Minnesota Attorney General Edward T. Young was held in contempt by a federal court after he moved to enforce a 1907 state railroad rate law that the court had blocked. Justice Rufus Peckham, writing for an 8 to 1 majority, held that a state officer who enforces an unconstitutional law is not acting for the state and can be sued to stop the enforcement. Justice Harlan dissented. Ex parte Young is why people can still bring federal lawsuits to block state laws: they sue the officer, not the state.

In Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), the Court held, 5 to 4, in an opinion by Chief Justice William Rehnquist, that Congress cannot use its power under the Indian Commerce Clause to strip the states of sovereign immunity, and it overruled Pennsylvania v. Union Gas Co. (1989). Justices Stevens and Souter wrote dissents.

The Idaho chapter came the next year. In Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997), the Coeur d'Alene Tribe sued Idaho, its agencies and state officials in federal court, claiming the submerged lands and beds of Lake Coeur d'Alene and connected waterways within the reservation's 1873 boundaries. The Ninth Circuit allowed some claims against the officials to go forward under Ex parte Young. The Supreme Court reversed, 5 to 4. Justice Anthony Kennedy wrote that the suit was in effect a quiet title action against the state over its sovereign lands, so the Ex parte Young exception did not apply, and the dispute belonged in Idaho's own courts. Justice Souter dissented, joined by Justices Stevens, Ginsburg and Breyer.

The Twelfth Amendment: fixing the Electoral College

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President...U.S. Constitution, Amendment XII, passed by Congress December 9, 1803, ratified June 15, 1804 (National Archives transcription)

The elections that came before the cases

The Twelfth Amendment's first tests were political, not judicial. Under the original Article II, each elector cast two votes without saying which was for President. In 1800 Thomas Jefferson and his own running mate, Aaron Burr, tied. The House of Representatives decided the contest on the 36th ballot after about a week of voting. (National Constitution Center.) The Twelfth Amendment, ratified in 1804, required separate ballots for President and Vice President and, if no one has a majority, sends the choice to the House from the top three candidates.

That House procedure was first used under the new amendment in the election of 1824. Andrew Jackson led with 99 electoral votes but needed 131. The House chose John Quincy Adams on the first ballot on February 9, 1825. In 1837 the Senate used its matching power to choose Vice President Richard Mentor Johnson.

The disputed election of 1876 tested the amendment's counting language, which says the President of the Senate opens the certificates "and the votes shall then be counted" without saying who decides disputes. Congress created a 15 member Electoral Commission that included five Justices; Justice Joseph Bradley cast the deciding vote, and the commission awarded all 20 disputed electoral votes to Rutherford B. Hayes (Supreme Court Historical Society). Congress declared Hayes the winner on March 2, 1877 (U.S. Senate). None of this was a court case.

Ray v. Blair (1952): the first Supreme Court case we found

The earliest Supreme Court case we found that squarely interprets the Twelfth Amendment is Ray v. Blair, 343 U.S. 214 (1952). In 1952 the Alabama Democratic Party required candidates for presidential elector in its primary to pledge to support the national party's nominees. Edmund Blair, otherwise qualified, refused to take that part of the pledge, and the chairman of the state party committee, Ray, refused to certify him. The Alabama Supreme Court ordered certification, holding that the pledge violated the Twelfth Amendment's guarantee that electors vote freely.

The U.S. Supreme Court reversed. Justice Reed wrote that the Twelfth Amendment does not bar a party from requiring such a pledge in its primary. The Court did not decide whether a pledge could be legally enforced against an elector who broke it. Justice Robert Jackson dissented, joined by Justice Douglas, and Justices Black and Felix Frankfurter took no part.

The inhabitant clause: a lower court first

In 2000 three Texas voters argued that Richard Cheney was an inhabitant of Texas, so Texas electors could not vote for both George W. Bush and Cheney. In Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex. 2000), the court dismissed for lack of standing and found no likelihood of success on the inhabitancy claim. The Fifth Circuit affirmed. (Jones v. Bush, full text on CourtListener.)

The leading case today: Chiafalo v. Washington (2020)

The question Ray left open was answered 68 years later. In 2016, three Washington electors, Peter Chiafalo, Levi Guerra and Esther John, pledged to support Hillary Clinton and instead voted for Colin Powell. Washington fined each of them $1,000. In Chiafalo v. Washington (2020), decided July 6, 2020, Justice Elena Kagan wrote for the Court that a state may enforce an elector's pledge, including with a penalty. The majority relied heavily on Ray v. Blair. Justice Clarence Thomas concurred only in the judgment, joined in part by Justice Neil Gorsuch.

Summary table

Clause	First case	Year	What kind of first
Ninth Amendment	Ashwander v. TVA, 297 U.S. 288	1936	Earliest Supreme Court case we found discussing it (claim rejected)
Ninth Amendment	Griswold v. Connecticut, 381 U.S. 479	1965	First extended treatment, in Goldberg's concurrence; no holding rests on it alone
Tenth Amendment	McCulloch v. Maryland, 17 U.S. 316	1819	Earliest case the Constitution Annotated discusses at length (no "expressly")
Tenth Amendment	Hammer v. Dagenhart, 247 U.S. 251	1918	Earliest major use we found to help strike down an Act of Congress (overruled 1941)
Tenth Amendment	New York v. United States, 505 U.S. 144	1992	Modern anti-commandeering rule (state legislatures)
Tenth Amendment	Printz v. United States, 521 U.S. 898	1997	Anti-commandeering extended to state and local officers
Eleventh Amendment	Chisholm v. Georgia, 2 U.S. 419	1793	The case that prompted the amendment
Eleventh Amendment	Hollingsworth v. Virginia, 3 U.S. 378	1798	Earliest Supreme Court case we found applying it (pending suits; no presentment to President)
Eleventh Amendment	Hans v. Louisiana, 134 U.S. 1	1890	Extended the bar to suits by a state's own citizens
Twelfth Amendment	Ray v. Blair, 343 U.S. 214	1952	Earliest Supreme Court case we found interpreting it
Twelfth Amendment (inhabitant clause)	Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex.)	2000	Lower federal court; dismissed for lack of standing