The 9th Amendment and Unenumerated Rights
Ed Brayton on Jul 27th 2005
I’m on the ReligionLaw listserv moderated by Eugene Volokh, an email list of dozens of law profs around the country with the discussion focused on areas where religion and law intersect. Yesterday a discussion kind of veered off that subject and into the 9th amendment and libertarian legal theory, until Prof. Volokh herded us all back onto the ranch. But I think the way the discussion went before it stopped is indicative of a real split between libertarian and conservative thinking. The discussion was primarily between myself, Rick Duncan (a Nebraska law professor) and Sam Ventola (a Denver attorney). It began with the two of them saying that one can be a libertarian and a social conservative at the same time, which I didn’t bother to dispute simply because such terms can be used in so many different ways. I jumped in after Duncan said that he was a libertarian because, “I strongly support the liberties (including the economic liberties) expressly contained in the written Constitution.” And Ventola said:
Anybody, not just a libertarian, can contend that the government should support certain liberties, but admit that these liberties are not necessarily protected by the Constitution. So, such a person (if he or she is a strict constructionist) would support Constitutiional decisions which protect rights actually located in the Constitution, and support legislation to protect other liberties.
As a libertarian myself, I disagree strongly with this and consider it to be the antithesis of an originalist or “strict constructionist” argument. We must remember several things here. First, that the entire purpose of the bill of rights was to protect liberty from democracy - to insure that no majority, no matter how large, could violate the rights of individuals. Second, that there was a raging debate over whether such a bill of rights was a good idea because, many of the founders argued, if you enumerate a list of specific rights, future governments will presume that anything not specifically enumerated is fair game for the government - i.e. the majority - to regulate or prohibit or do with as they will. All of the founders, as near as any historian can tell, agreed that this would be a bad thing because all of them agreed that no list of rights could possibly be exhaustive. Madison came up with the 9th amendment as a means of avoiding this negative outcome. On that much, we should all be able to agree…
So when one takes the position, as Ventola has here, that those rights “actually located in the Constitution” deserve protection but that all unenumerated rights are open to “legislation”, he is taking the exact position that the 9th amendment was designed to avoid because “legislation” means allowing the government - i.e. the majority - to regulate any unenumerated right as it sees fit. It renders the entire concept of unenumerated rights meaningless and reads the 9th amendment out of the Constitution entirely. If those rights not specifically enumerated may be limited or removed as a majority or their representatives see fit, then of what possible use is the 9th amendment at all? It wouldn’t actually DO anything, but we know from the clear words of the founders that it was intended to do something that they viewed as very important. It was intended to avoid the very position that is being taken here. Certainly any interpretation which eliminates an entire amendment from actually doing anything and which takes the very position that the founders were unanimous in opposing cannot possibly be considered an “originalist” intepretation, and the first rule of construction is that a given passage has to mean something.
Duncan then followed up on another conversation by saying that he thinks the 9th amendment was “designed to make clear that the Federal Government is a government of strictly limited powers and to protect state-created rights and liberties against federal interference.” And he went on to say:
To foillow up on my response to Marc’s question about the 9th Amendment, it seems to me that good examples of unenumerated liberties within the meaning of the 9th Amendment are school choice laws enacted in the states and state RFRAs. When states act to protect liberty–either through state constitutions or state legislation–they act to protect rights recognized (but not created) by the 9th Amendment.
To which I replied that the founders believed that all rights are recognized but not created. The founding premise of this nation is that we are all endowed with rights which pre-exist governments and that the purpose for which governments are formed is for the protection of those rights. All rights, therefore, are recognized by government, not created by government. The constitution is “a charter of power granted by liberty, not a charter of liberty granted by power”, as Madison said. Brad Pardee from the University of Nebraska-Lincoln then chimed in with this question for me:
The challenge with this argument would seem to be determining what is a right and what is not. Otherwise, we create a situation where anybody who wants to do anything can claim that they have a right to do so.Suppose, for the sake of example, a person was to say that they have the right to crank up their stereo at 2 am. We can have noise ordinances to prohibit that, but the person claiming that right would say, “If it is my right, then you can’t pass an ordinance to take that right away from me.” It would then fall to the courts to say either “Yes, there is a right to crank your stereo at 2 am” or “No, there is no such right”.
While the explicitly listed rights are clearly recognized, somebody somewhere is going to have to determine what are the unlisted rights that are also recognized. In my hypothetical, what is going to stop the stereo cranker from saying, “This is a right that you must recognize”?
He’s right, of course, that the challenge is in determining what is a legitimate unenumerated right and what is not. But this is not really an argument against my position at all. The fact that there will be disagreements over what is and is not a legitimate unenumerated right does not change what I consider to be the indisputable fact that the opposite position - that any right not specifically enumerated is fair game for the government to regulate or prohibit - simply cannot, by any logical argument, be true in our constitutional system. It runs entirely against the clearly stated position of the founders that the bill of rights was not exhaustive and that no one could possibly list all of the rights an individual has and it voids the meaning of a provision of the bill of rights that was not only of the utmost importance, but without which the bill of rights would almost certainly not have been ratified.
So the first part of my argument is only to establish that the position offered by Duncan and Ventola - and very commonly taken among conservatives in general - is an untenable position. Once we agree - and without any substantive argument to the contrary, it seems we ought to - that there must be unenumerated rights that are binding upon the government and that no majority may justly violate, then we can move on to the question of how we go about discerning between a legitimate and illegitimate assertion of an unenumerated right. For that, I would argue, we must turn to the conception of natural rights upon which all of our notions of liberty in America were based, and the way to implement those natural rights is through what Randy Barnett calls the presumption of liberty.
I will go into more detail on that in a future posting, but for now let me just say this: asking “where does the constitution say you have the right to do X” is asking the wrong question. Instead, one must ask where in the Constitution is the authority given to prohibit X. Barnett argues:
As long as they do not violate the rights of others (as defined by the common law of property, contract and tort), persons are presumed to be “immune” from interference by government. This presumption means that citizens may challenge any government action that restricts their otherwise rightful conduct, and the burden is on the government to show that its action is within its proper powers or scope. At the national level, the government would bear the burden of showing that its acts were both “necessary and proper” to accomplish an enumerated function, rather than, as now, forcing the citizen to prove why it is he or she should be left alone. At the state level, the burden would fall upon state government to show that legislation infringing the liberty of its citizens was a necessary exercise of its ‘police power’ - that is, the state’s power to protect the rights of its citizens…While the presumption of liberty is not the only implication of the Ninth Amendment, it provides a practical and powerful method of protecting unenumerated rights. As lawyers well know, the outcome of legal disputes is often determined by the burden of proof. For example, the First Amendment has been held to impose a serious burden on the government to justify any of its actions that restrict the natural right of free speech. In countless cases, this “presumption of free speech” has effectively protected this retained but enumerated right. The Ninth Amendment simply extends the same protective presumption to all other exercises of liberty.
I’ll examine the presumption of liberty in more detail later. This is not the only possible way of discerning between legitimate and illegitimate assertions of unenumerated rights, of course, but it’s the one I think will be most effective and consistent. But the important point is that we must find some way to do so because the opposite position, that unenumerated rights are in no way binding and the government may violate them at will, simply cannot be true given the history and text of the 9th amendment.
Filed in The Bench
The problem that I see with that interpretation of the Ninth Amendment is that how do we know what rights, specifically, should be protected? I mean, what about the right to murder? The right to steal? There is no way to look at the Ninth Amendment and tell which rights are protected and which rights are not.
That gives Justices the right to pick and choose what rights the Ninth Amendment covers and what rights it does not. In my personal opinion, this power is very easily abused.
Sasah Slutsker wrote:
The point of this post was merely to establish that there must be unenumerated rights which limit what the government may do. And frankly, on one really denies that, regardless of the rhetoric they may employ. For instance, there is no “right of free association” mentioned in the Constitution, yet the courts have long recognized that there is such a right and no one seriously denies it. There are many unenumerated rights that the courts have recognized that no one seriously challenges; it is only when someone disagrees with an asserted right that the “where does the constitution say you have that right” argument is brought up. Since you do not dispute the substance of the argument that this argument simply cannot be true given the history and text of the 9th amendment, any argument about the difficulty of distinguishing between a legitimate and illegitimate unenumerated right becomes irrelevant because, regardless of how difficult it may be, we must do it because to not do it - to simply leave all unenumerated rights up to the government to regulate as they wish - voids the 9th amendment entirely and takes the one position that the founders were adamant should not be taken.
Having said that, let me at least begin to answer your question. How do we distinguish between legitimate and illegitimate assertions of unenumerated rights? Well, we begin by going to the words of the founding fathers about the proper aims and legitimate powers of government. Those can be found in many places, most obviously in the Federalist Papers and the Declaration of Independence. We begin with the natural rights philosophy inherent in the political philosophy of our nation’s founding, as defined so eloquently by Jefferson’s words: we are endowed with unalienable rights, among which are life, liberty and the pursuit of happiness. He further defined where the limits of legitimate law were to be found in a free society:
This idea is found time and time again in the writings of the founders, that each person should be free to do as they please so long as their actions do not harm another person against their will, take away their equal liberties, or rob them of the fruits of their labors. There is no right to murder or to steal within the natural rights framework for the obvious reason that it deprives the rights of others. The Randy Barnett article I linked to above has more detail on the philosophy of natural rights that grounds our founding conceptions of rightful liberty.
I should add, by the way, that the argument that this leaves things open to the interpretation of judges is not compelling also because that outcome is inevitable regardless. For instance, rather than a presumption of liberty, today we have courts deciding which rights are “fundamental” and which are not, the designation of which determines the standard of review and almost certainly the outcome of a case. That is certainly no less arbitrary than what you are objecting to in my idea.
Sasha:
The problem with the alternate intepretation of the Ninth Amendment (ignore it) is that it gives the legislature the ability to make any law that infringes about any right except those explicitly listed. The potential for abuse here is orders of magnitude greater than that of relying on Justices to pick and choose. While examples of excessive government restrictions throughout history abound, I know of no example, nor expect high odds that any Supreme Court might possibly ever decide in favor of anarchy: a right to steal, for instance.
Besides, the blog post went to some pains to hint that there is a way out of the supposed conundrum of being inable to determine which rights are protected and which are not. We start by assuming that the citizen has the right to do what he wishes, so long as the well-known rights of others are not violated (Randy Barnett: “as defined by the common law of property, contract and tort”). We then require the government to indicate that the law it is attempting to enforce that limits this presumed right is legitimate: that is “necessary and proper” to be able to accomplish one of the well-known (enumerated directly in the Constitution) functions of the government.
Now comes the only question. At a minimum we can choose to say that at this point, if the government has proven that it’s necessary and proper, we can let the government win, and cease to protect the unenumerated right. This would, at a minimum, solve your supposed problem.
I do not believe that is the correct answer, but it does allow us to read the Ninth Amendment, to recognize that it exists, and still not give Justices the right to pick and choose what rights exist.
I think the correct answer is that Justices should in fact, continue to assume that whatever action the citizen takes (still so long as it does not violate well-known rights of others) is a right, and treat it to the same balancing act that we treat the enumerated rights.
Ed
What does our “right to self governance” mean, if all our rights are to be decided by judges and not by “we the people”?
Also, “.. the entire purpose of the bill of rights was to protect liberty from democracy - to insure that no majority, no matter how large, could violate the rights of individuals.”
How do you square this with the fact that the Constitution specifically states that a two-thirds majority is sufficient to alter or remove any right?
This idea is found time and time again in the writings of the founders, that each person should be free to do as they please so long as their actions do not harm another person against their will, take away their equal liberties, or rob them of the fruits of their labors.
Okay, but that libertarian approach (people can do anything they want as long as it hurts no one else) could lead to the legalization of drugs and other harmful things (which actually ends up hurting others as society then needs to take care of them.) I mean, it already lead to the legalization of sodomy, abortion, etc.
Plus, proof that the founders didn’t take this strict libertarian approach can be seen in the Second Article. If they were against something that would “rob them of the fruits of their labor”, why did they give Congress the power the tax?
Your own reading of the Ninth Amdt manages to make the Tenth nonsensical.
What does “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” mean, if not what it seems? What powers do the people retain, in your scheme of things?
Where does the Constitution suggest that, simply because “the people” have rights, the Supreme Court, or courts generally, are appointed the sole definers and guardians of these rights?
Jon Sandor wrote:
I don’t think that phrase means much of anything in this context. What you are speaking of is not the right to govern oneself but the right to govern others. By this reasoning, the entire bill of rights violates the “right of self-governance”. The mere fact that a majority wishes to impose a law does not mean that the law is a legitimate exercise of governmental authority. Jefferson made clear that a law which undermines our inalienable rights are illegitimate regardless of how democratically they are passed. And as I keep saying, and no one has even attempted to dispute, the bill of rights is not an exhaustive list of such rights. The founders said so very plainly, so if one is an originalist one must agree that there are unenumerated rights that limit the actions of government (i.e. the majority). To claim otherwise is to void the 9th amendment and make it meaningless. It’s not a surprise to me that no one has yet even attempted to dispute the premise of this post, and if that premise is true then the only subject that matters is deciding what is the best way to distinguish legitimate assertions of unenumerated rights from illegitimate assertions.
This is a misrepresentation of what the Constitution says. The power of amendment requires 2/3 of each house of Congress and 3/4 of the states, which is an incredibly high standard and quite intentionally so. But if that power is used to deny our unalienable rights, the government would no longer be legitimate and the words of the Declaration would be invoked. And that does not change the clear intent of the bill of rights.
Sasha Slutsker wrote:
In other words, my position leads to results that you don’t like, so you reject. But that does not answer my argument at all. Remember what the argument is: that the text and history of the 9th amendment shows that there must be unenumerated rights that limit what governments may do. If that is true, then it really doesn’t matter that this may lead to others having rights you don’t want them to have. And as far as the legalization of sodomy and drug use is concerned, I think those are both very good things (abortion is another matter, but not terribly relevant).
The government has authorities that individuals do not have, of necessity. The government may declare war and invade nations; you may not. The government has the power to tax because without the power to tax there is no government. It would be rather pointless to establish a government without the ability to establish a government. But the fact that the government has the power to tax (a power I believe they abuse greatly) doesn’t mean that an individual has the right to steal from someone.
A basic principle is that it’s hard to get behind any interpretation of the Constitution which says the Framers intended for majorities to determine the rights which majorities are not permitted to invade.
Jon Sandor wrote:
Again, you have to look at this in some historical context. Both the 9th and 10th amendments, like all of the other amendments, were written to limit the authority of the Federal government specifically. As originally written, all legitimate authority not granted explicitly to the Federal government were left to the states. The scope of legitimate governmental authority is spelled out in the Declaration and other texts. And as Barnett points out, the “police power” that is given to the states is not without limits. There is no conflict between the 9th and 10th amendments because one addresses rights and the other addresses powers or authorities. And like the 9th amendment, the 10th amendment requires some application of political philosophy, it is not a statement of explicit authorities or powers just as the 9th is not a statement of explicit rights. In the case of the 10th, one must still determine whether a given authority is granted to the states or to the people (the amendment says either, and these are often in conflict).
The Supreme Court is the body empowered to determine whether a given law is constitutional or not. The constitution declares that there are unenumerated rights (this has been established and has not been answered, so is axiomatic at this point) that limit what the government may do. The courts, then, are the only ones who can enforce them. If it is left to the legislature, as I have argued and no one has yet disputed, then the 9th amendment is entirely meaningless. It doesn’t have any function at all if that is true; hence, it cannot be true.
Steve wrote:
Very well, and succinctly, said. If the majority gets to decide what the limits are on the majority, then there simply are no unenumerated rights. And we know from the clearly expressed text and history of the 9th amendment that this cannot be true. If it is true, the 9th amendment is meaningless.
Ed saya “And as I keep saying, and no one has even attempted to dispute, the bill of rights is not an exhaustive list of such rights.”
Really? I dispute it. If our rights are limitless then the Tent Amdt is absurd.
Your claim that the Bill of Rights can be added to, but never subtracted from is …. interesting. Is this what is taught in law schools these days? I defy you to find a single clause or statement in the Constitution which can be read as supporting such a proposition.
Ed says; “In other words, my position leads to results that you don’t like, so you reject.”
Pot, meet kettle.
Ed says: “Jefferson made clear that a law which undermines our inalienable rights are illegitimate regardless of how democratically they are passed.”
Jefferson does not get to make that decision, does he?
Ed says;”What you are speaking of is not the right to govern oneself but the right to govern others.
That is what is commonly understood to be the definition of “governance”. What the government does is enforce laws which we the people cause to be enacted by our legislative bodies. These laws “govern others”, as you put it. Once you start with the premise that people have an inexhaustable list of rights, and follow it up with the absurd idea that these rights are to be defined by the courts, not by the people themselves, then we have left democratic republican government behind and embarked on oligarchy.
All oligarchies have to come up with some rationale as they why they should hold all the power, one which can be used to lull the populace into acceptance. Selling such a scheme as promoting “liberty” seems like a stretch to me, but after all, its a free country. :)
When did “libertarians” become such advocates of tranferring massive power to the state? On some level, they must understand that this is what they are doing.
Jon Sandor wrote:
Great, but no one in this discussion has taken the position that rights are limitless. I have taken the opposite position, and have even spelled out specifically what limits our rights. You are doing nothing more than beating up a straw man here, pretending I’ve taken an absurd position that I have not taken.
Again, I didn’t say any such thing. I said that if the power of amendment is used to deprive individuals of their unalienable rights, that would be an unjust and illegitimate use of governmental authority. In that, I am in full agreement with the founding fathers. Again, go back to Jefferson’s definition of rightful liberty, the protection of which, declares the Declaration, is the sole purpose for which governments are instituted among men. He says that our rights are limited by the rights of others, not by the law because the law is often only the tyrant’s will and “always so when it violates the right of an individual.” And I’ve never been to law school, so I have no idea what they teach there.
But the founders designed a government founded upon this very premise. Jefferson is hardly alone. This is the founding premise, found in the Declaration of Independence and throughout the writings of the founders when discussing the legitimate authority of government. So yes, in our system, they did make that decision and I would suggest that we are far better off for it. Go and read the Declaration and think about this: None of the complaints about the actions of the British government were based upon the manner in which those actions were ratified. Nowhere in the Declaration will you find complaints that the process by which such actions were taken was not democratic enough, or that Parliament did not follow the correct procedure in passing the laws and policies that they objected to. Rather, they boldly asserted that the actions taken by the British government violated the unalienable rights of the individual. If those rights are unalienable, as the Declaration says, then it makes no difference how democratically a law is passed if that law violates those rights. Any law which violates those rights is unjust. The basis on which the legitimacy of a law is judged is not the process by which it was passed, but whether it violates those unalienable rights or not. If the government decided that it was illegal to read the bible, for example, that law would be unjust - period. Not unjust because of the manner in which it was passed, but unjust and illegitimate because it violates our unalienable rights.
Again, the notion that I have argued for an unlimited and inexhaustible list of rights is flatly false and is nothing more than a straw man; I have taken no such position. More importantly, the laws that govern others are limited in our constitutional system. Surely you would agree with that. The Constitution was designed specifically to set limits on what the majority - which is what the government is - may do and what it may not. The government/majority may not violate the right to practice one’s religion, according to the first amendment. This is a limitation that is enforced by “unelected judges”, and that was also an aspect of our constitutional system that was intentionally designed. So in essence, the entire bill of rights, all enumerated rights, by your reasoning, amounts to an “oligarchy” that prevents “self-governance”. But the truth is that this is the way the system was designed for the exact purpose of placing limits on what the government/majority may do.
This is just so much sillliness. I am not a member of any oligarchy and I have no power for which to construct a rationale, so the notion that this somehow replies to my position is absurd.
This is even sillier than the previous statement. I am arguing for far stronger limits on the state. In a democratic country, “the state” is another word for “the majority”. Placing limits on the ability of a majority to deprive us of our rights is placing limits on the power of the state.
“The constitution declares that there are unenumerated rights that limit what the government may do.”
Correct.
“The courts, then, are the only ones who can enforce them.”
Incorrect. Enforcement of the Constitution is the sworn duty of the government, not merely of the Court. Beyone that, the final defenders of the peoples rights are the people themselves. The idea that the courts have some special duty to defend the peoples rights is not correct. The courts duty is to the law, as defined by the people through their legislative bodies. One of these bodies was the Constitutional convention, which created the Bill of Rights. Note that this was not actually handed down from a cloud on stone tables by Jefferson as you suggest. The role of the courts is obedience to the law, not to attempt to discern some transcendent Law.
“If it is left to the legislature, … then the 9th amendment is entirely meaningless.”
Lets look at what the Ninth actually says, shall we?
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
It says that certain other rights, not mentioned in the Constitution, are retained by “the people”. I don’t regard that as meaningless, and I cannot for the life of me understand why you keep insisting it is.
Any clear reading of the Ninth, combined with the Tenth, surely leads to the opposite position than the one you are taking. Namely, that the Constitution was conceived as a check on the power of the Federal government, and that it sought to spell out as clearly as possible that ultimately all power flows from the people, through the states, to the Federal government, not in the other direction. That is the clear meaing of the Ninth, and attempting to convert it into a blank check for the courts to overturn the the will of the the other two branches of government, plus the states and the people, is simply a legal and moral travesty.
“I am arguing for far stronger limits on the state. In a democratic country, “the state” is another word for “the majority”. ”
Interesting. Do you consider the courts to be part of “the state”? If not, why not? What are they if not part of “the state”?
If you do consider the courts part of the state, why are you not interested in putting limits on their power? What limits exist on the power of the courts, in your view of things?
Ed Wrote:
We must remember several things here. First, that the entire purpose of the bill of rights was to protect liberty from democracy - to insure that no majority, no matter how large, could violate the rights of individuals. Second, that there was a raging debate over whether such a bill of rights was a good idea because, many of the founders argued, if you enumerate a list of specific rights, future governments will presume that anything not specifically enumerated is fair game for the government - i.e. the majority - to regulate or prohibit or do with as they will . . . On that much, we should all be able to agree…
* * *
I disagree. It is far from settled that the Bill of Rights were intended to protect liberty from democracy. In fact, there are good reasons to believe they were intended for just the opposite — to protect democracy.
First, the Declaration of Independence provides that “to secure” rights such as “liberty,” and other ends, “Governments are instituted among Men,” which “the People” retain the right to “alter” or “abolish” in the event that “Government becomes destructive to these ends.” Importantly, “the People” (we can debate what that means, but it most certainly did not mean federal courts) were the ones who retained the ability to determine when government was infringing on liberty, and when alterations would need to be made. Inalienable rights may come from the Creator, but the Declaration of Independence asserts that the People have interpretive authority (and clearly not Courts).
But what about the Constitution, and specifically, the Bill of Rights? The First Amendment’s Establishment Clause only precluded the Federal Government from establishing religion (hardly an anti-democratic provision given that states had established churches). The protection of speech was interpreted (until the 20th century) to provide only protection against prior restraints (ensuring that government officials would not censor, but allowing for the possibility that majority sentiment might nevertheless find someone guilty after speech had been made). The jury clauses, obviously, would provide individuals no protection from majority sentiment (the only protection would be against arbitrary judicial power, which, oddly, Ed suggests the Bill of Rights was intended to promote). None of the Amendments NECESSARILY betray an anti-democratic purpose.
And most importantly to our discussion, the Ninth Amendment can be viewed as providing that federal OFFICIALS could not point to the absence of a particular Constitutional limitation to conclusively establish that they were entitled to act in a certain way. My point here — and forgive me for taking this long to make a relatively limited point — is that the Ninth Amendment need not be interpreted to mean what Ed asserts — that certain unenumerated rights existed that the People (i.e., majority) could not, through legislation or otherwise, define and delineate. Such an assertion, while feasible, certainly should not be paraded as undisputed. Of course, once this is conceded, Ed’s assertion that the Ninth Amendment dictates that majorities may not interpret unenumerated rights (through their legislatures or otherwise) becomes non sequitur.
“The government/majority may not violate the right to practice one’s religion, according to the first amendment. This is a limitation that is enforced by “unelected judges”, and that was also an aspect of our constitutional system that was intentionally designed. So in essence, the entire bill of rights, all enumerated rights, by your reasoning, amounts to an “oligarchy” that prevents “self-governance”. ”
Well, no.
The limitation in question was placed on the government, by the people. In other words, in the interests of socail harmony, the people agreed to certain social principles which all found sensible and in the common good.
What you are proposing is that the courts have the right, even the duty, to deduce the “unenumerated rights” without the peoples consent or input, and then inform the nation at large what rights they have, and then enforce those rights.
I find it difficult to believe that you cannot understand the oligarchic implications of such a stance. I might even use the word “statist”.
Will J.–
The founders’ reservations about democracy are well-known and well-documented. While they were not hostile to some democratic element within a government, they believed firmly, with Montesquieu, that a mixed government was best, one that combined elements of democracy, aristocracy, and even of one-person rule. The intent of this mixed government was to prevent any one faction or tendency within society from gaining too much power.
The Declaration of Independence may seem to endorse some form of pure democracy, but even this was only as a counterweight to the total lack of democracy in which Jefferson and company found themselves at the time.
Further, I am afraid I find your reading of the Establishment Clause puzzling. You write,
The… Establishment Clause only precluded the Federal Government from establishing religion (hardly an anti-democratic provision given that states had established churches).”
But this was precisely an anti-democratic measure–and a necessary one at that. The states had established churches, but no clear majority religious denomination existed in the colonies. The Establishment Clause sought in part to prevent any religion from lobbying to become the official one–and to prevent the destructive, unending (but democratic!) arguments that would follow afterward.
Ed Brayton wrote:
“The Supreme Court is the body empowered to determine whether a given law is constitutional or not. The constitution declares that there are unenumerated rights (this has been established and has not been answered, so is axiomatic at this point) that limit what the government may do. The courts, then, are the only ones who can enforce them. If it is left to the legislature, as I have argued and no one has yet disputed, then the 9th amendment is entirely meaningless. It doesn’t have any function at all if that is true; hence, it cannot be true.”
This argument requires judicial review, which at least some of the Founders did not believe in (like Jefferson). If there is no constitutional review, then the 9th amendment becomes a rhetorical tool for the minority to use against the majority in pressing for the repeal of certain laws, rather than a tool for the courts to use to overturn laws. But I think John Marshall was correct.
And Ventola said:
Anybody, not just a libertarian, can contend that the government should support certain liberties, but admit that these liberties are not necessarily protected by the Constitution. So, such a person (if he or she is a strict constructionist) would support Constitutional decisions which protect rights actually located in the Constitution, and support legislation to protect other liberties.
I think you (ed) have read into this statement something that he didn’t say.
I wasn’t around for the entire discussion, and maybe he meant what you’ve said he meant. A person can be a ninth amendment hawk and still agree with the above text. “Actually located” need not mean enumerated in painstaking detail.
The 9th and 10th are actually located in the constitution. We can still support legislation to protect other liberties.
I am in general agreement with the view of the 9th you have expressed here. I’m just making a minor point that the position you attack was not the position expressed in the text you cite.
Wandered in from volokh. Nice discussion, even given a few trolls.
You have to start with the notion that the People are sovereign, i.e. ungoverned except as they may confer their sovereignty upon some authority. They conferred a measure of sovereignty upon the federal government — limited powers and what might be “necessary and proper” in aid of the exercise of those limited powers. They added ten amendments to protect enumerated rights EVEN against the necessary and proper exercise of limited powers; and per the Ninth Amendment, to protect unenumerated rights EXCEPT against the necessary and proper exercise of limited powers.
The People conferred another measure of their sovereignty upon State governments, imagining that dual sovereignty would cabin the exercise of federal authority. The Tenth Amendment assured that the federal government could not usurp the sovereignty that the People might confer upon State governments.
Still, that did not exhaust the People’s sovereignty, which except as surrendered to state or federal authority, might be conferred upon their local governments — to control local rights-of-way, to zone real estate developments, or to make cowboys passing through town leave their guns at the sheriff’s office while they visited the saloon, and pick them up on the way out of town, the Second Amendment notwithstanding and irrelevant.
The sovereignty that the People have not conferred upon federal, state or local government is retained. It is the measure of individual liberty and autonomy.
Applying this construct to abortion, just for example, one might find in a particular case, in a particular place, that there is an autonomous right to abort a pregnancy; that the establishment of an abortion clinic is subject to local zoning authority; that the practice of medicine is subject to state regulatory authority; and that the exercise of state and local authority is subject to the 14th Amendment’s guaranty of equal protection of the law.
The construct crashes when you read the 14th Amendment, incorporating the Ninth Amendment, to empower the Supreme Court to determine a single measure of sovereignty retained and conferred by the People in every state and every community — equal laws drafted by the Supreme Court, instead of equal protection of state and local laws.
Ed-
FYI:
http://southernappeal.blogspot.com/2005/07/9th-amendment-and-unenumerated-rights.html
Whoops! Bad link:
http://southernappeal.blogspot.com/2005/07/feddie-on-ninth-amendment-redux-ah-let.html
Ed:
Your formulation — just like Randy Barnett’s — is very appealing to me, as a small-l libertarian. But as an attorney (and citizen) who worries about judicial overreach, I’m concerned.
As to the federal government, the “presumption of liberty” reading of the 9th amendment works for me.
But when we look at the states, what principled way do you propose for a judge to decide what is a legitimate use of the police power and what is an illegitimate encroachment on liberty? Clearly, while the founders were concerned about limited government, they did not intend for the states to be _as_ limited as the federal government. The devil is in the details, and (while I recognize the limitations of a blog post, and I further recognize that you said you’d elaborate later), you haven’t really provided any.
Ed, one nitpick. You wrote: “Nowhere in the Declaration will you find complaints that the process by which such actions were taken was not democratic enough, or that Parliament did not follow the correct procedure in passing the laws and policies that they objected to.”
However, the most famous complaint of the Colonists surely was “taxation without representation.” This grievance is recounted in the Declaration as well (”For imposing Taxes on us without our Consent”). While I agree with your thesis in this post, a fundamental premise advanced by the majoritarians is that if we believe a law violates our rights, “we the people” have the power to change it via elections and legislation. The fact that the Colonists had no such power was definitely a major complaint of theirs.
What do we think of the view that the unenumerated rights the Ninth Amendment protects are those rights that existed in the British constitution at the time of the Revolution but that were not explicitly reserved or denied by the Constitution? I think it covers all the points you’ve made, Ed: the Ninth Amendment means something, it can’t make everything a judicially enforceable right, and original intent matters.
I suspect that Ed would disagree about “original intent,” if only to quibble: Randy Barnett thoroughly discredits the notion of original intent, in favor of interpreting the Constitution according to original public meaning, which is something rather different: If the private intentions of the founders can be discerned, that may be interesting historically, but the public, generally accepted meaning of their document is what ought to control, not any private understandings that they may have had.
Beyond that, I disagree that the Ninth was meant to protect only those rights that were recognized in Britain at the time. Even this would be a limitation on our natural rights, and the founders intended no such limitation.
The courts get first shot at saying whether some governmental action is forbidden because it infringes upon a person’s natural rights. If they get that wrong, then the governed get the second shot. With a gun.
Having courts first (before the people) interpret the Ninth Amendment is a good way to avoid revolution every time the government does something stupid (and evil).
Where do originalists/strict constructionists get the idea of the State’s “police power” from? Is it only from the 10th Amendment?
Wow, I go to sleep and a dozen more comments get dropped. Rather than try and respond to each of them individually, let me put a few thoughts here. First, I find it both interesting and telling that none of my critics has yet attempted to dispute the central thesis of my post, which is that leaving all unenumerated rights up to the legislature to determine is the one position which, given the text and history of the 9th amendment, simply cannot be valid. Jon Sandor comes closest to challenging this when he says:
But he is ignoring the history and purpose of the 9th amendment. Remember that at the time the question of whether to have a bill of rights was quite controversial. The Constitution would not have passed without the promise that a Bill of Rights would be attached to it - numerous state ratification conventions demanded such language - but the founders also knew that they could not possibly list all of the rights an individual has and they feared that to make a partial list would be interpreted by future governments to justify their authority to regulate any action not specifically listed as a right. It was against this backdrop that Madison proposed a list of amendments in Congress which became the bill of rights, and when making that proposal he made the above quite explicit:
The 4th resolution is what eventually became the 9th amendment. It is also interesting to note that in the very same speech, Madison made clear that one primary purpose of the bill of rights was to make the courts a bulwark against the abuse of legislative and executive power:
So the Bill of Rights was written, in response to the demand of the state ratification conventions, in order to provide a crucial check on the power of future legislatures to violate our rights. And it should be noted that this cannot be understood outside of the framework of the concept of natural rights. Roger Sherman, who also proposed a set of amendments as a Bill of Rights, in doing so declared:
Some of those rights were specifically enumerated in the Bill of Rights and some, such as the right to property and to pursue happiness, were left unenumerated. Should they then be seen as open to violation by the government? Of course not. Because they made clear that there was no possible way they could list all of the natural rights, rights which precede the formation of governments and thus may not justly be violated by government. And again, we must remember that all of this took place with the great fear among the founders that a partial enumeration would be used in the future to justify government violation of our rights. As James Wilson said:
And as Randy Barnett argues, we must bear in mind why the rights of the individual can never be enumerated fully or completely. It’s because the natural rights framework within which this reasoning took place requires a sphere of conduct that is limited only by the rights of others, not by the prerogatives of government:
He follows that up by recounting a discussion between two members of Congress during debate over the wording of the first amendment, wherein one of them thinks it is silly to enumerate a right to peacably assemble because “it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called into question…”. We might as well, he says, “have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper…”. This makes clear the impossibility of enumerating every possible right and the importance, therefore, of declaring boldly that merely because a right has not been enumerated does not mean that the government may violate it as they see fit. It is this historical context that must inform our interpretation of the 9th amendment and it is this historical context which makes clear, as I have said repeatedly, that the one position that the text and history of the 9th amendment absolutely rules out is the position being taken by my critics here.
Now, it must be said that this doesn’t get us all the way to the end that I want to argue. It still leaves open questions. Once we establish that there are unenumerated rights which the government may not violate, we are still left with many unanswered questions. How do we discern between legitimate and illegitimate assertions of an unenumerated right? Are they enforcable by the courts, and if so, are they enforcable against the states as well as the Federal government? There are different possible answers to this question, and I have only teased at my full position on the matter. And it’s not the only position possible. Feddie has linked above to his take on the matter, where he argues that the full scope of unenumerated rights are defined by those rights recognized in the common law at the time of the ratification. I disagree with that argument, but it’s one plausible answer to the question.
But it must be kept in mind that that question can only be asked after it is established that there are unenumerated rights and that allowing the legislature to determine what they are voids the clearly stated purpose of the 9th amendment. That purpose was expressly to prevent future legislatures from taking the position that if a right is not specifically enumerated, the government may regulate it as it sees fit to do. As Steve says above:
If legislatures alone are allowed to determine what unenumerated rights they may violate, then there are no unenumerated rights and the government has unlimited authority to violated unenumerated rights. And that renders the 9th amendment, and the entire concept of unenumerated rights, completely meaningless. That is the one position that simply cannot be taken in light of the history and purpose of the 9th amendment. And no one has yet given any substantive answer to that argument, which is the core premise of this post.
Whiskey Juvenile wrote,
The courts get first shot at saying whether some governmental action is forbidden because it infringes upon a person’s natural rights. If they get that wrong, then the governed get the second shot. With a gun.
…and there’s a man after my own heart. Couldn’t have said it better myself.
Has anyone here read Democracy and Distrust? John Hart Ely raised the issue of the “impossibility of clause-bound interpretivism” (an issue that goes beyond the 9th amendment, by the way) more than 20 years ago. This is really nothing new.
The difference is that Ely, unlike Brayton, provides a tenable theory of how the courts should go about enforcing unenumerated rights. There is no principled way for the courts to deduce whether this or that abridgment of liberty will result in the overall societal benefit by which the state justifies the statute. This is particularly true because so many regulations that would become controversial under this model (eg, drug laws) are those which are made in the face of great empirical uncertainty. The court is in a terrible decision to make the determination of whether, on balance, drug regulations are good overall.
Like many intro political scienceBrayton’s (or Barnett’s) theory, that the courts should scrutinize every statute according to a presumption of liberty, is incapable of principled enforcement. As we all learned after reading Mill in introduction to political science, the difficulty comes in determining exactly what constitutes a “harm.”
Err, this is embarrassing. I accidently clicked submit before finishing that last paragraph. What I mean to say was:
I am personally attracted to the idea that governmental regulation ought to be limited to the prevention of harm, but as we all learned in intro to political science, any full definition of what constitutes “harm” is surely going to be controversial and incapable of juridical enforcement.
Instead, the courts should endeavor to protect the democratic process, which, when functioning properly, can be relied upon to furnish the repeal of ill-conceived liberty-limiting regulations.
This is all dandy, but nobody wants to answer the hard question: what does the Ninth Amendment actually protect? They can’t be unlimited, left solely to judicial discretion, since, as someone else said, oligarchy is worse than mob rule. The rights also can’t be types of rights that weren’t imagined at the founding, because the Ninth specifies rights retained by the people.
Beyond that, I disagree that the Ninth was meant to protect only those rights that were recognized in Britain at the time. Even this would be a limitation on our natural rights, and the founders intended no such limitation.
Why is that, now? I don’t think talk of ethereal “natural rights” leads us anywhere, because inevitably, they will simply be, “whatever I think is good.” Consider the Declaration of Independence. Why did the colonies rebel? It wasn’t merely for fun or spite. The colonists’ grievances were that their rights as British subjects had been so thoroughly violated that they nad no other remedy except breaking away completely. After all, if there had not been a Bill of Rights, what rights which rights would have been constitutionally protected in 1791?
Ed said:
The Ninth Amendment recognized unenumerated individual rights as against federal intrusion. The Tenth Amendment recognized State sovereignty, and the right of the People, by State constitutions and State legislation, to recognize and enforce individual rights from among the unenumerated, free of federal intrusion. The Ninth Amendment was not intended to protect unenumerated rights against State action. For that, the People looked to judicial enforcement of State constitutions; and more importantly to federal constitution’s guaranty of a “republican form of government” to the People of each State, by which the People would exercise their sovereignty and protect their liberty from infringement upon unenumerated rights directly at the ballot box. They did not look to the U.S. Supreme Court to declare (and thereby circumscribe) their unenumerated rights. Nor did they anticipate that the Supreme Court would read the Ninth Amendment to empower the Court to recognize, declare or “create” individual rights against the will of the People.
Before the Ninth Amendment was re-discovered and re-purposed in Griswold, it was directed to the protection of state and local autonomy, not individual autonomy — the “rights of the People,” not individual rights. This is discussed in a recent article, “The Lost Jurisprudence of the Ninth Amendment,” 83 TexL.Rev. 597 (2005) by Prof. Kurt Lash, who starts with Justice Story’s opinion in Houston v. Moore, 18 U.S. 1 (1820). Story “describes the Ninth Amendment as limiting the interpreted scope of federal power in order to preserve state regulatory autonomy.” According to Lash, “this echoes James Madison’s description of the Ninth as “guarding against a latitude of interpretation” of federal power to the injury of the people’s retained rights. Federal power is thus prevented from intruding into matters retained by the people who remain free to delegate that power to their state government as they see fit.”
The Ninth Amendment is not meaningless, but if there are any boundaries at all upon the unenumerated rights retained by the People — if there is any basis to “discern between the legitimate and illegitimate assertions of an unenumerated right” — it can only be found in the will of the People, the consent of the governed. Consider the most fundamental unenumerated right — the right to vote. In 1776, only in New Jersey did the “rights retained by the People” include a woman’s right to vote. By 1918, half of the States had decided that the rights retained by the People included a woman’s right to vote. In 1920, we ratified the 19th Amendment to guaranty every woman the right to vote. No one imagined that we could have spared the trouble because the 14th Amendment already entitled the Supreme Court to incorporate the Ninth Amendment and enumerate the unenumerated without the consent of the governed.
I think a few people have touched here on this point, but it seems to me that the only way to have a universe of unenumerated rights that is greater than zero but less than unlimited is to ground it in some coherent, extraconstitutional body of fact or law existing at some particular point in time. One way to read the Ninth Amendment - and I would be interested to see more on the historical support for this reading vs. a “natural law” reading, as well as an explanation of what sources one would look to to disclose the “natural law” - is simply to prevent new and novel invasions of liberty. As I have written on my own blog, one could argue that:
Thus, one would not read the Ninth Amendment as permitting the wide-scale overturning of laws that were unchallenged at the time of its adoption, but one could see it as a bulwark against new laws that would have been regarded as novel and shocking intrusions at the time. In short, the Ninth Amendment protects not any old liberties but traditional liberties.
I’ve always seen the Ninth and Tenth Amendments as simply being the “catch-all” amendments; their purpose was to enact a “when in doubt, don’t” constraint upon the government.
Contrary to A.T.’s supposition, “retained” does not define a set of rights, neither in breadth nor in time; by definition, the set of unenumerated rights is completely open-ended, as a catch-all provision should be. Therefore, there is no grounds to draw a line dividing rights retained by the people in 1787 versus those that could only have been realized later, e.g. the right to procure Internet access. “Retained”, rather, refers to the antecedence of all individual rights to government power.
Amendment IX serves to extend the restriction upon the federal government to cover anything they didn’t or couldn’t think of. It directly forbids the supposition by the federal government that unenumerated rights are “fair game”.
Moreover, “rights” such as the latter example are not really new rights per se, but modern applications of existing rights — thought, speech, association all come into play on the Internet. “When in doubt, don’t” was also intended to reinforce the obvious; that there is “nothing new under the sun” when it comes to rights, and that the principles as such automatically extend over their new applications. Therefore, the right of self-defense is not limited to the keeping and bearing of arms, nor is the latter limited to flintlocks and muzzleloaders. Similarly, copyright is only a specific application of the general principle which is the right of the author; there is nothing to stop an author from waiving copyright in favor of the GNU General Public License, for instance.
Natural rights are not “ethereal’; they are precisely defined by logic; specifically, the proceed from the individual’s basic right to life. To demonstrate, I shall give an example applications whereby I can dispose of that most aggravating of mainstream straw-men, the so-called “right to murder”.
If one supposes, as the Founders did, that the moral principle of “rights” find their origin in the given facts of human nature, it would follow from simple logic that these rights would logically apply to all entities which are human. It would follow directly from this that if all humans have the moral right to life, then there could not possibly be any right to kill him. The right to life is self-limiting, and self-defining; it is the simple logic of its application which results in the well-known libertarian truism “your right to swing your fist ends where my nose beings”. It is logic and reason, not any mere social convention, which defines that limit.
So, the constraint upon Amendment IX and upon liberty, which prevents it from devolving into mere anarchy, is logic. There is therefore no moral or rational basis for any imposition of limits upon liberty by society; if the term “reasonable limits” has any real meaning, it is in the logic of liberty itself.
What Sasha is doing, is conflating mere physical capacity with moral choice; just because we can, does not mean that we ought. That’s the whole point of morality and of such concepts as “ought”. We know full well we have the capacity to kill each other; the purpose of moral principles is to tell us whether we should.
The same goes for the “right to steal” or any other conflations of mere capacity with moral right.
It’s easy to say the Ninth Amendment is limited because it only protects “natural” rights to life, liberty, and property, but this is still a blank check to the judiciary. What right was it that Blackmun thought he found in the Fourteenth Amendment, or was it the Ninth?
I have a bad feeling that so-called libertarians are happy to find unlimited powers in the Ninth Amendment (how you can retain something you don’t have is beyond me), allowing the courts to call anything an “unenumerated constitutional right,” because they like the outcomes the judiciary has produced over the past 40 years.
A.T., I do think you are being unfair here. The judiciary in the United States is guided by principles of common law; in only a very slightly better world, it would likewise be guided by a strict adherence to the original public meaning of the Constitution. And, as I mention in my post above, the interpretation of a more robust Ninth Amendment would not be solely the province of unelected judges. On the contrary, it would fall to juries as well to determine what unenumerated rights the people possess. They have this power right now, although in many cases they are ignorant of it or even (falsely) told that they cannot use it. Juries are the most democratic means that can practically be devised to oversee the daily administration of the laws, and their role here would likewise be to add an element of democracy to the process.
As to libertarians liking the outcomes that the judiciary has lately produced… All I can say is that either you don’t know libertarians very well or you haven’t been paying much attention to the news lately. The four of us have been urging a more robust Ninth Amendment jurisprudence even while the courts have lately done great harm to our rights elsewhere, and this should indicate to you that it is a matter of principle for us, not of convenience.
This focus on the judiciary is quite interesting. I can’t help but see it as social conservatives choosing to suddenly believe that the exercise of majoritarianism is a “right” because they oppose certain acts of the judiciary (abortion, gay marriage, prayer-in-school).
Indeed, as a libertarian, I want to re-express my support for unenumerated rights independent of the judiiary. I believe that Ninth Amendment indicates that individual have rights beyond those specified in the previous amendments. That, by itself, is enough.
As to enforcement, the protection of these rights should be enforced by everyone at every level of the governemental process. That means the Legislature should not pass laws invading other rights, the Executive should not enforce laws invading other rights, the Judiciary should not uphold laws invading other rights, the People, as juries, should not convict upon laws that invade other rights, and finally, should the extent and number of laws enforced that invade other rights be so great as to be unbearable, the people should overthrow such a government.
It just so happens that historically, the Judiciary has been the primary level of government that has enforced other sections of the Constitution, so the 9th Amendment is assumed to be no exception. There’s little indication that the Legislature will limit itself; there’s little indication that the Executive will chose not to enforce laws based on Constitutionality. Other levels left to the people are either ineffective, or in the case of revolution, far, far away too unpleasant to be justified.
This is an interesting posting (although not all of the attached discussion is so).
The Ninth Amendment is quite the queer duck. It is similar to the Tenth in that it is not intended as being “substantive” - it does not grant any right. Yet, as noted, the Ninth is about rights, while the Tenth is the only amendment of the BoR that is about powers.
Yet, the truly unique nature of the Ninth is that, while about rights, it is a procedural amendment. Perhaps this has not been adequately emphasized; it says neither more not less than this: any argument about rights guaranteed by the Consistution that takes the form of — “Nothing in the Constitution says that there is a right to X, therefore there is not a right to X in the Constitution” — is disallowed. It simply isn’t kosher. Thus (to wade into the turbulent waters) to say that since there is no reference to privacy there is no constitutional right to privacy is not a valid argument. It is however valid to question what is meant by privacy and what the limits of such a right might be - after all, one cannot read the whole of the constitution without conceding that there is in fact some unmentioned barrier to government intervening in a “private” sphere of personal life.
That said, it is not an open-ended mechanism for including anything. The hard work of weighing and evaluation the necessity of rights cannot be avoided.
A further point comes to mind upon re-reading the post:
I do not believe that the purpose of the Ninth Amendment can be separated from the context of its adoption.
The most controversial aspect of the adoption of the whole BoR was the necessity of it (or lack thereof). Whatever the merits of the Constitution itself might be (a separate issue), the key question was - do we need to spell out these “rights”? Many thought not. After all, by what right would government quash (for example) free speech?
By this mode of approach, the Ninth was The BoR - that is, the Ninth restates the obvious: the rights inherent in the liberal society inherited via the common law from Britain would not allow infringement of many basic rights which were to be organically understood - they were so intertwined with legal and governmental life itself that they need not be spelled out.
Of course, the other side won (officially). After all, the Americans were adopting a written consitution and so some enumeration of rights was needed. The Ninth simply guards against the alternative logical conclusion inherent in any listing, i.e, that the listing is a complete list.
It is also important to emphasize the written nature of the BoR. The Founding Fathers only lived in a world of unwritten constitutions. Rights were guarded by the accumulated customs of the realm.
Several of the prior comments seem to take a very conspiratorial view to the concept of judicial review. Such a role for the courts is in part due to the transfer from unwritten to written constitutional existence and the demarcation of the branches of government.
Of course, in Britain, the traditional highest court - particularly with regard to constitutional issues - was the House of Lords. (This is approximated in the U.S. Senate). However, in the U.S., the judicial nature of the Lords is split to form the judicial branch while its law-giving nature still lies with the legislative. By so separating the branches from each other (note: there is no constitutional-interprative role at all for the executive in either system) the American system creates a discord between such interpretation and the democratic expression of the People.
This is simply unavoidable if one accepts that (a) there must be a single, ultimate authority on what is constitutional and (b) that is SCOTUS. If one does not accept that, then one rejects virtually all of American legal history starting pretty much from the initial years of the Republic (and, as such, I cannot help you).
I simply wanted to add that 1. Courts enforce nothing, 2. Reason and logic are not self-enforcing and 3. any reference to original intent or original public meaning of anything as authoritative is merely a ‘logical punt’ and resolves itself into the insidious but unavoidable conclusion that what prevails is what is, literally, ‘taken-for-granted’, treated as a ’self-evident truth’ and is backed up with enough MIGHT to make the obstreperous and recalcitrant go along.
James writes: “That said, it is not an open-ended mechanism for including anything. The hard work of weighing and evaluation the necessity of rights cannot be avoided.”
I do not see why the weighing and evaluation of rights is incompatible with the open-ended nature of a “catch-all” provision. After all, it is such weighing that the SCOTUS ideally uses to determine whether the issues in a given case fall within the powers permitted to government by the Constitution, or if they are “outside the fence” in the great open space of liberty. A good outline of this general principle by Tara Smith can be found Only a Judge Who Will Actively Uphold Individual Rights is Fit to Serve on the Supreme Court
Construed in that manner, the dishonesty in the conservatives’ framing of this issue becomes painfully clear. The SCOTUS did not “find a Constitutional right to sodomy” in Lawrence vs. Texas, as they wail; they couldn’t. The Constitution does not grant nor create rights. So the SCOTUS did not “find” any new rights in Lawrence, it simply failed to find a permission for the government to dictate terms of sexual behaviour.
I appreciate the thoughtful comment. I also can recommend the Tara Smith piece as a thought-provoking one.
That said, the weighing and evaluation of rights is inherently the opposite of an open-ended, “anything goes” decision mechanism. Indeed, one would wonder on what basis weighing-and-evaluation would be made if anything (a/k/a, nothing) was the determinant. Deciding a dispute on the basis of anything is indistiguishable from deciding it arbitrarily.
I would agree that there is no “right to sodomy” nor a finding of one by the Court, but rather the alternative - a failure to find a basis for governmental intervention, either rational or specific, in the decisions of mutually consenting adults. Apparently, as this specific matter has been sufficiently and expertly litigated, there is no rational basis for governmental intervention in the matter. (The last gasp of governmental claims here was morality, which the Court wisely found to be of little practical use; while morality can, and no doubt often does, inform the intellect in decisionmaking, it does so as an aid not a substitute for rationality: it is undoubtably immoral to murder someone but one need not claim morality as the sole basis for making murder illegal; the weighing and balancing of individual claims, rights and duties among citizens is sufficient to criminalize murder, although not necessarily to define murder. What weighing of claims does government ‘claim’ to be making in a consensual sodomy case? Some far-fetched ‘Amazon butterfly’ theory of interdependent social effects?)
This is a far cry however from claiming that government does not have any basis for dictating terms of sexual behavior. The constitution provides more than a sufficient basis for allowing governmental prohibition of, even consensual, sexual behavior between an adult and a minor (even if no guidance on the precise terms and scope of such intervention - witness the different outcome in a system of rights of identical root to our in Britain, where (I believe) the division between legal and illegal mutual sexual behavior of adult/minor is made at the age of 15 versus 18. A finding that the constitution tied government’s hand in dictating sexual behavior of 15 year olds is what I would charactize as an “anything goes” result; for a 19 year old, an unavoidable judgment call; for a 21 year old, a humble respect for the primacy of individual liberty interest over a power-seeking government.)
To Jim May–
Are you the Jim May that I once knew years ago from alt.philosophy.objectivism? If so, I always regretted losing touch with you, and it is good to hear from you again.
If not, please disregard the above, but consider that your remarks were intelligent and incisive enough to make me think that beyond sharing his common name, you also possessed the remarkable mind of my long-lost friend.
By so separating the branches from each other (note: there is no constitutional-interprative role at all for the executive in either system) the American system creates a discord between such interpretation and the democratic expression of the People.
This is simply unavoidable if one accepts that (a) there must be a single, ultimate authority on what is constitutional and (b) that is SCOTUS. If one does not accept that, then one rejects virtually all of American legal history starting pretty much from the initial years of the Republic (and, as such, I cannot help you).
Yeah, assuming that (a) and (b) could be a problem. You haven’t read Larry Kramer’s book, The People Themselves. I suggest you go to your local bookstore and buy it. Run, don’t walk.
“The Ninth Amendment is quite the queer duck. It is similar to the Tenth in that it is not intended as being “substantive” - it does not grant any right. Yet, as noted, the Ninth is about rights, while the Tenth is the only amendment of the BoR that is about powers.”
This is you bringing your own subjective (and minority) interpetation to bear, and acting as if it is established fact.
The Ninth IS perfectly compatiable with all the other amendments, if you do not insist on reading it as you do. Once you accept that it places restrictions on the federal government, it falls into line with all the other aspects of the BoR. The Ninth is not “about rights” in the positive sense which you seek to give it. It can be said to be about rights in the negative sense that it denies to the Federal government (NOTE! the Federal government.) the authority to infringe in the lives of the people in ways not covered by the explicit provisions of the Bill.
The BoR generally cannot be read as granting to the Supreme Court, or to the Courts generally, the role of guardian of the peoples rights. This is all described in detail in the Federalist papers. Specifcally, Federalist #84 directly refutes the type of error being commited by Randy Barnett, and echoed here by his followers. The example he provides is the First Amdt, but the same principle applies to all of them.
“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”
Let me pull part of that out for emphasis. “They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, ..”
Is tis not what Ed does when he claims that the Ninth is “meaningless” unless read as conferring on the SC the freedom, even the duty, to actively get involved in defining our rights and their limitations for us?
Yet Barnett and Co. seek to invoke the Ninth Amdt as a justification for conferring sweeping powers on the Federal government. Even on the question of freedom of the press, Publius makes clear that the defenders of the right in question is to be “the people”, through their legislatures, and not the courts.
“To show that there is a power in the Constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon the publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the State constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the State legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the State constitutions which contain those declarations through the means of taxation, as under the proposed Constitution, which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained.”
Lastly, I’d like to repeat an earlier question which has not been addressed. Some parties to this discussion are given to talking about the courts as if they are not a part of the state and the government. From this comes the specious argument that conferring sweeping powers on the courts is consistent with the idea of limited government and libertarian ideals. Can anyone offer any defense for this claim?
James
“By so separating the branches from each other (note: there is no constitutional-interprative role at all for the executive in either system) the American system creates a discord between such interpretation and the democratic expression of the People.”
Actually, all the branches have a sworn obligation to uphold the Constitution. If Congress passes a law which the President views as un-Constitutional, he not only can refuse to enforce it, he has an obligation not to enforce it. The executive branch arguably has the largest role to play in constitutional interpetation, bearing in mind that this is a duty shared by all three branches. The Constitution nowhere assigns to the Supreme Court the role which it has sized for itself as final arbiter of what is or is not constitutional. That final arbiter is and must be the American people.
Power to the Courts to limit the power of other branches is only significant if you are, in fact, a member of the other branch of government. Considering the only “power” supposedly being granted is to restrain government, to affect the individual LESS, it’s entirely consistent to see this as libertarian. The end result is that the government can do less.
I’d like to ask the reverse: what “sweeping powers” do you think are being given to the Court? And to whom does that power apply against?
The sweeping powers are the powers to decide what rights the people have and what restrictions can be placed on them. That is not a power granted to the SC.
That power applies immediately against the other two branches of government, and ultimately against the states and the people themselves.
When the people of a state attempt to alter their state constitution, and they are prevented from doing so by the Supreme Court, how do you imagine this limits the power of the other two branches of the Federal government?
In general this whole discussion is detached from reality. I think it is possible to imagne a scenario in which the courts are too passive, too docile, too accomodating of everyone else. But anyone who feels that this is the case in America today is simply insane.
We have the situation where judges strike down attempts by the people to amend their own constitutions. We have judges who size on language in state constitutions regarding a right to an education as a pretext to order the state legislatures to raise taxes, and which then usurp the executive function by overseeing the administration of schools.
This is not a country in which the state, in its judical aspect, needs encouragement to b