The 9th Amendment and Unenumerated Rights
Ed Brayton on Jul 27th 2005 12:42 pm |
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.
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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 broaden the scope of its powers. The opposite is true. Its hard not to suspect that todays “libertarianism” is not yesterdays liberalism flying a new flag. Both the ends and the means look suspiciously similar.
“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.”
Take a case in which the Federal government is granted the power to overrule a decision made by a state government. In what sense can this be said to “affect the individual LESS”?
We’re still talking about the 9th Amendment, right? The Federal government, then, could only be overruling a decision by the argument that it violates an individual’s rights. Therefore, the decision could only prevent the individual’s rights from being violated, and limit the actions the state government can take. The individual is no longer affected by the state government regarding the law that is overruled. How is the individual affected negatively?
Ahh, yes, your examples. I’m sorry, I’m not familiar with actual cases matching up to your claims. But, assuming they exist and are as you describe, then even still the root cause is not properly following the 9th Amendment, but instead actually granting a new (new from my point of view, at least) power to the Judicial branch. Certainly the right to declare a law unconstitutional should not grant the power to create new laws that affect and limit the individual, to create taxes, and to administer. These powers are undesirable. But now your argument becomes a tautology: giving the Judicial branch sweeping powers to legislate and execute the law would indeed be giving them sweeping powers. And that would not be consistent with a libertarian outlook.
Now, as to whether the Federal governments decisions on constitutionality should apply to the states, that’s an issue of properly following the 10 Amendment, and topic for another discussion. On the whole, I agree that such power over state governments is not in accordance with the constitution.
As things stand at present, the Ninth does not provide any source of rights. The debate is over whether it should do so in the future. The arguments against it doing so are pretty overwheliming, in my view. And that view is shared by the courts themselves, fortunately.
“The Ninth Amendment obviously does not create federally enforceable rights.” in Doe v. Bolton, for example.
From beginning (“Congress shall pass no law..”) right through to the end (“The powers not delegated to the United States by the Constitution… are reserved to the states respectively, or to the people.”) the BoR is clearly a document meant to restrict the Federal government.
Attemping to argue that the Ninth, which specifically says that other rights are retained by the people, is actually confering the authority on the SC to interfere with those rights, is exactally the kind of thinking which Hamilton was concerned about in Federalist #84. That is, Barnett does “..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, ..”
The Ninth very pointedly denies juristiction over these other rights to the Fed’s, and leaves them in safer hands, those of the people themselves.
Which leaves us with the mystery of why people calling themselves “libertarians” should be so eager to snatch power from the people and entrust it to the least accountable body in the country.
You’re still failing to make any sense to me. The arguments you quote from the Federalist papers apply to all of the BoR. And the arguments make sense in a government strictly held to only the enumerated powers, though we did, in fact, end up with a BoR anyway, despite such arguments. Since we no longer have a government that isn’t assumed to have the authority to abuse such rights, the 9th amendment is a very important reminder of limitations on the federal government.
Again, I ask, what power is snatched from the people? We’re talking about recognizing that other rights exist that are not enumerated in the constitution. As I said in an earlier post, these rights exist independently of how they are enforced. And all branches and levels of government have the jurisdiction to enforce them.
If you what you really mean by “snatch power from the people” is that you’re upset that a majority of the people cannot, through the legislature, violate individual’s rights due to Judicial branch potentially determining that a law violates people’s rights, then simply say so, so that I can see that you have no real interest in libertarianism. All of the history and the founders then, stand firmly against you: prevention of the tyranny of the majority was a key concern during the creation of the constitution.
Stephen
“All of the history and the founders then, stand firmly against you: prevention of the tyranny of the majority was a key concern during the creation of the constitution.”
With all respect, Stephen, you don’t know what you are talking about. I defy you to provide for me all this history you speak of. I have read the Federalist papers, and this “key concern” you speak of is not in evidence there. The key concern leading to the creation of the Constitution was NOT the tryanny of the majority; it was that the Articles of Confederation were felt to be too loose, too unrestrictive.
“And all branches and levels of government have the jurisdiction to enforce them.” [rights]
Again, this is simply not true. If Podunk passes a law against spitting on the sidewalk, it is not, and ought not, to be a matter for the Federal government. Surely any libertarian must agree with me on this. Not everything is a matter of rights, and few rights are the juristiction of the Federal courts.
The Bill of Rights does not grant rights. It prevents the Federal government from acting against rights, by placing many things off limits to it.
Attempting to pretend that the Ninth Amdt grants the Supreme Court power over all our rights is in fact a sweeping transfer of power to the Court. It is also an idea which has been rejected by all the Courts up until now. It is an idea which is directly counter to both the express language of the Ninth Amdt itself, and to the historical documentation describing the creation of the Constitution.
I have yet to see the slightest indication that you are a libertarian of any kind. Over the past several years a lot of people have been attracted to the liberatarian banner because they think it will give them whatever they want. That is not what the movement is about. It is about limited government. Limiting the power of the state will not actually give you whatever you want. It allows individuals greater freedom of action. They are under no compulsion to use this freedom in a fashion which you fnd acceptable.
Among the things they can do is e.g. enact a law preventing you from turning your home in a residential neighborhood into a pig farm. Such laws are in place all across the US, and have stood the test of time. The Constitution of the United States is silent on the matter, which means that it is a question for the people to iron out themselves.
Rights to life, liberty, the right to bear arms, the right to be free from unlawful searchs, are all “low cost” rights. Most other rights are in conflcit with one another. My right to smoke a smelly cigar on the bus conflicts wth your right not to breathe the smoke. Peters rights to wear a frilly skirt and high heels conflicts with Pauls right not to hire people he disapproves of. Marys right to be a unwed mother runs into Janes right not to rent housing to someone she does not wish to.
All of these are “rights” retained by the people, and explcitly removed from the Federal government by the Nnth Amdt. The difficult task of deciding where one persons rights end and another persons begin are left up to the people, the “majority” which you dislike and fear so much.
The alternative to “majority rule” is rule by a minority. Why minority rule is not oligarchic is one of the questions that nobody here has answered.
Jon Sandor wrote,
I defy you to provide for me all this history you speak of. I have read the Federalist papers, and this “key concern” you speak of [fear of the tyranny of the majority] is not in evidence there.
Try here for starters. It’s a good analysis, with a very important quote from Jefferson: “Though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable;…the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”
There is more, much more–just follow the link.
One other point, before I duck out of the discussion once more. You write,
The alternative to “majority rule” is rule by a minority.
But this is a false alternative. It is entirely possible that broad swaths of life could be free–unruled by anyone.
What does any of this nonsense matter (read: pessimistic) when all of what you speak requires people to unite and the government, if anything, has effectively put everyone to work by the hour to grind there until their departure from this world?
The fact of the matter is that while your arguments are impressive and highly intelligible they are amongst the outermost percentiles of the population. “For if liberty means anything it means eternal vigilance” (sorry paraphrase) and that is precisely what has not happened.
Why be it that we have the most technological communication system on this rock but we have but two, or three if you really care to argue, candidates for president? Why be it that a bank can locate a missing penny from years since past while our voting system seems inherently flawed? What is the point of dividing the votes into states? One person, one vote!
Surely all of you must be thinking but I am but one person, and you are right- but all individualism was plagued when it was interpreted to concern only thy self as well.
Another point would be to comment on the fruits of our past and the merits of our founding which propagated to our present existence – but then you would be ignoring the tendency for systems to self degrade at an exponential level. Be sure of nothing except the founding fathers belief that when a system no longer works it is time to cast it aside but thou consider it? Not likely – we are all holding on too tight. Perhaps you live in a state of self delusion? Then please consider this- what would be the constitutionality of putting a paraplegic in federal prison for using pharmaceuticals? And then provide him, in absence of his freedom, the drugs he so desperately needed?
Perhaps the problem isn’t with the system or any system- perhaps it is founded upon the basic of humanity. Why is it that individuals with rights seem to focus those rights to no purpose then to eliminate another’s rights? If given the right to speak, immediately thou will advocate at the top of thee lungs that another shall not do X.
Furthermore, I would like to comment on the way the mass seems to look to his[her] neighbor with distrust and fear but his elected official with admiration- or at least so presented by the position of the laws. Give police power to search property without checks or even telling people.
Finally, I envy all you since you are the only ones entrusted with the ability of actually being within the confides of legality – or so I am sure you take as faith as the rest of us do. With over a 100,000 laws in my home state then toppled by the laws of the federal jurisdictions I am forced to conclude that we all must, at least in some small measure, completely ignore the law for we shall never be able to understand let alone abide by it.
What I have described is a system as failed as ever a system has been.
Jason
“It is entirely possible that broad swaths of life could be free-unruled by anyone.”
That is a bold claim. Unruled by anyone? Can you suggest any historical examples of when and where this was ever the case? Perhaps you mean theoretically possible.
Regarding the “tryanny of the majority” question – one carefully qualifed quote from Jefferson, in which he acknowleges that “the will of the majority is in all cases to prevail..” does not seem very persuasive evidence for the proposition that the framers of the Constitution regarded the tyranny of the majority as a key concern.