The Rights Retained by The People [and the presumption of liberty]

Barrnett ^ | 6/7/04 | Randy Barnett

[tpaine]

The Rights Retained by the People: The History and Meaning of the Ninth Amendment
Volume 2 Edited by Randy E. Barnett  

I. The Origins of The Ninth Amendment
II. Why the Rights Retained by the People Are Unenumerable
III. Implementing the Ninth Amendment
IV. Replying to the Ninth Amendment Skeptics
V.  Conclusion: The Equal Protection of Liberties and the Future of the Ninth Amendment

 

           In this Introduction, I explain how the ninth amendment's protection of unenumerated rights "retained by the people" can be implemented in a practical fashion that is consistent with the views of its author, James Madison.
Although additional work needs to be done on this proposal, enough support for it currently exists to render it attractive to those who value constitutionally limited government. I then respond to a number of ninth amendment skeptics who have sharply criticized the idea of implementing the ninth amendment.
Any understanding of how the ninth amendment can work harmoniously with the rest of the Constitution, however, requires a brief examination of the origins of this intriguing and pregnant passage.

I. The Origins of the Ninth Amendment

     

      The origins of the ninth amendment can be traced to the debate surrounding the ratification of the Constitution. The Antifederalists, who opposed ratification, concentrated much of their attack on the absence of a bill of rights. Although many Antifederalists were probably more concerned with defeating the Constitution than with obtaining a bill of rights, they repeatedly pressed this charge because it struck a responsive cord with the people. The Federalists who supported ratification, such as Alexander Hamilton and James Wilson, gave two answers to this complaint.   

         First, they said that a bill of rights was unnecessary. Because the federal government was one of enumerated and limited powers, it would have no power to violate the rights of the people. "Why, for instance," asked Hamilton, "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?" Second, they argued that a bill of rights would be dangerous. Enumerating any rights might suggest to later interpreters of the Constitution that the rights not specified had been surrendered. An enumeration of rights could thereby lead to an unwarranted expansion of federal power and a corresponding erosion of individual rights.  

           Neither argument against a bill of rights carried the day.

_________________________________________________

III. Implementing the Ninth Amendment

A. The Presumption of Liberty

                 Implementing the ninth amendment challenges us to protect unen-umerated rights without determining a final list of such rights and without lending credence to illegitimate claims of right. This challenge has proved too much for most judges and constitutional scholars. Even for those who have the will to implement the ninth amendment, there seems to be no practical way. But there is.

              As long as they do not violate the rights of others (as defined by the common law of property, contract and tort), persons can be presumed to be "immune" from interference by government.

Such a 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.        

           Any society such as ours that purports to be based on a theory of limited government already assumes that legislation must be a proper exercise of government power. The presumption of liberty simply requires that when legislation or executive actions encroach upon the liberties of the people, they may be challenged on the grounds that they lack the requisite justification. And a neutral magistrate must decide the dispute. As Madison observed in The Federalist No. 10:
No man is allowed to be the judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay, with great reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? .... Justice ought to hold the balance between them.

 When legislation encroaches upon the liberties of the people, only review by an impartial judiciary can ensure that the rights of citizens are protected and that justice holds the balance between the legislature or executive and the people.

           Lest anyone think this point is obvious let me hasten to note that today the presumption used by the Supreme Court is precisely the reverse.
According to what the Court calls the "presumption of constitutionality," legislation will be upheld if any "rational basis" for its passage can be imagined, unless it violates a "fundamental" right ---- and liberty has not been deemed by the Court to be a fundamental right.

____________________________________________________

V.   Conclusion:

The Equal Protection of Liberties and the Future of the Ninth Amendment             

What is the future of the ninth amendment? In law, as in most areas of life, betting that the future is going to be pretty much like the past is usually the safest wager. If this turns out to be true, then the ninth amendment, which has been so tragically neglected by the Supreme Court over the past two centuries, is doomed to remain in a state of desuetude. But while betting against change may be the most conservative gamble, it is often a losing one. The past twenty years has witnessed a trend in the direction of a revived ninth amendment.

            In particular, a renewed interest in the views of the framers of the Constitution and of the Civil War amendments has caused those who favor an expansive judicial protection of fundamental rights to focus attention on the original intent of the ninth amendment. Moreover, the framers' concept of natural rights is no longer in complete disrepute. If the Senate confirmation hearings of Judge Robert Bork to the Supreme Court of the United States was a watershed development in the legitimation of the ninth amendment, the confirmation hearings of Justice Clarence Thomas may prove to have a similar effect on the legitimacy of natural rights. History may well mark the turning point for popular acceptance of natural rights theory in the United States to be Senate Judiciary Committee Chairman Joseph Biden's opening statement during the Thomas confirmation hearings in which he openly embraced natural rights and stated that the issue for him was which version of natural rights the nominee favored.

          With the addition of Justice Scalia, Kennedy, Souter, and Thomas to the Supreme Court and the elevation of William Rehnquist to Chief Justice, "conservatives" appear now to be in firm control of the Court.
The type of "judicial conservatism" that will eventually emerge in the third century of the Bill of Rights, however, is still very much in doubt. Will it be a majoritarian conservatism of judicial deference to majority will as expressed in legislation? Or will it be a more libertarian conservatism that views the courts as neutral magistrates empowered to protect the individual from the government? 153 Which of these conservatisms comes eventually to prevail will depend, perhaps in principal part, upon whether a majority of the Court can be persuaded to take James Madison's ninth amendment and its pivotal role in constitutional interpretation to heart. At the moment, it appears that a justices with a more libertarian brand of conservatism 154 —and a respect for the ninth amendment 155—have the upper hand.          

Which judicial philosophy prevails will also depend upon whether proponents of the ninth amendment will take a more principled stance towards so-called fundamental liberties. The liberties each person holds fundamental are imperiled when advocates of some liberties they hold dear are more than willing to deny or disparage the liberties thought fundamental by others.
For example, many of those favoring a fundamental right of privacy that includes a woman's right to chose to terminate a pregnancy offer no support to and indeed would actively oppose those who favor a fundamental "right to choose" to engage in a lawful occupation—such as driving a taxi cab—free from protectionist economic regulations.
And few seem at all concerned with the fundamental "right to choose" whether or not to own a gun or to alter one's mental state by means of substances as alcohol, nicotine, peyote, or heroin.
According to this discriminatory methodology, if some choices are deemed fundamental, other rights-respecting choices are vilified and ridiculed.

                   I am not suggesting that some exercises of liberty are not in fact more important than others. However, by picking and choosing among all the unenumerable liberties of the people to determine which choices are fundamental and which are not, those who would limit judicial protection to liberties deemed fundamental are putting courts in the difficult position of establishing a hierarchy of liberties.
This contributes to the longstanding fear that any revival of the ninth amendment would place courts in the role of a "super-legislature" usurping the functions of other branches. When interpreted as justifying a presumption of liberty, however, I think this fear of the ninth amendment is unfounded precisely because such a presumption provides a principled defense of all liberties of the people and removes the courts from having to decide which liberty is truly fundamental and which is not.

        Adopting the presumption of liberty would enable us to acknowledge the ninth amendment's unique constitutional function by resisting legislative or executive usurpation of the unenumerated rights "retained by the people" while, at the same time, avoiding unfettered judicial discretion. The presumption of liberty would permit us finally to remove the ink blot from the ninth amendment.

[tpaine]

           "As long as they do not violate the rights of others (as defined by the common law of property, contract and tort), persons can be presumed to be "immune" from interference by government."

[Pontiac]

Bump for later reading.

[Texas Federalist]

I took Randy Barnett's Constitutional Law course at Boston University School of Law a few years back. I can safely say that no one experience in my life has had a greater effect on my political philosophy.

[Tax-chick]

Wow, that's an endorsement! Bump for later.

[robertpaulsen]

"Although originally the ninth amendment, like the rest of the Bill of Rights, was most likely intended by the framers to be enforced only against the federal government ..."

Make note, tpaine.

[sc2_ct]

bump for later reading

[tpaine]

Barnett does seem to have his head on straight, doesn't he?

[jwalsh07]

The ninth amendment was a constraint on federal powers. Now you want to turn it on its head and use it to assign even more power to an unelected judiciary?

Thanks but no thanks.

[tpaine]

"Although originally the ninth amendment, like the rest of the Bill of Rights, was most likely intended by the framers to be enforced only against the federal government ..."

Make note, tpaine.
-rp-

Note the bold qualifier, paulsen..

I have no argument with the concept that "most" of the BOR's framers were ignoring the Constitutions supremacy clause, -- just as their political adversaries intended.
Lots of hanky panky compromise was involved in getting our BOR's ratified, of that there is no doubt.

But YOUR concept, paulsen, -- that States can prohibit firearms, is repugnant to the very principles of our Constitution. -- NONE of the founders would have backed that 'interpretation'.

[Sandy]

There's a recent blog debate involving Randy Barnett that you may like. Start here.

[Texas Federalist]

Barnett does seem to have his head on straight, doesn't he?

Yes. He's also an extremely personable guy.

[Sandy]

You too. (See my reply #10.)

[tpaine]

jwalsh07 wrote:

The ninth amendment was a constraint on federal powers.

Our enumerated/um-enumerated rights are inalienable, and Constitutional principle protects them from violation by ANY level of government. See Art. VI.

Now you want to turn it on its head and use it to assign even more power to an unelected judiciary? Thanks but no thanks.

Our judiciary is appointed & controlled by the other branches of government. Which 'we' control by ballot box or bullet box. -- Take your pick.
-- You seem to be picking the side who favor State gun prohibitions. Why is that?

[mrsmith]

I suppose a Libertarian living constitutionalist would be a more amusing professor than a Liberal living constitutionalist.

James Madison: ''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.
This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [Ninth Amendment].''

But Randy concludes that the Ninth means that rights should be "assigned into the hands of the General Government"'s courts!

He is amusing.

Though no court has ever had the temerity to do it yet, I suppose the living constitutionalists will one day win their ultimate victory and gain control of our unenumerated rights in the federal courts.

[Texas Federalist]

The ninth amendment was a constraint on federal powers. Now you want to turn it on its head and use it to assign even more power to an unelected judiciary?

Actually, the judiciary would have less power under Barnett's theory because original intent can be used to identify "retained rights" under the Ninth Amendment. Under post-New Deal Constitutional interpretation, there is no constraint to the rights that the judiciary now creates under the guise of due process or equal protection.

Also, democratically enacted laws are as much a facilitator of federal power as the judiciary, if not more. The entire welfare state was created from majoritariamism, but would be unconstitutional under Barnett's theory.

[Texas Federalist]

I am familiar with the quote you cited, and it actually means something a little different than it would in today's usage:

''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.

Okay. Everyone is born with natural rights. When a government is formed, you surrender some of those rights in exchange for the protection of others. The rights rights that are not surrendered to the government are those that are "retained". Rights that were "assigned to the government" are those rights that were given up to the government in exchange for the security of living in a society and could be infringed. You are thinking of the term "assigned into the hands of the General Government" as meaning it is the Government's duty to define and protect those rights. It does not mean that at all.

[tpaine]

Great site Sandy.. Thanks..

Just took a brief look, but I'll read more tonight..

[Texas Federalist]

Though no court has ever had the temerity to do it yet, I suppose the living constitutionalists will one day win their ultimate victory and gain control of our unenumerated rights in the federal courts.

What are you talking about? Court's do it every day. They just base it on the 5th and 14th Amendments rather than the 9th. Barnett's approach at least forces the Court's to look to original intent in guiding the identification of these rights.

[mrsmith]

You misunderstand me.

"You are thinking of the term "assigned into the hands of the General Government" as meaning it is the Government's duty to define and protect those rights. It does not mean that at all. "

If Randy had his way it would, exactly!

The precise implication of this article is that federal judges should define and protect our unenumerated rights (Libertarianly, of course)- how much more could they be in the government's hands?
What more power over our unenumerated rights could the government possibly have than to define for itself what they are?

Madison's intent with the Ninth was that the courts would instead have to recognize unenumerated rights which were retained by the people.

[mrsmith]

"They just base it on the 5th and 14th Amendments rather than the 9th."

They do not do it under the Ninth. They never have.
Having the power to define rights, and what is and isn't a right, under the Ninth is their Holy Grail.