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

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.

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.

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.

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.

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

I agree. But that is exactly what Randy is advocating: the judicial recognition of those rights a consequence of which is that no branch of government may infring upon those rights. The legislature must not pass a bill that infringes on an unenumerated right, the president must not sign into law a bill that infringes on an unenumerated right, and the judiciary must not enforce a law that infringes on an unenumerated right.

jwalsh07 wrote:

The ninth amendment was a constraint on federal powers.

" --- The powers not delegated to the United States by the Constitution, or prohibited by it to the States, --- ". Sound familiar? -- It proves that some powers are prohibited to states by our BORs/Constitution. Violating un/enumerated rights are so 'constrained'.

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.

No one is turning the 9th on its head. Our judiciary can be controlled by Constitutional means, -- but the political Rinocrat coalition prevents that from happening.

Some Rino 'conservatives' on this forum WANT State to have prohibition powers over firearms, for instance. - Do you?

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.

I think not. From my reading Randy Barnett would have the federal judiciary identifying rights and liberties previously retained by the people. He supports Lawrence v Texas precisely because of that reasoning. The federal judiciary can just as easily abridge rights as they can create them if they are the sole and final arbiter of "rights".

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.

I know and Randy Barnett, I believe, is quite comfortable with that. Roe and Lawrence were power grabs by the judiciary. Assigning them more power to check their power ain't gonna work.

But hey, I wear a blue collar, what the heck do I know?

I see this as a simple reenactment of the federalist/anti-federalist debates of yore and my 53 years on this planet tells me that government is best closest to the people. Yes there are rights that are inalienable and those rights are retained by the people always but the judiciary is wont to turn liberty questions properly left with the states into "rights".

The "right" to kill a full term unborn child should make us all leery of placing more power in the hands of the federales.

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.

That is really a stretch. Even the most fervant supporters of judicial activism do not even mention the Ninth Amendment because, as the Constitution is interpreted today, the courts can claim have all the power they wish under the 5th and 14th. If the Ninth Amendment is their "Holy Grail", than the Due Process and Equal Protection clauses are like having Jesus in their living room.

No one is turning the 9th on its head. Our judiciary can be controlled by Constitutional means, -- but the political Rinocrat coalition prevents that from happening.

Where does the Ninth Amendment state that Article 3 courts are the sole and final decision maker on rights and liberty issues? Liberty issues are the province of the people and the cities and states they occupy.

Some Rino 'conservatives' on this forum WANT State to have prohibition powers over firearms, for instance. - Do you?

My reading of the second amendment implies no such thing. Where did you get such an idea?

The sticking point for you seems to be the identification of rights by the judiciary. While I understand you concern, I believe it is misplaced. First, the judiciary now identifies unenumerated rights and has unlimited power. Barnett's book advocates a structured approach to identifying unenumerated rights and, therefore, grants the judiciary LESS power than it now has.

Second, the practical effect of his approach is more desireable for conservatives/libertarians than strict constructionalism. Unlike a strict constructionalist reading, Barnett's approach would recognize the right to property - in effect rendering the entire welfare state and income redistribution unconstitutional.

Actually, your approach makes the state and federal legislatures the sole and final decision maker on rights and liberty issues. Where does the Ninth Amendment state that? Barnett proposes ALL THREE branches share the responsibility.

" agree. But that is exactly what Randy is advocating"

From the article:
"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?"

Madison's is the first "majoritarian conservatism" view: that there are rights that the court has to recognize.

Randy is advocating the second view: "libertarian conservatism", which lets the courts define what the rights are.

Hardwick V. shows the constitutional application of the Ninth to look for a right to recognize; Lawrence V. could be done under the Ninth in Randy's view- just define it as a right.

Lawrence includes the usual complaint of the living constitutionalist's that they can't use the Ninth as Randy wants, but must maneuver their opinion through by other means. Griswold includes the LC's complaint about not being able to use the Ninth too.

Yeah, they do terrible damage already without reversing the meaning of the Ninth, but what could they not do if they did?

No one is turning the 9th on its head. Our judiciary can be controlled by Constitutional means, -- but the political Rinocrat coalition prevents that from happening.

Where does the Ninth Amendment state that Article 3 courts are the sole and final decision maker on rights and liberty issues?

The body of the Constitution makes clear the powers of the Judiciary in Art. III; " -- with such exceptions -- as Congress shall make." Read much?

Liberty issues are the province of the people and the cities and states they occupy.

Yep, as long as they honor the supremacy of our Constitution/BOR's.

Some Rino 'conservatives' on this forum WANT State to have prohibition powers over firearms, for instance. - Do you?

My reading of the second amendment implies no such thing. Where did you get such an idea?

Ask some of those [pinged above], who were fighting for "states rights" on this thread:

Rewrite the Second Amendment?
Address:http://www.freerepublic.com/focus/f-news/1146386/posts

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, the persons in every generation can invoke its principles in their own search for greater freedom.”Justice Anthony Kennedy from his treatise on transcendent liberty. Whatever the heck that is.

You have your twisted idea of what "states rights" means. And you impute your twisted idea to me and others. You are, as usual, dead wrong.

Congressman Billybob

Latest Article, "Memorial Day, 2004." Although this was written before President Reagan died, it is filled with the philosophy that he lived by.

This thread is kind of a mess, just as the incorporation clause is (I know it applies to the First Amendment, but that is all I know). SCOTUS has not embraced Justice's Black's opinion that it incorporates the entire Bill of Rights.

The incorporation clause is not needed for the 9th amendment in any event, because it does no purport to just restrict the scope of the federal government as does the First Amendment, as opposed to also leashing the States. The Ninth Amendment refers to rights reserved to the people, whatever that means. Nobody knows what that means. SCOTUS has rarely used it, because it has other more tangible tools to use. It did however use it once I know in a pinch, when it used it in Griswold, and maybe in Roe, to use it as part of the edifice on the "penumbra" doctrine. At least that is my recollection. So the use of the 9th Amendment by SCOTUS is not off to a good start. The Amendment is mischievous. It just gives SCOTUS another weapon to use, to do what it wants, when all else fails. Just my rather uninformed opinion.

I am not a constitutional lawyer, John, just a dirt bag provincial lawyer, practicing in obscure provincial courts.

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