Posted on 06/07/2004 2:10:58 PM PDT by 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.
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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.
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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.
(Excerpt) Read more at randybarnett.com ...
If you actually read his book, you would see that he does not advocate the Court's defining rights - they are already defined. You really have to read his whole book. Once you do, there are some legitimate criticisms that you can make relating to the judiciary's role. But I think you are unduly attributing a philosophy of traditional libertarian "judicial activism" to a writer and professor who I know to be more skeptical of the judiciary than probably even you or me.
Barnett also advocates a narrow interpretation of the due process clause. We are talking about the Ninth Amendment.
The Framers have been remarkably precise in using the English language in the 205 years of constitutiional drafting, amending and ratification. Let me review the process here on FreeRepublic on any subject including this. It is:
1. Read. 2. Understand. 3. Discuss.
You are long on item 3, but you have grossly neglected item 2. With every post you demonstrate again your ignorance of the Constitution.
John / Billybob
Your own words above confirm that you support the State of California's 'power' to prohibit assault weapons.
Congressman Billybob wrote: I haven't said a word about California gun laws. I HAVE said that you are a fool for not understanding that the Constitution means what it says.
The supremacy clause of Art VI says that the States are bound to honor our Constitution/BOR's. You are wrong in saying that States are not "restrained" by our BOR's; -- namely, the 2nd Amendment.
Case closed.
The only "case closed" is your inability to read and understand plain English used in the Constitution. You remain a fool.
The only "case closed" is your inability to read and understand plain English used in the Constitution.
The plain english of the supremacy clause of Article VI says that the States are bound to honor our Constitution/BOR's.
You are wrong in saying that States are not "restrained" by our BOR's; -- namely, the 2nd Amendment.
Case closed.
I think your overinterpreting the "or prohibited by it to the States" segment of this sentence. There are many passages in the Constitution which specifically prohibit certain actions by the states (i.e. coining money, entering into treaties, etc...)
"...State to have prohibition powers over firearms..."
The people retained the power to keep and bear arms. IF, and only if, the people of one or more of the several states were to specifically grant the legislature of that state the power to restrict the bearing of arms, that would be proper for that state . To the best of my knowledge, that has not happened.
The founders were aware that the needs and desires of the citizens of the states would vary from one state to the next, and specifically created a Federal framework in which the states retained a great deal of sovereignty over the day to day affairs of it's citizens.
It is probably better though that, at least in some cases, our natural rights are deemed protected by the constitution against infringment ba the states. Can you imagine the choas which would ensue if some of the states where allowed to restrict speach, or if there were no 4th or 5th Ammendment protections?
I belive this is one area where the founders, when writing the constitution, simply could not foresee the moassive changes in society. 200 years ago it would have been unthinkable to live in Washington and to "commute" to New York. Thus, restrictions in the State of New York had little impact on the citizens of the State of Maryland or Virginia. Today, people travel a great deal in thier daily lives and any restrictions in one state would have a far greater impact on the lives of the citizens of another state - without the consent of those citizens.
I don't have my copy handy, so correct me on this cite, IIRC the 14th Ammendment was the one which subordinated the states concerning the rights protected under the constitution. IF the states had already been restricted prior to this, the Ammendment [or that part of it which applies here] would have been unnecessary.
More's the pity. You should have been. Hey, it's never too late for a man of your exceptional talents and long life line.
I think your overinterpreting the "or prohibited by it to the States" segment of this sentence. There are many passages in the Constitution which specifically prohibit certain actions by the states (i.e. coining money, entering into treaties, etc...)
Yep, and our RKBA's is enumerated, specifically prohibited from being infringed.
Some Rino 'conservatives' on this forum WANT State to have prohibition powers over firearms, for instance. - Do you?
The people retained the power to keep and bear arms. IF, and only if, the people of one or more of the several states were to specifically grant the legislature of that state the power to restrict the bearing of arms, that would be proper for that state . To the best of my knowledge, that has not happened.
It has happened in California, with 'assault style' weapons.
The founders were aware that the needs and desires of the citizens of the states would vary from one state to the next, and specifically created a Federal framework in which the states retained a great deal of sovereignty over the day to day affairs of it's citizens. It is probably better though that, at least in some cases, our natural rights are deemed protected by the constitution against infringment Ba the states. Can you imagine the choas which would ensue if some of the states where allowed to restrict speach, or if there were no 4th or 5th Ammendment protections? I belive this is one area where the founders, when writing the constitution, simply could not foresee the moassive changes in society. 200 years ago it would have been unthinkable to live in Washington and to "commute" to New York. Thus, restrictions in the State of New York had little impact on the citizens of the State of Maryland or Virginia. Today, people travel a great deal in thier daily lives and any restrictions in one state would have a far greater impact on the lives of the citizens of another state - without the consent of those citizens. I don't have my copy handy, so correct me on this cite,
IIRC the 14th Ammendment was the one which subordinated the states concerning the rights protected under the constitution.
IF the states had already been restricted prior to this, the Ammendment [or that part of it which applies here] would have been unnecessary.
The States are bound to honor our Constitution as the supreme 'law of the land' in Art. VI.
-- Some states were violating individual rights using Marshall's 1833 'states rights' decision as their excuse. The 14th was passed to stop this practice.
Needless to say, it hasn't stopped. Some States, like CA, are still violating our individual RKBA's.
The question remains, why are 'conservatives' on FR supporting such prohibitions?
Thanks for the post. Bump for later read.
Reagan on why he was running for governor of California: "The rights that were once inalienable are now deemed at the dispensation of the government" (paraphrase)
It is simply amazing to me that freepers would actually be in favor of gun control. Talk about oxy-morons ! Free and Control don't really go together do they ? Perhaps they would change the name to Controlled Repbulic. After all, that's what it would be when the guns get taken away.
It is simply amazing to me that freepers would actually be in favor of gun control. Talk about oxy-morons ! Free and Control don't really go together do they ?
Never have.. -- It's the 'control thing' that's the real problem.
Lots of conservatives think that a majority can control society for the greater good, -- to "promote the general Welfare" as our Preamble puts it.
Wrong. -- The best thing government can do is to "secure the Blessings of Liberty", -- by preventing majority control.
Chaos?
The states had the power to restrict free speech and the press until the 1925. In Gitlow v. New York, 268 U.S. 652 (1925), the first amendment protection of free speech and freedom of the press was "incorporated" under the due process clause of the fourteenth amendment and made applicable to the states. I don't remember reading about any free speech "chaos" prior to 1925.
The fourth amendment protection against unreasonable searches without a warrant wasn't extended to the states until 1914 (Weeks v. United States). No chaos.
The "Grand Jury" provision of the fifth amendment still does NOT apply to the states. The seventh amendment (right to a jury trial in a civil case) still does NOT apply to the states.
In my opinion, incorporating the first amendment and making those provisions applicable to the states has resulted in chaos. Now, the USSC defines free speech, freedom of the press and freedom of religion.
Now the USSC defines nude dancing as "speech", but not political campaign ads 30 days prior to an election. Free speech does NOT include saying "God" at a high school commencement ceremony. Freedom of religion has been turned on its head to be freedom from religion.
Five justices determine what the first amendment means for 300 million Americans. And tpaine wants these same liberal jerkoffs to define the second amendment for us.
Here is where I disagree. Our RKBA's are NOT enumerated. NONE of our rights are! The Bill of Rights is nothing more than specific prohibitions to the government indicating places it could not go.
Would a repeal of the Second Ammendment in any way affect our inherit RKBA?
I take the same opinion as Hamilton. Since the people did not specifically grant the Federal Government the power to pass any laws concerning the possession of arms, they can not do so.
Because of that, I suggest that the people of a state COULD give that power to a state. Why they would do so is beyond my comprehesion and is a most theoretical.
Because governments often totally ignore the restrictions we place upon them is the reason the courts were established. They are supposed to be the arbiters of whether the government has overstepped it's authority. Unfortunately, the courts seem to side with the government.
Just my two cents worth.
Or as several wise men have stated in some form or other "We don't live in a democracy. We live in a constitutional republic. Democracy means "mob rules:.
-- the USSC defines free speech, freedom of the press and freedom of religion.
Never has paulsen, never will. The USSC is empowered to judge disputes as per Art III Sec 2, "with such Exceptions --- as Congress shall make."
We the people control both court & congress.
Now the USSC defines nude dancing as "speech",
You want to ban dancing, paulsen? Why?
but not political campaign ads 30 days prior to an election.
A Rino Congress passed that 'law'.
Free speech does NOT include saying "God" at a high school commencement ceremony.
Preach your religion at church, not at a public school, paulsen.
Freedom of religion has been turned on its head to be freedom from religion.
Simple hype. You can practice whatever religion you want.
Five justices determine what the first amendment means for 300 million Americans.
Rant on.
And tpaine wants these same liberal jerkoffs to define the second amendment for us.
No, I want the USSC to tell the State of CA to stop their violations of our RKBA's. - And, -- I want our Executive branch to enforce that decision upon the CA state officials that have ignored their oaths of office to protect & defend our US Constitution.
In fact paulsen, you might give a little thought to why you scoff at that oath.
AND WHAT MAKES YOU THINK THEY WOULD?
That's my whole point. What has the USSC done recently to make you think that they would rule in such a conservative manner? Actually, the chances are very good that they would simply follow the Ninth Circuit.
The good citizens of the state of California need to get off their butts and pass a state constitutional amendment that protects their RKBA. Period.
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