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The History and Meaning of the Ninth Amendment
George Mason University Press ^ | 1993 | Randy E. Barnett

Posted on 12/29/2010 4:11:44 PM PST by Jacquerie

The problem with putting the Ninth Amendment into effect today is that many no longer appreciate the Natural Rights that the Constitution's framers took for granted.

Amendment IX: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

There is little, if any, question that the rights retained by the people refer, at least in part, to what are called "Natural Rights" 11—that is, the rights people have independent of those they are granted by a government and by which the justice of governmental action is to be judged. Despite their many differences, the framers of the Constitution shared a common belief that although the people may delegate certain powers to their agents in a government, they still retain their Natural Rights. When explaining to the House the nature of the various rights in his proposal, Madison stated that, "[i]n some instances they specify rights which are retained when particular powers are given up to be exercised by the Legislature."12 Madison's notes for this part of his speech read: "Contents of Bill of Rights.... 3. Natural Rights retained as speech [sic]."13 >snip<

How can such unenumerable rights find legal protection without empowering judges simply to make up whatever rights may appeal to them? Raoul Berger, for one, has charged that any effort to protect the unenumerated rights referred to in the Ninth Amendment would provide "a bottomless well in which the judiciary can dip for the formation of undreamed of 'rights' in their limitless discretion... ." 30 In response to my suggestion that the rights retained by the people are limited only by their imagination, he asks caustically, "[h]ow does one effectuate an imaginary right?"31 The answer to this concern lies in something like the "general right to liberty" that Robert Bork once searched for—only it is more accurate to call it a presumption of liberty. >snip<

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.32 >snip<

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" [Article I Section 8] 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.>snip<

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.

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.(!)

As the Court stated in United States v. Carolene Products Co:35 "There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced with the Fourteenth . . ,. 36" In other words, the enumerated rights may narrow the presumption of constitutionality, but one of the unenumerated rights retained by the people will have no such power-limiting effect.

While the presumption of liberty is not the only way to implement the Ninth Amendment37, it provides a practical and powerful method of protecting unenumerated rights.>snip<

Indeed, many rights—such as the right of conscience or the right to acquire property—were thought to be unalienable, which means that the people could not surrender them to any government even if they wanted to. Rather, the Congress and the federal courts originally lacked jurisdiction to protect the retained "privileges or immunities" of citizens from abuses by their states. As we all know, this arrangement was fundamentally changed by the enactment of the fourteenth amendment after the civil war. Today, if a state government infringes upon a right the people retained against their respective states, there is no jurisdictional barrier preventing federal protection of this right. Applying the Presumption of Liberty Today:

To see how a presumption of liberty might operate today, it is best to begin with an example that avoids current divisive controversies. In this spirit, consider Congress' power under Article I, Section 8 to "establish post offices." Having exercised this establishment power, Congress is free under the necessary and proper clause to regulate the operation of its post offices in any manner it sees fit. The presumption of liberty would not ordinarily apply to the internal regulation of governmental offices. What happens, however, when Congress, allegedly pursuant to its postal powers, goes beyond its power to administer its own offices and claims the further power to establish a postal monopoly, as it has? The Constitution is silent on the issue of a postal monopoly38. Is this a proper exercise of the power to make all laws that shall be necessary and proper to effectuate the postal power?

According to the now prevailing presumption of constitutionality, Congress would be free to establish a monopoly unless either potential competitors or consumers of postal services could prove that this claimed government power violates a fundamental right. For example, competitors might assert a fundamental "right to carry first class mail," while recipients of mail could claim they had a fundamental "right to send first class mail" by any means they chose. Because these claims of right sound trivial rather than fundamental they are easy to disparage. Consequently, courts have neither barred the Congress from establishing its monopoly nor inquired very seriously as to whether such laws are truly necessary or proper. With judges lacking a proper view of the Ninth Amendment, today the outcome of such a lawsuit would be virtually pre-determined: the government wins and the citizen loses.

A presumption of liberty, however, would shift the burden of proof from the citizen to the government. Instead of imposing the burden on the citizen to establish the violation of a "fundamental" right, a burden would be imposed on the government, in this case upon Congress, to show a compelling reason why it is both necessary and proper to grant its own post office a legal monopoly, thereby infringing the liberties of the people.


TOPICS: Constitution/Conservatism; Government; Philosophy
KEYWORDS: bork; constitution; courts; ninth
I cut and pasted what I thought appropriate for a first reading. Go to the source for the full text. A little more follows:

On the first day of his Supreme Court confirmation testimony, Robert Bork described teaching a constitutional theory seminar at Yale Law School in which he tried to justify what he called "a general right of freedom"1 from the various provisions of the Constitution. He recalled .hat Alexander Bickel, with whom he taught the course, "fought me every step of the way; said it was not possible. At the end of six or seven years, I decided he was right." 2 The next day, Bork testified:

I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says "Congress shall make no" and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.3

In taking these two positions, former Judge Bork was, unfortunately, well within the mainstream of constitutional thought. For two hundred years the Supreme Court of the United States has never seriously considered a general constitutional right to liberty; at the same time it has, with few exceptions, treated the Ninth Amendment as though it were an inkblot. I suggest the failure to find a "general right of freedom" in the Constitution is connected to a general inability to understand the Ninth Amendment's declaration that: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

1 posted on 12/29/2010 4:11:50 PM PST by Jacquerie
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To: Lady Jag; Ev Reeman; familyof5; NewMediaJournal; pallis; Kartographer; SuperLuminal; unixfox; ...
Constitution ping!

Barnett’s analysis shows that the courts begin with the assumption that federal laws are constitutional. This places the burden on plaintiffs to prove unconstitutionality. Given 70+ years of awful case law, it is a high hurdle.

By the Ninth Amendment’s presumption of liberty, Barnett shows how the burden should be on the government to prove that law is “necessary and proper” to execute an enumerated power that does not infringe on our natural or enumerated rights.

2 posted on 12/29/2010 4:15:05 PM PST by Jacquerie (You cannot love your country if you do not love the Declaration and Constitution. Mark Levin.)
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To: Jacquerie

looks interesting
will read in greater detail later
thanks


3 posted on 12/29/2010 4:19:37 PM PST by Repeal The 17th
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To: Jacquerie
rights people have independent of those they are granted by a government

And the latter would be...?

4 posted on 12/29/2010 4:22:06 PM PST by 668 - Neighbor of the Beast (Happy new year!)
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To: 668 - Neighbor of the Beast

Speedy trial, no ex-post facto laws . . .


5 posted on 12/29/2010 4:31:33 PM PST by Jacquerie (Our Constitution is timeless because human nature is static.)
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To: Jacquerie

The 9th Amendment cuts both ways. Many libertarians think that it is means to limit the people’s right to representation on issues but it is not. The 9th Amendment upholds that rights are for the people (majority) to create law that upholds freedom for all equally and not a limitation that creates anarchy.


6 posted on 12/29/2010 4:31:37 PM PST by TheBigIf
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To: Jacquerie

The 9th Amendment cuts both ways. Many libertarians think that it is means to limit the people’s right to representation on issues but it is not. The 9th Amendment upholds that rights are for the people (majority) to create law that upholds freedom for all equally and not a limitation that creates anarchy.


7 posted on 12/29/2010 4:31:38 PM PST by TheBigIf
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To: TheBigIf
Did your read the portion of his thesis dealing with 1st Class Mail delivery?

The Constitution establishes post offices. Is government monopoly of 1st Class Mail “necessary and proper?”

8 posted on 12/29/2010 4:38:26 PM PST by Jacquerie ((N)or prohibiting the free exercise thereof ” The forgotten clause.)
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To: Jacquerie
Excellent and deserving a lot of attention.

Maybe we were blessed at not having Bork on the SCOTUS. I mean he's convinced that there's no general right to liberty? Yikes!

9 posted on 12/29/2010 4:45:31 PM PST by 1010RD
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To: Jacquerie

Some more background. Check out his thoughts on the 14th:

http://en.wikipedia.org/wiki/Randy_Barnett


10 posted on 12/29/2010 4:47:03 PM PST by 1010RD (First, Do No Harm)
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To: Jacquerie

Off the top of my head, I can think of two important unalienable rights that would fall under the Ninth Amendment’s rubric: the right of free political association, and parental rights. Neither is a right that is enumerated in our Constitution, but I for one won’t willingly give up either one.

My understanding is that the Ninth Amendment rose out of the fear among many of the framers, including Madison, that if you wrote a Bill of Rights and began enumerating rights that someone would then assume that just because a right was not enumerated it does not exist.

When they then lost the political argument over whether or not to include a Bill of Rights, the Ninth Amendment was their compromise.

Of course, it is routinely ignored.

I often encounter a particular case of this is various debates over the protection of innocent human life. My detractors claim, falsely, that the Constitution doesn’t explicitly protect the child in the womb from being aborted. So I have to tell them that even if they were correct, which they aren’t - the Fifth and the Fourteenth Amendments explicitly protect every PERSON - the Ninth Amendment explicitly forbids their position from being taken constitutionally.


11 posted on 12/29/2010 4:54:16 PM PST by EternalVigilance (I'm not a Democrat. I'm not a Republican. I'm a Christian and an American.)
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To: Jacquerie

Or do you mean was the Constitution written with equal representation for all?

It would seem to mean that there is no infringement on any individual rights by the government handling mail as long as it has been made so with the full consent of the governed.

If someone objects and wants even more limited government then I feel that person is leaning towards anarchy and is actually looking to violate my rights by denying me an equal right to representation.


12 posted on 12/29/2010 4:59:09 PM PST by TheBigIf
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To: Jacquerie

Great post, by the way. While I may not agree with this gentleman on a lot of his libertarian views, the piece is thought-provoking nonetheless.


13 posted on 12/29/2010 4:59:09 PM PST by EternalVigilance (I'm not a Democrat. I'm not a Republican. I'm a Christian and an American.)
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To: 1010RD
You might wish to read the entire column at the source.

Regarding liberty, Bork reflected the mainstream of judicial thought at the time. Maybe one or two current justices haven't mentally cut out the ninth amendment.

If five of our justices had a clue regarding our Natural Rights, Obamacare wouldn't have a chance, for no Obamaton can show that it is necessary and proper to implement an enumerated power.

14 posted on 12/29/2010 5:04:43 PM PST by Jacquerie (In 2012 the homoerotic rat party will look upon 2010 as a good year.)
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To: EternalVigilance

Yes, I understand that he supported Lawrence v. Texas. Sorry, there is no natural right to homosexual sex or any other perversion.

But, as you say, I appreciate that he is doing what he can to resurrect the 9th Amendment. A presumption of liberty is a good place to start when litigating Obamacare.


15 posted on 12/29/2010 5:09:43 PM PST by Jacquerie (In 2012 the homoerotic rat party will look upon 2010 as a good year.)
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To: EternalVigilance

Excellent comments.

Our Framers were correct in their fear that if some rights were enumerated, others would be excluded.


16 posted on 12/29/2010 5:24:01 PM PST by Jacquerie (Religion, and not atheism, is the true remedy for superstition. Edmund Burke)
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To: Jacquerie

Thanks for the ping!


17 posted on 12/29/2010 5:33:07 PM PST by Titus Quinctius Cincinnatus (is a Jim DeMint Republican. You might say he's a funDeMintalist conservative.)
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To: Jacquerie
... that citizens may challenge any government action that restricts their otherwise rightful conduct, and the burden is on the government ...

Only wealthy citizens can challenge government.

18 posted on 12/29/2010 6:09:46 PM PST by Spirochete (Sic transit gloria mundi)
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To: Jacquerie

Hell, even if they ARE enumerated they can be excluded: look at the 2nd Amendment.

According to a plain-text reading of the Second Amendment the ONLY possible gun regulation would be that of ensuring a “regular” militia; something along the lines of “Every Citizen of able body must possess a .45 ACP semi-automatic handgun AND/OR a .30-06 rifle.” or something similar thereunto.


19 posted on 12/29/2010 6:42:30 PM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: Jacquerie

Thanks for ping.


20 posted on 12/29/2010 6:55:24 PM PST by Bhoy
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To: andyk

Ping for later, confusing read.


21 posted on 12/29/2010 7:06:33 PM PST by andyk (Hi, my name's Andy, and I am a BF 1942 / Desert Combat junkie.)
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To: Jacquerie
The way I read the Ninth Amendment is this: So many rights of free people are generally recognized that it would be impossible to list them all. If free people are, as of the ratification of the Constitution, recognized as having a particular right, they have that right. Except as explicitly stated, neither the Constitution nor this Amendment shall be construed as removing any right which free people are recognized as having, nor granting any rights which they are not.

Prior to the Constitution, issues involving legal rights were generally a matter of evolved common law rather than statute. Part of the reason for writing a Constitution was to provide an explicit means of changing laws, rather than having the law evolve based upon the whims of judges. I see no reason to believe that the Founders wanted new rights to keep evolving based upon judicial whim; instead, they wanted changes to the Constitution to occur via the provided mechanism.

On a related note, one thing that has happened over the years is that the government has endeavored to infringe rights in such a way as to preclude effective remedy, and courts have gone along with it. Courts need to wake up to the facts that (1) the right of people to be free from unreasonable searches and seizures don't just mean they have the right to be free from some types of unreasonable searches and seizures; (2) the right of the people to be tried by a jury means the right to have a jury determine all factual matters relevant to their case, including in many instances, the question of whether a particular matter is relevant; (3) unconstitutional actions are illegitimate, and illegitimate actions form no part of any government agent's legitimate duties.

22 posted on 01/01/2011 11:03:32 AM PST by supercat (Barry Soetoro == Bravo Sierra)
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To: supercat

Please read the source article as your time allows. Barnett details a judicial approach to solve the problem Bork described at his Senate hearing.

When properly applied, as our Framers wrote the Constitution and evidenced in Congressional debate, the Ninth and the “necessary and proper” clauses limit government and promote our Natural Rights as stated in our Declaration.


23 posted on 01/01/2011 12:30:50 PM PST by Jacquerie (The Constitution: An instrument drawn up with great simplicity and with extraordinary precision.)
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To: Jacquerie
When properly applied, as our Framers wrote the Constitution and evidenced in Congressional debate, the Ninth and the “necessary and proper” clauses limit government and promote our Natural Rights as stated in our Declaration.

The whole article seems a little long to digest in one sitting, but I suspect I would probably interpret the Ninth Amendment somewhat more narrowly than the author, especially in cases where the "rights" of one entity conflict with those of another. In something like the Kelo case, the argument should have been that while the "public use" part of the Fifth Amendment doesn't prohibit the government from taking property for the purpose of giving it to someone else(*), the right of people not to have their property taken for such purposes would have been considered by the Founders to be so obvious to any honest person as to not need enumeration.

(*) What it actually says is that if the purpose for which property is taken happens to be "public use", compensation must be paid; it says nothing for or against the the government taking property for other purposes.

As for "necessary and proper", I haven't read the parts of the article dealing with that, but I would aver that the government should have to prove the necessity and propriety of elastic-clause actions in individual cases, as a factual matter (i.e. one that a defendant could demand be assessed by a jury). A proper outcome for the Raich case could have been for the Court to remand the case to trial, with the proviso that the defendant be allowed to introduce evidence that his conduct was intended to exercise his rights under state law, and the federal government would have to show that the nature of the defendant's particular conduct would materially interfere with the federal government's authority to regulate interstate commerce, and that forbidding the defendant's particular action was a necessary and proper means of undertaking its regulatory function. To this, I would add an instruction for the jury that it regard skeptically any claim that more-intrusive measures are "necessary" in cases where the government could, but does not, attempt less-intrusive measures first.

To be sure, cases where the government is clearly overreaching its Constitutional powers shouldn't even reach a jury, but when cases do reach a jury, all matters related to "reasonableness", necessity", "propriety", etc. should be fair game for the defendant.

Incidentally, this ties in with the Fourth Amendment's prohibition of "unreasonable" searches and seizures. While evidence which is clearly obtained illegally should be excluded at the request of the defendant, juries should also be informed that they should not construe against the defendant any evidence which they find was obtained unreasonably. Judges generally allow evidence unless the way it was obtained is so clearly and patently unreasonable that no reasonable person could deem it "reasonable". A jury, by contrast, would be instructed to disregard evidence that they found was obtained unreasonably, even if the conduct was close enough to being reasonable that they can imagine people finding it legitimate.

24 posted on 01/01/2011 1:37:19 PM PST by supercat (Barry Soetoro == Bravo Sierra)
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