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.
Ping for later, confusing read.
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.
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.
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.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.