Responses to Comments on "Legislative Restraint":
After a few uncivil threads, I am really enjoying reading the exchange generated by the two previous posts. There is much I could comment on, but I will limit myself to a few points.
JunkYardLawDog: Yes, indeed courts can act unconstitutionally in their rulings. One virtue of originalism is that it provides a benchmark external to case law by which to judge judicial behavior. As the first sentence of Restoring the Lost Constitution states, "Had judges done their job, this book would not need to be written." Allowing precedent to trump original meaning (where that meaning is clear), which is supported by all ideological stripes when it is convenient, actually puts the rulings of judges above that of the Constitution.
SCOTUS lawyer: It is impractical NOT to have an external baseline against which to measure the constitutional performance of all branches and levels of government. Of course, any benchmark--including originalism--will not be implemented unless it is accepted by a sufficient number of decision makers. But to achieve this end, we must consider, debate, and eventually persuade enough people on the proper way to interpret the Constitution. That is the point of discussions such as these, and any claim of "unreality" simply misses the point of this particular discussion and constitutes a self-fulfilling prophesy. I do not claim it is likely that the original meaning of the entire Constitution will be restored. I claim only that knowing what that original meaning is (and its limits) is a prerequisite to its restoration. On the other hand, I believe it is highly unrealistic to expect much improvement from sloganeering about "judicial activism," "judicial restraint," or "not legislating from the bench." In the absence of some coherent view of constitutional meaning (such as that provided by originalism), these terms are simply too vacuous to accomplish anything.
Andrew Hyman: Whether or not the unenumerated rights to which the Ninth Amendment refers are enforceable is a legitimate debate that cannot settled by assertions on one side or the other. I comprehensively address the evidence of original meaning of the Ninth Amendment in an article, The Ninth Amendment: It Means What It Says forthcoming in the Texas Law Review. (A preliminary version can be downloaded here, but the paper has been substantially revised to respond to some valid criticisms of this version.) While that evidence is very clear on the meaning of "the rights retained by the people," there is little originalist evidence on the enforcement of ANY constitutional right, including those enumerated in the first 8 Amendments.
One way to approach the question of enforceability seems to emerge from the origins of the 9th Amendment: however enumerated rights are protected, so should unenumerated right. To do otherwise would be to "deny or disparage" the other rights retained by the people precisely because they were not enumerated. (Remember for 2 years after ratification of the Constitution NO rights were enumerated.) Here are the rules of construction that Virginia jurist and scholar St. George Tucker thought flowed from the Ninth and Tenth Amendments, as stated in his Notes on the U.S. Constitution published in 1802:
Finally, these passages concerning the proper construction of the 10th Amendment must be tempered by the change to federalism brought about by Republicans in the 39th Congress with the 14th Amendment, the original meaning of which gave a new jurisdiction to the federal government to protect the rights of citizens from being violated by their own state governments. But that is another story. (Civil comments only please.)
JunkYardLawDog: Yes, indeed courts can act unconstitutionally in their rulings. One virtue of originalism is that it provides a benchmark external to case law by which to judge judicial behavior. As the first sentence of Restoring the Lost Constitution states, "Had judges done their job, this book would not need to be written." Allowing precedent to trump original meaning (where that meaning is clear), which is supported by all ideological stripes when it is convenient, actually puts the rulings of judges above that of the Constitution.
SCOTUS lawyer: It is impractical NOT to have an external baseline against which to measure the constitutional performance of all branches and levels of government. Of course, any benchmark--including originalism--will not be implemented unless it is accepted by a sufficient number of decision makers. But to achieve this end, we must consider, debate, and eventually persuade enough people on the proper way to interpret the Constitution. That is the point of discussions such as these, and any claim of "unreality" simply misses the point of this particular discussion and constitutes a self-fulfilling prophesy. I do not claim it is likely that the original meaning of the entire Constitution will be restored. I claim only that knowing what that original meaning is (and its limits) is a prerequisite to its restoration. On the other hand, I believe it is highly unrealistic to expect much improvement from sloganeering about "judicial activism," "judicial restraint," or "not legislating from the bench." In the absence of some coherent view of constitutional meaning (such as that provided by originalism), these terms are simply too vacuous to accomplish anything.
Andrew Hyman: Whether or not the unenumerated rights to which the Ninth Amendment refers are enforceable is a legitimate debate that cannot settled by assertions on one side or the other. I comprehensively address the evidence of original meaning of the Ninth Amendment in an article, The Ninth Amendment: It Means What It Says forthcoming in the Texas Law Review. (A preliminary version can be downloaded here, but the paper has been substantially revised to respond to some valid criticisms of this version.) While that evidence is very clear on the meaning of "the rights retained by the people," there is little originalist evidence on the enforcement of ANY constitutional right, including those enumerated in the first 8 Amendments.
One way to approach the question of enforceability seems to emerge from the origins of the 9th Amendment: however enumerated rights are protected, so should unenumerated right. To do otherwise would be to "deny or disparage" the other rights retained by the people precisely because they were not enumerated. (Remember for 2 years after ratification of the Constitution NO rights were enumerated.) Here are the rules of construction that Virginia jurist and scholar St. George Tucker thought flowed from the Ninth and Tenth Amendments, as stated in his Notes on the U.S. Constitution published in 1802:
All the powers of the federal government being either expressly enumerated, or necessary and proper to the execution of some enumerated power; and it being one of the rules of construction which sound reason has adopted; that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it, in cases not enumerated; it follows, as a regular consequence, that [1] every power which concerns the right of the citizen, must be construed strictly, where it may operate to infringe or impair his liberty; and liberally, and for his benefit, where it may operate to his security and happiness, the avowed object of the constitution: and, in like manner, [2] every power which has been carved out of the states, who, at the time of entering into the confederacy, were in full possession of all the rights of sovereignty, is, in like manner to be construed strictly, wherever a different construction might derogate from the rights and powers, which by the latter of these articles; are expressly acknowledged to be reserved to them respectively. (numbers inserted in brackets)And elsewhere in his treatise, he writes:
As federal it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question.This sentence is followed by a footnote citing the Tenth (twelfth) Amendment. The passage then continues by clarifying what are the rights of citizens:
as a social compact it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute; because every person whose liberty or property was thereby rendered subject to the new government, was antecedently a member of a civil society to whose regulations he had submitted himself, and under whose authority and protection he still remains, in all cases not expressly submitted to the new government.This passage is followed by a footnote reference to the Ninth (eleventh) and Tenth (twelfth) Amendments. Sounds a lot like the Presumption of Liberty, doesn't it?
Finally, these passages concerning the proper construction of the 10th Amendment must be tempered by the change to federalism brought about by Republicans in the 39th Congress with the 14th Amendment, the original meaning of which gave a new jurisdiction to the federal government to protect the rights of citizens from being violated by their own state governments. But that is another story. (Civil comments only please.)
Related Posts (on one page):
- Responses to Comments on "Legislative Restraint":
- Legislative Restraint:
- "Judicial Negation is Not Legislation":
None of the enumerated rights mean diddly squat, if the Executive trots out magic words like "state secret" and "national security" and "war".
Torture, indefinite imprisonment without bail or trial -- these are "legal" right now. And, the courts do nothing. Nothing.
But "personal liberty" seems to have become sexual license, which quite frankly are two very different things. Something I very much doubt the founders would have intended the Ninth to protect.
Another note, one right that one could I suppose the Ninth could be reasonably thought to protect would be the right of the people to form their government in a manner they see fit. Could not a free people grant to their government the power to regulate more or less as they see fit? If this is the case than the right protected in the Ninth, must implicitly protect the right of the people to delegate power to the state governments. As such, it seems like using the Ninth to limit state power is restricted by the fact, that using the Ninth in that manner restricts likewise the rights of the people. Something that could not reasonable be read into the Ninth. Bootstrapping the Ninth against the states throught the 14th therefore seems erroneous.
If you accept the premise that the 14th Amendment is a grant of power to the Congress to enforce the provisions of the Constitution against the states (and I do, though others don't), then that enumerated power trumps any normal legislative power exercised by the states.
The states can always choose to amend the Constitution, should they find it unduly burdensome, and the fact that they have not done so saps the credibility of your argument that "the people" might choose to be more heavily regulated.
In any event, a person can always choose *individually* to waive a constitutional right (e.g. conset to a search), but cannot and should not have the power, in concert with others, to waive the rights of still other people. If a sufficient majority of all of the states wants to do so, they can, but the legislatures of the several states should not be permitted to do so either.
In your discussion of the Ninth Amendment, you say
This only makes sense to me if we disregard the Tenth Amendment, which, if we follow Prof. Barnett's "originalist" dispensation, we are certainly not doing!
Of course the Founders didn't consider the Ninth Amendment to be a permission slip for sexual licentiousness, but Tucker's 1802 remarks make it clear that, the states being antecedent to the federal government and the Tenth Amendment being in effect, sexual-morality legislation was properly a state matter.
Let me put that more clearly (and colloquially). I think the Ninth Amendment says "Hey, everybody, we've joined this federal Union. But don't worry - every right you had prior to joining is still intact, even ones we haven't named in the previous Amendments." The Tenth Amendment comes along and says "But be mindful that, where the federal Constitution is silent, the states still have the authority to regulate conduct as they did prior to the Union."
At least prior to the Fourteenth - a totally different story, I agree - the Ninth was not a blank check.
I think that is an error, the purpose of a constitution is to organize the government. The fact of the matter is very few states amend their own constitution to increase legislative powers. The reason for this is because most of the time state legislative powers as granted within their own constitution are often extremely broad. More frequently amendments are offered to state constitutions as ways to limit the powers of the state legislature. This is part of the nature of the constitutional power granted to most state governments.
You say "In any event, a person can always choose *individually* to waive a constitutional right (e.g. conset to a search), but cannot and should not have the power, in concert with others, to waive the rights of still other people." But then recognize that "If a sufficient majority of all of the states wants to do so, they can."
Which basically says that when a sufficient majority exists the people may form their government as they wish. Which, was my point.
Tacitean- I agree completely. Although, this withholds hashing out the various lines of the 14th amendment.
But to achieve this end, we must consider, debate, and eventually persuade enough people on the proper way to interpret the Constitution. That is the point of discussions such as these, and any claim of "unreality" simply misses the point of this particular discussion and constitutes a self-fulfilling prophesy.</blockquote>This argument doesn't work, for two reasons.
First, it falsely images that most American citizens are constitutional theorists, or at least potential constitutional theorists. They're not. Big government is really popular, and you're not going to persuade retirees who want their checks that they should recognize that their favorite programs are unconstitutional just because of some footnote or letter that a law professor found that reveals something about a debate 220 years ago.
Second, <i>even if</i> the majority of Americans became constititional theorists, and <i>even if</i> they all agreed that Randy's view of the Constitution was right, all they would do is quickly pass a Constitutional amendment to make Congress a government of unlimited power. The people will get what they want, one way or the other.
That brings us to the basic problem with Randy's theory of the Constitution: You have to be a libertarian for it to be anything other than a parlor game. That is, you have to imagine not only that (a) most people are constitutional theorists and (b) Randy's vision of the Constitution is right, <i>but also that </i>(c) if people realized (b), they would suddenly morph into libertarians and decide that Randy's vision of the Constitution is not desparately in need of amendment.
For those of us that realize the absurdity of (c), Randy's theorizing is awfully far detached from reality.
I'm not sure what your point is about constitutions rarely being revised to rachet the power of the legislature upward. I think that supports my position more than yours, but I may be misunderstanding you.
On the contrary, it is clear that at least some of the unenumerated rights referenced by the Ninth Amendment are indeed enforceable, and there really is no legitimate debate about that. When Madison introduced the Bill of Rights in Congress, he acknowledged the view that “the constitution is a bill of powers, the great residuum being the rights of the people.” Thus, for example, the right to carry handguns near schools has been recognized by SCOTUS as an enforceable, unenumerated federal constitutional right, which the federal government was given no power to abrogate. The Ninth Amendment clearly prevents the rule of expressio unius from being used to defeat such residual rights. I have never heard anyone argue to the contrary. Sure, some people have made sweeping statements that there are "no unenumerated rights" in the Constitution, but when they explore the nitty gritty, no one really denies that the Ninth Amendment was intended to protect right that the original Constitution left outside the scope of federal power.
The only real controversy nowadays is about whether the Ninth Amendment refers to federally enforceable unenumerated rights beyond the residual rights described by Madison. I respectfully submit that it does not.
As mentioned in a previous thread, I hope Professor Barnett's revised article will at least mention Madison’s discussion of the "great residuum being the rights of the people," and will at least mention the rule of "expressio unius" which the Ninth Amendment was plainly intended to defeat.
The Ninth Amendment states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Notice that there’s no command in this amendment regarding how the Constitution’s residual rights are to be construed. Thus, the absence of a particular right from those residual rights MAY be construed to deny or disparage that particular right. To put it another way, the Ninth Amendment instructs us to look among the enumerated rights to see whether a particular right is federally enforceable; if we cannot find that particular right among the enumerated rights, then the Amendment instruct us to not end the inquiry there. If we also look at the “great residuum” of rights that exist in consequence of our federal government being a government of limited and enumerated powers, and still cannot find the particular right in question, then there is absolutely NOTHING in the Ninth Amendment to forbid us from denying and/or disparaging that particular right.
Professor Barnett is correct that St. George Tucker wrote this: “every power which concerns the right of the citizen, must be construed strictly, where it may operate to infringe or impair his liberty.” But presumptions of this sort have no place when a governmental power is unambiguous.
For example, in discussing Article I, Section 8, Clause 17 regarding the District of Columbia, Tucker wrote that Virginia
I do not understand Tucker to be saying that any presumption of liberty should be used by the Supreme Court to implement Virginia’s proposed amendment, even though that amendment had been rejected by the processes of Article V. Why apply presumptions where there is no ambiguity? Why give courts the power to distinguish “good government” from “bad government," with absolute and unreveiwable power to banish the latter. That’s generally the job of voters.
I agree with you that one of the organizing principles of the US constitution is that it limits the power of the federal government. My point was that, the federal government is organized under the federal constitution, and at the same time, state governments are organized under state constitutions that are very broad. If we are using the Ninth Amendment then to limit the power of State governments, we have to recognize that we are using the Ninth Amendment to limit the right of the people to organize their state government.
My point about most state constitutions not being ratcheted upward is more a point, that it would be generally hard to ratchet the power of a state legislature up.
My concern in the use of the Ninth, is not its application against the federal government, but of its use against the states.
To the extent that you believe the Fourteenth Amendment at all allows Congress to prevent the states from violating the rights guaranteed by the Federal Constitution (and I think this is the only reasonable meaning of the P&I clause, contra Slaughterhouse), it must operate to guarantee all such rights. The states may provide *greater* protections, but not lesser.
The argument we're having seems less about the Ninth Amendment than the extent to which the Fourteenth Amendment applied the federal constitution's minimum guarantee of rights against the states. I think it was absolute, some think it's piecemeal (though I don't see how that position can be held consistently), and some think not at all.
I've never before found a law professor or really many others who recognized this fact that seems so obvious to me. At the little school where I studied law in the early 80's, I mentioned this idea to the most mainstream (definitely not an uber-liberal so common in law schools) professor, and he was mystified by the concept. It was so foreign an idea to his view of the law and courts that he could not bring himself to embrace it.
My experiences at that school and elsewhere with lawyers has always been that by and large they are so steeped in being taught that judges and the courts are the great arbiters of truth and justice, with an almost divine logic and decision making, that to suggest not only that these high priets in black robes could be wrong but unconstitutional was a thought they were unable to even consider rationally.
I have to admit that the attitudes expressed on this blog by RB and EV and some other professors here makes me envious that I was unable to attend GMU.
Heck, being able to annoy Orin in person would have just been an added benefit (wink).
Says the "Dog"
Hmm...this must be a new definition of "impractical" that I'm unfamiliar with. Is there a single democracy on earth (including the US) that actually works under such an "external baseline"? I know that the constitutions of a number of countries establish the Koran, the writings of Marx and Lenin, or some other such religious/dogmatic text as their "baseline", but the democracies I'm familiar with all rely on the institutions of government themselves to monitor each other's compliance with their constitutions, under a host of (evolving and often unwritten) traditions and conventions that are not explicitly defined in the constitution itself.
Indeed, the mere fact that the judicial review power exists and is respected in spite of the "remarkably resilient myth", as you put it (i.e., the shockingly widespread impudence of those who insist on believing, contra Randy Barnett) that the judicial review power does not exist in the Constitution, and was not accepted as legitimate until Marbury, demonstrates that whatever terrible shortcomings forms of constitutional interpretation other than your preferred strain of originalism may suffer from, being "impractical" is obviously not one of them.
EV's at UCLA. RB's at Georgetown. Either would be a very good school to attend.
Oh well....
Says the "Dog"
However, it is expanding the definition of the Ninth while incorporating against the states troubles me. The ninth conceivably is taking away from the rights of the people to organize themselves as they see fit, under the guise of giving them more liberty. But how does it give me greater liberty, if I'm now held hostage to the lowest common denominator. The ninth makes sense against the federal government because the federal government is hemmed in by some (ought to be) fairly limited enumerated powers. States are far less limited in their governance.
An amendment that endeavors to protect the unenumerated rights of the people, should not be used to attack specific unenumerated rights of the people.
St. George Tucker was a descendant of the anti-federalists, seeking an interpretative structure, which would support the evolving political point of view of people, who had opposed writing and adopting the Constitution. And, he was the first to take the gambit that an elaborate ideological narrative framework could be used to shape the Constitution. In this, he was following Blackstone, who had confirmed the Whig invention of the British Constitution, by erecting such an elaborate narrative structure, where no single document (and no barrier to "unconstitutional" legislative enactments) existed. Tucker's great work was titled, "Tucker's Blackstone".
Creating an elaborate narrative structure as a framework for interpretation is not "originalism". I honestly don't know what category it falls into. But, it was the dominant mode of antebellum constitutional interpretation. In the generation after Tucker, States Rights arose, with its powerful rhetoric founded on a much elaborated narrative of the organic emergence of the Constitution as a creature of the States. States Rights found its intellectual footing in the 1820's at the same time as the nationalist interpretation was being written into law by the Supreme Court led by Marshall and Story.
States Rights rhetoric led to much legislative debating, but, as far as I know, did not see much acceptance by the judiciary, which usually felt constrained to actually read the document. Taney's Dred Scot opinion used originalist reasoning, and not States' Rights doctrine (which Taney despised), to arrive at its reprehensible conclusion that a black man had no rights a white man was bound to respect.
Marbury v Madison is remarkable, not just for writing judicial review "into" the Constitution, but for manner in which it was done. Marshall, a Federalist, decided the case in favor of Madison and Madison's party, the Democratic-Republicans led by Jefferson. If Justice Scalia, when in dissent, likes to make a big show of "deciding" the case independent of his personal preferences (including an expressed personal preference for free love orgies), but when he is actually deciding, he never sees the Constitution contradicting his personal preferences, and he chooses his preferred method of interpretation accordingly. Scalia could learn something from Marshall's example.
To me, the alignment of personal preferences with the Constitution calls interpretation into question, and an elaborate, ideological framework of interpretation just compounds the suspicion. I don't think the Founders were a secret cabal of libertarians. Like politicians since time immemoriam, they were often inattentive and short-sighted and inclined to "kick the can down the road" with ambiguous language. An elaborate meta-framework is fundamentally dishonest and simplistic, and exaggerating the scope of "originalism" does not rescue it.
The incumbent executive unilaterally violates a statute, claiming in public that it is unconstitutional, but fails to submit the merits of that claim to judicial review unless it is forced upon him. The system breaks down in the face of such bad faith.
I think that, in our discussion of the Ninth Amendment, we must not only place it in historical context but the legal context of the whole Constitution.
Joel says:
This has a certain historical appeal. In fact, it's well-known that many states had established religions in the colonial era and some (Massachusetts, Connecticut) were borderline theocracies in the early days.
But in the context of the Federal Constitution, we don't even need to get as far as the Ninth Amendment to find out that state electors can't create any government they wish.
I cite Article IV:
Clearly these sections must mean something, yes? Personally, I have to think that this puts us on the road to the "presumption of liberty" before the Ninth Amendment was a twinkle in anyone's eye. That is, I find it hard to believe that we would fight a Revolution and then, in writing our governing charter, roundly ignore the reason we fought it - liberty.
You need the Fourtheenth Amendment's P&I (okay, P or I) clause that provides, in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." While the Slaughterhouse Cases gutted the P&I clause early on, I don't see how it could mean anything other than the states can't have laws that infringe on Federal Constitutional rights (but then I don't wear a robe).
I'm not sure that anyone has ever succesfully challenged anything on the basis of Article IV, § 4, and you'd have to go pretty far afield to find a government that was not "republican" in that sense (i.e. a monarchy or other hereditary rule, versus any sort of elected government).
And we are in 100% agreement on the matter of Article IV, § 2; until the Fourteenth came along, there was no blank check to strike down state law, and Article IV certainly should not be construed that way.
My recent comment, then, was in response to the idea that the Ninth limited the right of 50% + 1 to create a tyrannical state government. I cited Article IV § 2 &4 to say that, prior to the Ninth, there at least existed some restrictions on the ability of states to tyrannize. For example, (as you say) Maryland could not make a law that created an hereditary king or a law that treated citizens of other states as inherently inferior.
I was not trying to give Article IV more "oomph" than it historically had at the time, although, in re-reading, I see I gave that impression. I was attempting to show that the introduction of the Ninth Amendment (whatever else we think it did) did not destroy an environment in which the voters of a state could do absolutely whatever they wanted: such an environment did not exist in the first place.
Joel B., please let me know if I have in anyway mis-characterized your argument re: the Ninth. One of the things I like about this blog's comment-threads is the civility &fair discussion, and I do not want to introduce anything less than that by accidentally mis-stating someone's case. So please set me straight if I need it!
This manages to bring us back to the question that Prof Barnett raises about Congress and mentions in his latest post re the Court. If the court has strayed from a fundemental understanding of the 14th then it hardly suffices to say "so be it, let's tuck the 9th away and put it to bed". Precedent doesn't establish law in granite nor does it cast alternate views into history's legal dustbin.
I would suggest offering as much support for those views as those who advocated expansive readings in the first place. That, and a changing cast of characters on the court, may remind us that what is lost isn't necessarily so.
I don't think you've mischaracterized my argument, but much as you've recognized the limitation that Aritcle IV Section 4 places on state governments is very limited. One can (and does have) a republic with very broad legislative powers. The republican guarantee clause is a limitation to the states in setting up their governments, but it is a very limited restriction.
But, let's not confuse tyrannical with constitutionally empowered, a government may be far more involved in my life than I would like, but that does not make it tyrannical.
People have different visions of what it means to be ruled tyrannically, if for example we expand the Ninth to read that personal property is worth far more than it ever was before, than we run into a problem where a gross polluter can destroy my property through his foul pollution, and when I seek redress throught the government or some other means, the statutes forbidding his action are struck down as unconstitutional under the Ninth. Am I more free than I was before? Absolutely not...now the tyrant is not the government however, it is the a..hole.
Now we respond by saying...ah...but nuisance was a civil action at common law, and you still have some degree of redress and the Ninth would not be conceivably used to enhance private property to such that degree, and I say, but at the time of Ninth's ratification sexual license was certainly not being seen as part of the protected rights within the Ninth. This is recognized as a great multitude of states regulated sexual behavior to some degree or another for many years, and in what way the federal government regulated the territories like Utah, where the federal government has fairly plenary power.
Reading the Ninth expansively and incorporating it against the states, restricts the right of citizens to live in a state or community organized under the principles they desire. I don't think this is acceptable, if we expand the Ninth to increase freedom, we must recognize that while we are increasing freedom for some, we are decreasing freedom for a lot...
But in many ways, this turns on ones definition of freedom, if Freedom is the right to do as I please with my conduct and be free from shame or societal disapproval, then I can see why I am being disagreed with, if Freedom is the right to be a political actor even in disagreement with the government, if Freedom is the right to persuade the government and petition for redress, if Freedom is the right to live in a well-organized and civilized community while having the right to my personal opinions as crazy as they may be, then ultimately I think one must come to a reading of the Ninth that recognizes that a conception of the Ninth that expands personal conduct freedom limits political expression freedom.
This fear, I think, is readily borne out by the way that many of the increasing anti-discrimination laws especially against behaviors are working against even the right of free speech or association. Look at even how free exercise is being limited by the way anti-discrimination laws are being used, and yet some think we are more free than ever...I think not.
For me this helped understand your position on the ninth. I am generally in favor of expansion of what is recognized under the ninth and incorporated to the states (I agree with Justice Black (I think it was Black) who opined that if any amendments are incorporated to the states than all of them MUST be). However, if what the courts did in expanding the ninth was solely or substantially to continue the trend of intolerance and derogation of majority rights, views and culture, then I would definitely be on your side on this. I do think the ninth could be expanded and well defined by the courts without this happening, the question is will they? The courts didn't have to use other parts of the constitution to substitute their value preferences for those of the majority elected representatives of the people to invade the rights and liberties of the majority as detailed by you and quoted above, yet they did.
I think you express a concern that is real and serious, but those problems could be avoided, but would they be???
Says the "Dog"
Regarding restriction of political expression; note both the states reaction to the abominable Kelo decision and the recent state legislation on abortion, as well as the the definition of marriage acts passed by a number of states. Pro or con, liberal or conservative, the picture is not as dark as you paint it.
Certainly no reading of the 9th should restrict both personal and political freedoms, more so when aligned with the 10th. Inevitably this brings us back to interpretation and my prior post.
Your 3rd and 4th para's seem to presume a loss or weakening of tort law but the trend as been exactly the opposite and to do a 180 degree turn as to limitations on this age old remedy, particularly in light of current knowledge of pollutants, would seem unfeasible.
I realize that is used as an example only and again a rush job on my part.
Frankly, history and politics move theories of legal interpretation more than vice-versa. And theories of constitutational interpretation that would yield results that are politically unpalatable to almost all citizens are not going to fly: courts won't adopt them, elected officials in the government won't appoint them, and judges that tried to impose them would risk impeachment.
Again, RB still hasn't specified which New Deal and later laws he thinks the Court should have held unconstitutional or explained what kind of "deliberations" Congress would have to have to get "deference." But again, the kind of libertarianism that would result in Title VII, the NLRA, the FLSA, or other core New Deal and later programs declared unconstitutional is a non-starter politically.
I agree with your points to some extent about prevailing political viewpoints of the electorate having effect on these matters. However, it is clearly not entirely so, as you statement agove proves. Kelo is unpalatable to almost all citizens, except possibly the big government socialists. Most court rulings on partial birth abortion the same. Massachusetts citizens vastly opposed their Supreme Court's blatant substitution of their own personal policy preferences for those of their elected representatives.
Says the "Dog"
I recognize much of the response to Kelo has been quite positive in restricting the power of government, a good and proper response. But my point is not that political expression is being extinguished generally, but for viewpoints that contradict much of the prevailing winds of sexual license it is. Consider the case recently decided involving the Poway Unified School District.
The expression invovlved in the "Day of Silence," is not questioned, while the rejoinder that Homosexuality is sin is silenced. This is not freedom as the founders would have envisioned it.
My point about the tort law, acknowledges what you say and in fact is somewhat premised on the increasing strength of tort law. We would not stand for such an interpretation of the Ninth, even though it might enhance the "rights" with which I claim on my property. Why then should we allow the Ninth to do the same with regard to sexual morality?
..."I fear the Ninth because of the Ninth."
What I find most interesting is his analysis of originalism. I'm not particularly interested in originalism, but it's obviously very persuasive rhetorically. He provides a counterweight to the "show me where the Constitution uses the words right to an abortion" argument.
Something else I find interesting is the folks who are relentlessly majoritarian and yet purport to be strongly originalist. You can't show the Founders were real majoritarians, I don't think. The "tyranny of the majority" was certainly a concern. I'm not sure RB's got all the originalism right, but I'm pretty sure he's closer to the truth than the majoritarian statists are.
You prove my point. Kelo and Roe are under somewhat effective attack: the former from state courts and local legislatures, as this blog has reported; the latter from a series of attempts, some successful, to weaken Roe by allowing more restrictions. But that's because there exists some controversy about these issues.
In contrast, much as some libertarians might wish it so, there is no public fervor or even disquiet about the core Commerce Clause decisions of the New Deal and later (upholding the NLRA, FLSA, Title VII, etc.). At the far margins, maybe sometimes, but even then one wonders if positions on federal laws regulating domestic violence or medical marijuana are really based on principled views of federal power, or rather on the underlying substantive issue.
Further, neither Roe nor Kelo are examples of what RB's post was about: Court deference (or lack thereof) to Congressional determinations that a bill was constitutional. Roe and its progency and Kelo involve the Supreme Court (rightly or wrongly) interpreting the Constitution in response to acts of state and local legislatures.
But what basis is there for a claim that the 9th and 10th Amendments should be construed against the States, given that on their face they expressly reserve rights and powers to them?
I'm not really arguing with you here, but have one clarification from my point of view. Its true there have been a limited number of state legislatures and court decisions that have attempted ameliorate the effects of the unconstitutional decision in Kelo, but while these attempts at amelioration are better than nothing they are no substitute for my full constitutional rights emobodied in the federal constitution being fully restored by an overturning and nullification of Kelo at the federal constitutional level. Before Kelo my federal constitutional rights protected me from abuse of my private property rights by my home state and local governments. Now my property rights are only protected to the extent the state government graciously allows, and are subject to change at the whim of the state.
Nothing will return those rights that have been stolen from me by an unconstitutional decision of the pro-big government socialist block on the supreme court than a complete nullification of Kelo at the federal constitutional level.
Says the "Dog"
I agree with what you say. I happen to think though that Prof. Barnett is highly persausive about his view of the Constitution and from everything I have read about the founders (not all but most) it seems shared a view much closer to his than to the anything like the mainstream opinion. The problem, as you say, is why does this matter? People at the time were happy to ignore the liberatarian parts of the Constitution, just as they are today. Which as an aside is a problem I have with originalism: "textualism" and "original meaning" originalism would seem to be polar opposites since a true protection of personal liberty has been a dead letter since day one no matter how exlicitly it is enshrined in the Constitution. So, how can I embrace a baseline system that depending on how it is practiced includes polar opposites?
Just my opinion as a lay citizen who having given a little thought to constitutional theory is now depressed.
What's your governing philosophy? Whatever Dog thinks = Constitution?
I've always been a bit disturbed by the highly pro-legislature tone that comes from a lot of commenters here. Isn't it the birthright of every red-blooded American to distrust the government in all its branches? The part of the conservative program that seems the soundest to me is that maybe if we can get three co-equal branches of government into a battle royale with each other they will leave us, the public, the hell alone. And, of all the things in government to latch onto, the legislature? That vile den of corruption and special interest politics overflowing with a bunch of aging self-important blow-hards? I might be able to summon a positive adjective for the executive branch or the judiciary for something they've done in my lifetime, but I don't think I have ever stopped and said to myself "wow, that legislature really showed us their wisdom and careful planning for America's future."
For myself, the constitution says what it says, and the fact of the matter is the constitution of both the federal government and state governments are very majoritian, the majority...makes the rules. This is certainly preferable to having a minority make the rules.
Now, is the government constitutionally limited? Absolutely, the government is bound by the text of the constitution. A government can not force a trial without the right of a jury in the case of a criminal charge, the government cannot abridge the right of the people to peaceably assemble, and a variety of other rights guaranteed the people, but while rights are recognized and (federally) powers are limited, our country is still decidely a majoritarian one.
Consider Madison in Federalist 51:
If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority--that is, of the society itself (independent of the society itself);the other, by comprehending in the society so many seperate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States.
I agree much with what Madison says, in fact I agree completely, majority rules is dangerous, but a power independent of the society (as our Supreme Court becomes more and more detached from the text of the constitution it seems to be taking on this role) is even more dangerous. Madison recognized that...I recognize it too.
I'm not the one who said "most important laws".
I think it is your view of and method of classifying people as majoritarian that is leading to your confusion.
People who oppose the tyranny of the MINORITY that is currently being peddled by the courts and to some extent the other branches of government as regards certain areas of the law, can oppose the tyranny of the MINORITY and still support avoiding the tyranny of the majority in the areas actually intended by the Constitution.
Nowhere have I ever said that majority always trumps the constitution. I do not believe that.
There are more nuances at work than your mental classification scheme allows. Just because somebody believes that when it comes to determining societal policy preferences that the majority should rule unless there is a *real* constitutional conflict with the words, text, and original intent of the constitution is NOT the same thing as saying one believes that the majority should rule period even over the constitution itself.
When one opposes the judicial tyranny of judges substituting their own personal policy preferences for those of the majority, NOT because they are compelled to do so by the text and original intent of the constitution but because they feel compelled by their own personal policy preferences and happen to think they are smarter, more enlightened, more just, than the majority does not mean that one supports majority rules in any and all circumstances.
My theory of constitutional law is NOT whatever "Dog" thinks it is. That kind of thinking is what Conservatives decry in activist liberal judges. My theory of constitutional law is that the constitution says what it means and means what it says. That the constitution is a social compact adopted by the founders with the intent to bind their posterity to adhere to it unless and until it is changed by the PEOPLE via the AMENDMENT process. When an unelected judge changes the social compact by decree the result are societal rules without MORAL AUTHORITY to bind either current or future generations. Rulings which amend the constitution by decree and fiat not only lack the requisite moral authority to amend the social compact that governs our society, but also breeds disrespect for the law and the courts.
In short:
I believe the constitution as written and revealed in its text and original meaning rules.
I believe that policy preferences enacted through legislation rule unless they conflict with the meaning of the constitution as revealed in its actual text and original intent.
I believe the constitution provides certain limited protections for minorities. The proverbial protections against the Tyranny of the majority.
I do NOT believe the constitution compels that the majority's values and culture must always be subjugated to the whims of an increasingly intolerant group of burgeoning minorities.
I believe the constitution, to some extent, and just plain good manners for running a large society compels the majority to be tolerant of the minorities, AND I believe the same good manners for running a large society and the fact that the constitution does NOT compel subjugation of the Majority REQUIRES that the MINORITY ALSO BE TOLERANT OF THE MAJORITY'S preferences, values, and culture.
I do not believe the constitution provides anywhere in its text or meaning a right that guarantees all minorities will never have to be 'offended" by encountering the view, values, or culture of the majority. I believe that those whose entire existence is based upon tolerance from the majority should also be a little tolerant themselves.
I believe Tolerance is a two way street, and the constitution does not compel the majority to submit to the rule of an intolerant group of minorities in all matters of value, culture, and policy preferences. To believe otherwise is to support what would inevitably result in the ultimate destruction of our country and its constitution.
Says the "Dog"
What are you saying here with "act unconstitutionally" other than that SCOTUS sometimes makes the wrong decision? That seems to me to be obvious and inevitable, since SCOTUS, like every other institution, is staffed by fallible human beings. Why should that matter?
Judicial review accepts the proposition that the Constitution means what the SCOTUS says it means.
This is clearly incorrect. If this statement were true than the constitution is not "just a piece of paper" as some far left liberals like to falsely attribute to George Bush. If your statement above were true then the constitution would be nothing but "just a BLANK piece of paper" that is written upon and re-written upon from time to time by 5 out of 9 unelected dictators.
Ask yourself this. if the Supreme Court ruled that random, without probable cause, stip searches and full body cavity searches of any women they chose, conducted on public street corners, during dayling hours, was perfectly constitutional, are you prepared to argue that such behavior *IS* in fact constitutional just because 5 insane unelected judges said so??
If you can not answer the above hypothetical in the affirmative that you would argue and accept such police behavior was constitutional in fact because the Supremes said so, then your entire point is shown to be false. You could also look at the numerous times the Supreme Court has reversed prior precedent with NO intervening change in the constitution to understand that either the first decision got the meaning of the constitution wrong or the second decision got the meaning of the constitution wrong or BOTH decisions got the constitution wrong. Getting the constitution wrong in an issued ruling by the Supremes *IS* the issuance of an unconstitutional opinion.
I believe what is clouding your thinking on this is confusing what does one do or what do the other branches of government do when the Supremes issue an unconstitutional ruling with the idea that they can be wrong and therefore issue unconstitutional rulings.
BTW, my experience in law school in the 80's and elsewhere since, indicates to me that most lawyers have the same stupified its insane to think the Supremes can make an unconstitutional ruling reaction as Ambrose expresses. They have no problem recognizing that both the President and the Congress can act unconstitutionally but believe, in effect, either: 1. The constitution *IS* a blank piece of paper written on and erased and re-written upon from time to time by 5 out of 9 unelected judges; or 2. That the unelected judges on the court have some divine guidance or pyramid power to act infallibly when it comes to reading and discussing what the constitution says.
Says the "Dog"
Says the "Dog"
Please address the full body cavity search on street corners at random hypothetical. If the Supreme Court said in a fit of insanity that was perfectly constitutional, do you believe it would be constitutional IN FACT.
Says the "Dog"
Ambrose, re: "It is simply that if the SCOTUS is given the final authority to interpret the Constitution,as it is under the doctrine of judicial review, then by definition their actions cannot be unconstitutional."
That depends on what you mean by unconstitutional. If you mean that the decision is against what the constitution says, and does not properly follow the constitution, than a decision can indeed be unconstitutional.
Says the "Dog"
Article 5
... and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
So, what is the remedy when the Central Government does not limit itself to its charter (uS Constitution) and blatantly violates it? Subservience? Acquiesence?
Lincoln showed us - the bayonet and the boot on our throats. Peace the Islamic way.
Is there really such thing as "Legislative Restraint?" Or is it individual restraint? Maybe that is why gun ownership is slowly being degraded.
Some may argue that the judicial branch has no power to enumerate individual rights not articulated in the Constitution, to which I would argue that, well, that does not appear to stop them. I would further argue that, despite the original meaning of the Ninth Amendment, that its actual text protects unwritten rights. And, it is up to the courts to rule on questions of constitutional powers, and also to rule on whether rights, whether written or unwritten, have been violated. For that reason, unless it states in the Constitution just who has the power to define and enumerate those rights, it is left open for interpretation by the courts, and we can all plainly see the inconsistent rulings over the years on a variety of issues.
I would propose one of two things, either give to Congress the power to define additional rights, or give it to the States. So the two choices I would propose look like this:
Or:
Then, we could begin to make distinction between rights which are actually enumerated in the Constitution, and those which are protected by legislative statute, and the courts need not look to penumbras to find all of the various implications of an enumerated right. So, the right against unreasonable searches and seizures could not be construed to be an unalienable right to privacy under all circumstances. Or the right to liberty under the 14th Amendment could not be construed as protecting a woman's choice to get an abortion under limited circumstances. It is clear that the Constitution does not go so far as courts' rulings would have us believe, and it is also clear that the more decisions which are issued, the "wider" the law's reach becomes.
For these reasons, I think it would be more clear and consistent if either Congress or the States had the power to define and enumerate what our rights retained under law actually are. Then, if we the people disagree, instead of being in a situation where one would have to appeal and have the standing to sue, and having our rights bottled up in the courts, we could simply vote the representatives out of power who enumerated rights which we did not want.
Note that this would not be a power to take rights away, but rather the power to posit additional rights not already in the Constitution. So, if Congress or the States wanted to protect abortion or prohibit it, they could do that.
Finally, I suppose a third option would be to allow both the Congress and the States the power to define and enumerate additional rights, allowing for Congress to preempt the States on matters which would affect the entire country, though that would essentially be the same as simply leaving it to Congress, since areas of law which Congress has not acted are usually deemed to be left to the States.
So, what do you think? I believe that if there is a dispute over who has the authority and power to define and enumerate rights, and that if the people do not want that power left to the judicial branch, that such a power should be better defined. Other proposals I've heard simply state that additional rights should only be allowed by amendment, for instance, though I think that might go a bit too far, since that would make it very hard to enumerate protections into statutes. In other words, it would be unbalanced: Congress could pass laws like the Patriot Act, but could not protect privacy rights. I think it would be better to simply have our rights rest solely in the hands of the legislative branch(es) of the government, whether it be the Federal or State governments, or both.
I am for returning to the Articels of Confederation.
As to the legistlature determining what rights are - NUTS!