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The Ninth Amendment Means What it Says:
Whenever I blog about the Ninth Amendment, there are always respondents offering contrary interpretations. In response to my Rule of Law column, In RE: Life or Death, in Saturday's Wall Street Journal, several commenters disputed the relevance of the original meaning of Ninth Amendment to a federal regulation restricting access to experimental drugs to terminally ill patients. So did two contributors to National Review On-Line, Ed Whelan and Matthew Franck. While their interpretations are not unreasonable, I believe they do not line up with the available evidence. Ed relies on Tom McAffee's entry in The Heritage Guide to the Constitution.

Resolving this dispute over original meaning highlights the limitations of blogging and the need for long-form legal scholarship. The competing models of original meaning must be carefully defined and then comprehensively compared with the available evidence of original meaning to see which model or models is supported and which is undercut by the available evidence. There I do consider McAffee's interpretation and show how it is directly contradicted by the evidence.

Fortunately, I have done just this is a newly published article in the Texas Law Review, The Ninth Amendment: It Means What it Says. You can download it here. Here is the abstract:
Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: the state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This Article examines thirteen crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strongly support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say: the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwords, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights. In short, the Amendment is what it appears to be: a meaningful check on federal power and a significant guarantee of individual liberty.
I will add one cautionary note to avoid confusion. The article primarily concerns the original meaning of the text. It is not directly about judicial review. Unsurprisingly, none of the amendments in the Bill of Rights directly mentions judicial review, although the Ninth Amendment comes very close, given that it provides a rule of construction ("shall not be construed") that, presumably, is directed at all branches and levels of government, including the courts. If you are interested in the issue of judicial review you should look at my piece, The Original Meaning of the Judicial Power.

(civil comments only please)

Related Posts (on one page):

  1. The Ninth Amendment Means What it Says:
  2. Judicial Deference & the Rights to Life and Health:
Hans Bader (mail):
Why rely on the Ninth Amendment for the right to life and health when they are much stronger textual arguments (and precedents) to rely on?

The liberty interest in one's life, for example, is made clear by the due process clauses.

So the right to protect one's life must be at least as broad as, say, the right to an abortion, which is not even mentioned in the Constitution.

And under cases like the Supreme Court's decision in Stenberg, the government cannot even prohibit a particular method of abortion if a respectable minority of physicians think it might be useful to protect a woman's emotional health.

So if the liberty interest in one's life is as clearly-established as the right to protect one's mere emotional health (as it surely is, since the constitution speaks of a right to life, but not a right to emotional health), then the FDA cannot ban a drug if a respectable minority of physicians think it is safe and effective.

By definition, a physician's recommendation of a drug that has passed the first phase of the FDA's lengthy and cumbersome drug approval process meets the above standard, showing that there is respectable medical opinion in support of using the drug.

Under precedent and logic, the courts should defer to that decision by the physician.

Accordingly, the DC Circuit panel decision in Abigail Alliance v. Von Eschenbach (which held that desperately ill patients have a liberty interest in accessing drugs recommended by their physicians that have passed the first phase of the FDA's approval process) was correctly decided, and should be reaffirmed by the D.C. Circuit in its upcoming ruling en banc.
12.13.2006 11:32am
AK (mail):
I don't know how much intelligent commmentary can go on here without reading and pondering what is sure to be a complex and well-reasoned article, which I doubt that many people will do. I will simply restate my objection to this whole "Restoring the Lost Constitution" business:

If anyone thinks that the ninth or fourteenth amendements were intended to create a libertarian paradise where sodomy, abortion, pornography, and crack-smoking could not be banned by the state, then he has clearly been robustly engaging in the latter.
12.13.2006 11:34am
Elliot Reed:
Isn't the Ninth Amendment, on its face, a rule of construction?
12.13.2006 11:54am
Jay Myers:
Hans Bader:

Why rely on the Ninth Amendment for the right to life and health when they are much stronger textual arguments (and precedents) to rely on?

The liberty interest in one's life, for example, is made clear by the due process clauses.

Because what that clause actually says is: "No person shall be ... deprived of life, liberty, or property, without due process of law". That means your interest in those things can be trumped merely by providing you "due process of law". That can be about as low a test as reasonableness is.

Substantive due process, which is what you are relying on, is just how jurists attempt to justify their innovations since it somehow seems more modest to come up with a tortured explanation of how something relates to the term 'liberty' than to come right out and say that you believe it to be an unenumerated right. Look at the great lengths justices have gone to claim privacy is an inferred right rather than simply saying that it is an unenumerated right. Perhaps justices get queasy when referring to something that hasn't been written down. Who knows?

That also seems to me to be the cause of incorporation theory. The court was bombarded with cases regarding the 14th amendment's due process clause and when they had to decide what the content of clause was, they punted and simply pointed to other rights which up to that time did not apply to states. That's totally bogus of course. The 14th amendment's due process clause can't be a hyperlink to the first eight amendments because the 5th amendment also contains a due process clause with pretty much the same exact wording. The 5th amendment's clause can't reasonably be interpreted to mean "plus everything that's in the first eight amendments" both because it is in the first eight amendments and because it and the rest of the first eight amendments applied to all the same things (the federal government) and always had. Thus it would be a foolish redundancy if interpreted in that way. Similar language must have similar meanings or else the Constitution was written by Humpty Dumpty in Through the Looking-Glass.
12.13.2006 12:11pm
Gordo:
One of the great "might have beens" in Supreme Court history - Justice Goldberg writing the majority opinion in Griswold v. Connecticut rather than Justice Douglas with his ridiculous sounding "emanations from penumbras."
12.13.2006 12:12pm
another anonVCfan:
If anyone thinks that the ninth or fourteenth amendements were intended to create a libertarian paradise where sodomy, abortion, pornography, and crack-smoking could not be banned by the state, then he has clearly been robustly engaging in the latter.
That may be why Prof. Barnett is not an original intent originalist.
Isn't the Ninth Amendment, on its face, a rule of construction?
If it's a rule of construction that says "you shall not interpret this document in a way that deprives people of their unenumerated rights," that would seem to offer fairly substantive protection for those rights.
12.13.2006 12:17pm
AK (mail):
Fine. Rephrase:

"If anyone thinks that the ninth or fourteenth amendements were understood by anyone at the time of their ratification to create a libertarian paradise where sodomy, abortion, pornography, and crack-smoking could not be banned by the state, then he has clearly been robustly engaging in the latter."
12.13.2006 12:28pm
James R Dillon (mail):
I see I've been beaten to the point, but I'll add my two cents anyway. I've frequently thought that the "substantive due process" doctrine and the "embedded in the history and traditions of this nation or implicit in the concept of ordered liberty" test that the Court has tried very hard to squeeze into the Fourteenth Amendment's due process clause would fit much more easily into the (superficially) apparent meaning and purpose of the Ninth Amendment. The result could be more or less the same, but it would strike me as much more intellectually honest.
12.13.2006 1:21pm
Justin (mail):
This may sound like a nit, but the concept that "The Ninth Amendment Means What It Says It Means" is nonsensical. The Ninth Amendment is an inanimate object, and it cannot intend anything, nor does it "say" anything. I think what you are trying to state is either "The Ninth Amendment should be interpreted to mean what the plain language indicates," or that "the drafters of the Ninth Amendment meant what the plain language indicates." For an explanation of the difference and its importance, read Prakash and Alexander, Is That English You're Speaking?, University of San Diego Law Review,

Link
12.13.2006 1:23pm
Jeff R.:
Is there a model in which one simply interprets the Ninth Amendment as saying that there are no individual rights which people had under the Articles of Confederation that don't get carried over into the new government under the Constitution?

(I'm particularly thinking about Free Ingress and Regress; this view of the 9th is as good an argument for a constitutional right to cross state lines as I've seen...)
12.13.2006 1:38pm
jvarisco (www):
"the unenumerated (natural) rights that people possessed prior to the formation of government"

Didn't Hobbes prove that no such rights exist?
12.13.2006 2:05pm
PersonFromPorlock:

If it's a rule of construction that says "you shall not interpret this document in a way that deprives people of their unenumerated rights," that would seem to offer fairly substantive protection for those rights.

The problem being that with the rise of Legal Positivism, an unenumerated right has no force at law precisely because it is unenumerated.
12.13.2006 2:17pm
lucia (mail) (www):
Jeff R.
Why assume the Ninth covers only those indiviudal rights guaranteed under the articles of confederation?

There weren't very many rights specified in the articles, and it's clear that between 1777 and 1789 the governed developed an inclination to have their rights written into The Constitution. That's why people immediately insisted on ammending The Constitution to include the rights. (That's also why many insisted on the ninth amendment-- to ensure the other listed rights wouldn't be taken to be "the only rights".)
12.13.2006 2:17pm
Andrew Hyman (mail) (www):
Professor Barnett, I think Ed Whelan and Matt Franck did a pretty good job responding to your Wall Street Journal op/ed. A blog format is not inappropriate to conduct an intelligent discussion of this matter. True, your law review articles should be considered, but some subsequent give and take on the internet is not unreasonable.

A few questions that I've never heard you answer directly are as follows, and I'd very much appreciate knowing what you think about them:

1) Does the Ninth Amendment allow judges to construe other factors, besides the enumeration in the Constitution of certain rights, so as to deny or disparage purported unenumerated rights?

2) If so, isn't one of those factors the enumeration of powers?

3) If the Constitution contained no enumeration of rights at all, then would there have been any reason to include the Ninth Amendment?

4) If so, how do you think it would have been rephrased, and why wouldn't it have been rephrased that way to begin with?

5) If Thomas McAfee is correct that the Ninth Amendment protects the residuum of rights that result from limiting the enumerated powers (e.g. against use of the expressio unius canon), then wouldn't you agree that the Ninth Amendment has a useful purpose?

6) In the Abigail Alliance case, putting aside the Ninth Amendment and the other enumerated rights, do you think that Congress and the FDA have adequate power under the Commerce Clause and/or the Necessary Proper Clause to do what they're doing with regard to life-saving drugs?

7) In other words, do you think that the Ninth Amendment in Abigail Alliance carves out an exception from the enumerated powers, or instead simply protects the residuum of rights left over from those enumerated powers?

Thanks in advance for any answers.
12.13.2006 3:38pm
Andrew Hyman (mail) (www):
P.S. Here are three more questions, if you don't mind, which makes it an even ten questions.

8)Do you think that Madison's draft Nith Amendment was meant to carve out exceptions from the enumerated powers?

"The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution."


9) Do you think that the draft Ninth Amendment proposed by the Virginia ratification convention was meant to carve out exceptions from the enumerated powers?

"That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution."


10) If the answer to (8) or (9) is "no", then what is it in the language of the adopted Ninth Amendment that makes you think it was intended to carve out exceptions from the enumerated powers?
12.13.2006 3:51pm
Greg D (mail):
IIRC, there was a lot of argument at the time as to what rights should go into the "Bill of Rights". I therefore believe that the most reasonable reading of the 9th is:

The fact that we did not include any particular right in the Bill of Rights is not meant to denigrate said rights. If you wish to try to pass a law infringing on a right not listed here, do not use its absence from this list as "proof" that it's not an important right.

IOW, those "construing" are voters and lawmakers, not judges.

Is there anything in there anything in your article addressing this (either way)?
12.13.2006 5:01pm
lucia (mail) (www):
Greg D.

I'd edit your suggestion adding the bit in italics:
The fact that we did not include any particular right in the Bill of Rights is not meant to denigrate said rights. If you wish to try to pass a law infringing on a right not listed here, do not use its absence from this list as "proof" that it's not an important right. If you do pass such a law, said right right will be enforced and upheld using exactly the same methods we use to uphold and enforce the rights in the Bill of Rights.


The bit in the italics is required to give sense to the word "disparage".

This amendment and the others are equally silent on the issue of judges' roles. That is discussed or decided elsewhere. Turns out judges are involved in upholding rights but that's not because the Bill of Rights themselves tell us judges will do it.
12.13.2006 5:23pm
SpenceB:
"... Resolving this dispute over original meaning highlights ... the need for long-form legal scholarship." (- Randy Barnett)

________________

... Guess I'm a bit pessimistic about legal-scholarship resolving this 9th Amendment issue, since it still appears to be a wide open issue after 200+ years of professional legal practice &analysis ??

If even legal scholars have been unable to reach consensus -- where does that leave the average American citizen and the rule of law ?

The 9th Amendment is supposed to be part of the fundamental laws of the United States... how can the meaning of fundamental law still be in serious question after two centuries ?

Seems like the Bill of Rights was intended as much more than merely an object of legal curiosity & scholarship. Just how does the average citizen know what the law is ?
12.13.2006 6:35pm
Andrew Hyman (mail) (www):
The thing I find most troubling is how some (unnamed) scholars ignore or gloss over information that doesn't support their thesis. It's no wonder that no consensus has been reached about the Ninth Amendment.

Here's what the Sixth Circuit Court of Appeals said in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991):

[T]he ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution.


Yet, you won't find the vital principle of "expressio unius" mentioned anywhere in Randy Barnett's linked article (nor even mentioned in some articles by Lash or McAfee). This rule of construction was very well known to the framers, even if they didn't use the Latin term. The framers didn't want that rule fo construction to negate unenumerated rights that Madison said were included in the "great residuum" of powers "retained" by the people. You won't see the term "great residuum" mentioned anywhere in Barnett's article either, even though is was a key part of Madison's speech introducing the Bill of Rights.
12.13.2006 8:02pm
lucia (mail) (www):
Andrew:
Could you cite when Madison used that particular phrase?

I know one place Madison used the phrase "great residuum". It was when advocating the idea of adding the Bill of Rights to the Constitutino. It happens that he chose to play devils advocate and present arguments why the entire bill of rights, which eventually included the 9th amenement, was unnecessary"? As here.

While playing Devil's advocate, Madison presents the "great residdum" theory and then tells us:

I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed.


(I think he means "has been supposed by the advocates of the great residuum theory".

That is to say: Madison tells us the great residduum theory isn't very strong, and for that reason, Congress should propose a Bill of Rights, which, as it happened, they did. It was eventually ratified, and there you have it.

My question to you: Is this speech your source for the "great residuum" theory? If you have another, could you cite the source so we can read more than just the two words?

If this speech is your source for the "great residdum" theiry, it's hardly a wonder Randy doesn't base his interpretation on constitutional theories Madison describes and specifically tells us are not very good!

For the full speech, visit House of Representatives, Amendments to the Constitution.
12.13.2006 10:39pm
Andrew Hyman (mail) (www):
Lucia,

This excerpt from Madison's speech on June 8, 1789 is very telling:

It has been said, that in the Federal Government [enumerated rights] are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the Constitution are retained; that the Constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed.


Far from disagreeing with those arguments, Madison admits that they are not without foundation, and indeed those views were widely shared. Madison himself shared those views, even while not finding them conclusive on the question of whether to adopt a bill of rights. For example, less than a year earlier (on October 17, 1788), Madison wrote to Thomas Jefferson: "I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted."

No one disputed that many rights were reserved by the manner in which the federal powers were granted. The controversy was between those who sought additional rights and those who were content with the residual rights that Madison described.

According to Madison, under the original Constitution, the "rights of people" were contained within "the great residuum" of powers that had not been granted to the federal government. Thomas McAffee has repeatedly quoted this portion of Madison's speech, and yet Randy Barnett avoids quoting it.

Even worse, Randy cannot bring himself to acknowledge that those residual rights were protected from the expressio unius canon by the Ninth Amendment. Why Randy cannot bring himself to acknowledge that fact, or even utter the words "expressio unius", really is surprising.

Even more surprising is Randy’s assertion in his article that “it would be mistaken to characterize the individual natural rights model as entailing federal restrictions on the power of the states.” In other words, we should just sit back and relax as the federal courts identify and enforce Ninth Amendment rights against the federal government, without worrying that states will become similarly bound. In reality, however, as soon as a federal court identifies a Ninth Amendment right and enforces it against the federal government, that right will become a “privilege or immunity of a citizen of the United States” and therefore will automatically apply against the states via either the Privileges or Immunities Clause or (less plausibly but more probably) via the Due Process Clause. It’s already happened. See here.

I am all for natural rights and liberty, and the framers were too: they intended the American people to decide how to convert natural rights and liberties into enforceable rights and liberties. They did not intend for that entire task to be handed over to judges. The idea of a "right" and a "liberty" sounds wonderful, until you consider how easily the concept can be abused; the right to steal someone's television set, the liberty to fire a bullet into someone, are just samples of the insanity that awaits, if we surrender this entire field to five lawyers who are essentially unaccountable and insulated.
12.13.2006 11:20pm
Steph (mail):
Andrew even on a law blog it would be better to translate expressio unius est exclusio alterius into english. "The expression of one thing is the exclusion of the other." A principal of interpritation that means if you list some things to which a law applies, that means the things you don't list are excluded.

Now to my mind this principal would mean that without the nineth amendment, the fact that some rights were listed would exclude or disparage all others. The nineth amendment excludes this principal. Which is to say it means that all indivdual rights are protected even if not enumerated.

As to your statement that Randy is misleading people by saying that the question of what the nineth amendment means is separate from how it applied by the courts. He is simply saying it is a diferant constitutional question.

Your last graph is frankly just silly. As to unelected judges, I am sorry that the fact that the founders thought an unelected judiciary was a good idea is not to your taste, but it remains the law of the republic. The fact is the founders were not uncritical admirers of democracy. As to your scare senario of a "right to steal someone's television set [or] the liberty to fire a bullet into someone." The first would be ruled out by the right to property and the later by the right to life.
12.14.2006 12:08am
omarbradley:
A quote above by a poster was on point. The fact that after more than two hundred years, and the best efforts of the nation's top legal scholars and Justices, there has yet to emerge an agreement on just what the 9th amendment means is telling. If it is that confusing to us and even with all the historical evidence and materials people can still come to radcially different interpretations of it, I don't think there's that much hope of ever reaching a settled conclusion.

Furthermore, the 9th amendment was not used that often or relied on to any great extent in that many cases, especially from the time of the founding. However, Randy has cited an instance when Madison did rely on it to oppose the Nat'l Bank in 1791 and Madison's use of it supports Randy's thesis and goes against Andrew Hyman's as well as others mentioned above. That said, one use by one guy isn't exactly conclusive. Although since Madsion wrote the 9th amendment it is entitled to some weight.

As for my own views, I tend to think that the 9th amendment is meant to be read in conjunction with the 10th amendment in order to constrain the Federal Government and guard against it both from exercising nondelegated powers and from exercising its delegated powers in a broader manner than was intended.

I think the evidence that Randy has cited in the form of the letter from Madison to Washington and Brunley's letter to Madison from the VA convention regarding Randolph's opposition to the 9th amendment tends to support this view.

Randolph was worried that because all of the people's rights weren't listed, the govt would use that as a pretext for invading them. He said it would be better if the amendment was framed to limit powers rather than to protect rights. Madison responded to Washington that it amounted to the same thing. That protecting rights simultaneously limited powers and that the end result was the same since rights and powers are but two sides of the same coin.

So, does the 9th amendment protect unenumerated right X? I don't think it can be held as an affirmative source of rights on the same level as say the 1st amendment or the 6th.

I think the proper question to be asked is when the Fed Govt attempts to pass a law that invades an unenumerated right is whether it is exercising a delegated power. If not, then the right is protected. In this sense, I think the 9th and 10th amendments are very similar and are rather interconnected.

For example, with the life saving drugs at issue in this case, the question is, under what delegated power does the govt derive its authority to pass the law at issue? If the Govt responds that it is the commerce clause, I think an argument can be made that the 9th and 10th amendments guard against a latitudinarian construction of the commerce clause, and in that way they protect the unenumerated right to acces the life saving drugs.
12.14.2006 12:33am
omarbradley:
Here's the relevant passge from Madison's use of the 9th amendment in opposing the Bank in 1791:

As one authority for this "rule" of interpretation, Madison cited the ninth amendment(taken from one of Randy's articles on the 9th and the Cong Record):


The explanatory amendments proposed by Congress themselves, at least, would be good authority with them; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended for.... He read several of the articles proposed, remarking particularly on the 11th [the ninth amendment] and 12th [the tenth amendment], the former, as guarding against a latitude of interpretation; the latter, as excluding every source or power not within the Constitution itself51.




Thus, Madison viewed the ninth and tenth amendments as playing distinct roles. Madison viewed the tenth amendment as authority for the rule that the congress could only exercise a delegated power. For example, in the illustrations I have used, Congress could not establish a post office or raise and support armies without a delegation of power to pursue these ends. In contrast, Madison viewed the ninth amendment as providing authority for a rule against the loose construction of these powers—especially the necessary and proper clause—when legislation affects the rights retained by the people.


Burnley's letter to Madison, which I can't seem to find at the moment as well as Madison's orginal draft of the 9th amendment:


The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.[4]


also tend to support the idea that the 9th amendment was inserted to prevent the enlargement of delegated powers for usurpative purposes.

the following legal maxims also help our understanding of it:

Potestas stricte interpretatur. A power is strictly interpreted.

In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.



One of the clues is found in the fact that some “rights” are expressed as declarations, and some as restrictions on delegated powers. From this we can discern that in the Constitution and its amendments, public action is partitioned into delegated powers of government and rights against the positive acts of government. Constitutional rights are rights against public action by public officials. Therefore, we might more precisely call them “immunities”, as they are called in the 14th Amendment. Immunities are the complement of delegated powers: Every delegated power is a restriction on immunities, and every immunity is a restriction on delegated powers. Thus, a constitutional right, or immunity, can be expressed either as a declaration, or as a restriction on a power. The two modes of expression represent different ways of expressing the same concept.4

So why, if this is so, do we need both the Ninth and Tenth Amendments?5 The answer lies in the inherent ambiguity of the language available in which to express both rights and delegated powers. It is easy to construe written delegations of power more broadly than was intended by the framers of that language, and a right, expressed as either a declaration or a restriction on delegated power, may provide a convenient way to clarify the boundaries, from the opposite side. Legal language is not just denotative, with a semantic mapping to objects or concepts, but also evocative, reminding the reader of a complex web of ideas associated with historic events and the usage of the term, so that he may sometimes be more likely to clearly understand what is meant if the language is expressed in the terms of “rights”, than if expressed in the terms of powers, delegated or nondelegated.


This is what Madison was trying to explain in his letter to Washington why he chose this approach instead of what Randolph advocated.


If we accept that powers are to be construed as narrowly as the text permits, and rights are the complement of powers, then it follows that rights are to be construed as broadly as the text permits, and in the event of any doubt, the decision must always be against a claimed power and in favor of a claimed right against the exercise of the claimed power. This means that “strict construction” means narrow for powers and broad for rights, not narrow for both.


I wish I could find that letter from Burnley to Madison as it really helps to understand the 9th amendment and how it was understood at the time. But the general understanding was that it was meant to guard against an excessive latitutde of interpretation of delegated powers to invade the natural and retained rights of the people.
12.14.2006 1:07am
Andrew Hyman (mail) (www):
Steph Houghton,

Someone such as yourself, who is sophisticated enough to know what expressio unius means, should also understand this: declaring that expressio unius doesn't apply is not the same thing as declaring that the exact opposite principle applies. Thus, there is no way the Ninth Amendment means that every conceivable right is protected by the Constitution.

Contrary to what you said, I never wrote that "Randy is misleading people by saying that the question of what the nineth [sic] amendment means is separate from how it [sic] applied by the courts."

As to your last point, I agree with Oliver Ellsworth and the other framers who realized that, "Liberty is a word which, according as it is used, comprehends the most good and the most evil of any in the world." If you disagree, then perhaps you've never read Dred Scott or Lochner.

The framers did not intend to place unlimited power in the hands of judges. Thomas Tredwell of New York, for example, said at the New York ratification debates that a prisoner may "hold his life... at the pleasure of the Supreme Court, to which an appeal lies, and consequently depend on the tender mercies, perhaps, of the wicked, (for judges may be wicked;) and what those tender mercies are, I need not tell you. You may read them in the history of the Star Chamber...."

John Marshall said (Marbury v. Madison): "the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature." If the courts get to decide what rights each of us should have, then their power would be basically limitless and ungoverned.

Whatever, you may think of the Ninth Amendment, it does not "clearly" require judges to strike down laws against, for example, polygamy. And after all, a "clear" contradiction with the Constitution is what the founders believed would be a predicate for judicial review.

Omar Bradley, Barnett’s article said that the "most telling evidence" against the residual rights interpretation of the Ninth Amendment is Madison’s speech about the National Bank, as you mentioned in your comment. Barnett says that "Madison’s speech comprises a virtual refutation of the residual rights model, as Madison is using the Ninth Amendment as means of construing the power of Congress --- which Thomas McAffee (who advanced that model) expressly denied was a purpose of the Ninth Amendment." However, Barnett is wrong. The residual rights model asserts that the Ninth Amendment forbids any inference about the scope of enumerated federal powers from the mere fact that certain rights are enumerated, and so the residual rights model does indeed use the Ninth Amendment as a means of construing the power of Congress. More importantly, Madison was making the point in his bank speech that just because the Constitution doesn’t enumerate the retained right of the people to prohibit or establish banks, that doesn’t mean Congress has power under the Necessary and Proper Clause to destroy such a right. Madison felt that the Necessary and Proper Clause had to be construed on its merits, and not be bloated up by the fact that the Bill of Rights didn't include a right to establish banks or the like. I don't see any inconsistency at all between Madison's Bank Speech and the notion that the Ninth Amendmnet simply protects residual rights.
12.14.2006 1:34am
omarbradley:
OK, I finally found the letter from Burnley and Madison's response which clears things up a bit.

Here's Burnley:


On the two last [the Ninth and Tenth] a debate of some length took place, which ended in rejection. Mr. E. Randolph who advocated all the others [amendments] stood in this contest in the front of opposition. His principal objection was pointed against the word retained in the eleventh proposed amendment, and his argument if I
understood it was applied in this manner, that as the rights declared in the first ten of the proposed amendments were not all that a free people would require the exercise of; and that as there was no criterion by which it could be determined whither any other particular right was
retained or not, it would be more safe, &more consistent with the spirit of the 1st &17th amendments proposed by Virginia, that this reservation against constructive power, should operate rather as a provision against extending the powers of Congress by their own authority, than as a protection to rights reducible to no definitive certainty.200



Burnley, however, disagreed with Randolph’s objections. He saw no difference between Randolph’s preferred language and the language used in the Ninth’s final draft:


But others among whom I am one see not the force of the distinction, for by preventing an extension of power in that body from which danger is apprehended safety will be insured if its powers are not too extensive already, &so by protecting the rights of the people &of the
States, an improper extension of power will be prevented
&safety made equally certain.


James Madison agreed with Burnley’s reasoning and appended his language in a letter to George Washington. In that letter, Madison lamented the bad luck that had arisen in Virginia:


My last information from Richmond is contained in the following extract: [Here Madison quotes Burnley’s description of Randolph’s objection]. The difficulty started [against] the amendments is really unlucky, and the more to be regretted as it springs from a friend to the Constitution. It is a still greater cause of regret, if the distinction be, as it appears to me, altogether fanciful. If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.202




This letter illuminates why the Select Committee, of which Madison was a member, ultimately omitted Madison’s language regarding the constructive enlargement of federal power. If securing rights and limiting the extension of powers amount to the same thing, then this means that the
original draft of the Ninth Amendment contained redundant provisions. Either provision by itself would equally limit the construction of enumerated powers while securing retained rights. Thus, according to Madison, the rule
of construction prohibiting the constructive enlargement of powers remained alive and well in the final version of the Ninth Amendment.
This is the plain meaning of his letter to Washington, and it fits with the general view of
rights and powers held by many in the Founding generation.203
12.14.2006 1:58am
omarbradley:
In sum, I think that the Select Committee really messed things up by editing Madison's orginal draft. Madison himslef, as well as others, indicated that there was really no practical difference between the two versions and that they amounted to the same thing. That said, If the committee had edited Madison's draft slightly differently so that it read:


The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution


I think it would be much clearer. And I think that version would have the same meaning as the current 9th does.

Basically, the 9th amendment does protect retained rights. But it does so not by listing them like the 1st lists freedom of speech or the 6th lists right to counsel. It does so by providing a rule of construction that tells us that delegated powers should not be enlarged to invade on said retained rights.

The 10th amendment guards against the exercise of nondelegated powers.

The 9th amendment guards against the expansive exercise of delegated powers.

So, The Fed Gov can only exercise those powers it has been delegated(the 10th) and even in exercising those delegated powers it cannot do so in an expansive/latitudinarian manner that either enlarges those powers by construction or denies or disparages the rights of the people(the 9th)


Madison’s speech resolves any remaining ambiguity, if there is any, in regard to the correspondence between Burnley and Madison. The best understanding of Madison’s letter was that he read the Ninth as an interpretive rule limiting the construction of federal power. His speech makes that view express. Madison’s letter appeared to say that the
“constructive enlargement of federal power” principle, expressed in his early draft of the Ninth, remained alive and well in the final version.
His speech makes this clear. Finally, where his letter seemed to suggest that the Ninth followed the lead of the state conventions and limited federal power in order to reserve power to the states, Madison’s speech explicitly links the Ninth to retained state powers, as well as to the desires and understandings of the state conventions. It is perhaps a happy coincidence of history that many of the same players from Madison’s letter to Washington (Madison, Randolph, and
Washington) repeat their roles with clearer lines in the debate over the Bank of the United States.
12.14.2006 2:48am
Hans Gruber (www):
Of course the Ninth Amendment means what it says. The problem is that what it says only applies to the federal government. "Incorporating" it into the Fourteenth Amendment makes no sense either, considering you (I assume) think the Tenth Amendment means what it says, too.

Isn't it an odd twist of fate that two amendments which were supposed to emphasize the constitutional limits on federal power are now used to justify federal intrusion (albeit judicial intrusion) in the proper domain of the states?
12.14.2006 5:10am
Hans Gruber (www):
"If it's a rule of construction that says "you shall not interpret this document in a way that deprives people of their unenumerated rights," that would seem to offer fairly substantive protection for those rights."

Substantive protection against federal encroachment, yes. Substantive protection against state encroachment? No. I think we need to ask ourselves if the Tenth Amendment means what it says, too. And if it does, what sort of remedy is it when a FEDERAL court descides to side with the states or sides with the people? Where is the power in that case? That power, then, is for all intents and purposes at the federal level, the rights are under federal control, which is PRECISELY what the Ninth and Tenth Amendments are supposed to restrict--federal encroachment into areas that the Constitution does not authorize. What unenumerated rights are protected is for the people to decide through their state governments.
12.14.2006 5:20am
lucia (mail) (www):
Andrew:
The structure of the speech is
1) Describe argument A against writing the bill of rights.
2) Explain why it is wrong or has shortcomings.
3) Repeat.

The introduction of the various arguments begin:

It may be thought that all paper barriers against the power of th...

It has been said, by way of objection to a bill of rights...

It may be said, indeed it has been said, that a bill of rights is not necessary...

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power..

It has been said, that it is unnecessary to load the Constitution with this provision..


If you believe that you can lift arbitrary text out of the "part 1" blocks of that speech and to prove Madison thought they were good arguments, I guess you can. However, Madison says, in that speech, the arguments are poor.

This includes the theory you favor, which starts in the
"It has been said, ."

In the speech, some others had just suggested they table the motion to write a Bill of Rights. Madison was responding and everyone knows he was arguing for writing the Bill of Rights, not against. Repeating the argument against starting with "it has been said", and ending with "that doesn't work", is not the way people say "I think think what they say is true."


As to one of the flaws he points out in the Great Residuum theory he introduced, (and later says is weak) he says

Now, may not laws be considered necessary and proper by Congress, for it is for them to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary nor proper; as well as improper laws could be enacted by the State Legislatures, for fulfilling the more extended objects of those Governments. I will state an instance, which I think in point, and proves that this might be the case. The General Government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the Legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the State Governments had in view? If there was reason for restraining the State Governments from exercising this power, there is like reason for restraining the Federal Government.

In other words: He points out there is a great big hole in the residuum interpretation. It is very easy to interpret Congress to have been granted a specific power: to tax. They might write a tax bill. People might think it tramples rights, but they "Lo! Verily! Congresss has has an enumerated right to tax. They must have a right to write enact tax laws anyway tey wish."

And then where are we? The right to not be taxed in any particular way has vanished because the power was granted.

So, Madison, is, in fact saying, that there are rights we wish to retain even in where Congress has been granted an enumerated power. That means he thinks the "residuum theory" is too narrow, and the Bill of Rights is added specifically to make sure rights aren't narrowed to the extent they would be if one applies that theory.
12.14.2006 7:52am
M. Gross (mail):
My, I must say it's an unmitigated pleasure to see the 9th amendment discussed in such a manner. It's so common to see the (ahistorical and inaccurate, in my opinion) view that the 9th amendment actually grants rights beyond those listed in the constitution.
12.14.2006 10:37am
Jon Rowe (mail) (www):

Substantive protection against state encroachment? No. I think we need to ask ourselves if the Tenth Amendment means what it says, too. And if it does, what sort of remedy is it when a FEDERAL court descides to side with the states or sides with the people?


Barnett answers this in his book. He would agree with you that the 9th Amendment only deals with the federal government. The 14th Amendment's "privileges or immunities" clause pretty much protects the same natural rights against the states that the 9th Amendment protects against the federal government.
12.14.2006 11:33am
Aleks:
Re; What unenumerated rights are protected is for the people to decide through their state governments.

Sorry, but this makes a mockery of the doctrine of inalienable rights. After all if rights can be determined by vote of the legislature then they can hardly be called "inalienable".
12.14.2006 1:01pm
Andrew Hyman (mail) (www):
Aleks, see here for an example of the founders protecting rights by statute.

Lucia, when Madison said that his opponents views were not entirely without foundation, that meant that he partly agreed with them.
12.14.2006 3:57pm
lucia (mail) (www):
Andrew:

Sure Madison accepts some planks of the great residuum theory. Madison partly agrees with all the counter arguments to writing a Bill of Rights he presents. He explains which parts of the arguments he agrees with and which parts he disagrees with.

In the case of the "great residuum" idea, he agrees that

a) Congressional powers are limited and
b) the because they are limited, this will protect some of the rights we wish to protect.
and
c) that seems to be the theory of the how the constitution works before we add a bill of rights.

So, he agrees the unamended constititions works that way, and it's not entirely bad. (He wrote the thing. Why would he think the first shot was entirely bad?)

However, during the course of the debates that occurred during ratification, Madison actually came to understand and accept the shortcomings of that mode of operation. By the time he is introducing the Bill of Rights, he is explaining those shortcomings to the other menbers of Congress and proposing his constitution should be modified.

And what's the shortcoming with "the great residuum" theory?: The great residdum theory does not protect rights the way he and others wish them to be protected.

So, if we examine this theory of the constitution we see that Madison thought the theory contained some elements that were correct. However, the theory fell short vis-a-vis protecting the people's rights he and others wish to protect.

So how were we to remedy the problem that a) the great residuum theory actually applied to the unamended constitution but b) it didn't sufficiently protect rights?

Amend the constitution to carve out exceptions to powers: Specifically say they can't be used when they infringe on rights.

So, "the great residuum" theory falls short specifically vis-a-vis interpreting the effect of "The Bill of Rights" which were drafted to remedy the deficiency in "the great residuum" mode of operation of the Constitution.

(BTW, since you know some physics, I could make an analogy.

"I admit that Newton's analysis of the speed of sound was not entirely without foundation; but it was not conclusive to the extent which had once been supposed."

I bet you don't think that sentence suggests I think the theory was right.)
12.14.2006 10:47pm
Andrew Hyman (mail) (www):
Lucia, I don't disagree with anything you said in your most recent comment. The list in amendments 1-8 carved out exceptions from the enumerated powers. Then, the framers realized that this list might jeopardize rights in the great residuum, and they were correct about that. Whenever a statute includes a list of things, that creates a presumption that unlisted things are excluded (the fancy name for that idea is "expressio unius"). So, they wrote the Ninth Amendment at least to counteract expressio unius.

I suspect that even Randy Barnett would agree with everything I've said so far in this comment, if Randy could bring himself to say the words "expressio unius" and "great residuum." Randy's thesis seems to be that the Ninth Amendment not only does what I've just described, but also does MORE. He seems to think that the Ninth Amendment itself reduces the enumerated powers to less than they were in the original Constitution, instead of merely preventing enlargement of those powers.

Randy's primary piece of evidence is Madison's speech about a National Bank, which was made shortly before the Ninth Amendment was ratified. In the course of explaining why the Bank was not within the power of Congress, under the Necessary and Proper Clause, Madison mentioned that he viewed the Ninth Amendment as “guarding against a latitude of interpretation.” Indeed it does. Just because the right to establish or prohibit banks was not listed in the Bill of Rights as a right reserved to the people, that didn’t mean that the right had been assigned into the hands of the federal government. Madison argued that the way to determine if the right had been assigned into the hands of the federal government was to examine the express powers, and see if the Bank could be considered a subsidiary implied power connected with that express power. Madison never asserted or believed that the express plus implied powers would have authorized a National Bank but for the Ninth Amendment. You don't believe Madison said that, do you Lucia?
12.15.2006 7:59am
lucia (mail) (www):
Andrew ask and comments:>
"You don't believe Madison said that, do you Lucia?",

"if Randy could bring himself to say the words "expressio unius" and "great residuum." and

"(the fancy name for that idea is "expressio unius")


"Kyrie eleison!" Why do you lard your rhetoric with stuff like this? With a first name like Lucia, yah' think I didn't go to Catholic school and get exposed to Latin? I'm sure Randy can bring himself to say words like "expressio unius"! And if he thinks using English phrases gives his text that certain "Je ne sais quois", why shouldn't he use it?

Now, I'll address your substative remarks and issues actually related to interpretation of the ninth amendment.

Andrew posits: Randy's thesis seems to be that the Ninth Amendment not only does what I've just described, but also does MORE.

I interpret him as saying this. I agreed with him before I ever read his work and I still do.

Andrew continues: He [Randy] seems to think that the Ninth Amendment itself reduces the enumerated powers to less than they were in the original Constitution, instead of merely preventing enlargement of those powers.


I have not read the body of Randy's work. I have read two papers including the one he announced in this post.

Based on those two papers, I do think Randy is saying the Ninth amendment limits how Congress can exercise its enumerated powers in ways they were not limited before the Ninth amendment was passed. That is to say: The Ninth Amendment changed things, correcting the flaw in Madison came to recognize in the "residdum" method of protecting rights.

I think Madison says the Ninth limits Congressional power in exactly the same way the 1-8th limit those powers. (The 10th does it in a different way. It limits them from exercising unenumerated powers. That amendment by itself is sufficient to maintain the protection previously held under the "residuum" method of protection of rights.)

Whether Randy agrees with me in this and/or whether I interpret Randy corretly, I cannot know. He hasn't emailed me personally to say "Lucia, you go girl! Our minds are as one on this!"

However, since you asked me, I do believe Madison said "guarding against a latitude of interpretation." I also note that Randy likely believes Madison said it, since Randy has been known to cite that phrase. You will find the phrase if you use your browsers word search tool here Introduction: Implementing the Ninth Amendment*.

Not only do I believe Madison said that, but I believe his words support the idea that the ninth limits Congresses latitude in exercising enumerated powers. I believe "guarding against latitude of interpretation" applies "when applying their enumerated powers". It's precise application is : even if a power is enumerated, the ninth amendment means that Congress can't exercise powers in a way that violates unenumerated rights.

Since, I know you are familiar with physics, I will make a physics analogy. I'm sure you've heard people summerize the first and second laws of thermo as:
1st: You can't get ahead.
2nd: You can't even break even.

To my mind, The Tenth Amendment is "like" the first law of thermodynamcis: Congress can't get ahead of its enumerated powers.

The Ninth Amendment is "like" the second: Congress can't even break even.

This doesn't mean Congress can't do a heck of a lot. If engineers and scientists have managed to figure out heat cycles, air conditioners, and even corrected Newton's formula for the speed of sound through correct understanding of the 2nd law, I'm sure Congress can cope with a Ninth Amemdment that imposes some limitations on some of their enumerated powers.
12.15.2006 9:11am
Andrew Hyman (mail) (www):
Lucia, I do not "lard" my "rhetoric" with anything. I'm sorry that you think my "rhetoric" is "larded." The canon of "expressio unius" is one of nthe primary canons in statutory construction. If Randy has an allergy to referring to it by its usual legal name, then why not just acknoweldge that there is a standard rule of statutory construction that things listed are presumed to exclude things unlisted? Where does Barnett allude to such a canon? And why not use the term "great residuum"? If it was good enough for Madison, why not good eneough for Barnett?

And how the heck am I supposed to know whether you went to Catholic School or not? Previously, a commenter named "Steph" criticized me for not explaining what "expressio unius" means. Now you criticize me for explaining what it means. I guess some people will never be satisfied.

Randy Barnett writes:

The purpose of the Ninth Amendment was to ensure that all individual natural rights had the same statute and force after some of them were enumerated as they had before....


Perhaps this is the real issue. It appears that he believes the original unamended Constitution allowed judges to carve out exceptions from the enumerated powers, in order to protect what the judges considered to be unenumerated natural rights, even though legislators believed they were not natural rights. That's what the blockquoted statement seems to me to imply.

I may be mistaken about this, because I'm not aware that Barnett has explained himself in detail on this point. But, if this really is what he's saying, then I would very much disagree with it. Judges were never meant to modify the Constitution whenever they hear the call of nature.
12.15.2006 9:58am
lucia (mail) (www):
To begin the substantive first:
It appears that he believes the original unamended Constitution allowed judges to carve out exceptions from the enumerated powers, in order to protect what the judges considered to be unenumerated natural rights, even though legislators believed they were not natural rights. That's what the blockquoted statement seems to me to imply.


I think various people had a difference of opinion as to the meaning of the original constitution, and that was "the problem". Some thought the unamended Constitution carved out exceptions to the powers; others thought it did not. Some thought it should; some thought it should not.
Some thought it should and did carve out exceptions, but worried that others who thought it did not and should not would later interpret the constitution to limit rights both necessary and dear to mankind.

For this reason, they wished to make explicit the idea that exceptions were to be carved out when the enumerated powers infringed on rights.

For this reason, many insisted on The Bill of Rights.

I believe that during the course of the debate over ratification, Madison came to recognize the danger and accept the idea that we must explicitly state that Congress 's powers are limited to those enumerated (hence the 10th) and that, beyond that, limitations to were to be carved out to ensure even unenumerated rights are not trampled by Congress exercising enumerated powers (hence the 9th.)

He proposed The Bill of Rights to introduce these guarantees.

Judges were never meant to modify the Constitution whenever they hear the call of nature.

I agree. Our disagreement is in determining which interpretations modify the Constitution. I think your reading of the ninth modifies its meaning and thereby the Constitution.

Once again, I cannot speak for Randy's opinion on this matter. He seems perfectly capable of speaking for himself.


---- ------ -------
Now, to the diversion on the other non-substative stuff which few are likely to want to read.

Andrew complained> Now you criticize me for explaining what it means.

I don't criticize you translating Latin phrases into English.

I criticize you for providing the translation using phrases like "a fancy term for that is" instead of using a more neutral standard method like (i.e. "expressio unius"). The latter method concisely provides the definition; the former uses extra words which suggest you believe the person you are addressing (which happened to be me in that particular post) can't possibly be familiar with said "fancy terms" you have learned as a result of your vastly superior education.

I criticize you for trying to dictate which words Randy uses when writing and for seeming to imply that using English somehow introduces a flaw into his argument.

And honestly, is there really is any point in saying things like "Randy has an allergy to referring to it by its usual legal name". (Emphasis mine). He could use the term you prefer if he wished, evidently, he doesn't. Practically nobody reading will think less of Randy's argument because you suggest he "has an allergy" to the word "residuum"; some may admire Randy for avoiding "fancy" words making his work more accessible to those unfamiliar with Latin thus increasing the chance the ideas will be adopted by the great un-ironed masses of American voters.
12.15.2006 11:02am
Andrew Hyman (mail) (www):
In my previous comment, one word was misspelled due to a typo. Here's the correct quote from Randy Barnett's article:

The purpose of the Ninth Amendment was to ensure that all individual natural rights had the same stature and force after some of them were enumerated as they had before....


I pretty much agree with this statement, and so the real question is what stature and force those rights had under the original Constitution (putting aside the listing of a very few rights in the original Constitution). If Randy really meant to make the statement just blockquoted (and he said it twice in his article), then it seems pointless and irrelevant to argue about what the Ninth Amendment did. I think everyone (e.g. McAffee, Lash, Barnett, me, the Sixth Circuit, Lucia, Madison) agrees with the blockquoted meaning of the Ninth Amendment as it pertains to individual rights.

So, the real thing that Barnett needs to prove is that, under the original unamended Constitution (putting aside the listing of a few rights in the original Constitution), judges were empowered to strike down statutes if the statutes treat natural rights differently from how the judges would treat natural rights. I think it's very clear that the framers intended no such thing. They only intended judges to strike down statutes in case of a clear and irreconcilable variance with the Constitution, and not for any other reason.

Lucia, I certainly did not mean to seem condescending when I said that expressio unius is a "fancy term" for thus and such. It is a fancy term for a particular canon of construction. You ought not be so sensitive, and there's no need to respond to this non-existent slight by accusing me of larding up what I write with rhetoric in order to sound superior. I'm not "complaining" --- I'm merely pointing out that when someone says something is a "fancy term," saying so does not imply any condescension to the person being spoken to.

The Sixth Circuit used this term in "Gibson v. Matthews" so anyone responding to and quoting that portion of the case would have to use the term. Likewise, Madison used the phrase "great residumm" in his speech introducing the Bill of Rights. If a scholar is going to write multiple articles on this subject without ever mentioning these terms, it says to me that these arguments of the Sixth Circuit and of Madison are being ignored.
12.15.2006 12:42pm
Andrew Hyman (mail) (www):
Meant to say:

"So, the real thing that Barnett needs to prove is that, under the original unamended Constitution (putting aside the listing of a few rights in the original Constitution), judges were empowered to strike down statutes if the statutes treat natural rights differently from how the legislators would treat natural rights."
12.15.2006 12:44pm
Andrew Hyman (mail) (www):
I countermand that order. Please ignore correction. I said it right the first time. :-)
12.15.2006 12:45pm
Andrew Hyman (mail) (www):
Just a brief clarification, lest I regret what I've said here in this thread.

I agree with Randy Barnett that a purpose of the Ninth Amendment was to ensure that unenumerated individual natural rights had the same stature and force after the enumeration as they had before. However, I do not agree that a purpose of the Ninth Amendment was to ensure that enumerated individual natural rights had the same stature and force after the enumeration as they had before.

The Ninth Amendment said nothing about denial or disparagement of enumerated rights, either before or after the enumeration. If Barnett is saying that free speech rights were equally enforceable both before and after the Bill of Rights, then he is mistaken, in my opinion. Yes, free speech rights might have been enforceable before the Bill of Rights, as being outside congressional power under the Necessary and Proper Clause; however, such rights would not have been enforceable so as to overturn local regulations enacted by Congress for the federal district.

After all, the Constitution gave Congress power to "exercise exclusive Legislation in all Cases whatsoever, over such District...."
12.15.2006 1:52pm
Randy Barnett (mail) (www):
Lucia, you go girl! You patiently managed to bring the discussion on this thread to a constructive juncture where the points of disagreement are much clearer.

It is now apparent that the main point of Andrew's disagreement with my position--apart from the fact that he does not consider all the relevant evidence that contradicts the "residual rights" thesis posited by Tom McAffee--is when he writes:
So, the real thing that Barnett needs to prove is that, under the original unamended Constitution (putting aside the listing of a few rights in the original Constitution), judges were empowered to strike down statutes if the statutes treat natural rights differently from how the legislators would treat natural rights.
This is exactly what is at issue. For example, prior to the adoption of the Fifth Amendment, could Congress have taken private property (for any use) without just compensation? Andrew must be saying yes. I think this would have been vigorously denied, though so far as I know, this is a hypothetical.

In the early years of judicial review, the Supreme Court relied primarily on first principles and only secondarily on text. A good example of this is Chisholm v. Georgia, but almost every major constitutional case was handled this way into the Marshall Court era. It requires no stretch of imagination to suppose that such a law would be stricken as violating the basic tenets of republican government. And, if textual authority were sought, it would found in the word "proper" in the Necessary and Proper Clause. (See Gary Lawson &Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation. of the Sweeping Clause, 43 Duke L.J. 267 (1993) with whom I do not agree with entirely, but are very good on this point.)

So on my theory, those amendments which protect natural rights were, in the words of Madison's original proposal, "inserted merely for greater caution" because already protected as unenumerated rights; those amendments that protected positive rights, such as the right to trial by jury, were added "as actual limitations of such powers."

Under Andrew's theory, all the enumerated rights were added "as actual limitations of such powers" because they did not previously exist as limitations.

But once some rights were added for either reason, to avoid the possibility that one day someone named Andrew would argue against the protection of the other rights still retained by the people by repeatedly saying "expressio unius," which Madison cited as one of the strongest arguments against adding a bill of rights, he devised the Ninth Amendment to defeat such an argument.

So the Ninth Amendment is the negation of "expressio unius." To paraphrase Monty Python, when it comes to the natural unenumerated retained rights:
"expressio unius" is no more! "Expressio unius" has ceased to be! "Expressio unius" expired and has gone to meet its maker!

"Expressio unius" is a stiff! Bereft of life, "Expressio unius" rests in peace! "Expressio unius"'s metabolic processes is now 'istory!

"Expressio unius" kicked the bucket, "Expressio unius" shuffled off its mortal coil, run down the curtain and joined the bleedin' choir invisibile!!

When it comes to unenumerated rights, THIS IS AN EX-MAXIM of constitutional construction"!!
I hope this shows that I am not afraid to use the term "expressio unius."

Or "Great Residuum" for that matter, which the Ninth Amendment does indeed protect. Where the "residual rights model" fails is when it claims that the Great Residuum have no affect whatsoever on interpreting the scope of federal powers--especially the potentially limitless implied powers not enumerated in Art. I, but to which the Necessary and Proper Clause refers. The available evidence contradicts this claim.

No one denies, and certainly not I, that Congress has power over interstate commerce. The question is whether it can use that power either to violate such natural rights as the freedom of speech (or could PROPERLY have done so in the two years hiatus after ratification but before the First Amendment was adopted when the freedom of speech was unenumerated) or can reach activity that is NOT interstate commerce because in its sole and unfettered discretion it deemed it necessary to do so.

The founders were much more sympathetic with judicial nullification of unconstitutional federal laws than Andrew appears to be. Every speaker in the constitutional convention and ratification conventions assumed the existence of this power, whether or not they liked the idea. Most who questioned it, did so on the ground that it was too weak. None so far as I know addressed the question of unenumerated rights, except by implication--for example when Hamilton famously claimed that the Congress was given no power over the press.

None of this is to say that judges necessarily have to postulate rights to protect them. They can instead put a meaningful burden on Congress to justify using its enumerated powers to restrict liberty, just as it does when Congress regulates or restrict the natural right of free speech.

Anyway, this post is already too long as it is. I thank you Lucia for your patience in getting us to the point were we can see what it is exactly is being disputed.
12.15.2006 6:05pm
lucia (mail) (www):
Andrew said: Yes, free speech rights might have been enforceable before the Bill of Rights, as being outside congressional power under the Necessary and Proper Clause; however, such rights would not have been enforceable so as to overturn local regulations enacted by Congress for the federal district.


I think no one knows for sure how a claim for freedom of speech would have been viewed or enforced prior before the Bill of Rights was enacted. I think the uncertainty was part of "the problem". (In fact, I don't think it was necessarily "uncertainty" so much as people had different opinions-- just as they do now.)

I think those proposing The Bill of Rights wanted all natural and some other rights to be protected. I think Congress wanted all individual rights -- enumerated or not -- to share the same protection as each other.

So far, that just expresses what I think. It tells us nothing about my analysis of Randy's view or the specific quote you post here. (I assume that's from page 13 of the document, under "Natural rights"?)

Here goes: Randy does say he favors that view. I also think Randy's paper shows evidence that when the constitution was written at least some held the Natural Rights view; quite likely Maidson held it. Others held other views; Madison was aware of their views. Madison described some of the other views. Randy is aware that Madison was aware others had other views.

You seem to suggest Randy needs to "prove" the Natural Rights view held sway. I don't see why Randy should need to prove it. The main goal of his work is to describe the meaning of the ninth amendment. I don't think Randy's intepretation of the meaning of the ninth is heavily affected by whether or not we think the second amendment, or any natural rights, held force before these amendments were written.

That's because I think Madison wrote the whole bill of rights to clear up some very real uncertainty about the enforceablity of rights against powers. He wrote the second to clarify that certain specific enumerated rights were protected against encroachment by congress. He wrote the ninth with a specific goal in mind: To protect all natural rights against the enumerated power of congress.

So, no matter what protection the natural rights had before the ninth was written, they all had protection afterwards.
12.15.2006 6:07pm
Randy Barnett (mail) (www):
Lucia,

I do not disagree that the Bill of Rights was meant to quite concerns based on uncertainty, including the uncertaintly created by the maxim "expressio unius" given the fact that the original constitution protected some rights, such as the writ of habeas corpus. But I do think that Madison affirmed in his original draft of the Ninth Amendment itself (!) that some rights retained by the people pre-existed the Bill of Rights and were added merely for greater caution. And I do agree with you that the first eight amendments together with the Ninth Amendment banish expressio unius from this sphere and was meant to resplve this doubt. Unfortunately "expressio unius" is apparently so powerful (or the desire to expand government power so great) that in practice the Ninth Amendment was a failure. However, its failure to operate does not change its original meaning which, as you correctly note, was the subject of my post and my article.
12.15.2006 6:15pm
Hans Gruber (www):
Doesn't any recognizing of unenumerated rights by federal courts inevitably conflict with what the Tenth Amendment "says." Certainly the Constitution did not empower the federal government to go around recognizing and enforcing unenumerated "natural rights," so that's something that should be properly reserved to the states to resolve, right?

I look at the Ninth and Tenth Amendments as a packaged deal, each writtent with the same end in mind--limiting federal power and expansion. I don't see how giving even more power to the courts, and therefore to the federal government, is in harmony with the purpose and intent of the Ninth and Tenth Amendments. Unless, as Andrew Hyman points out, you believed the Constitution unamended provided for federal recognition of unenumerated "natural rights." Is that what you believe?
12.15.2006 7:48pm
Randy Barnett (mail) (www):
Hans, maybe I can nip this one in the bud. With the Ninth Amendment we are only talking about the assertion of unenumerated rights against the federal government, that is, to construe the powers that have been delegated to the united states by this Constitution. We are not talking about the protection of retained natural rights against the states. That would be a Fourteenth Amendment question.

But yes, the claim is that Congress could not take private property for whatever use it wanted withoutr just compensation even before the enactment of the Fifth Amendment. With respect to this sort of right, the amendments were added merely for greater caution--i.e. to reinforce the protections that already exists.
12.15.2006 7:57pm
Andrew Hyman (mail) (www):
Randy, I'm glad that Lucia started out her most recent comment by pointing out that I agree with you to a certain extent: I agree that free speech rights might have been enforceable against the federal government throughout much of the United States, even before the Bill of Rights was adopted, as being outside congressional power under the Necessary and Proper Clause. So, not only is judicial review not something I dispute, but additionally I acknowledge that the courts have power to strike down statutes that violate unenumerated residual rights. However, wouldn't you admit that unenumerated rights have a much smaller scope where federal power is greatest, e.g. in the federal district and on federal territory and property?

In the federal district, and on other federal territory and federal property, Congress was granted exclusive and plenary power, thus obviating any need to rely on the Necessary and Proper Clause. Surely you can agree that this increased power correspondingly decreased the judicially protectable natural rights.

As for the ability of courts to strike down statutes that conflict with natural law rather than with any provision of the Constitution, virtually all the framers, plus the Marshall Court, denied such power in the courts. Justice Washington, speaking for the Marshall Court, put it this way in Satterlee v. Matthewson, 27 U.S. 380 (1829):
We intend to decide no more than that the statute objected to in this case is not repugnant to the Constitution of the United States, and that unless it be so, this Court has no authority, under the 25th section of the judiciary act, to re-examine and to reverse the judgment of the supreme court of Pennsylvania in the present case.


Robert Yates, writing under the pseudonym "Brutus", likewise asserted that "the courts of the general government [will] be under obligation to observe the laws made by the general legislature not repugnant to the constitution."

George Mason explained during the constitutonal convention that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course."

And just because judges don't have carte blanche to enforce natural rights does not by any means suggest that NO ONE can enforce natural rights. That's perhaps the biggest reasons why Congress and the state legislatures were established: to protect the rights of the people.
12.15.2006 9:11pm
Hans Gruber (www):
Forgive me for misconstruing your position (John Rowe earlier commented that you agreed). But in the WSJ piece you approvingly cite Carhart. Why bring that up when, apparently, it provides little support for your position on the Ninth Amendment, because that was a case of a federal court invalidating state action; which is the sort of mischief, I think, the Ninth and Tenth Amendments were intended to discourage. If the Tenth Amendment "means what is says," then Carhart is as wrong as Raich.

I also recall you approving of Lawrence (perhaps on Fourteenth Amendment grounds rather than the Ninth Amendment). But, still, if the Ninth Amendment "means what it says," why doesn't the Tenth, when it comes to Carhart or Lawrence?

I enjoy a lot of your posts (I will find some time to read your linked paper in full; I read parts of it when you originally posted it), and certainly there are worse constitutional theories I could imagine, but you do seem to be a libertarian before you are an originalist; which is why appeals to what this or that amendment "says," falls rhetorically flat, at least to me.

On a more specific point, you discuss the right to preserve one's health in your WSJ piece, but you neglect that many people believe there is a right to life for the fetus (many, again, view this as a natural right). If right to lifers were as willing to read their views into the Constitution as you; wouldn't they have a case that the Constitution not only was silent on the question but in fact prohibited abortion? Yes, the right of life for the unborn isn't exactly "deeply rooted" in our history and all that; but then neither is homosexual sodomy, which IS a natural right (protected by both federal and state encroachment) according to you, if I correctly understand your position.
12.15.2006 11:08pm
Andrew Hyman (mail) (www):
Hans, good for you for not letting Randy "nip this one in the bud," as he put it in his most recent comment. Earlier in this thread, he said that the following is exactly what is at issue:

So, the real thing that Barnett needs to prove is that, under the original unamended Constitution (putting aside the listing of a few rights in the original Constitution), judges were empowered to strike down statutes if the statutes treat natural rights differently from how the judges would treat natural rights.


The Ninth Amendment had not come along yet, so it's no argument for him to say that the Bill of Rights only applied against the federal government. He needs to address why federal courts could or couldn't use the original unamended Constitution to apply natural rights against the states, and against private parties too. Or so it seems to me.
12.15.2006 11:36pm
lucia (mail) (www):
Randy,
We cross posted. I saw your reply, but I didn't have time to reply before you replied to me. (Then, I had to go out.)

Having read what you posted while I was writing, I would have revised my "I think no one knows for sure" with "I don't know for sure." ( Lest anyone think my not knowing means much, it doesn't. I'm a mechancal engineer, I freely admit huge gaps of ignorance.)

That said, I think the following two things:
a) If the prior to passage of the Bill of Rights courts would not have limited powers to uphold rights (as Andrew appears to contend) then given Madison's speeches in congress, letters etc, it seems to me that Madison meant to remedy this.

b) If the court would have limited powers to uphold rights (as you contend) then given the record described above, it seems to me Madison meant to ensure it continued.

Here's why I hold my opinion. I've read the Madison's various speeches in congress which he knew would be heard by Congress and read by many o thers. His speeches appear to be aimed at an audience with a range of opinions who presented a range of counter arguments. (Some sincerely held, some possibly just trumped up as often done by politicians.)

When addressing this group, Madison used quite a few "inclusive or" constructions; the net effect is to suggest the ninth amendment is meant to limit government power no matter which of the various theories of constitutional interpretation the other congressional members adopt or claim to adopt.

Let's examine this as an example:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

(Italics mine to emphasise the "shall be" branch which, itself, contains an inclusive "or".)

Be they numerous or few, to those members of the audience who might have thought Congressional power was not limited by rights prior to the Bill of rights, Madison was saying the ninth will newly limit power that existed prior to enacting the ninth.

Be they numerous or few, to those members of the audience who thought Congressional power was already limited by rights,) Madison said the ninth would do no more than ensure we would continue to limit the scope of enumerated powers. To them, the Ninth amendment is simply a precaution.

Of course, to any who weren't sure, then Ninth did waht was necesary which was to limit enumerated powers to protect natural rights.

So, while I know I'll read your discussion and Andrew's discussion, and possibly get some books from the library before I decide whether I believe (a) or (b) above, I suspect, in the end, it probably won't greatly influence my opinion of what the ninth amendment means. (Though, of course, one never knows. In any case, I'll find the reading interesting. For the record, what reading I have done suggest Randy is more correct on this point. )

No matter who carries that particular historical point, the Ninth is meant to prevent Congress from trampling rights when exercising enumearted powers!


Unfortunately "expressio unius" is apparently so powerful (or the desire to expand government power so great) that in practice the Ninth Amendment was a failure.


"Expressio unius" is undeniably powerful.
12.16.2006 12:27am
lucia (mail) (www):
I should have added: Reading Madison's speeches and writing, I generally get the impression he tried to obscure which positions he personally held. That said, I'm agree that Madison did believe natural rights pre-existed the ninth amendment. Taken in it's entirety, his speech introducing the Bill of Rights makes no sense if he didn't believe so. There is no single quote to "prove" this. It's the whole thing in context that suggest it.
12.16.2006 12:35am
Randy Barnett (mail) (www):
Mr Hyman,

When I concurred with you about the issue that separates us, I was giving your formulation of that matter the benefit of the doubt. I see I was mistaken to do so. So let me rephrase the matter more precisely. What separates us is whether federal power was limited by the rights retained by the people -- such as the natural rights of freedom of speech, to keep and bear arms, or to just compensation for takings for public use -- for the two years that the Constitution was in effect but no such rights were enumerated in the Constitution, and about whether the opinion of Congress as to the scope of its own power to violate these rights is dispositive of the matter. It is my view, supported by the evidence I present in my article, much of which you choose to ignore, that the singling out of these particular rights was not meant to elevate them to a status they lacked for those two years, but that they were added "merely for greater caution." If these rights were enforceable after their enumeration (which is a separate issue requiring different proof) then they were equally enforceable before. Other "positive" rights were added "as actual limitations on [federal] power." Any law that violated these rights, before or after their inclusion in the Constitution, would not be "proper."

By the same token, those "other" natural rights "retained by the people," including the right to preserve one's life, could not properly be violated by the Congress without violating the most fundamental principles of republican government (though like all rights, whether enumerated or not, such a right may be reasonably regulated). Such rights were simply too basic and fundamental to be added to the Constitution. As noted in my article, Representative Sedgwick made the very same argument about the right of peaceable assembly, which he characterized as “a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question;
it is derogatory to the dignity of the House to descend to such minutiæ.” In other words, it was its very fundamentality that made it unnecessary to include in the Constitution. The natural right to preserve one's life was, and still remains, no less inalienable or self-evident than the right to assemble, and it is among the Great Residuum of natural rights that was not surrendered up to the general government to do with what it will.

Mr. Hyman, what separates us is that I believe the "self-evident, unalienable right" to peaceably assemble was protected before it was included in the Bill of Rights, and would have been protected after the enactment of the Bill of Rights even had Sedgwick prevailed and it had been omitted from the enumeration of certain rights. The Ninth Amendment says just this, and it means what it says.

Hans,

Thank you for your kind words about my posts. Stenberg v. Carhart is a Fourteeth Amendment case, not a Ninth Amendment one. I cited it in my op-ed for the very important proposition that, when it comes to whether a medical procedure is necessary to preserve the life or health of an individual--which is the issue now before the court in Planned Parenthood v. Gonzales and Carhard v. Gonzales--the individual's choice is reasonable and should be respected when supported by the recommendation of their physician, whose opinion is supported by a substantial body of medical authority. In other words, when there is a division of opinion among medical authorities on the necessity of a medical procedure, then the individual gets to choose, unless the government can present a very good reason why not.

Whether or not a zygote, embryo or fetus is a person and a citizen will dictate whether it can seek the protection of the Fourteenth Amendment, but if any of these are a "person" before it is born, whether from conception or from some time after it is viable, then I see no reason why it would not be a violation of the Fourteenth Amendment to deprive it of life. In other words, if abortion is truly the murder of a person, then I see no reason why this is a matter solely for state law any more than was the lynching of blacks in the South (although BOTH would have been a matter for state law prior to the enactment of the Fourteenth Amendment) and why the killing of a zygote, embryo or fetus would not be denying them the equal protection of the law against murder. But this does assume that any of these forms of life are properly characterized as a person under the original meaning of the Fourteenth Amendment. I do not intend to turn this thread into a discussion of abortion, but find the state's rights position on the prohibition of abortion difficult to understand on its own terms.

At this point, I expect that only Mr. Hyman, Hans, and Lucia are reading this thread.
12.16.2006 12:56am
Andrew Hyman (mail) (www):
Mr. Hyman, what separates us is that I believe the "self-evident, unalienable right" to peaceably assemble was protected before it was included in the Bill of Rights, and would have been protected after the enactment of the Bill of Rights even had Sedgwick prevailed and it had been omitted from the enumeration of certain rights.


I agree with you that the right to peaceably assemble may well have been judicially protectable throughout most of the country against congressional action, even before it was included in the Bill of Rights, since it was not within the "necessary and proper" powers of Congress. However, within the federal district, I doubt it would have been judicially protectable, because Congress has the most expansive powers there. Elbridge Gerry was therefore on target: "The people ought to be secure in the peaceable enjoyment of this [assembly] privilege, and that can only be done by making a declaration to that effect in the constitution."

Professor Barnett, it remains unclear to me whether you believe that the right to peacably assemble was judicially enforceable against Congress within the federal district, prior to the Bill of Rights. If you do believe so, then I’m puzzled why you don’t think that the federal courts could enforce that same right against the states during the years before the Bill of Rights, given that you think any state violating that right would have been destroying a republican form of government.

Thanks, by the way, for diving into the comment thread. :-)
12.16.2006 2:23am
lucia (mail) (www):
At this point, I expect that only Mr. Hyman, Hans, and Lucia are reading this thread.


Since I am about to indulge in the unenumerated right to indulge in the "once-a-year weekend after St. Lucia's day cookie baking extravaganza" my Swedish in-law's and I enjoy, I won't be reading much either.
12.16.2006 12:15pm
Andrew Hyman (mail) (www):
For those of you who may not be aware (i.e. Hans who is probably the only one still following this thread), Randy has an interesting page at Wikipedia.
12.16.2006 1:44pm
Hans Gruber (www):
Thanks for engaging the criticism in the comments, even though, as you point out, very few of us are probably still following this thread.

Our real disagreement, I think, is probably more in your interpretation of the elasticity of the liberty clauses of the Fourteenth Amendment than on the Ninth Amendment. But, since this post is about the Ninth Amendment, let me close with what I think is the source of our (perhaps small) disagreement.

I do not think the Ninth Amendment represents a "presumption of liberty." I think the Ninth and Tenth Amendments, together, demonstrates a "presumption of a limited federal government." I see an activist court, recognizing all sorts of natural rights (even if only from federal protection), then, as the antithesis of what is embodied by the Ninth and Tenth Amendments.

A court need not recognize a "right to medical marijuana" to reach the conclusion that the federal government has trespassed on the rightful domain of the states and its people. Recognizing "rights", as opposed to recognizing an area of state action, lays the groundwork for more, not less, federal interference. If the Court had reached the conclusion in Raich that there was a Ninth Amendment right to medical marijuana, how long would you guess before such a right was "incorporated" into the Fourteenth Amendment by like-manded liberal and libertarian jurists? Would you disapprove (it seems more plausible as originalist thoery than a right to homosexual sodomy, in my view)?

Whereas my reading of the Ninth and Tenth Amendments is one of limiting federal power, yours is about expanding personal liberty, even if that means expanding federal (judicial) power. That is why I said (maybe unfairly) that you seem to be a libertarian before you're an originalist, which isn't to imply you are arguing in bad faith, just that you may be reaching some of these conclusions under the pull of strong libertarian convictions.
12.16.2006 5:38pm
Andrew Hyman (mail) (www):
Hans wrote to Randy Barnett:

Our real disagreement, I think, is probably more in your interpretation of the elasticity of the liberty clauses of the Fourteenth Amendment than on the Ninth Amendment.


It's worth pointing out that the scope of the Fourteenth Amendment very much depends upon a proper interpretation of the Fifth and Ninth Amendments. For example, the Due Process Clause of the Fourteenth Amendment was almost certainly intended to mimic the original meaning of the same clause in the Fifth Amendment.

Likewise, the Privileges or Immunities Clause of the Fourteenth Amendment depends very much upon a proper interpretation of the Ninth Amendment. The latter amendment requires states to respect the "privileges or immunities of a citizen of the United States", and something cannot possibly be a "privilege or immunity of a citizen of the United States" if Congress may constitutionally violate it throughout the nation's capital.

That is why I have tried to get Randy to explain why he thinks that the Ninth Amendment implies that the enumerated natural rights were judicially protectable throughout the nation's capital, even before the Bill of Rights was adopted. I just can't understand why he'd think so, especially since he's asserted that the federal judiciary had no jurisdiction to enforce those very same rights against the states.
12.16.2006 8:36pm
Andrew Hyman (mail) (www):
Meant to say: "The LATER amendment" rather than "The LATTER amendment."
12.16.2006 8:39pm
Andrew Hyman (mail) (www):
My puzzlement just increased a bit. I just found that Professor Barnett once said this:

[T]he Supreme Court's decision in Bolling v. Sharpe is very difficult to reconcile with the text of the Constitution. For this reason, you know that among constitutional scholars of all stripes Bolling is one of the most controversial and difficult cases ever decided by the Court. I do not have a fully worked-out opinion on this complex issue, but suppose that a commitment to originalism entails the reversal of Bolling.


So, on the one hand, it sounds like Professor Barnett has said that natural rights were not judicially enforceable as such in the nation's capital, before or after the Bill of Rights was adopted. But then how can such rights be considered a "privilege or immunity of a citizen of the United States", given that the federal government has been free to violate such rights throughout the nation's capital? I don't get it.

Incidentally, I apparently have a much more libertarian view of Bolling than Professor Barnett has. I agree with Michael McConnell, who wrote that Congress never "required that the schools of the District of Columbia be segregated." MICHAEL W. MCCONNELL in WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID 168 (Jack M. Balkin ed., N. Y. Univ. Press 2001). Thus, Bolling v. Sharpe could have and should have been grounded on the fact that the segregation of DC public schools was unauthorized.
12.16.2006 9:15pm
Andrew Hyman (mail) (www):
Since I seem to be the only one in this thread now, I will indulge myself by quoting William Van Alstyne on the connection between the Privileges or Immunities Clause and the constitutional restraints that already applied to the federal government:

[I]t is quite clear that in the ratification debates of the Fourteenth Amendment, no distinction whatever was drawn between the "privileges and immunities" Congress was understood already to be bound to respect (pursuant to the Bill of Rights) and those now uniformly also to bind the states. Each [citizen] was given the same constitutional immunity from abridging acts of state government as each was already recognized to possess from abridgment by Congress. What was previously forbidden only to Congress to do was, by the passage of the Fourteenth Amendment, made equally forbidden to any state.


So, in order to understand the 14th Amendment, it seems critical to determine what rights restrained Congress in the federal district according to the original unamended Constitution, and according to the Bill of Rights. I wish Professor Barnett would speak more clearly on this point.
12.16.2006 11:32pm
Hans Gruber (www):
Andrew,

At least I'm still here. As someone critical of Barnett on this issue, I am a tad confused on what you find at fault with Barnett on the enforceability of the rights in the original, unamended constitution.

The practical effect of the Bill of Rights has been, I think, that those enumerated have been protected much more than they would have been had no Bill of Rights been adopted (conversely, the Ninth and Tenth Amendments notwithstanding, unenumerated rights and reserved powers of the states have probably suffered). But I'm not sure whatsoever that they would have received no protection, or that a court would have been out of bounds by striking down federal action that ventured into these areas.

I do have some sympathy with your point that a court should not recognize unenumerated "rights" as such; but certainly a federal court could have struck down a law, for example, which sought to shut down a newspaper critical of the federal government, on the grounds that the fedreal government lacked the constitutional authority to do so. Or do you disagree? Am I misunderstanding your position?
12.17.2006 6:07am