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Farber on the Ninth Amendment:
Professor Dan Farber of Boalt Hall has a new book on the Ninth Amendment called Retained By the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have. I haven't read it yet, though I gather he disagrees to some degree of my take on the Ninth Amendment. Here is a video of him discussing the Ninth Amendment at Cody Books in San Francisco.

Update: Over on Positive Liberty, the always insightful Tim Sandefur has a highly critical comment on Farber's take on the Ninth Amendment. Yes, I did see the one page in Farber's book where he discusses my work and I share Tim's concerns. Considering he chose to write a whole book on the Ninth Amendment, Farber devotes far too little space to the important issues he raises on this single page. Read the whole thing but here is a taste:

How many other things are wrong with this paragraph? Well, first of all, the text of the Ninth Amendment does not refer to "discrete packages" of rights. It refers to "others retained by the people." The term "others" is undifferentiated! It echoes the Declaration's reference to "among these [rights]"—that is, this text exists specifically to point out the fact that the act of differentiating some rights and setting them aside as discrete packages must not be construed to deny the existence of an undifferentiated (and insusceptible of differentiation) mass of other rights that together make up the concept of liberty. The Ninth Amendment would be self contradictory if it were interpreted in a way that required that all the rights to which it refers be "discrete packages."

Farber's error here is not unlike the error committed by Bork and others, who assume that rights must be identified and specified before they can be accepted as constitutionally recognized entities. The Amendment exists precisely to block such a theory: it exists because liberty is made up of an infinite number of undifferentiated rights, and to cut some out from the herd might lead some people, like Bork and Farber, to assume that only those which have been cut out deserve respect.

jt007:
What a jerk. He has to take a pot shot at Scalia and other originalists by framing the debate as one where the originalists "accuse their opponents of being political" for "wanting to set grandma Moore free or protect Joshua." Originalists aren't opposed to these people being protected. I bet that Scalia would agree that the government acted wrongly in both cases. He just doesn't believe judges should act as legislators. Perhaps legislators should have created a statutory obligation for public agencies to affirmatively protect people and provided for specific remedies if the government failed to do so.

I know the argument has been made ad nauseum, but this guy references these horrible stories and then says that Scalia is opposed to the court helping the injured parties. That has nothing to do with it. Scalia is opposed to results oriented jurisprudence. Public policy is the domain of the legislative branch of government, not the judiciary. He purposely mis-characterizes the debate to vilify people with whom he disagrees and, in doing so, he fulfills the stereotype of the arrogant, liberal, bow-tie-wearing law professor.
6.27.2007 5:08am
Random.:
Nice - blast the guy for the bow tie. That really makes your argument. Want to slam him because he's slightly nasally, too?

It's a nice argument, simply stated. Due Process jurisprudence doesn't make sense, despite the fact that we all use it every day and consider it reasonable and ordinary. Privileges and immunities, or, as Farber's arguing, unenumerated rights are a clearer and more solid foundation for the "result" (i.e. justice) that judges are allegedly "legislating."
6.27.2007 8:01am
ATRGeek:
I've long agreed that issues which should rightly be decided under provisions like the Ninth Amendment and the Privileges and Immunities Clause have been jammed into the Due Process Clauses instead, largely thanks to a more or less consensus decision to declare these other clauses off limits for judges.

But to be fair, the problem is that if you take all these provisions in the Constitution seriously, and allow the federal courts to apply these clauses as written, it gives the federal courts a lot of inherent power. Of course, arguably that is exactly what these clauses were intended to do: create a co-equal judicial branch with a lot of inherent power (the entire judicial power of the United States) and a robust constitution to work with. But the idea of the courts having that much power frightens the living daylights out of a lot of people ("conservatives" and "liberals" alike), so they dump their ordinary constitutional principles (including originalism and textualism if necessary) and start talking instead about the importance of democracy and the institutional incompetence of judges.

In other words, they rewrite the Constitution (or just put ink blots over parts of it). And that is because as written, in their view the Constitution simply gives too much power to the courts.
6.27.2007 8:37am
Jay D (mail):
It is a strange thought process that would lead to the Federal government enforcing rights "retained by the people" over the objection of those same people.

The only means the people have to express which rights they do or do not retain is through their more local representation, is it not? How can the Federal government tell the people the retain the right to abortions if their local representatives say "no we don't"?
6.27.2007 10:28am
martinned (mail) (www):
L.S.,

1. Isn't it a rule of statutory interpretation that the courts will not normally interpret a statute in such a way that one of its words, paragraphs, etc. becomes meaningless? I'm sure I could cite authority for that proposition, if I bothered to look. So why shouldn't the same courtesy be extended to the Bill of Rights?

2. @Jay D.: Civil liberties, like the one listed in the Bill of Rights, as well as the unenumerated rights of the 9th, serve to protect minorities, not (in the first place) majorities. The first amendment protects unpopular speach, unpopular opinions, unpopular religions, etc.
6.27.2007 11:10am
Guest 3L (mail):
Very interesting, thanks. One problem I have w/Professor Farber's arguments is his characterization of Lawrence as an instance where the SCOTUS 'got it right' as far as unenumerated rights are concerned. The use of the word "retained" implies some temporal limit on unenumerated rights; that is, even if there are such rights, the 9th Amendment can only be interpreted to say "if you already had them when we ratified this document, we're not taking them away." Thus, absent a consensus during the times of the framing that a certain right was fundamental and unalienable, that right cannot now be recognized as being protected under the 9th Amendment (or any other constitutional provision). So, notwithstanding a concession that there are certain unenumerated rights "retained by the people," a decision such as Lawrence is still wrong, because the Court may not look to *modern* American or international consensus in determining which rights are fundamental and protected. Indeed, it would be incredibly anti-democratic to have a constitutional provision that allows for recognition of *new* 'fundamental' rights, because such rights were clearly not recognized via the ordinary democratic processes.
6.27.2007 11:13am
Jay D:
martinned,

First of all, local governments should be representative republican in nature (I think direct-democracy ballot initiatives should be abolished). It should not be the tyranny of the majority.

Secondly, the ninth amendment refers to "rights retained by 'the people'", not "rights retained by 'a person'" or even "rights retained by 'some persons'". In our republican form of government, the supposed way we find out the will of "the people" is through representation. So, I ask again, how can the Federal government tell the people they retain the right to abortions if their local representatives say "no we don't"?
6.27.2007 11:25am
BruceM (mail) (www):
I don't see how anyone can contend that unenumerated rights don't exist. Anyone ever hear of the issue between the Federalists and Anti-Federalists over having a Bill of Rights? The Anti-Federalists wanted one in the Constitution, the Federalists said it was a bad idea because if you list certain rights, people will say all others do not and were not intended to exist. Nonsense, said the Anti-Feds, all other rights are retained by the people, so nobody would read it that way and say only enumerated rights exist. Federalists said "we disagree, people WILL read it as 'the expression of one thing is the exclusion of all others." The anti-federalists won and got a BOR in the constitution (adopted later). The 9th Amendment was put in there to allay their fears, and EVERYONE AGREED that the rights listed in the BOR were not the only ones. Unenumerated rights exist.
6.27.2007 11:27am
Guest 3L (mail):
jay,

the 'will' of the people is irrelevant. clearly it could be the will of the people (i.e., of the majority) that certain rights not be recognized. For example, a local government could pass a law restricting speech against that government, and 95% of the people in that locality could support it. Nonetheless, the other 5% would still have a protected right in such speech.
6.27.2007 11:32am
Dave N (mail):
I tend to agree with Guest 3L. Professor Farber's citation to Lawrence as an unenumerated right is odd, given that homosexuality was illegal in all 13 states at the time of adoption of the Bill of Rights.

The problem with Farber's approach is that the Constitution becomes even more of a vehicle for social change because society has "evolved." I would rather leave legislating to the legislative branch.
6.27.2007 11:41am
Jay D:
Guest3L,

Pick an example that doesn't have its own amendment.

The will of "the people" is clearly relevant to the ninth amendment because you have to discern one way or another which rights "the people" reatain. Tell me, how would you do that? Would you decree which rights "the people" in a certain area retain?

Plus, governments aren't supposed to pass laws on what percentage of the population is in favor of it. It is supposed to pass laws in a representative republican governmental system with checks and balances and state constitutions and other junk.
6.27.2007 11:45am
Guest 3L (mail):
jay,

yes, the obvious question is how we should determine which unenumerated rights were 'retained' when the Constitution was passed. The answer, to me, seems clear - we should look to the rights which were considered fundamental and unalienable when the Constitution was ratified. You suggest that we should look to the rights that are recognized (or rather, not recognized) *now*. That question, however, (i.e, which rights do we recognize as fundamental today?) has little to no bearing on the question of which rights were 'retained' back then.
6.27.2007 11:52am
Tim DeRoche:
Is Dave N right about the following?

Homosexuality was illegal in all 13 states at the time of adoption of the Bill of Rights.
6.27.2007 11:52am
Jay D:
The intended application of the ninth amendment, as I understand it, is further protection from federal overreaching.

A correct application of the ninth amendment would go something like this:

State X: We retain the right to grow hemp for the manufacture of rope.

Federal Government: OK
6.27.2007 11:55am
Dave N (mail):
Tim DeRoche:

I had read that somewhere, but I am not sure of my source. If I am incorrect, I will happily retract that sentence from my prior post.
6.27.2007 11:57am
Jay D:
Guest 3L,

Another logical approach would be to try to determine what rights were retained by the people of a state when that state entered the union, when they signed onto the governing compact.

I don't think this is how things should work because it involves someone (a judge or judges presumably) in our age declaring what was or was not retained by people in a past age.
6.27.2007 12:16pm
GustavLauben:

The 9th Amendment was put in there to allay their fears, and EVERYONE AGREED that the rights listed in the BOR were not the only ones. Unenumerated rights exist.

But the situation is complicated by the fact of judicial review.
In a constitution that doesn't grant the courts the power of judicial review, there is no reason not to add something like the ninth amendment. It makes it impossible for a congressman to argue that "the expression of one thing is the exclusion of all others." But what you want from a court that is reviewing legislation for constitutionality is exactly the principle that "the expression of one thing is the exclusion of all others." The ninth amendment, combined with judicial review, is a clear recipe for judicial tyranny. It grants the judicial branch the power to strike down any law as a violation of any right, and the power to decide what those rights are.
I'm neither a political scientist nor a lawyer, but it seems a horrible imbalance in government and we're lucky it hasn't (yet) been more widely abused.
6.27.2007 12:18pm
DiverDan (mail):
As a hardcore textualist, the whole idea of unenumerated rights fascinates me. Accepting Professor Farber's historical premise concerning the origin of the Ninth Amendment (I'll have to take his word, I haven't looked at any of the sources) , I'd be hard pressed to deny the existence of "unenumerated rights". My basic problem is in determining just which rights fit into that framework and what are the limits of those rights. I do not buy the "temporal limitation" that one poster suggested, i.e., that the Ninth Amendment can only protect rights which a consensus of the people agreed existed in the late 18th Century. In my opinion, the Constitution is a contract which is ratified by each new generation of American citizens, and just as the Rule Against Perpetuities was designed to prevent the dead hand of the past from exercising too much control over the living, each new generation has the right to decide just which rights are fundamental enough to deserve protection from government interference. But that leaves the question of just who is empowered to define and protect the "unenmumerated rights". I'm not entirely comfortable with any answer - leaving it to the judiciary opens a huge can of worms in that it allows the judiciary to impose their own personal views of just what rights are or are not important enough to recognize and protect (maybe Bork was wrong - Justices ARE free to go "rootings around in the 'emanations from the shadows of the penumbras' of the Constitution" to find new rights!), while leaving it to the legislative branches runs too great a risk of the "tyranny of the majority". I do agree with Farber that many of the "substantive due process" decisions of the Court, from Griswald to Roe v. Wade to Lawrence v. Texas would have been a lot easier to swallow if the Court had clothed those decisions in terms of "unenumerated rights" or "fundamental liberty" protected by the Ninth Amendment, but by the same token, the "economic liberty" cases of the Lochner era could easily have made the same claim.
6.27.2007 12:38pm
BruceM (mail) (www):
I don't see how you can have "judicial tyranny" by giving people rights. Tyranny of the free? My right to do something (so long as it doesn't harm anyone else or their property) should be unquestioned, even if it's unenumerated. The right of the courts to strike down laws with judicial review can't create a system of oppression. Laws take away rights, getting rid of laws does not take away rights.

A law should be a rare thing. We don't need 50,000 of them. There should be a presumption of UNconstitutionality (rather than the other way around - Footnote 4 of Carolene Products makes me sick) and anyone should have standing to challenge any law on constitutional grounds. Only about 4 or 5 laws per year should be enacted and allowed to remain on the books. Even that is too many, frankly.

I'm glad the Anti-Federalists got their way, because had there not been a bill of rights, NO rights would have been retained and left for the people. Think of all the laws struck down solely because of the free speech clause of the First Amendment. Had the First Amendment not been there, those law would not have been struck down anyway (as the Federalists believed and expected) as invading a right retained by the people, i.e. the right to free speech).

At the same time, the Federalists were correct in that any list of rights, even with an "Expressio unius est exclusio alterius does not apply!" clause equal to all the other clauses, would be read to limit and destroy all non-enumerated rights meant to be retained by the people.

The Constitution has been a complete failure, which is why we live in a country with hollow freedoms, carved up with so many exceptions to render them meaningless. They should have sat down and made a list of 10,000 rights the people had, none of which had any exceptions, all of which apply to similar situations, all of which comprise an exclusive list with no other unenumerated powers. I realize back then they could not envision a lot of the technology we have today, but they could have tried. Would have been better than what we ended up with.
6.27.2007 12:38pm
TDPerkins (mail):
ATRGeek wrote:

it gives the federal courts a lot of inherent power. Of course, arguably that is exactly what these clauses were intended to do: create a co-equal judicial branch with a lot of inherent power


But only the power to void law, not create it. It is an implied power to solely protect negative liberty.

Yours, TDP, ml, msl, &pfpp
6.27.2007 12:41pm
TDPerkins (mail):
Jay D. wrote:

"In our republican form of government, the supposed way we find out the will of "the people" is through representation."


Not sufficient. Prior to having their representatives decide the minute details of an assignment of power to the government in legislation, the people must first authorize the grant of the power in an amendment to the relevant organic law of the jurisdiction, this commonly and should universally require a supermajority.

The first exception I can think of to this--which I think is an unwise exception, and one certaily impaired in part by the 14th amendment--is the "general police power" of states; which they may delegate to more local authorities.

I find your enthusiasm for representative over direct democracy strange, since it is a best a first order filter for simple majority rule, and at worst seems to amplify the loudest voices on a question, causing the majority to be ruled by laws they may not support strongly as a majority, but instead merely tolerate as the true limits of tyranny are found in the forebearance of the populace from whatever violence is required to make effective a rebellion.

This is not the standard our government is intended to meet.

Yours, TDP, ml, msl, &pfpp
6.27.2007 12:53pm
Owen (mail):
I've argued the point before, but I think it is very clear from the history that the 9th Amendment was merely intended as an interpretive device.

The context was this: the anti-Federalists wanted a Bill of Rights, the Federalists did not. The Federalists argued that we didn't need a BOR because the doctrine of enumerated powers was sufficient to protect individual rights as against the federal government. They futher argued that including a BOR would harm the doctrine of enumerated powers, because jurists would raise the "expressio unis" (sp) doctrine and read the BOR as exhaustive, thus using it to imply federal powers.

In other words, you didn't want somebody saying: "Well, [government action] doesn't violate any of the rights in the Bill of Rights, so it must be ok!" We wanted to fend against that kind of interpretation.

Various states recognized this. Many states promulgated "ratification declarations" after they ratified the Constitution in which they recommended clauses to be added to a Bill of Rights. New York's delcaration states something close to what the 9th Amendment was today:

"[T]hat those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution."

Accordingly, the 9th Amendment was drafted. It didn't refer to "powers" because Madison expressly stated that he viewed restricting powers or granting rights to be essentially the same thing (he was logically incorrect, since some rights are procedural and thus don't involve merely restricting government power, but that was the prevalent reasoning). Still the wording, while confusing to us today, was more likely than not read by those who voted on the BOR as being interpretive only. I don't believe they wanted to give the Courts authority to add anything to the BOR they wanted.
6.27.2007 12:54pm
Owen (mail):
On a second note, the 9th Amendment was never intended to be incorporated against the states when the 19th Amendment was ratified. If you look at the Congressional Record, it is often repeated that it was only intended to apply to the first eight amendments. There was some debate over it, but the inclusion of the 9th in the incoporation was probably not intended.

Accordingly, the 9th Amendment is a VERY weak ground for slapping down state laws.
6.27.2007 12:56pm
Guest 3L (mail):
Dan,

Anyone who thinks that:

"the Constitution is a contract which is ratified by each new generation of American citizens, and...each new generation has the right to decide just which rights are fundamental enough to deserve protection from government interference."

is pretty much the *exact opposite* of a hardcore textualist. After all, any text must have a certain meaning when it was written (or else why bother to write it down? why write nonesense?). Recognizing that a text had one meaning when it was written, but nonetheless deciding to give it another, different meaning in the future (according to one's arbitrary whims and desires; i.e., what one thinks the text *should* mean rather than what it does mean) is in no way being 'faithful' to that text.
6.27.2007 12:56pm
TDPerkins (mail):
Guest 3L,

Of course, the meaning of the document is fixed; the legitimacy of the constitution and the government it establishes varies constantly.

It is possible for legitimacy to evaporate without the constitution ever changing or even constantly changing, by amendment.

Yours, TDP, ml, msl, &pfpp
6.27.2007 1:14pm
DeezRightWingNutz:
People are asking how one is to determine whether or not a law in unconstitutional becuase it violates an unenumerated right. This equation is only based on my high school civics class, in which I didn't pay close attention:

unenumerated rights = everything - enumerated powers of the gov't

Don't we have the right to do anything we want unless prohibited by a law that is necessary and proper to carry out one of the federal government's enumerated powers? Isn't the question whether or not the federal government has been granted the power to pass a certain law (which may not be easy)?
6.27.2007 1:45pm
Owen (mail):
DeezRightWingNutz,

That's what I've been saying, although the enumerated powers apply exclusively to the federal government. Thus, the rights are only as against the federal government not to regulate outside of its enumerated powers.
6.27.2007 1:50pm
DeezRightWingNutz:
Can anyone recommend some reading for someone like me who has only the vaguest sense of the process of incorporation occurred? Anything beyond the references cited in the incorporation entry in Wikipedia?
6.27.2007 1:55pm
DrGrishka (mail):
What I find least convincing is this appeal to teh notion that Framers used foreign law, so it is OK for the Supreme Court to use it. Framers were writing a Constitution, so it is perfectly reasonable to look at whatever sources may shed light on what has and has not worked throughout the ages. The Court, however, is not writing a Constitution, so it should not care what has or has not worked in Germany or Kathmandu. If something has proven to be unworkable in foreign lands, it does not mean that we as a society are not allowed to be stubborn and persist in the error. The Supreme Court is not empowered to "release" us from our stubborness.

Furthermore, if one subscribes to Professor Farber's argument taht "rights just exist," it follows that these rights exist not only in EU, Canada and US, but also in Mexico, Indonesia, and even Iran. It then follows that the opinions of jurists in those countries should be given no less weight than the opinion of jurists in the EU. Of course, if SCOTUS were to take that path they would quickly find that majority of the world's judicial opinion does not favor their concept of personal liberty.

Finally, I take issue with Farber's argument that the Ninth protects liberties that correspond to "modern society's" understanding of human rights. Even if one concedes that the Ninth Amendment protects some substantive rights (a concession I am unwilling to make) the language of the amendment speaks of the rights "retained." Dictionary defines the verb "to retain" as "to continue to hold or have," meaning that in order to retain something, you must already possess it. Therefore, unless it can be shown that at the time of ratification of the Ninth, people already had a right to engage in sodomy or to procure abortion, or to gay marriage, etc., these rights cannot possibly be found in the Ninth Amendment, for they did not exist and therefore could not be "retained."
6.27.2007 2:03pm
DiverDan (mail):
Dear Guest 3L, you may be right, but I think that my reasoning just differentiates me, as a "textualist", from those I would consider "originalists" (a category which includes both those who look to "original intent", i.e., what did the framers mean when they wrote it, and those who look to "original understanding". i.e., what did the people understand the meaning to be when they ratified it) - I do not believe that the Constitution was cast in granite in 1791; there are just too many provisions in the Constitution which require context to understand. What is an "unreasonable" search or seizure under the 4th Amendment will necessarily depend upon changes in technology, such as the existence of spy satelites which can read a license plate from 400 miles above the earth, listening devices which can amplify sound so that one can eavedrop on a conversation in an anclosed conference room in the skyscraper across the street, and computer filters that can search hundreds of millions of email for keywords on a real time basis. Even a term as seemingly clear as the "press" requires context - no educated 18th century man even dreamed of the press as including information widely distributed instantaneously by radio and television waves or giving every person the ability to publish at virtually no cost by blogging on the internet. Nevertheless, reading the entire constitution within a present day context, taking account of modern technology and modern sensibilities, does not make me a fan of the "living constitution" school, who seem to approve of any and every new "Constitutional Right" created by the Court without any basis in the text, or, more chillingly, seem to approve of any deviation from the text of the Constitution where the ends meet their idea of "justice" -- even with a modern context, the equal protection clause of the 14th Amendment still prohibits governmental distinctions based upon race, and no amount of rationalization by the Court in the University of Michigan Law School Case (Bollinger v. Gratz? or was it the other one?) will change that.

Even with the gloss provided by a modern context, the text of the Constitution still has meaning, and, since it is still "We the People" who ratify the Constitution, the meaning ought to be the general consensus of the people's understanding when they read the text, not the meaning imparted by Judges and Justices who claim some special right to devine the true meaning of (and thus rewrite) some arcane magical incantation beyond the ken of mere mortals -- Consequently, I firmly believe that the only legitimate uses of judicial review are those cases which are tethered firmly to the clear tenor of the text of the Constitution.

That is precisely the problem I have with a Ninth Amendment argument for "unenumerated rights" -- the theory seems to tether every newly discovered right to the Constitution with a rope of infinite lentgh and flexibility. If the Judiciary has the right to say what these rights are, then we have delegated extraordinary power to the least democratic branch of government. Nevertheless, I do not think that the 9th Amendment was simpy intended to be a dead letter. Was it perhaps an emphasis to the point that the Federal Government really was meant to be a government of limited powers? That seems to be the purpose of the 10th Amendment (and we all know just how effective THAT has been in restraining the growth of Federal powers!).

I don't propose to have any real answers, but the questions are fascinating.
6.27.2007 2:41pm
AK (mail):
Owen wrote:

On a second note, the 9th Amendment was never intended to be incorporated against the states when the 19th Amendment was ratified.... Accordingly, the 9th Amendment is a VERY weak ground for slapping down state laws.

Quite so. Also, 9th Amendment voluptuaries tend to forget that there's a 10th Amendment, too:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.

Under the 10th Amendment, the States retain their police powers.
6.27.2007 3:24pm
TSW:
Owen writes:

On a second note, the 9th Amendment was never intended to be
incorporated against the states when the 19th Amendment was ratified. If you look at the Congressional Record, it is often repeated that it was only intended to apply to the first eight amendments. There was some debate over it, but the inclusion of the 9th in the incoporation was probably not intended.

Accordingly, the 9th Amendment is a VERY weak ground for slapping down state laws.


But this goes back to your earlier point about it being an interpretive device. I fully agree that it is a rule of construction: it states that inclusio unus est exclusio alterius does not apply when interpreting constitutional rights. It further implies that the unenumerated rights must be accorded the same status as the enumerated ones, i.e. they cannot be denied or disparaged (reduced in rank or importance).

The enumerated rights themselves originally applied only to the federal government. (Barron v. Baltimore) Therefore, the unenumerated rights originally applied only to the federal government as well. But the 14th Amendment later placed explicit federal constitutional limits on state legislation - states can't violate due process or privileges and immunities. As a result, once it is established that due process or P&I incorporates the enumerated rights against the states, it has to incorporate the unenumerated rights as well. To do otherwise would disparage the unenumerated rights.

People may well take issue with the idea of incorporation in the first place. It seems dubious that due process was ever intended to do so. However, if you accept incorporation for the one set of rights you have to accept it for the other.

An interesting question for those who think Privileges and Immunities is a better vehicle for incorporation than Due Process: P&I applies only to citizens, while Due Process applies to persons, does this mean that immigrants and corporations should not have, say, enforceable 1st Amendment rights against state governments?
6.27.2007 3:37pm
DrGrishka (mail):
TSW,

But it has never been held that DPC incorporates all of BoR. That was, to be sure, position of Justice Harlan (Jr.) but it was never adopted by the Court. If not all enumerated rights are incorporated, I do not see why unenumerated ones would be.
6.27.2007 3:40pm
ATRGeek:
TDP,

Well, the problem with your proposed limitation is that judicial power historically includes the power to craft remedies for intrusions on rights. And when courts start crafting remedies, that is when a lot of people start complaining about courts "legislating".

Guest 3L,

Actually, it has long been recognized that texts can change some aspects of their meaning over time and nonetheless be meaningful. Indeed, a trivial example is something like "the President of the United States". The Constitution can talk meaningfully about the President of the United States even though over time the individual who holds that title will change.

The standard way of understanding this is to suggest that texts can have meaning in more than one way, so that one type of meaning can remain constant while the other type changes. To continue the example above, Frege might have said that the term "the President of the United States" has both a "sense" and a "referent". And in this case, it is the "referent" which changes over time (as different individuals take the office) but the "sense" remains the same. J.S. Mill might have said the "denotation" of the term changes over time, but the "connotation" remains the same. And so on.

Applying this to the 9th Amendment, one could argue that the "sense" or "connotation" of the phrase "others [rights] retained by the people" remains the same, but its "reference" or "denotation" can change. And properly understood, this would be no more strange than noting that a lot of different people have been the President of the United States over time.

By the way, this sort of conversation always makes me think that anyone claiming to be a legal textualist needs at least an introductory course in the philosophy of language, because a lot of these issues are well-worn.
6.27.2007 4:04pm
DrGrishka (mail):
ATR,

I find the argument rather strange. While it is certainly true that more than one Person served as President, I don't see how this helps the argument. First, the Constitution explicitly contemplates that more than one person will be President. No such contemplation is evident with respect to "unenumerated rights." Second, each subsequent President had exact same powers and authority as his predecessor did and as his successor would. In your view of the 9th, the powers (or rights) would change. Thus, your example is inapposite.
6.27.2007 4:13pm
ATRGeek:
TSW,

That is indeed an interesting question. My initial reaction would be that non-citizens seeking to bring First Amendment-type claims against a state under the Fourteenth Amendment would have to combine the Privileges and Immunities Clause with the Equal Protection Clause. But I'll have to think about that.
6.27.2007 4:14pm
Steve2:
One, I think everything BruceM said was absolutely right.

Two, I think Barron v. Baltimore was wrongly decided, and unless the text of an individual clause in an amendment specified it applied only to the feds and not the states, all the BoR should have bound the states even prior to the 14th.
6.27.2007 4:15pm
David Drake:
"The Constitution is a contract which is ratified by each new generation of American citizens, and...each new generation has the right to decide just which rights are fundamental enough to deserve protection from government interference."

The problem with that approach to the Constitution is how that generation expresses its "fundamental right to decide." Arguably, under our republican form of government, the legislature would decide. Thus, e.g. Pierce v Society of Sisters was wrongly decided because the legislature had decided that no parent had the right to send his or her children to a private school.

My own suggested approach is that only NEW infringements on fundamental liberties should be held unconstitutional. Private schools had been permitted, indeed had been the norm, in the U.S. since the beginning of the republic. And if the right IS fundamental, someone would be outraged or damaged enough at the time of the enactment of the law to attack it then, as in Pierce. This sort of ties in with DrGrishka's gloss on rights "retained."

On the other hand, if no one notices for decades that a law is a curtailment of a "fundamental right," and someone cannot, upon discovering the "unconstitutionality," persuade the legislature to repeal it, then I have real difficulty in seeing that the courts should step in to do what the legislature will not.
6.27.2007 4:19pm
GustavLauben:

To continue the example above, Frege might have said that the term "the President of the United States" has both a "sense" and a "referent". And in this case, it is the "referent" which changes over time (as different individuals take the office) but the "sense" remains the same.


If two expressions share the same sense, then they necessarily share the same reference. This principle is fundamental to Frege's phil of language. When you use "President of the US" to refer to Clinton it has one sense; to Bush, another; to the office itself, yet another. When a phrase appears in the Constitution, or any other document, it does *not* express all the possible senses that could be expressed by those words in different circumstances. It expresses (at most) one sense. -Which, of course, is not to say that it's clear what that sense is.
6.27.2007 4:29pm
ATRGeek:
Again, the problem with figuring out who should decide what rights have been retained by the people by citing something like "our republican form of government" and then trying to identify the most republican branch of government is that our form government by design actually includes these unelected judges. Of course, they are appointed by the President and confirmed by the Senate, so they are not entirely unrepublican officials--indeed, in that sense they are not so different from the President or Senators themselves in the original conception (since Senators were originally not directly elected, and the President still is not, sometimes with consequences as in 2000).

In any event, for good or ill the entire judicial power of the United States is vested in these unelected judges, whetehr or not that is the most republican decision that could have been made. So, again it strikes me as a sort of willful blindness to declare the Constitution just couldn't be delegating this rights-declaring power to unelected judges because we are supposed to have a "republican form of government". Rather, it is entirely consistent with original conception of the Constitution that judges would be playing roles like this, whether or not one views that as the most republican result.
6.27.2007 4:30pm
ATRGeek:
Lauben,

Well, if you are right that would show that I don't really know how to use Frege's terminology, so I suppose I shouldn't have used that example.

But hopefully my point remains clear.
6.27.2007 4:40pm
Owen (mail):
TSW,


But this goes back to your earlier point about it being an interpretive device. I fully agree that it is a rule of construction: it states that inclusio unus est exclusio alterius does not apply when interpreting constitutional rights. It further implies that the unenumerated rights must be accorded the same status as the enumerated ones, i.e. they cannot be denied or disparaged (reduced in rank or importance).


I disagree. Pointing out that both that those who ratified the 14th Amendment did not intend for the 9th Amendment to be incorporated is not the same as my argument that the 9th Amendment was interpretive only. The 9th Amendment could have been clearly substantive, and yet Congress may still may have elected not to apply it against the states. The fact is that, under the circumstances, they did not intend incorporation to occur.


[T]he unenumerated rights originally applied only to the federal government as well. But the 14th Amendment later placed explicit federal constitutional limits on state legislation - states can't violate due process or privileges and immunities. As a result, once it is established that due process or P&I incorporates the enumerated rights against the states, it has to incorporate the unenumerated rights as well. To do otherwise would disparage the unenumerated rights.


Again, I cannot agree. The problem with "applying" the 9th Amendment against the states is that it makes no sense to do so. The 9th Amendment is intimately linked with, and practically defined by, the enumerated federal powers. These powers are clearly are not held by the states. Accordingly, it would be as absurd to apply the 9th Amendment to the states as it would to apply the 10th. It does not "disparage" the rights guaranteed by the 9th to say that they cannot logically be applied against the states.

Furthermore, the 14th Amendment came second and therefore must govern. Since the 14th only incorporates the first eight amendments, it must also be interpreted as overriding any language in the 9th that suggests its rights cannot be deparaged by not applying them against the states.


[I]f you accept incorporation for the one set of rights you have to accept it for the other.


This I definitely disagree with. There are those who don't even believe the 9th and 10th amendments qualify as part of the Bill of Rights. In any event, the drafters of the 14th Amendment clearly spoke of incorporating the first eight amendments only. That view was ratified, which justifies partitioning off the 9th and 10th amendments.
6.27.2007 4:41pm
Steve2:
@ATRGeek:
"So, again it strikes me as a sort of willful blindness to declare the Constitution just couldn't be delegating this rights-declaring power to unelected judges because we are supposed to have a "republican form of government". Rather, it is entirely consistent with original conception of the Constitution that judges would be playing roles like this, whether or not one views that as the most republican result."

Indeed, if you've got an overriding concern about potential tyranny of the majority, then having a coequal branch with an unrepublican/undemocratic nature is in a way very desirable. The way many of the elected officials act, after all, it's pretty clear that the people who voted against them don't have rights and their opinions don't matter.
6.27.2007 4:41pm
K Parker (mail):
Jay D,

More like this:
State "California": We retain the right to grow hemp for the manufacture of rope and for the smoking of its leaves.

Federal Government: OK

I defy you to find anything in the original (or as-amended) Consitution that plausibly gives the federal government to regulate intrastate production and consumption of goods.
State "Utah": We retain the right to ban the production or consumption of marijuana, or the consumption of any product containing caffein w/o a doctor's prescription.

Federal Government: OK


etc...
6.27.2007 4:52pm
Owen (mail):
ATRGeek,

I don't believe the founders ever contemplated that the Supreme Court would have a boundless power to create rights. The original conception of judges was that they would decide cases while being constrained by the text, and that they would never go too far in their interpretations because of the risk of impeachment and the fact that they lack the power to enforce their rulings. Unfortunately, neither of these have proven to be meaningful restraints (Thomas Jefferson called impeachment a "fig leaf" and predicted judicial tyranny).
6.27.2007 4:57pm
ATRGeek:
Steve2,

Indeed, the anti-majoritarian sentiment you mention was so overriding that originally only one-half of one of the three branches of government was directly elected by the people (the House of Representatives). And judges were in a sense doubly removed from direct selection by the people since they were appointed through a process which excluded that one House.

Of course, this indirect selection of government officials was broadly within the scope of a republican form of government--but all in a sense which would include these judges.
6.27.2007 5:03pm
ATRGeek:
Owen,

Sure, the judicial power definitely was not boundless. In addition to the institutional checks (such as lack of enforcement power, revenue power, and impeachment), Article III also contains crucial jurisdictional limits (subject to some regulation by Congress, although exactly what Congress can do when regulating federal jurisdiction is a matter of some debate). I personally think those jurisdictional limits do a lot to limit the "legislative" powers of courts (although not in the sense many people would wish).

But one thing that should be noted is that it certainly wasn't the case that the Framers contemplated that judges would only be interpreting written laws. Rather, they also contemplated that federal judges would be acting as common law judges. And probably they intended judges to act as common law judges in constitutional cases, although that is a matter of some controversy.

Anyway, I am making none of these observations to suggest that the Framers got it right when it came to judges and the allocation of judicial power. I am just pointing out that it isn't really a constitutional argument to suggest that judges should not have power X because judges are unelected and giving unelected judges power X would be less than perfectly democratic/republican. And that is because by design, our Constitution is not perfectly democratic/republican.
6.27.2007 5:24pm
ATRGeek:
By the way, I think the extremely indirect method of appointing judges and lifetime tenure was also an institutional check of sorts. Basically, I think the Framers assumed that this process would lead to judges being members of the societal elite, meaning rich old conservative (small "c") white guys like themselves, whom they trusted not to abuse their powers for radical ends.

Not a bad bet, actually.
6.27.2007 5:43pm
Owen (mail):
ATRGeek,

Sure, the founding fathers wanted federal judges to be common law judges . . . meaning they would employ common law canons of construction to interpret the Constitution.

"[T]he legitimate meanings of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be . . . in the sense attached to it by the people in their respective State Conventions, where it received all the authority which it possesses." -- Madison

""Our peculiar security is in the possession of a written constitution. Let us not make it a blank paper by construction." -- Jefferson

The founders clearly did not desire open-ended interpretation.
6.27.2007 7:19pm
Jon Rowe (mail) (www):
Somehow I feel as though we've been through this before.


Since the 14th only incorporates the first eight amendments, it must also be interpreted as overriding any language in the 9th that suggests its rights cannot be deparaged by not applying them against the states.


Prof. Barnett answers this in his book. The 14th Amendment's Privileges or Immunities Clause does more than just incorporate the first eight amendments. It also, like the 9th Amendment, forbids states from violating natural liberty rights. Semantically, no the 9th Amendment is not incorporated against state or local governments. But given the P or I Clause guarantees against state or local violations of natural liberty rights, the net effect is the same.
6.27.2007 8:28pm
Owen (mail):
Jon Rowe,

Yes, we have dealt with this before; however, I cannot argue against a vague citation to Professor Barnett's book. As you know, I disagree that the 9th Amendment has anything to do with "natural liberty rights;" it was commonly viewed at the time of its ratification as addressing the interpretational issue I have outlined here (the Supreme Court, Kurt Lash, Laurence Tribe, and others seem to agree).

As for the privileges and immunities clause, I must confess I have not studied the issue very closely, so it may well be a valid source of natural or common law rights. Even in that event, though, I disagree with Professor Barnett's view that ANY clause in the Constitution could justify the decisions in, say, Lawrence v. Texas and its predecessors. Nothing in the Constitution enforces John Stuart Mill's harm principle (and thus the views of the social left and libertarians). If any rights are guaranteed, it would be those contemplated at the time the amendment was passed. Again, though -- I haven't done the historical research to determine what privileges and immunities were contemplated.
6.28.2007 11:04am