Supreme Court Adopts Individual Rights Interpretation of the Ninth Amendment:!
Buried in Justice Scalia's exegesis on the Second Amendment is a wonderful gift to those of us who study and care about the Ninth Amendment:
The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.In other words, the Supreme Court has now rejected the "collective rights" reading of the Ninth Amendment that has been put forth by Akhil Amar and Kurt Lash. Justice Scalia adds the following footnote that deals with an example used by both to justify a collective rights model of the Bill of Rights:
Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.
JUSTICE STEVENS is of course correct . . . that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And JUSTICE STEVENS is dead wrong to think that the right to petition is “primarily collective in nature.”Given how rarely the Supreme Court ever mentions the Ninth Amendment, this is big!
Still, Nino is to be congratulated for sneakily slipping one in there. Almost flew under the radar too . . .
To be effective, you need other people, but the right is clearly individual.
It is stunning to me how the historical proponents of context seem to be so anachronistic in their understanding of the "larger context" of the era.
I wonder what other "individual rights" are protected by the Ninth that Justice Scalia forgot to mention ....
It was the reference to the *individual* right to assemble that was the first surprise that jumped out at me as I read the decision. My first thought was "is this to have unintended consequences?"
If individuals are required to get permits to demonstrate just as groups are usually required to get from municipalities will that be considered an infringement?
As a non-lawyer (though I lived in NJ for 20+ years, does that count as much as staying at a particular hotel?) I have only finished reading Justice Scalia's portion. I have found it accessible and interesting. I had not expected to read some of the person shots he took at the justices though. I wonder how he'd do on a late night talk show?
MichaelG
You're getting ahead of yourself. Scalia says that the 9th Amendment protects individual rights. That's true. But it does not protect things like abortion, homosexual so-called "marriage" and other whacko lefty ideas, because none of those things were "retained by the people" at the time of the adoption of the 9th Amendment. The original public understanding of the 9th Amendment was to protect the Antifederalist understanding that the powers delegated to the federal government could not trample over the pre-existing rights of the people not enumerated in the Constitution.
There is no such evidence that there was any pre-existing right to an abortion or to homosexual so-called "marriage." Those things have been traditionally outlawed, and certainly so at the time of the adoption of the 9th Amendment. The 9th Amendment then, is not a place for left-wing judicial legislators to find new fundamental rights, but a rule of interpretation that the rights existing at the time of its Adoption need not have been listed to have been protected.
That is, I read it to mean "look Congress. Just because we list a bunch of rights here doesn't mean that we, or you, should consider this list exhaustive." But stating the list isn't exhaustive is just that: a statement. I don't see how it can be a directive to the judiciary to strike down any law it sees as violating any right it sees as real but not enumerated. Marbury vs. Madison hadn't happened yet. Shouldn't it instead be
seen as a directive to Congress not to disparage real human rights just because they aren't enumerated.
that is all.
But the elephant in the room is incoporation. Just like we do not know if the Second Amendment applies to the states, we do not know if the Ninth Amendment applies to the states. I would argue that it does not, as the Ninth Amendment seems to be a restriction on the federal government's ability to deal with matters generally left to the state governments. It would not make sense to put this prohibition on state governments.
Ironically, applying the Ninth Amendment analysis to privacy concerns without incorporation would like result in the reversal of both Griswold and Roe v. Wade (both of which involved litigation of state criminal laws).
The facts won't stop people who want their ideologies legislated by the Court. The 9th Amendment says "retained by the people." Abortion, unquestionably, was not a "right" retained by the people. Nor was homosexual so-called "marriage."
As a former TLR articles editor, I have no similar reservations.
It is of course a matter of historical debate why some rights were codified in the Bill of Rights and some were not, but Justice Scalia seems to be saying that if the right to keep and bear arms had not been codified (because there was no consensus at the time that a well-regulated militia was necessary to the security of a free State), it still would have been enforceable as a pre-existing right, which is what James Madison was trying to say in the Ninth Amendment.
In point of fact, abortion prior to "quickening" was not generally prohibited during the Founding era. This was a 19th century phenomenon. "Sodomy" was generally prohibited, but there's also no evidence of which I am aware whether legal thinkers at the time considered the question of gay marriage one way or the other. There was of course an common law rooted right to marry. Query whether the national government ever had the power to prohibit "sodomy." If it did not (and where would that power come from?), then (consensual, noncommercial) sexual liberty is arguably a privilege or immunity of citizens of the United States, and thus no state may make or enforce a law abridging it under Section 1 of the 14th Amendment.
This is truly stupid.
I think that pretty well settles at least part of the "sexual liberty" right question.
The Tenth Amendment does that already.
I think that Thales is correct regarding abortion which was the law in the 18th Century was that killing a fetus was not murder, prior to the "quickening." There are many old English cases on this issue.
A "right to marry" is clearly an unenumerated right. However, I agree that 18th Century sodomy laws pose a challenge to people who argue in favor of gay marriage grounded on the 9th Amendment.
I will say this--in my analysis, "rights" (and certainly, "natural rights") cannot be "created", as such. They are inherent, and therefore to not depend upon some historically documented evidence of exercise for their recognition or substance.
Amendment IX clearly prohibits federal interference with any rights beyond those with which they are empowered to interfere by the rest of the Constitution (and subsequent dependent statutes).
As the powers of both the state and federal governments derive justly from the rights of the people, incorporation should be assumed under the "privileges and immunities" clause.
Privacy is certainly one of these rights, and has support in not only Amendment IX, but many other areas of the Constitution, most especially Amendment IV.
As the federal government was clearly not empowered to interfere with reproductive rights, rights over one's own person, or the right of free marriage contract with another consenting adult, not to mention the free exercise of religion (or denial thereof), the points asserted by the particular troll in question are not relevant to an informed debate.
Wrong. First, as I understand it, sexual liberty could refer to sodomy, pedophilia, beastuality, necrophilia, polygamy, or statutory rape, among other things. Maybe also the use of contraception.
Yet none of those things are "pre-existing rights" that were "retained by the people" during the ratification of the 9th Amendment. So obviously, the 9th Amendment doesn't protect them, and thus it IS truly stupid to say that it does. The Federal government may not have the power to regulate activities of that nature because it's limited in its enumerated powers (unless you agree with Wickard), but the states have always regulated those activities and there is no evidence that the 14th amendment changed any of that.
This derranged devotion to sexual deviancy among lawyers is particularly disturbing.
I think most lawyers of the posting here are concerned with a proper interpretation of the Constitution.
Did you go to law school, or are you just some troll who thinks he or she knows the law, without any training, experience or education to back up the view?
Did you go to law school, or are you just some troll who thinks he or she knows the law, without any training, experience or education to back up the view?
Your fascination with the 9th Amendment is getting the better of your manners. I'm sorry to disagree with you, but that's the way it is. And I do wonder why people seem to automatically jump at these things from a perspective of sexual rights. Why not interpret the 9th Amendment protecting against torture, for instance? It seems that all the legal efforts expanding "substantive" rights are about sex, sex, sex. Get a grip.
Certainly training, experience, and education are useful in the practice of law, But tell me, from what law school did Abraham Lincoln, John Marshall, or Clarence Darrow graduate?
Probably because legislators in a moral panic are all too eager to foreclose the sexual options of others as a cheap way of pandering (ha!) to their constituencies.
I wonder, however, if there is really any significance to Scalia's comment, given his position on the Ninth Amendment in Troxel: “[T]he Constitution's refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them.” While he acknowledges the significance of the Ninth Amendment, as a textualist must, he seems unwilling to actually apply it protect any particular right.
I certainly agree that attending law school is not necessary to be a lawyer, at least in those states that allow one to "read for the bar." And, many great lawyers/judges did read for the bar, and never attended law school, as Don notes (I would add to his list, Justice Robert Jackson of the US Supreme Court).
But, I disagree that training, experience and education are not necessary to understand the constitution and laws at anything other than a general level. However you get this education --by apprenticing with a lawyer for several years, or attending law school--a legal education does add to one's ability to understand the law, including constitutional law. The same applies to other professions (engineering, medicine, etc.).
England reserved lands north of the 49th parallel to itself and its subjects. Does this reservation give the United States courts jurisdiction to adjudicate disputes between England and its subjects about reserved lands? Far from it. The very intent of the reservation was to keep such matters away from the meddling of the United States and its courts.
That's good to hear, considering I graduated from law school several years ago and have been practicing law here in NYC for quite some time.
It's not conservatives who have been finding sexual rights in the Constitution, bub. And to my knowledge, no conservative has introduced any legislation banning the sexual options of anyone. No one's trying to make sodomy illegal again.
I think your interpretation is flawed. Kurt Lash's view on the 9th Amendment, which is the most historically-justified, is not a collective-rights model anymore than the rest of the Bill of Rights is a collective rights model.
If the 9th Amendment was merely designed to reinforce the doctrine of enumerated powers by prohibiting the application of expressio unuis to the Bill of Rights, then the rights were indeed held by "the people," but only against the federal government. Similarly, the rest of the rights contained in the Bill of Rights were likewise only intended to apply against the federal government until the 14th Amendment (which was only intended to incorporate the first eight amendments).
In other words, your argument fails for two reasons:
1) Scalia's need only imply that the 9th Amendment refers to rights held by the people against the federal government only; and,
2) Scalia need not acknowledge that the 9th Amendment is subject to incorporation based on historical data that only the first eight amendments were understood to be incorporated.
I wonder why the courts continue to give short shrift to my 10th Amendment recursive incorporation theory.
Basically, the 9th guards against the doctrine of constructive powers as mentioned by Hamilton in Federalist 84. Madison seconded this in his speech introducing the 9th to Congress.
Hamilton:
"I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."
As Madison said:
"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.
which stated:
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.
And Madison said "The defence against the charge founded on the want of a bill of rights, presupposed, he said, that the powers not given were retained; and that those given were not to be extended by remote implications. On any other supposition, the power of Congress to abridge the freedom of the press, or the rights of conscience, &c. could not have been disproved."
Basically, the 9th amendment is there to tell judges not to allow laws that require enlarged powers not delegated by the Consatitution. So if Congress were to say, "well, the Constitution doesn't say anything about the right to X but it does mention the right to free speech and the right to trial jury and the right to freedom from unreasonable search and seizure...hence we have power over X, and this law is legal. Thus, we can use our power to regulate commerce or make laws necessary and proper to invade right X"
The 9th is there to tell the Judge to reply "not so fast". Just because the Constitution mentions the rights to Y and Z but not X doesn't mean the right to X isn't secure. You(Congress), only have those powers which are delegated to you, regardless of whether or not X is mentioned. You can't enlarge your powers to invade those rights not mentioned, just because they weren't listed.
So, in reference to abortion or gay marriage or sodomy, the issue is, what power(s) listed in Article 1 allow Congress to act in those fields? The 9th amendment means that Congress must have a delegated power to legislate against them. It's not good enough to say well, the Constitution doesn't mention abortion so you have no right to abortion or sodomy or whatever.
The Partial Birth abortion case is a great example. The text doesn't mention abortion. Congress passed a law against it. So that law violates a woman's 9th amednment right to an abortion, some would say. Not quite. There is no 9th amendment right to anything, as such. There's a 9th amendment which protects all rights not mentioned by instructing Judges not to allow Congress to enlarge its powers to act against abortion just because abortion isn't mentioned. Congress said its power came from the Commerce Clause.
The 9th amednemnt, if properly understood in my view, suggests that to use the Commerce Clause as a ground for banning abortion is unconstituional. It's a perfect example of the the doctrine of constructive powers and of enlargement by implication that Hamilton and Madison warned against. Thomas and Scalia signed a concurrence suggesting that they may have struck the ban on commerce clause grounds if that issue was raised, but it wasn't.
Conversely, it could be said that expressio unius DOES apply to the powers listed.
The Supreme Court's holding that marijuana grown for personal use is regulable as interstate commerce would seem to indicate that efforts to use the 9th Amendment to limit the scope of the commerce clause would be closing the barn door on a horse that has already not only left the barn far behind, but gone clear out of the state and perhaps even left the galaxy.