The Rights Retained by The People [and the presumption of liberty]

The Rights Retained by the People: The History and Meaning of the Ninth Amendment
Volume 2 Edited by Randy E. Barnett

I. The Origins of The Ninth Amendment
II. Why the Rights Retained by the People Are Unenumerable
III. Implementing the Ninth Amendment
IV. Replying to the Ninth Amendment Skeptics
V. Conclusion: The Equal Protection of Liberties and the Future of the Ninth Amendment

In this Introduction, I explain how the ninth amendment's protection of unenumerated rights "retained by the people" can be implemented in a practical fashion that is consistent with the views of its author, James Madison.
Although additional work needs to be done on this proposal, enough support for it currently exists to render it attractive to those who value constitutionally limited government. I then respond to a number of ninth amendment skeptics who have sharply criticized the idea of implementing the ninth amendment.
Any understanding of how the ninth amendment can work harmoniously with the rest of the Constitution, however, requires a brief examination of the origins of this intriguing and pregnant passage.

The origins of the ninth amendment can be traced to the debate surrounding the ratification of the Constitution. The Antifederalists, who opposed ratification, concentrated much of their attack on the absence of a bill of rights. Although many Antifederalists were probably more concerned with defeating the Constitution than with obtaining a bill of rights, they repeatedly pressed this charge because it struck a responsive cord with the people. The Federalists who supported ratification, such as Alexander Hamilton and James Wilson, gave two answers to this complaint.

First, they said that a bill of rights was unnecessary. Because the federal government was one of enumerated and limited powers, it would have no power to violate the rights of the people. "Why, for instance," asked Hamilton, "should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?" Second, they argued that a bill of rights would be dangerous. Enumerating any rights might suggest to later interpreters of the Constitution that the rights not specified had been surrendered. An enumeration of rights could thereby lead to an unwarranted expansion of federal power and a corresponding erosion of individual rights.

Implementing the ninth amendment challenges us to protect unen-umerated rights without determining a final list of such rights and without lending credence to illegitimate claims of right. This challenge has proved too much for most judges and constitutional scholars. Even for those who have the will to implement the ninth amendment, there seems to be no practical way. But there is.

As long as they do not violate the rights of others (as defined by the common law of property, contract and tort), persons can be presumed to be "immune" from interference by government.

Such a presumption means that citizens may challenge any government action that restricts their otherwise rightful conduct, and the burden is on the government to show that its action is within its proper powers or scope.
At the national level, the government would bear the burden of showing that its acts were both "necessary and proper" to accomplish an enumerated function, rather than, as now, forcing the citizen to prove why it is he or she should be left alone.
At the state level, the burden would fall upon state government to show that legislation infringing the liberty of its citizens was a necessary exercise of its "police power"—that is, the state's power to protect the rights of its citizens.

Any society such as ours that purports to be based on a theory of limited government already assumes that legislation must be a proper exercise of government power. The presumption of liberty simply requires that when legislation or executive actions encroach upon the liberties of the people, they may be challenged on the grounds that they lack the requisite justification. And a neutral magistrate must decide the dispute. As Madison observed in The Federalist No. 10:
No man is allowed to be the judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay, with great reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? .... Justice ought to hold the balance between them.

When legislation encroaches upon the liberties of the people, only review by an impartial judiciary can ensure that the rights of citizens are protected and that justice holds the balance between the legislature or executive and the people.

Lest anyone think this point is obvious let me hasten to note that today the presumption used by the Supreme Court is precisely the reverse.
According to what the Court calls the "presumption of constitutionality," legislation will be upheld if any "rational basis" for its passage can be imagined, unless it violates a "fundamental" right ---- and liberty has not been deemed by the Court to be a fundamental right.

What is the future of the ninth amendment? In law, as in most areas of life, betting that the future is going to be pretty much like the past is usually the safest wager. If this turns out to be true, then the ninth amendment, which has been so tragically neglected by the Supreme Court over the past two centuries, is doomed to remain in a state of desuetude. But while betting against change may be the most conservative gamble, it is often a losing one. The past twenty years has witnessed a trend in the direction of a revived ninth amendment.

In particular, a renewed interest in the views of the framers of the Constitution and of the Civil War amendments has caused those who favor an expansive judicial protection of fundamental rights to focus attention on the original intent of the ninth amendment. Moreover, the framers' concept of natural rights is no longer in complete disrepute. If the Senate confirmation hearings of Judge Robert Bork to the Supreme Court of the United States was a watershed development in the legitimation of the ninth amendment, the confirmation hearings of Justice Clarence Thomas may prove to have a similar effect on the legitimacy of natural rights. History may well mark the turning point for popular acceptance of natural rights theory in the United States to be Senate Judiciary Committee Chairman Joseph Biden's opening statement during the Thomas confirmation hearings in which he openly embraced natural rights and stated that the issue for him was which version of natural rights the nominee favored.

With the addition of Justice Scalia, Kennedy, Souter, and Thomas to the Supreme Court and the elevation of William Rehnquist to Chief Justice, "conservatives" appear now to be in firm control of the Court.
The type of "judicial conservatism" that will eventually emerge in the third century of the Bill of Rights, however, is still very much in doubt. Will it be a majoritarian conservatism of judicial deference to majority will as expressed in legislation? Or will it be a more libertarian conservatism that views the courts as neutral magistrates empowered to protect the individual from the government? 153 Which of these conservatisms comes eventually to prevail will depend, perhaps in principal part, upon whether a majority of the Court can be persuaded to take James Madison's ninth amendment and its pivotal role in constitutional interpretation to heart. At the moment, it appears that a justices with a more libertarian brand of conservatism 154 —and a respect for the ninth amendment 155—have the upper hand.

Which judicial philosophy prevails will also depend upon whether proponents of the ninth amendment will take a more principled stance towards so-called fundamental liberties. The liberties each person holds fundamental are imperiled when advocates of some liberties they hold dear are more than willing to deny or disparage the liberties thought fundamental by others.
For example, many of those favoring a fundamental right of privacy that includes a woman's right to chose to terminate a pregnancy offer no support to and indeed would actively oppose those who favor a fundamental "right to choose" to engage in a lawful occupation—such as driving a taxi cab—free from protectionist economic regulations.
And few seem at all concerned with the fundamental "right to choose" whether or not to own a gun or to alter one's mental state by means of substances as alcohol, nicotine, peyote, or heroin.
According to this discriminatory methodology, if some choices are deemed fundamental, other rights-respecting choices are vilified and ridiculed.

I am not suggesting that some exercises of liberty are not in fact more important than others. However, by picking and choosing among all the unenumerable liberties of the people to determine which choices are fundamental and which are not, those who would limit judicial protection to liberties deemed fundamental are putting courts in the difficult position of establishing a hierarchy of liberties.
This contributes to the longstanding fear that any revival of the ninth amendment would place courts in the role of a "super-legislature" usurping the functions of other branches. When interpreted as justifying a presumption of liberty, however, I think this fear of the ninth amendment is unfounded precisely because such a presumption provides a principled defense of all liberties of the people and removes the courts from having to decide which liberty is truly fundamental and which is not.

Adopting the presumption of liberty would enable us to acknowledge the ninth amendment's unique constitutional function by resisting legislative or executive usurpation of the unenumerated rights "retained by the people" while, at the same time, avoiding unfettered judicial discretion. The presumption of liberty would permit us finally to remove the ink blot from the ninth amendment.

Because of that, those state legislatures are not restricted when writing gun control laws.

And yet, with a 2nd ammendment,(incorporated or not) with it's legitimate restrictions on the federal government's ability to 'infringe' on the RKBA, they go ahead and do it anyway. Clinton, Feinstein, Schumner, et. all.

The lesson: that one's constitution is only as good as those whose job it is to enforce it and it's being raped every day at the federal level, so, what hope exists that 'natural' rights would be better protected by any state government? Answer: none.

One might think (given the heavy media attention to gruesome crimes) that 'the people' would be clamoring for their right to own and carry weapons totally unrestriced, but they aren't. They've been dumbed-down. Solution: get the media and the state out of the 'dumbing-down' business.

Which brings us full circle to the question: Why do liberals exist?

Betty, I see the "Leviathan" as being All levels of government power, and imo, the framers did also. --- The third bold section of the sixth definitely places State constitutions & laws in subordinate positions to our US Constitution/BOR's.

Actually, I see it that way, too, tpaine. The Framers designed for an extremely "lean" federal government. They would be shocked, stunned, to learn how obese it has become over the past two centuries.

I don't mind in the least that the federal bill of rights trumps states' bills of rights. Though I acknowledged that this very issue is what gave George Mason many sleepless nights. I have read the Commonwealth of Massachusetts' Bill of Rights, authored by John Adams, and there's nothing in the federal bill that is at odds with any provision of it. If anything, the Massachusetts BoR expands the content of the federal bill, which it is its perfect right to do, under the Ninth and Tenth Amendments.

The fact is, these bills of rights were the products of a particular period of human history and culture, a time of widely shared values and ideas about man and his place in political society and beyond. And that is why you will find that so many constitutions written in America during this historical period are so very similar to each other in language and in spirit.

For whatever that observation is worth....

If I might explore a different but closely related line of inquiry, consider this postulate: Not even the "best constitution" can provide the conditions for a free and just political society where the "human material" available to construct such a society is disordered and dispirited.

We wonder how things got so out of control with this sprawling and increasingly tyrannical leviathan of ours. It's really very simple: Politicians wax great in this world by appealing to our fears and greed. If we citizens were ordered by the traditional American virtues, freely expressed, then this problem would be moot. And then maybe we could have some fun "tar-and-feathering" parties, and run the charletans out of town on a rail.... :^)

American society today, it seems to me, does not have the kind of moral clarity it would take to put faithless, unprincipled politicians and their aiders and abetters in academe, the major media, and the salon culture of Park Avenue, Cambridge, Berkeley, et al. in their place.

Plato observed nearly 2,500 years ago that the polis -- the political order of a people -- can only be as good as the human material out of which it is constructed. If men are lustful and do not restrain themselves, then one cannot hope that the government of such men would be just, disinterested, or restrained.

All of which is to say that constitutions do not and cannot "order souls," or really make a difference in how we actually live our lives. Only religion can do that, and has ever done so from times immemorial. I think the Framers well understood this principle. Which is why they sought to protect religion against government encroachment.

I know God really "scares you," tpaine. But I wish you'd take a moment to think about that, and then tell me what you think.

"I don't mind in the least that the federal bill of rights trumps states' bills of rights. Though I acknowledged that this very issue is what gave George Mason many sleepless nights."

No Betty, Article 6 is in the Constitution. Not the Bill of Rights.

Mason was not at all worried about the federal BOR trumping the state's because he wanted it to secure the state's Bill of Rights from the federal government. As he says.

Whatever, your heart is in the right place and you will discover that for yourself one day if you desire to. It's pretty much moot since the Fourteenth Amendment anyway.

One prominent reason the government grows and grows is because people re-interpret the Constitution to mean what they wish, so they can have what they wish. Politician, judges and citizens all do it.

Agreed. However, a bible isn't required to discover the wisdom behind the notion that one should be prepared to defend oneself or family at anytime, anyplace. That we can't suggests something very 'secular' is at work here.

Peculiarly, I'm not a fan of Diane Feinstein or her religious interpretations. (Hey, whatever happened to seperation of church and state?) I think our government has been hijacked by religious interests, but I'm keeping that a secret, don't tell anybody.

...a bible isn't required to discover the wisdom behind the notion that one should be prepared to defend oneself or family at anytime, anyplace.

And yet culturally and historically speaking, the Bible is the source of the wisdom that tells us that self- and family defense -- and from there I extrapolate defense of one's community, nation, and country -- is just in the judgment of God, especially in cases where one's self or family or country has come under unprovoked attack by adversaries who think that death is the answer to all their problems.

IMHO, this is the problem of/for our age. i kid you not.

FWIW.

Thanks for writing, budwiesest. Good night!

Prior to the Roe v Wade decision in 1973, each state had their own laws on abortion.

But in Roe v Wade, the USSC found that a woman had a constitutional right to have an abortion [under the "(substantive) due process*" clause of the 14th amendment] in the first trimester. They ruled that it was "unreasonable" for a state to interfere.

Given that finding, it is now unconstitutional for a state to ban abortion since it would interfere with that constitutional right, and would violate the Supremacy Clause contained in Article VI** of the U.S. Constitution.

*Due process, in the context of the United States, refers to how (procedural) and why (substantive) laws are enforced.

**Article VI states that if a state law conflicts with federal law, the federal law prevails.

"On the "theory" level, IF a State's Constitution were written in a similar fashion as the US Constitution [i.e. a granting of specific limited powers to the State] AND said Constitution was silent on the question of the RKBA's - then the State has no power to restrict."

Good theory, but if the state really wanted to restrict guns it would find that power somewhere in their state constitution -- the power to "maintain order", or the power to "secure liberty" or some such stupid reason (look at the hoops the USSC jumped through to allow abortion -- a penumbra of an emanation, for crying out loud).

Without state constitutional protection of the RKBA, legislatures will find a way.

"I was looking around and realized that Mr. Paulsen has usurped my right to sue anyone as the constitution of kansas has no equivilant of the 7th ammendment."

You certainly have the right to be ignorant of your own state constitution, but don't besmirch my name in the process.

First of all, the seventh amendment is not about a "right to sue". The seventh amendment states that a person has a right to a jury in a civil case. This amendment has not been "incorporated", which means that a jury trial in a civil case is not protected bt the U.S. Constitution.

The right to a jury in a civil case is protected by state constitutions. Kansas protects that right"

KANSAS CONSTITUTION
Kansas Bill of Rights
§ 5. Trail [sic] by jury. The right of trial by jury shall be inviolate
§ 10. Trial; defense of accused. In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of the witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense.

Note!:§10 applies "In all prosecutions..." and is not, by its terms, limited to "criminal" prosecutions.

Without this in your state constitution, you would not have the right to a jury in a civil lawsuit.

robertpaulsen wrote:

You have a fundamental right to keep and bear arms.

--- state legislatures are not restricted when writing gun control laws.

Bizarre logic, paulsen, as you admit our fundamental RKBA's.-
- Then you claim it can be violated without restriction.

You constantly confuse a fundamental right with an unalienable right. There is a difference, other than the spelling.

No, there is no 'difference'. -- Make your point if you can, paulsen, but I won't hold my breath.

No. This is basic $hit, and I'm not going to waste my time. Google it yourself.

Basic bull-"$hit", from you paulsen.
You threw out that irrational 'point' because you had no comeback on the illogical & contradictory position you hold on our RKBA's.

You 'waste' your time every day here at FR, arguing against our constitutions basic principles. Why?

"what hope exists that 'natural' rights would be better protected by any state government"

State government is closer and more responsive to the people. People within a state have more in common with each other, such that their laws reflect the majority will. A violation of "natural" rights would/could lead to an exodus of citizens (and their taxes) to a friendlier state. Fifty different states represent fifty different "laboratories" to see what works.

Off the top of my head.

"that 'the people' would be clamoring for their right to own and carry weapons totally unrestriced, but they aren't."

Sure they are. 35 states allow CCW, and that number has been growing, not declining.

"I don't mind in the least that the federal bill of rights trumps states' bills of rights."

On the surface, this sounds good. But with a federal Bill of Rights you get a federal interpretation of the Bill of Rights.

You get free speech interpreted as nude dancing, but not political speech 30 days before an election. Free speech does NOT include a high school student saying "God" at his commencement ceremony.

Freedon of religion? Try freedom from religion -- a hundred examples.

Freedom from unreasonable searches and seizures? No-knock, anyone? Asset forfeiture, anyone?

And since you don't mind in the least that the federal bill of rights trumps states' bills of rights, then you don't mind that these USSC rulings apply to each and every state. Sorry, but I mind.

"Actually, try to look at the idea from a different perspective. Barnett's view of interpreting the Ninth Amendment is a supportable rationale for conservative justices to practice the same sort of judicial activism that liberal judges have been practicing for years."

I'm not convinced. And the reason I'm not convinced is that the liberals are not using the Ninth Amendment to justify their judicial activism, they're finding fundamental rights in the substantive due process clause of the 14th amendment.

In its discussion of the scope of "liberty" protected by the Due Process Clause of the Fourteenth Amendment the Court stated:

Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.
See U.S. Const., Amend. 9.
As the second Justice Harlan recognized:
"The full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . .
Poe v. Ullman, supra, 367 U.S. at 543, 81 S.Ct., at 1777

History proves this wrong. In the 80 or so years before the 14th Amendment, "Natural" rights were violated at will by the states. For example, look at the civil rights abuses perpetrated on whites in the south who opposed slavery.

That majority rule in a state somehow ensures that rights will be respected is just wrong. If you are given a dollar to split among three people, majority vote determines how it is split, it is likely that two of the people are going to band together in a majority voting block to take the dollar all for themselves. That is a simplified version of the danger of factions that Madison spoke about in the Federalist Papers. If it can happen with three people, how will it not happen with a state of three million.

betty boop wrote: "I don't mind in the least that the federal bill of rights trumps states' bills of rights."

On the surface, this sounds good. But with a federal Bill of Rights you get a federal interpretation of the Bill of Rights.

And that fed interpretation can be challenged by our States. Rarely is because States are controlled by the same Rinocratic cabal as the feds.

You get free speech interpreted as nude dancing,

Nude dancing is NOT 'evil', paulsen. Grow up.

but not political speech 30 days before an election.

Blame the Rinocrats.

Free speech does NOT include a high school student saying "God" at his commencement ceremony.

Wrong venue to be preaching about god.

Freedon of religion? Try freedom from religion -- a hundred examples.

Yada yada.

Freedom from unreasonable searches and seizures? No-knock, anyone? Asset forfeiture, anyone?

Yep, the feds violate our constitution. So do State/local governments.
-- Paulsen, your claim that CA can violate our RKBA's encourages that POV. -- People like you are a BIG part of the problem.

And since you don't mind in the least that the federal bill of rights trumps states' bills of rights, then you don't mind that these USSC rulings apply to each and every state. Sorry, but I mind.

Your 'mind' is very confused, paulsen. Get some lessons in logic.

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