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.

"That majority rule in a state somehow ensures that rights will be respected is just wrong."

Not what I said. I just said that the law would be more likely to reflect the will of the majority.

Take flag burning, for instance. Legal in the U.S. If Texas could vote on the issue independently from the rest of the U.S., would flag burning be legal in the state of Texas? I think not. (Hey, don't you guys respect "rights"?)

"In the 80 or so years before the 14th Amendment, "Natural" rights were violated at will by the states."

Hmmmm. Couldn't have been that bad. It took another 50 years after the 14th amendment before the BOR started to be incorporated.

Re. Abortion.

I've said this before on other threads, the Court was right but for the wrong reason.

The Constitution does not contain a power granted to the Federal government to regulate such affairs and thus any regulation at Federal level is unconstitutional.

Indeed, even most crimes can not be Federal crimes because the government was not given the power to make them so.

IIRC, most state constitutions contain provisions for their governments to decide such affairs, and, as long as those provisions do not violate that states constitution, the federal government has no business in dictating what is right and proper.

Of course, the 14th Amendment has muddied that waters quite a bit.

On last point - so called constitutional "protections" have exactly the opposite effect. It is up to us, the people, to assert our rights and hold government(s) accountable to the constitution(s) they are sworn to uphold and defend. It is a daunting task, but we must fight every day to preserve the Republic our ancestors bequeathed to us.

Texas Federalist wrote:
"In the 80 or so years before the 14th Amendment, "Natural" rights were violated at will by the states."

Hmmmm. Couldn't have been that bad.

Yes paulsen it was so 'bad' we had to fight a bloody civil war about it.

It took another 50 years after the 14th amendment before the BOR started to be incorporated.

Yep, the southern states just ignored the 14th, by & large.
Just as State, Fed, & local governments ignore our BOR's to this day.
Damn shame, and Rinocratic enablers like you are the ones responsible, paulsen.

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.

Granted your point about interpretation, robertpaulsen. But my point is there's nothing wrong with the federal BoR as it is written. The problem is the refusal of judges and justices to follow the plain language and meaning of the BoR. Such that when the language states the government may not prohibit or infringe, the courts seem to regard these texts as suggestions, not demands that they are bound by their oaths of office to comply with.

What passes for the liberal mind these days does not honor or respect the ideas and values of the Framers. As far as a whole lot of such people are concerned, the Constitution might as well have been written by Mickey Mouse, for all the authority it carries with them.

Hmmmm. Couldn't have been that bad. It took another 50 years after the 14th amendment before the BOR started to be incorporated.

Actually, the Supreme Court began striking down state laws shortly after the 14th Amendment was passed. It wasn't called, incorporation, per se, but it was based on the predicate that state laws could not be violative of natural rights. For example, look at the Lochner case and related jurisprudence. "The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence," by Howard Gillman presents a compelling case. Gillman begins with a clear thesis: that the Lochner era jurisprudence was grounded in a constitutional tradition rooted in the founders' desire to form a faction free republic. This tradition held that the states' police powers could only be used in a neutral manner to benefit the general welfare; that the state couldn't use its regulatory power to benefit one faction only.

Ah, George Mason is just a dead white man who owned slaves, like Patrick Henry when he called for a Bill of Rights:

"If you give up these powers, without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw — government that has abandoned all its powers — the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights — without check, limitation, or control.
And still you have checks and guards; still you keep barriers — pointed where? Pointed against your weakened, prostrated, enervated state government!
You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power!
You arm yourselves against the weak and defenceless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity?
What barriers have you to oppose to this most strong, energetic government? To that government you have nothing to oppose. All your defence is given up. This is a real, actual defect. It must strike the mind of every gentleman. "

This thread shows a likely way the courts will incorporate the Second Amendment: it will be paired with a definition of an unenumerated right to be protected from gun violence. Then the California gun control regime will be instituted nation-wide.

mrsmith wrote

You try reading it. But first lay your adolescent hero-worship aside, if you can.

LOL. Awww . . . somebody needs a nap. At least you admit that you are criticizing something you haven't even read.
130 -Tex-
______________________________________

Paulsen & mrs mith are just two minor members of FR's 'states rightist' crowd; -- a group who NEVER admit their real agenda.. -- Majority rule autocratic States in a Federal system based on 'moral law'.
I think an apt term for it is 'Communitarianism'.

Every post of yours on this thread has been a vacuous ad hominem.

This thread is about the ideas expressed in a particular writing which is essentially a condensed version of a recently published book more completely expressing the idea. Pointing out the fact that everyone of your posts is based upon incorrect assumptions about that book which you have not even read is not ad hominem. I'm just trying to focus you in the right direction so you can actually make a point.

If you want to point out the fact that abandoning states rights or giving unelected judges the power to define unenumerated rights is unwise, fine. I agree. Whoop-de-freakin'-do. It has nothing to do with this thread, which is about a particular writing that is consistent with both of those views. If you could actually form a rational thought as to why it is not ("it" being the ideas expressed in the writing and not what your stereotype libertarian believes), I'd love to hear it. I'd be surprised, but I'd love to hear it.

" based upon incorrect assumptions "

I have followed Randy's views on the Ninth since Lawrence, it would surpise me very much if his book is substantially different from the views he expressed in his amicus or on the web.

From the article:
"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?"

Madison's is the first "majoritarian conservatism" view: that there are rights that the court has to recognize.

Randy is advocating the second view: "libertarian conservatism", which lets the courts define what the rights are.

[Bowers v]Hardwick V. shows the constitutional application of the Ninth to look for a right to recognize; Lawrence V. could be done under the Ninth in Randy's view- just define it as a right.

Apparently you'd claim that Randy is advocating replacing "majority will as expressed in legislation" with something specific.... what? what?

His writings that I have seen offer nothing but the federal "neutral magistrates " definitions of "natural rights".

His writings that I have seen offer nothing but the federal "neutral magistrates " definitions of "natural rights".

You are right that the passage cited in this thread, as you say, offers nothing but the federal "neutral magistrates " definitions of "natural rights". The book offers a structure for identifying those rights based upon originalist interpretation of the framers of the Constitution and the 14th Amendment. It comes to sort of a Lochner-era conclusion: since we cannot define the innumerable rights to be protected, they are best protected by striking down laws which take away from one group of people to give to another. For example, welfare takes property from the rich to give to give to the poor. This would be a violation of the right to own property. Only when one person's liberty interest invades another can the government act to prohibit an activity.

Now since I am a conservative, like yourself, and not a libertarian, I was concerned that this leaves government no role in enforcing moral norms. Barnett does believe that a physical invasion of another's liberty must take place in order for the government to regulate an activity. I disagree, but this alone is no reason to completely reject his approach. I simply believe that the government would have the authority to prohibit behavior which was not a physical invasion of another's liberty, but still constitutes a nuisance, e.g. selling drugs, using drugs in public, selling pornography, running a brothel, etc.

Basically, some of the more socially libertarian consequences of his theory are not desireable to conservatives. But that is no reason to trash the theory altogether when, if changed slighty, if offers a more effective alternative to strict constructionalism for conservatives to promote their ideals.

Just to clear something up: Randy's ('Professor Barnett's' if you wish) attempts to reconcile originalism with Libertarianism are instructive IMO. That's why I have followed his Ninth Amendment writings even though he fails (and, yes, the Lawrence decision did put a fear of the Ninth's perversion into me). The effort can be of worth even if the result isn't. Heck, we all want to find the most liberty under the Constitution.

He fails in originalism: "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 the evidence is that the Fourteenth was meant to apply the first eight of the BOR amendments to the states.

And, as we agree, he leaves an undue discretion to the judiciary anyway.
"e.g. selling drugs, using drugs in public, selling pornography, running a brothel, etc. "
-A liberal would instead list: "guns, unemployment, lack of health insurance, unwed homosexuals, etc." (well, I don't know just how a Liberal would phrase them).

The recent spate of research on the Ninth, which Randy's work has encouraged, has been very constructive ( especially since it has led to Levy's excellent "lost history of the ninth").

A liberal would instead list: "guns, unemployment, lack of health insurance, unwed homosexuals, etc." (well, I don't know just how a Liberal would phrase them).

In trying to form a 'more perfect union', I doubt the courts were chosen as the tool of first choice. My dislike of my state's infringments on RKBA (CA) probably put me in line with others from other states with similar frustrations.

I don't think the founders ever conceived that someone traveling from say, California to Texas, might be jailed in Arizona or New Mexico (along highway 10) for carrying a handgun since (for this example) the 'majorities" in AZ and NM may have decided to implement restrictive gun laws.

Yet, allowing the supreme court to 'act' on each dispute arising from the states seems an invitation to tyranny, should they find a compelling federal interest in the case (which often is a load of crap since fed rights have been pretty well defined).

Might our Congress pass a law stating that each state that hasn't incorportated the language found in the second ammendment in their state's constitutions to be in contempt of forming the 'perfect' union, and thus, hostile to it's formation and no longer recipients of highway funds, etc.? I'd call it: The More Perfect Union Law.

That would be very sneaky and devious. In other words I like the way you're thinking.

I don't know what the limit is to what can be required to participate in a "volountary" program like the Highway Fund. That is a path frequently used to get around the usual constitutional limits on what the feds can requirte of a state however.

IMO the strict gun control regimes of those states are probably the result of a late nineteenth century intent to keep weapons out of the hands of the Chinese and Mexican immigrants- and should be overturned on 14th Amendment grounds. I've never seen any research on that though.

After giving it some more thought, I don't trust the executive, legislative, or judicial branches to handle this one. Nope, it's 'of the people, by the people, and for the people' that this government stands, and it is we who must put her back on track when she derails over time.

I propose a 100 yr. ammendment that will allow the 'people' (who's consent is that's which is required in order for any government be considered legitimate) to vote upon a referendum made up of grievences the people may have toward this government to be held every 100 years. We don't need guns (yet) to make changes in our government when We-The-People hold the reins. We are their masters.

Abortion, affirmative action, EPA, Education, land grabs, huge deficits, regulations out the Ying Yang, infringements on the 2nd ammendment, the IRS, border control, etc. each and every encroachment upon what should be state's/individual's rights could be addressed.

We could call it the "We never trusted you government bastards" ammendment. Or how about, "You've had a hundred years to screw things up, move over, b*otches" ammendment. Or how about, "A More Perfect Union Takes Practice" ammendment. Either way, I predict something will happen.

The founders may have been very wise in their vision of overthrowing tyranny by force as possibly the only feasible means, however, I'd like to give the people a chance at the ballot. That THE PEOPLE have been dumbed down and softened with socialism concerns me. But what the heck, let's find out sooner, rather than later, what our fate holds in store for us. This frog is getting tired of the pot and it's getting warm in here.

Thanks for fighting the good fight tpaine.

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