Posted on 06/07/2004 2:10:58 PM PDT by tpaine
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.
I. The Origins of the Ninth Amendment
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.
Neither argument against a bill of rights carried the day.
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III. Implementing the Ninth Amendment
A. The Presumption of Liberty
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.
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V. Conclusion:
The Equal Protection of Liberties and the Future of the Ninth Amendment
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.
(Excerpt) Read more at randybarnett.com ...
You have a fundamental right to keep and bear arms. As a citizen of a state, you give your state the power, defined by the state constitution, to protect that fundamental right. It is this right which "shall not be infringed" by Congress.
State laws concerning your RKBA are a result of legislation interpreted by the state Supreme Court to meet the intent of the state constitution. Some states, like California, have nothing in their state constitution regarding the RKBA. Because of that, those state legislatures are not restricted when writing gun control laws.
Because he and I agree.
All of that can be easily negated by local, state, and federal Liberal legislation and judicial interpretation by Leftist judges and justices. It's been ongoing for some time now. Another example: The Second Amendment will remain on the books, but will be negated as described above. The Democrats don't give up on their agenda.
I'm really having a hard time following you. Are you saying that the second ammendment does not apply to the states, and therefore the states can regulate or ban handguns at will?
Randy's opinions on the Ninth are popular on the web and I'm quite familiar with them now however.
Now the courts have to inquire into what my unenumerated rights are. This is precisely what Randy wants to change.
But if the courts expand their power to define rights ( such as "liberty") as they wish, then they will lose the confidence of the people and be corrected- one way or another.
We are not giving them sanction to define our rights any more than we would give them the power to define our bank account balance- they will have to go and look if it concerns them.
Ironically, the first test to put a libertarian proposal to is "does it replace a majoritarian tyranny with a minority tyranny?". Randy's Ninth Amendment reinterpretation, however good his intentions, fails that test.
Democracy is a terrible form of goevernment... etc
No, I want the USSC to tell the State of CA to stop their violations of our RKBA's. - And, -- I want our Executive branch to enforce that decision upon the CA state officials that have ignored their oaths of office to protect & defend our US Constitution.
AND WHAT MAKES YOU THINK THEY WOULD? That's my whole point.
Nope, your whole point is that the 'State' has a 'right' to control our RKBA's. They have no such power, and never had.
What has the USSC done recently to make you think that they would rule in such a conservative manner? Actually, the chances are very good that they would simply follow the Ninth Circuit.
Either way they 'rule', I would win. The ballot box or the cartridge box would prevail.
The good citizens of the state of California need to get off their butts and pass a state constitutional amendment that protects their RKBA.
The majority refuse. - Period.
You claim they have that 'right'. You're dead wrong.
There was a DC Circuit decision protecting a Ninth Amendment right to picket, I believe, in DC from a federal law.
That is precisely what I'm saying. The second amendment only applies to the federal government.
"... and therefore the states can regulate or ban handguns at will?
No. States are bound by their state constitution. Your state constitution reads:
Sec. 4.
"The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power."
Now, compare that to mine in Illinois:
SECTION 22. RIGHT TO ARMS
"Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."
This is why we have to pass a background check and purchase a Firearm Owners ID (FOID) card to even handle a gun in a store or to purchase ammunition. Why handguns are banned (illigal to own, possess, or carry) in Chicago, Morton Grove, Wilmette, etc. Why Illinois doesn't have concealed carry.
Each state has RKBA laws based on the protections offered by their state constitution. California, Iowa, Maryland, Minnesota, New Jersey, and New York have nothing in their state constitution protecting arms.
Which, in this case, the State of California is refusing to do, - and instead is enacting 'laws' that violate my fundamental RKBA's. Thus, CA is violating our US Constitution in a number of ways found not only in the BOR's, but in the body of the Constitution itself, - primarily in Art. VI.
It is this right which "shall not be infringed" by Congress.
By its inaction in this case, Congress itself is also violating our RKBA's. -- As is the rest of the US Government.
State laws concerning your RKBA are a result of legislation interpreted by the state Supreme Court to meet the intent of the state constitution. Some states, like California, have nothing in their state constitution regarding the RKBA. Because of that, those state legislatures are not restricted when writing gun control laws.
Bizarre logic, paulsen, as you admit a fundamental RKBA's, - then you claim it can be violated without restriction.
illegal
Wasn't the "right to privacy" found in the Ninth amendment in that early contraceptive case?
You constantly confuse a fundamental right with an unalienable right. There is a difference, other than the spelling.
Following that logic the bill of rights doesn't apply to anyone. only the state constitutions apply. this seems to be in the "Home rule " school of thought, correct?
All States, when they join the union, are obliged to honor our Constitution/BORs as the supreme law. The supreme law protects our RKBA's, if the State fails to do so.
No. Following that logic the Bill of Rights only applies to the federal government. Correct?
The BOR (actually the first eight amendments of the BOR) originally applied only to the federal government. After the 14th amendment was ratified in 1868, most, but not all, of the first eight amendments were made applicable to the states through a process known as "selective incorporation". For example, free speech/press was "incorporated" in 1925. The fourth amendment (unreasonable searches and seizures) was "incorporated" in 1914. Prior to those dates, legislators and state courts were bound only by their individual state constitution.
To date, the second amendment, the "Grand Jury" clause of the fifth amendment, and the seventh amendment have not been incorporated. State constitutions prevail in those areas.
Baloney.
Then why haven't the states been able to ban abortion?
The Ninth was part of that penumbra but not all of it.
Under Randy's scheme it would be sufficient by itself.
Bump for later read
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. Right now, the liberals invent rights like abortion and freedom from religion and the conservatives counter with strict constructionalism. In the Ninth Amendment we can find our best weapon as conservatives. Imagine if when liberal judges discovered a right to abortion, conservatives would find a right to property and find the whole welfare state unconstitutional. We need a weapon in the Constitutional war and Barnett has found it.
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