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.
--- 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.
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.
Fundamental rights are inalienable. Prove me wrong.
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.
Baloney.
Masterful rebuttal paulsen. Nice to see that you are finally running out of specious & inane comments.
This is a little out of my current realm of knowledge but it seems that Paulson is arguing the anti-federalist point of view.
Sounds just about right to me, tpaine! I'd support that 100%. It would force politicians to actually consult the Constitution to justify their legislative activities. Maybe then they could actually come to understand what it is they swore an oath of office to uphold. What a novelty!
In my view, the states were already restricted by Art. VI, as tpaine points out. Which is why I tend to think the Fourteenth Amendment is redundant. Sure, it officially ended slavery; but from day one slavery was a horrific violation of human rights protected by the Constitution, though not extended to those who qualified as 'three-fifths of a person' for legislative apportionment purposes. This represents a gross injustice, with or without the Fourteenth. FWIW.
I'm not sure I agree with that statement. And I have apparently been a bit obtuse in some of my postings, so I'll try to explain what I mean a bit clearer.
IMHO, the founders gave equal credence to both Individual and State Rights. I don't not think that the original Constitution was meant to be applied to the States other than where this was expressly stated.
I base my claim to the rights of the states in the fact that the States themselves were required to approve the Constitution, not just the representatives of the people at the Convention. Furthermore, any amendments to the constitution must also be approved by the state legislatures. This implies a certain amount of sovereignty at state level. Additionally, only sovereigns have the power to lay and impose taxes or raise armies. The power to raise [standing] armies was abdicated by the states to the Federal Government. The power to levy taxes was retained by the states.
So, the Constitution, as originally written (before ANY Amendments!) was nothing more than an enumeration of the powers granted to the Federal Government by the People and the States.
I agree with Hamilton that it was dangerous to include a Bill of Rights as this could be construed to imply that the Federal Government would have had the power to do the things prohibited by them [and this seems to be the case in many of of court decisions].
The preamble to the "Bill of Rights" reads: "The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution; ..."
This was probably included to answer the objections of the Federalists. Unfortunately, it seems to be entirely ignored.
The Ninth Amendment reads "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
I can only see an enumeration of "rights" of the people within the "Bill of Rights" itself. I therefore conclude that this amendment was a type of catch all which further placated the Federalists in their objections.
The Tenth Amendment reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. " The clause "are reserved to the states respectively" further supports the claim of states "rights". But I'd like to dissect this a bit.
"The powers not delegated to the United States by the Constitution..." [my reading: any power not specifically granted to the Federal Government] nor prohibited by it to the states, [my reading: nor any power specifically prohibited by the constitution to the states (as they were abdicated which makes their use by the states a hindrance to the well being of the nation as a whole)] are reserved to the states respectively, [my reading: is retained by the states individually] or to the people.
Thus, although totally unnecessary in a Constitution which granted only limited powers to the Federal Government, the Tenth Amendment could read "Any power not specifically granted to the Federal Government, nor any power specifically prohibited by the constitution to the states, is retained by the states individually, or by the people."
We must also consider that any one of the original ten amendments can only refer to the constitution itself, not themselves. Consider that, if three fourths of the state legislatures had NOT approved the Tenth Amendment, it would not exist. Would the nonexistence of the tenth amendment in any way grant more power to the federal government to infringe upon an individual's or a state's rights?
State Constitutions: I am not well versed in the various State Constitutions. 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.
The above is obviously quite "short". I think though that you can at least understand my point of view (even if we don't agree!!). I'd be happy to discuss any points further if desired. Just don't want to make a Mega Post which bores the tears out of everyone . . . . (it's also getting late here and my better half wants some of my time ;-D )
Thanks for reading..... Good Night!
Sounds just about right to me, tpaine! I'd support that 100%. It would force politicians to actually consult the Constitution to justify their legislative activities.
Maybe then they could actually come to understand what it is they swore an oath of office to uphold. What a novelty!
Thanks Betty, its gratifying to find that a fine Christian lady can see the basic good in the principle behind Barnetts 'Presumption of Liberty' concept:
"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."
This a radical departure from the conventional wisdom of our day. I think the man has found a point of compromise that all rational conservatives can accept.
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. can I sue him for that? Wouldn't this logic also circumvent the Brown vs board of education?
But the Bill of Rights was passed to limit the powers of Article 6. You turn the intention of the Bill of Right upside down to to use Article 6 to make it instead into a grant of more power to the federal government.
Here is George Mason at the Va. Ratification Convention:
"...Let us advert to the 6th article. It expressly declares, that "this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which Shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby; any thing in the Constitution or laws of any state to the contrary notwithstanding."
Now, sir, if the laws and Constitution of the general government, as expressly said, be paramount to those of any state, are not those rights with which we were afraid to trust our own citizens annulled and given up to the general government?
The bill of rights is a part of our own [Virginia] Constitution. [But] The judges are obliged to take notice of the laws of the general government; consequently, the rights secured by our bill of rights are given up.
If they are not given up, where are they secured? By implication! Let gentlemen show that they are secured in a plain, direct, unequivocal manner. It is not in their power.
Then where is the security? Where is the barrier drawn between the government and the rights of the citizens, as secured in our own state government?
These rights are given up in that paper; but I trust that this Convention will never give them up; but will take pains to secure them to the latest posterity."
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. "
The clause "are reserved to the states respectively" further supports the claim of states "rights".
Powers, not rights, -- as you later acknowledge:
Thus, although totally unnecessary in a Constitution which granted only limited powers to the Federal Government, the Tenth Amendment could read:
"Any power not specifically granted to the Federal Government, nor any power specifically prohibited by the constitution to the states, is retained by the states individually, or by the people."
I have no problem with your alternative 'reading', and I'd bet most rational people wouldn't. -- After all States are just a large grouping of individual people, -- and I think we can all agree the groups have no 'rights'/powers over & above the rights of its individual members.
Under the Paulsen Doctrine, your almighty States majority can usurp as it pleases. - You don't like it? Get your own majority to over-usurpt, or take a hike.
can I sue him for that?
Catch 22, nobody can overrule Paulsen.
Wouldn't this logic also circumvent the Brown vs board of education?
There was a simple solution to 'Brown' that States could have effected. They could have shut down all State funded schools. Nothing in our Constitution can force a State or local government to educate its citizens.
I think Mr. Paulsen has lost cabin pressure. I was really hoping to find out exactly how the second ammendment would become "incorporated".(post #75) seems like that would be easier than following his logic.
Well I suppose that's one way to look at it, mrsmith. But I don't look at it that way myself. The Supremacy Clause of Article VI refers only to the powers delegated to the federal government by the Constitution. Technically, there are only a relatively few delegated powers -- something on the order of fewer than three dozen. Only with respect to these powers is the federal government "supreme" vis-a-vis the states.
The Bill of Rights is that part of the Constitution that supplies "further declaratory and restrictive clauses," in order to prevent the federal government from misconstructing or abusing the powers it has been granted. It's kind of a "belt and suspenders" approach to keeping federal power in check -- which the Constitution itself is designed to do, and which the Bill of Rights, in enumerating certain (though not all) areas in which the federal government has no authority under the Constitution, further underscores. They were trying to put Leviathan in chains, so to speak.
I think there is a tendency to think of the Bill of Rights as somehow a separate document; but it's an organic piece of the total Constitution, as are all the amendments that have been duly ratified under Article V.
In the case of the Bill of Rights, certain ratifying states (including my own, Massachusetts) threatened NOT to ratify the Constitution, unless a Bill of Rights were to be speedily forthcoming. BoR was ratified three and a half years later, but it was expected from "Day 1," and it seems there was from Day 1 already a strong consensus about what it would cover.
While technically I think George Mason was wrong in saying that we gave up rights "in that paper" -- technically, we the people, authoritative principals, only delegated certain powers to an agent -- history has proven him absolutely correct about the inability of the Constitution to restrain overweening politicians from manufacturing all kinds of activities for the federal government to perform, without express warrant -- thanks to the "necessary and proper" clause of Article I, Section 8, which requires them to show only that legislative acts are necessary to carry out any delegated power (seems to be a rather large loophole in practice). Other than that, in theory, what the Constitution has not granted, government may not do.
But we all know how "creative" and frequently unprincipled the political class can be. It seems evident that the Constitution as amended has not succeeded in restraining the illegitimate expansion of the state, BoR or no BoR. (Heck, the BoR is routinely disregarded whenever it's "inconvenient"....) But we are here speaking of the semmingly universal tendency of the political class to aggrandise its own powers. This happens regardless of what constitutional form a government has.
But it's our fault if they "get away with it." For in the end, for good or ill, we get the government we deserve.
Agreed, tpaine. And long overdue.
BTW, I meant to ping you to #95 on this thread, but got an itchy trigger finger.... :^)
Agreed. Although it is a fine line. If I as a person grant you a power of attorney, that grant gives you a power (and a right to use that power). I can of course rescind that grant of power thus denying you both the power and the right to wield it.
Our "rights" are, as you have stated, inalienable. This means that a government does not have the right (power) to infringe upon them. However, if we the people, were to abdicate a power to the government (state or federal), then that government has the "right" to use that grant. Of course, we must be careful in what we abdicate - which is the reason the federal government was limited in it's powers in the first place!
I really don't see where the controversy is. The Constitution, other than when referring to "archaic" terms such as Letters of Marque is quite easy to read and understand (unless you are a liberal and still don't understand the meaning of the word "is" [not directed at any person on this board!!!]). When I consider that over 2 centuries of USSC Decisions seem to point in exactly the opposite direction from what I can see and read with my own eyes, I find it difficult NOT to reach for the Reynolds Wrap!
"In my view, the states were already restricted by Art. VI,"
With regard to an amendment in the BOR, none of them restricted the state. The purpose of the BOR was to further limit the Federal government.
To put Mr Mason's quote in context: he is at the Virginia Constitutional Ratification Convention arguing that there must be a BOR upon the federal government (like Mass., Va. insisted upon a promise of such a BOR before it would ratify the Constitution).
Saying that the states were limited by the Second, or any other, amendment in the BOR when it was passed would be turning it on it's head because it was insisted on and passed solely to further limit the powers of the new government (like those in Article 6 that Mason mentioned).
Too bad Massachusetts and other states kept such skimpy records of their Ratification Conventions. Virginia's record is voluminous and has many remarks of important Founders in it fortunately (especially by the Anti-federalists on the reasons for a BOR). But I miss reading the debates that the northern Founders presented at their's- Adams' especially.
mrsmith wrote;
But the Bill of Rights was passed to limit the powers of Article 6. You turn the intention of the Bill of Right upside down to to use Article 6 to make it instead into a grant of more power to the federal government.
Well I suppose that's one way to look at it, mrsmith. But I don't look at it that way myself. The Supremacy Clause of Article VI refers only to the powers delegated to the federal government by the Constitution.
[See first bold, above.] Technically, there are only a relatively few delegated powers -- something on the order of fewer than three dozen. Only with respect to these powers is the federal government "supreme" vis-a-vis the states. [see second bold]
The Bill of Rights is that part of the Constitution that supplies "further declaratory and restrictive clauses," in order to prevent the federal government from misconstructing or abusing the powers it has been granted. It's kind of a "belt and suspenders" approach to keeping federal power in check -- which the Constitution itself is designed to do, and which the Bill of Rights, in enumerating certain (though not all) areas in which the federal government has no authority under the Constitution, further underscores. They were trying to put Leviathan in chains, so to speak.
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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.
"Notwithstanding", -- regardless of "any thing" in State Constitutions or laws, the supreme Law of the Land was to be the US Constitution.
It is truly amazing to me that so many people have fought so hard about understanding our constitutional concept of a 'supreme law'.
Saying that the states were limited by the Second, or any other, amendment in the BOR when it was passed would be turning it on it's head because it was insisted on and passed solely to further limit the powers of the new government (like those in Article 6 that Mason mentioned).
That's an opinion. Sure, many framers were fixated on curbing federal power, but the fact remains that the overall principle behind our BOR's is to protect individual rights, like the RKBA's. It is ludicrous to suggest that the framers were blind to the possibility that State or local governments were incapable of violating our rights.
There was a recourse available to a person wronged by a State. - He could appeal for redress to the USSC.
If the 2nd amendment does not apply to CA, -- I have no redress short of rebellion for violations of my RKBA's.
Nor do you.
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