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Our Founders, in rebelling against Mother England, claimed for themselves “nothing but the liberty and privileges of Englishmen in the same degree, as if we had continued among our brethren in Great Britain”. Along with Blackstone, our Founders treated natural rights as A Thing. They drafted the Constitution as a document constraining the federal government to enumerated powers, and recorded in the Ninth Amendment that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” We’re all familiar with the rights enumerated in the Bill of Rights, and the affirmation in the 14th Amendment that these rights are good against the federal government, too. But whatever happened to the unenumerated rights mentioned in the Ninth Amendment?
The Founders had good reason to believe in a constitutional order protecting unenumerated rights. After all, the Founders inherited their notions of rights, due process of law, and constitutionality from Mother England. Which isn’t to say they weren’t free to deviate from English traditions of law in declaring independence; obviously they were. But their understanding of law was rooted in English understanding of law, and only then shaped by their explicit deliberations. A reasonable person living at the time of ratification could be expected to understand the nature of law in a pretty English sense, a sense in which rights are discovered by the traditions of common law, and not all rights must be explicitly summarized in order to be respected.
The Founders had such a limited view of federal government that it made sense for them to suppose that state courts would be the chief guardians of citizens’ natural rights. As it happens, every state but Louisiana has a reception statute affirming that it has inherited the common law of England, though each state disposes of this inheritance somewhat differently. But also as it happens, the Founders’ supposition that residents of each state could rely on their state to guard their natural rights has been proven wrong — and in more ways than one. Not only could slaves not rely on their states to guard their natural rights, but the federal government’s powers have grown to the point where the federal government routinely threatens everyone’s natural rights. The Fourteenth Amendment affirms,
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The “privileges or immunities of citizens of the United States” the Fourteenth Amendment describes presumably include the “other rights retained by the people” described in the Ninth Amendment. In the Lochner Era, the SCOTUS recognized liberty of contract as one of these unenumerated rights protected by due process of law. Contrary to New-Deal propaganda, the Lochner Era was a pretty good era for American law. In the Lochner Era, we can recognize what “substantive due process” should have been, if it should have been anything at all — a recognition that due process ought to respect our traditional natural rights, rights that our Founders would have recognized as implicit in the law of the land. There seems to be no need for emanations and penumbras, since natural rights as our Founders understood them extended to unenumerated rights as well.
However, early on in our judicial history, the Ninth Amendment seems to have been relegated to purely decorative status.
When SCOTUS Justice Arthur Goldberg opined,
[T]he Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the ‘liberty’ protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments,
In Griswold v Connecticut, his fellow justices Hugo Black and Potter Stewart shot back, “Ha, ha! Don’t be so naive!” Of course they used more words to say so, but that was the gist: obviously, the Ninth Amendment ought to have no power to constrain legislative action because, well, obviously! That’s always been obvious!
But why is it obvious? Perhaps it is not, or so contends the originalist Randy E Barnett, author of “The Ninth Amendment: It Means What It Says“. Barnett points out that an originalist understanding of the Constitution must respect evidence of what the original public meaning of the Constitution was, evidence which is still being gathered and organized, shedding new light on original understanding even now. Even something as simple as observing that the “last clause of the 4th resolution” Madison referred to here:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.
The precursor to the Ninth Amendment sheds light on what the Ninth Amendment must have meant. The precursor reads as follows, incidentally:
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.
Most conservatives are too preoccupied with the danger of activist judges just making up rights to risk asking if American judges have also been neglecting our real unenumerated rights. Better, most conservatives seem to think, that SCOTUS should confine itself to defending only rights strictly enumerated in the Constitution, that way those pesky arrogant judges don’t have leeway to make up even more spurious “rights” than they already have!
Conservatives’ defensive posture seems to miss the plain sense of the Ninth Amendment, though. Conservative philosophy asserts natural rights, but apparently conservative constitutional jurisprudence can’t. After all, if we embolden judges to defend unenumerated rights, as the school of “substantive due process” has demonstrated, what we’ll end up with is judges inventing “rights” the Founders never could have even dreamed of, while those same judges blithely go on ignoring unenumerated rights, like liberty of contract, the Founders implicitly acknowledged!
Only in the alternate universe inhabited by Cato scholars could the phrase “substantive due process” exist to respect originalism, and only Cato scholars, apparently, can phase into that universe. The rest of us have to live in this one.
The universe we live in, though, is poorer for the loss. For all the right’s talk of “vultures in black robes”, the vultures in blue suits and red ties (who compose every branch of government besides the judicial, including the “fourth branch” of government, sometimes nicknamed “the Deep State”) are far more numerous, and these days, unlike the judiciary, they barely have to pretend to be guided by the Constitution. Sure, some of them can be voted out of office from time to time, but the political incentives they face to get re-elected don’t align neatly with constitutionality, either. We bemoan the erosion of our natural rights, but we’ve also kneecapped ourselves by how we’ve strategically resisted the invention of “unnatural rights”.
Not all is lost, though. A more conservative SCOTUS might have to limit itself to the letter of defending enumerated rights for the foreseeable future, but conservative justices almost have to be more open to the spirit of our natural rights, including the unenumerated ones. Our rights didn’t spring into recognition because they were enumerated in the Constitution, they were enumerated in the Constitution because they were already recognized, along with their unenumerated brethren.
Moreover, the devilish cleverness of lawyers sometimes works in natural rights’ favor. The purpose of organizations like the Institute for Justice, and proposed organizations like Charles Murray’s Madison Fund, is to put legal cunning to work defending rights our Founders would have recognized, even if those rights aren’t explicitly spelled out in the Constitution. If you can’t beat the lawyers, join ’em! Over half the framers of the Constitution were lawyers, after all.
This post was inspired by @loislane’s “Crazy Supreme Court Justices: William O. Douglas“