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Why Emanate Penumbras When There’s a Ninth Amendment?
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.
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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!
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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.
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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.
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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.
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This post was inspired by @loislane’s “Crazy Supreme Court Justices: William O. Douglas“
Do you think the 9th Amendment covers Justice Kennedy’s opinion that there’s a Constitutional right to dignity? This post made me think back to that.
Just law naturally respects the dignity of persons simply by being impartial, but what Kennedy seems to have meant by a right to dignity? No, I don’t think the Ninth Amendment covers that.
As was pointed out, “Equal dignity looks like Pandora’s box to me. It is not in the Constitution and is ill-defined, vague and uncertain. No one really knows what it means in a legal context.”
Rights like freedom of contract, on the other hand, have pretty clear meaning in a legal context, and they’re rights our Founders wouldn’t have found, well, cuckoo. And, while there are advancements that call for recognition of new rights, those rights shouldn’t break with the tradition of the old. For example, there are more ways than ever now to hold intellectual property, and new forms of intellectual property have to be bounded by rights that make sense for those forms. Still, the basic theme of rights to property hasn’t changed.
I doubt Kennedy’s notion of equal dignity could be easily squared with an originalist understanding of unenumerated rights.
Okay, I suddenly discovered this post at ten to midnight local time, and it’s a typical Midge post in one obvious respect, it’s smart and detailed enough to deserve a reasoned, thoughtful reply. You’ll get it in the morning. RightAngles and JudithAnn are obviously on the case too.
My initial impression is also typical, of me, anyway: Midge’s analysis and suggestions are as luminous as the day.
Wow! Congratulations, Midge, this was a great Post. I don’t think I’ve read any of you stuff before. But this was wonderful.
And Right Angles stole my thunder. I was thinking of Kennedy also, as I was reading the Post. This is why I believe the Ninth Amendment was poorly drawn. I have not studied it, as apparently you have. And maybe it did make sense in the days when the document was being drawn up. But, in my judgment, at a time when the Left uses the Courts as a Super Legislature, the Amendment seems ripe for mischief.
While Kennedy is not on the Left, his finding of a right to dignity is the kind of thing which, I believe, makes people leary of the law. There is a nice article on this in the current issue of Commentary.
The problem as I see it is that Congress is only empowered to do certain things, and it goes way beyond.
As a practical matter, we can’t even manage to keep the Left from perforating the rights that are explicitly written down. How difficult is it to understand “… shall not be infringed”? Yet every day we learn from the Left that “shall not be infringed” really means “must be further constrained.”
I agree with Midge that the Ninth ought to be invoked much more often to constrain the tentacles of an overreaching Government, in practice it would probably just become carte blanche for every Progressive scheme under the sun. It would quickly go from an aid on constraining Government to being a mandate for all the things Government must provide. Of course I have a right to universal basic income and free healthcare and free non-carbon producing transportation and free housing and free education through graduate school and, and and The list would be as endless the list of human wants.
What we would have to do first is agree that whatever “rights” are, there are two basic flavors. There are rights to be free to … worship, speak, write, assemble, bear arms and according to the Ninth Amendment, other things as well. And because these ‘freedoms to’ exist, granted by our Creator, Government must not Restrict them. But whatever these “rights to be free to” are, they seem to be things I do for myself and put no obligations on anyone else. I am free to speak. But I don’t have the right to make someone compose a speech for me. Nor does it compel anyone to listen to me. My right to assemble does not obligate anyone to take me to the assembly point. Because I have the right to bear arms does not mean someone must arm me.
There are also the rights to be free from things. These ‘freedoms from’ chiefly constrain Government from using its powers against me. To the extent that these freedoms from place obligations on anyone, they are of the negative sort. Don’t do this and don’t do that.
If we could agree on this fact, that any unenumerated rights place no affirmative obligation on others – I don’t have to provide you with housing. You don’t have to provide me a college education – then the Ninth would be a valuable tool.
Brilliant post! Even the title is awesome . . .
I only briefly skimmed Barnett’s article, so I hope I’m not running afoul of him. That’s a fool’s errand. But, in answer to the question posed, if one wants to find support for a specific right, isn’t it “easier” to emanate penumbras? The Ninth Amendment recognizes the existence of rights beyond those granted by the Constitution. By definition, it doesn’t list those rights. So who’s to say what they are? I suppose that this could be a matter of digging back in history, which perhaps scholars have done (Barnett?), but I’d prefer an enumerated right any day.
Sorry, I’m still here, and nothing you’ve said has convinced me off of it. What, other than philosophical limitations, is to prevent five judges from imposing socialized health care on the country under the reasoning that it is an unenumerated right under the Ninth Amendment? After all, the entire rest of the world agrees that health care is a human right.
Is your only objection to Roe v. Wade that they cited the wrong amendment?
Cathy Newman, in her infamous interview with Jordan Peterson, mentioned a transgender’s “right to not be offended.” What, under your scenario, is to prevent a court from declaring that an unenumerated right under the Ninth Amendment and giving it the same weight as the First?
Your position would make sense in a world where there was a consensus on what constituted a right. In the real world, such an elevation of the Ninth Amendment would just give cover for the very judicial activism we’ve been trying to push out of power for decades.
Sandefur’s article in Cato Unbound, which I cited in the portion of the OP you quoted, is a very fine article, and explains the limitations which should exist, at least in theory. It does, however, as I said, have the luxury of taking place in an alternate universe, one where judges are committed to conserving our Founders’ conception of rights. The Founders, being schooled in the ways of common law, where rights are discovered through long custom, not “discovered” in some cockamamie corner of some clever judge’s brain, would understand that a judge’s role is to recognize the natural, customary law of the land, as documented by tradition, and not to mold the law in his own image.
As you point out, though, this alternate universe, although it is our birthright according to our Founders’ understanding, is not the universe we live in now. Your objection, therefore, is an eminently sensible one.
I suggested, at the end of the OP, that until the character of the bulk of our judiciary is restored (which I acknowledge may be never), our unenumerated rights are probably best protected by clever originalist lawyers who can reasonably tie these rights to our enumerated rights in some way. Now, Progressives would object that this, too, involves “emanations” and “penumbras”, in the sense that it involves broadly construing our enumerated rights to reflect as much of our traditional birthright as possible, instead of narrowly construing our enumerated rights while also inventing other “rights” to undermine them further. But what is rooted in history, and in the philosophy our Founders actually had, isn’t made up on the fly; ergo what Progressives would deride as “merely conservative emanations and penumbras — ha ha!” are really more like historical context, something judges should be persuaded to acknowledge whenever possible.
An activist judge will cite any Amendment if the words can be twisted to create an eminating penundra to back up a non-Constitutional ruling to make it appear Constitutional.
I’d like to find something Scalia has written on this topic. He’s been careful to distinguish his “textualist” approach from “originalism,” and I have a difficult time reconciling textualism with “unenumerated.”
I’m afraid the Left will always try to say the Constitution is a “living, breathing document” meant to be amended according to modern needs. We must constantly fight to maintain that it’s meant to be a foundation built on the rock of our principles, not on the shifting sands of trendy social fads.
Yes, it should be a matter of digging through history, and that digging should be part of a judge’s job. And to be fair, much judicial gruntwork is still exactly that: weighing the claims of precedent and its historical context in settling a case.
For example, if we had hundreds of years of precedent settling, say, water rights one way, and a clever attorney entered the courtroom citing the one freak case which settled them the other way, a good judge would not be duped, right?
The temptation to do something glamorous and novel in high-profile cases seems to be judges’ greatest temptation. Because we know high-profile judges have grown used to succumbing to this temptation, we have a powerful incentive to demand that they stick to enumerated rights only.
Obama wanted judges to operate on what is fair and have empathy. I guess what is just is not important to the left. What is just is sometimes not fair. And fair is subjective, which is more suited to those that want a living document. While it sounds compassionate, it is actually cruel, for it makes the law unstable, dependent on what the judge of the moment decides it is. In a recent opinion, Thomas questioned the ability of lower courts to enact injunctions that the entire nation has to answer to, and noted that it will have to be addressed as it is happening more and more. The left shops the courts.
One of the hallmarks of first world living is being governed knowing what the law is and will be. Large companies do not invest in countries that are unstable, and those that have become unstable, like Venezuela, are losing international businesses.
The last part of the book of Judges states that it was a time when Isreal had no king and everyone did as they saw fit.
I like this formulation. It might make a nice ad: “Vote for a Lefty, if you want constant shifting sands of trendy social fads!”
I share the basic objection. Yes, the Founders thought of unenumerated rights as things which had been done a certain way for years, and no one ever thought to write it down because why would you do that? And the 9th Amendment basically says “just because we didn’t write it down doesn’t mean the legislature can arbitrarily change it.” Which has always been in tension with the 10th Amendment (if the Constitution doesn’t explicitly forbid it, yes state legislatures can arbitrarily change it.” This would seem to, at minimum, limit the 9th Amendment’s effect to the Federal Government only.
My teachers described this as Madison’s great punt. Some people wanted the 9th, some people wanted the 10th. They couldn’t figure out how to only do one, so they did both and said “we’ll figure it out later.”
Which has been to ignore both, I think.
So the Straussian-influenced Justice Thomas* is all for natural law & natural rights (which he doesn’t seem to think are different), but the conservative favorite, the influential late Scalia was mostly against–because you cannot interpret them as you could statute. Most jurists on the conservative side are originalists, but not necessarily for natural rights. They’re more Constitution, less Declaration (unlike Lincoln, say…)
Now, Midge, common law & natural rights are very different things. Have been since natural rights became a big issue in modern political philosophy, with Hobbes & then Locke. Blackstone cannot square them; no one can.
Natural rights are not what you think they are. According to theory, government secures your natural rights. You surrender almost all of them when you agree to the social contract. This should be basic knowledge, but unfortunately it’s not & conservatives have been confused on this for so long that I dunno how we shall ever clarify the matter.
Next, the issue of the Founding. The Founders did not believe common law & natural rights are the same or in any simple way connected. Natural rights are foundational for America precisely inasmuch as Americans are not Englishmen. It’s disagreement on natural rights that makes American constitutionalism different from the British constitutionalism that preceded it. More than the common law, what both share in is Locke’s reasonable rationalization of natural rights.
Now, American politics includes a further big complication. As per the Federalist, the Founders thought that for government to secure rights–now civil, no longer natural–it has to be designed with a certain structure of powers & to act in certain conflictual ways. So no power can be trusted with the rights of the people. The three powers must fight it out & appeal to the people in various ways. The people have to know their rights & to want to defend them from the ambitious.
As for A9, my advice is to think of it as being about revolution–the one natural right that is impossible to surrender.
*In his autobiography, Thomas says he started studying natural rights with two Straussian professors, Ken Masugi & John Marini, students of Harry Jaffa, all three part of the Claremont Institute (where I also did a fellowship).
If so, why doesn’t Amendment Nine say just that?
To me, @sabrdance’s observation,
is more convincing, as is his observation that Amendments Nine and Ten together form something of a punt.
It seems to me that Blackstone and the Founders thought they could square them well enough, and that’s what counts. Was it wrong of Anglophones in Blackstone’s time to think that English customs of liberty have more respect for natural rights than other customs do?
Is it wrong to think that a good custom like the common law, working over time, tends to discover allocations of rights which give natural rights their due? It seems to me that lawyers working with common law treat common law as if that’s what common law does.
Absolutely brilliant post.
I think your approach to the ninth is about right. If I understand your point, a rigorous, historical based understanding of the common law rights at the time of founding is a good place to start in the task of defining what are the unenumerated rights and how they should be applied.
The argument that the Left will try to misconstrue that ninth is by now kinda moot. They don’t even bother to try to interpret the Constitution, and hardly even cite the penumbras anymore. That was nearly fifty years ago. Now, they go straight to their feelings, their desires and what they think ought to be, therefore there is.
There always will be arguments over our rights, but constraining them at least to a standard approach is a far better place to be than where we are now.
I would follow some of the recent ideas of Nassim Taleb where he points out that based on his historical analysis, it is those that are intransigent in the defense of their beliefs that win out in the end. Conservatives for most of my lifetime, and I am a old fart, have been far to willing to cower in the face of the Progressive Left’s arguments. It is far past the time when we should stand and fight for what we believe in.
Instead of saying we surrender our natural rights, don’t we really surrender our unbridled freedom to a government formed to protect our natural rights? Put another way, we trade off a little bit of total freedom to be protected from others who would violate our rights.
However, our present government has gone from being the protector of our natural rights, to becoming the “other” violating our rights.
A few days ago there was a thread on this under the William O. Douglas post. One poster pointed out some quotes from justices in the mid 20th century objecting to the idea that the 9th could be the basis for overturning any law, which was an idea that was coming into popularity. They pointed out that it had never been understood that way before, and that it was rather a guarantee against the federal govt moving beyond its designated powers. As long as the federal govt obeyed the limits put on it in the Constitution, unenumerated rights would be secure even if we can’t name them specifically. I think this is the only possible way to read it without opening up a subjective can of worms that leads to Roe and Obergfell. Admittedly though, the matter is complicated by the 14th Amendment.
To enter civil society, we accept some curtailment of our natural rights, but one would think a government that governs least (the best kind of government, after all, according to our Founders) would curtail these natural rights as little as possible. Which is as you said: “we trade off a little bit of total freedom to be protected from others who would violate our rights.”
And they are criticized for doing so. Why should we make it easier for them by implicitly endorsing the idea that, “It feels like it should be a right,” is a valid reason for recognizing it as one? All this talk about original understanding and Common Law is fine as a thought experiment, but it doesn’t reflect the reality that activist judges are still a significant concern even if they are not a majority, and the sort of resurrection of the Ninth Amendment that the OP proposes would only make their reasoning less burdensome.
I would actually rather deal with penumbrae and emanations because those are easier to refute.
It would be wonderful if the Ninth Amendment were considered reason enough for the federal government to never transgress its enumerated powers. If our unenumerated rights were recognized in this way — that is, not through us trying to enumerate the rights as needed, but through the recognition implicit in holding government to its enumerated powers — I would be ecstatic.
Me too
Blackstone was hated by Jefferson. He preferred Coke–so he wasn’t against English law… Blackstone superseded Coke in teaching law in America in the time of the Revolution, fairly quickly.
I don’t know what you mean about the Founders thinking much of common law in relation to natural rights. They’re primarily thinking about things far beyond that–the institutional systems of government for republics. Whether it’s state constitutions or national institutions. This is also an age of massive legislative oligarchic tyranny, so the notion that courts at state level were going to be of any help is pretty hilarious. The Founders are also the authors of doctrines of judicial review…
You can understand the common law in terms of natural rights. But that means subservience of the former to the latter & will involve some changes. Most lawyers have no damned clue what natural rights might be or how to think about right in terms of nature & don’t want to do it. Since the 1830s or so, the language of nature has disappeared gradually from American law–actually, it was almost complete around the turn of the century…
Look to Hamilton for a founder who was serious about natural rights, judicial review, & who wrote a manual for New York law to make sense of the craziness of the law. It was very popular, because Hamilton was remarkably good at discerning principles of right…
Look, I love Coke and Pepsi is not OK!