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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“
I don’t think you understand what I mean. It is basic to the social contract theory that created natural rights in the modern sense–Hobbes, Locke–that you surrender your natural rights in exchange for civil rights. It is not a tradeoff. This is a typical American misunderstanding–abetted by Paine’s Common sense, if memory serves–but it has nothing to do with the theory of natural rights.
It has to do with how Americans think about their rights over against gov’t power (or gov’t rights, too, to use one of Hamilton’s striking phrases).
The only natural right you have right now is revolution. As per the Declaration.
I agree, but would point out that precedent is usually a more objective (and hence binding) than historical context, which IMO may still lend itself to subjective interpretations and disagreement. In the latter case, it’s why I suggested above, in answer to the question posed in the title, that that the Ninth Amendment alone is insufficiently specific to base a decision such as Griswold on.
But not easier to overturn . . .
I guess I have a problem with the term “surrender”. We don’t give up and submit to the authority of a government blindly. We accept the authority of government with the understanding it is there to protect our natural rights. All other rules and regulations derived by government should be made without violating said natural rights. If they do, then there had better be one heckuva good reason to do so, and it ought not be permanent . . .
Also, let me answer the post-title question. Dealing with A9 requires a coherent theory of natural rights. Their source, their character, & their import for politics. None of these things are obvious–friends of the Founders & originalism no more than enemies bother to learn about natural rights. It’s going to be very hard to bring them back. Some of us have been working on it a long time, with very little to show for it, but more than just nothing.
Penumbras, on the other hand, fit the incoherent view of Progress: We’ll know it when we get there / We’ll know it when we get angry about what we want. That requires no principled thinking & has the political advantage of not tipping one’s hand to one’s enemies.
Americans like to quarrel & to sue each other & to look for non-political solutions to their political problems in the courts, as much as in technology. That means, in America Progress is democratic tyranny, whereas natural rights are aristocratic tyranny. Really hard to sell, to defend, & to articulate.
Well, that would be highly relevant to the shared understanding of the framers of the Constitution, wouldn’t it be?
It seems to me their “thinking” was a lot of not having to explicitly think about it, just as when we speak a language fluently, we don’t have to explicitly think about the language we’re speaking, instead we’re thinking in the language — that’s sort of my point.
Blackstone, to a large extent, taught Americans the law — you seem to be saying that yourself. He taught passages like this:
That seems to be pretty plainly saying that civil liberty ought to respect natural liberty as far as it reasonably can, and that civil society has no warrant to curtail natural rights beyond the minimum necessary to permit civil society to function. True, people disagree on where this minimum is, but a goal of good government is to get close enough to it.
Common law seems pretty big on respecting natural liberties as far as civil society will allow (this, it seems to me, answers what common law has to do with natural rights). This feature of common law seems pretty evident in the law of nuisance, for example, which acknowledges that property rights in close quarters are necessarily somewhat different from property rights when you have no neighbors, but all of nuisance law presupposes that property rights are a given, that the purpose of adjusting property rights depending on proximity is to preserve those rights rather than destroy them.
American Founders knew their Locke more than their Blackstone. Remember, they were not all lawyers, though many were. & the important ones were not lawyers primarily, but politicians thinking about history & political philosophy. If you look at the quote you provided, it stares you in the face, it’s bastardized Locke. Not common law.
Now, next issue. The commonality between ‘natural liberty’ & ‘civil liberty’ there is doing what you want. But that does not make civil rights miscible with natural rights. Hard as it is, the first step is to get it into your head that natural rights correspond to nature, civil rights to civil society. We try to understand the latter in terms of the former & with adequate care we could get far, but let’s not forget that thinking & doing are very different things. When it comes to deeds, you realize you have no natural rights to speak of–save revolution–any time you’re faced with administrative caprice or tyranny under law. Let’s not kid ourselves.
It’s useful to conflate nature & civil society because Americans are so angry; it makes for good politics sometimes; but it’s not really thoughtful.
It’s a pretty big coincidence, then, that the same Anglosphere that produced Locke, and Blackstones who bastardize Locke, also produced common law.
Common law did not have to start out with an explicit philosophy driving it in order to arrive at a pattern which might inspire philosophical justification of law after the fact. Maybe it was no accident that Blackstone bastardized Locke to explain the law of his place and time, which was a common-law country in the years before the American Revolution. Maybe supposing it was no accident is a very American/English/economist/Hayekian thing to do — it’s supposing the law’s purpose evolved from human action and not human design.
To suppose the Founders recognized this purpose, and decided to make it explicit through political reasoning, is perhaps even more American.
It seems true that Americans have a custom of thinking of what they call “natural rights” in a certain way, an English-speaking way, which is probably not the way, say, scholars chiefly devoted to the Classics would. But if this custom of ours was established in revolutionary-era America, and has continued since, isn’t it the right custom for interpreting our laws? It seems our custom for understanding our law would be relevant to its interpretation.
Midge, Locke was not produced by England. Nor was Hobbes. The common law was–that was part of England for long centuries before any philosopher darkened England’s green & pleasant land! That the philosophers influenced so many later thinkers & politicians, however, is not an accident, nor in what way.
Customs don’t last like philosophers do. Americans still swear by Locke any chance they get. More than is usually recognized. But the common law was massively curtailed both by constitution-making & by statute. Again, the customs of the last century, for conservatives, so called, go in the direction of Rehnquist or Scalia. Or rise to their apex there. Not the common law.
It was, however, the background knowledge of law the Constitution was written on.
Sure, statutory law has the power to massively curtail it. And the Constitution explicitly sets down an arrangement of rights and powers, which is a rather un-common-law-like thing to do, compared to studying all those case histories. But if originalists wish to understand originalism, it seems wise for them to take into account that Constitutions don’t spring out of nowhere (and neither do statutes, though statutes often seem to come from somewhere cleft and smelly), and it just might matter that the people writing our Constitution were used to the rule of common law.
Background knowledge is actually very hard to argue. Midge, if you’ve read the US Constitution–your understanding is, it’s sort of like the common law? Really? If you want to know where it comes from, it’s the Founders. If you want to know what they did, look at how obsessed they were with reading history & political philosophy & the constitutions of any republic they could get their hands on, especially Madison & Adams. If these men had cared much about the common law, there would have been no period of feverish constitution-making at state & national levels. You seem to agree with that.
Midge, just learn to live with it. The common law is mostly dead. Modern politics is inextricably connected with the domination of statutes. The limits to positive law come from teachings about natural rights. Originalism is not enough with it. (See Scalia, again, or Rehnquist, or most others…)
No, it was written by people who were used to the common law, though. In particular, who were used to rights being customary, rather than explicitly stated.
Political concern for the law is focused on statutory and constitutional issues, yes. In everyday life, though, why would Americans so often threaten to sue (or wonder if they could sue, and so forth) if common-law thinking were so dead? The idea that we can appeal to the law for remedy, even when we’re not appealing to a statute or the US Constitution, is pretty ingrained in American thinking.
Litigation has nothing to do with the common law. It’s essentially democratic. Athenians were famous for it. Americans today, too–but not really Americans 300 years ago…
Being used to the common law is not meaningful. It has to be thought through. When you know for a fact how the people who made the constitutions were thinking, that should count more.
The key to the 9th Amendment is its first part; “The enumeration in the Constitution, of certain rights”. The 9th, and the other amendments, we now refer to as the Bill of Rights, grew out of the debates over the ratification of the Constitution. One of the anti-Federalist objections was to the lack of a Bill of Rights in the proposed document, and several of the ratifying conventions also passed resolutions calling for a Bill of Rights. Madison and other did not see the need for a Bill of Rights because they viewed the Constitution as merely granting some limited and constrained powers to the new Federal government, with all other rights remaining with the people or the states. In his view, the Constitution drafted in Philadelphia was one big Bill of Rights for the people. For political reasons Madison agreed to proceed with the amendments and introduced them in the first Congress. The language in the first part of the 9th is intended to make it clear that the specificity of the eight prior amendments is not used as a rationale for expanding Federal government power. The second part of the 9th is intended as a catch all to make its purpose clear.
That’s why figuring out what rights the people have is actually secondary. The 9th constrains (at least until the New Deal Court created a new constitution), the federal government from acting outside its carefully defined parameters. That’s why the 9th can’t be used to declare a “right” to healthcare in order to justify a new government program.
It was also a troubling facet of Judge Bork’s jurisprudence, leading him to a crabbed view of individual rights under the Constitution. And it’s still a fault line dividing conservative justices.
The founders had lots of things in their heads, only a part of which was what philosophers had to say. Part of it was how to get their business done and over with, because it was hot and muggy in Philadelphia, the need for improvement could not be put off, and everyone had other business to attend to. Part of it was how to protect their sectional and socio-economic interests, while coming to common agreement with others who had their own sectional and socio-economic issues to protect. They could gloss over a lot of details because there was a background of tradition and common law to fall back on. What they came up with was less of a designer government than a compromise over competing interests, and I say that’s a good thing for all except those whose interests didn’t have a base of power that was represented at the meeting. A better designer government would have protected those interests, too.
People! Read the Constitution. The common law is not part of it! I am amazed that this keeps coming up. Reasoning about the powers of gov’t & the principles of right is not available to lawyers or judges now or then.
I agree that there were all sorts of compromises & all sorts of circumstances. But those things don’t make sense except as corrections or limitations of principles that do not come from colonial experience. These people read books of public law. They talk about Grotius & Puffendorf. They talk about Locke. Sidney. Cicero! & the ones most involved at the top read especially on constitution-making & what it means to make laws.
You have to understand how little experience of this there was. There’s none now. None. You have got to broaden your horizons. Your Founders are the only example we have of the benefits of a liberal arts education! These people grew up with Plutarch.
If you want to see an American without a classical education, look at Washington. He turned in the same direction. He presided over men far more learned than himself & approved of their ideas. Most of us, unlike Washington, are not that good at judging. We need more learning.
But my advice is, take your Founders seriously–it’s why I keep doing podcasts on them! Learn how they thought–think about the incredible daring of Constitution-making & the groundwork of the theory of natural rights. These teachings have served America well for so long. They are far more distinctively American than the common law!
In practical reality, the ninth cannot guide jurisprudence. It doesn’t give you any details to do so. It’s sort of like the part of the eighth amendment that says excessive fines shall not be imposed. For purposes of adjudication, that’s tautological and was no doubt included for political effect. Perhaps it can remind a legislature to think twice when setting fines, but it cannot help a judge to determine if a fine is excessive. Neither can the ninth tell a judge what sort of laws are unconstitutional.
Er, how long has it been coming up? That is, for how much of American history?
That would surely come as shocking news to many lawyers and judges!
Don’t worry about that. You can simply follow the common agreement of Americans that the Founders were special, on account of their Founding.
This is a great point. I have always been surprised that there is so little discussion of the inherent tension between the Ninth and Tenth Amendments. I think you are right that the Ninth Amendment was meant to be understood, at the time, as not applying to the states. Of course, none of the other rights in the Bill of Rights were protected against infringement by the states either, until the Civil War and the Fourteenth Amendment vastly changed the balance of power between state and federal governments.
I think it is worth bearing in mind that the fundamental problem which the Constitution set out to solve was how to preserve the basic sovereignty of thirteen colonies (which largely thought of themselves as something much closer to independent nations than constituents in a federation), while allowing cooperation among the colonies in matters which affected their common welfare, such as mutual defense and inter-colony trade. The first effort to solve this problem – the Articles of Confederation – had failed. The colonies recognized the need for a stronger central government to address problems of mutual concern. But they certainly were not prepared to cede the new central government broad powers to limit their own sovereignty over their citizens. Was the Ninth Amendment Madison’s sneaky effort to leave a backdoor in the structure to eventually allow broader limits on state sovereignty? Maybe; or maybe not. But it was all made moot by the Fourteenth Amendment.
Might have to look at the chronology. At one time he advocated a federal veto over state legislation, but he changed his opinion later.
Agreed. For starters, see here.
“. . . the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be . . .” dissenting, Troxel v. Granville (2000).
Whether you agree with Titus or not, give him some props for participating at this level. What he and Midge are talking about is frankly over my head. I can tell you that I’d be vastly less qualified to write Romanian language op-eds for Bucharest’s Romania Libera about the falsifications of history in the main museum of Timisoara.
I love the humility, Gary. Bless you!
Here’s a fun tidbit from Roscoe Pound of all people. I mentioned liberty of contract in the OP a few times, and ol’ Roscoe’s case against liberty of contract being a traditional American right is actually one of the better cases for it being such a right:
I couldn’t help including some editorial remarks ^in there. Fun stuff!
Titus and I are frequently arrogant jackwagons to each other in argument, but we’re also friends. He is a dear.
You can grow really fond of people you have flaming rows with on Ricochet, at least when the rows are civil.
Thanks!
Good post, Midge. There are a couple of different issues that this raises.
First, as originally understood, the Bill of Rights only applied to the federal government. You mentioned this, but it bears repeating.
Second, you have a pretty good argument that both the key enumerated and unenumerated rights were incorporated into the privileges & immunities clause of the 14th Amendment. Unfortunately, we have about 150 years of stare decisis working against this argument, as it was rejected in the Slaughterhouse Cases (mid-1870s, I think).
Third, many enumerated and unenumerated rights ended up being incorporated through the due process clause of the 14th Amendment. It’s not all of them, though I think it’s most of the major ones. For example, the right to a jury jury trial in civil matters with more than $20 in controversy, in the 7th Amendment, isn’t applied to the states.
Fourth, the interesting and difficult question is what to recognize as a “right,” particularly in the unenumerated category, that would warrant extreme protection such as invalidation of a duly enacted statute. These are generally called “fundamental” rights, and then the hard question is what makes a right fundamental. There are two traditional formulations: it has to be “implicit in the concept of ordered liberty” and “deeply rooted in the Nation’s history and traditions.”
I never found the “ordered liberty” formulation to be of any help. It strikes me as mere rhetoric.
I do find the “deeply rooted” idea to be the best guiding principle.
Fifth, even if we agree on this principle, the difficulty is how to characterize the right at issue. In Bowers v. Hardwick, the 1986 sodomy case, the majority found that protection of “homosexual sodomy” was not deeply rooted in the nation’s history and traditions. To the contrary, the illegality of such conduct was the deeply rooted thing.
The 4 dissenters characterized it differently, stating that “this case is about ‘the most comprehensive of rights and the right most valued by civilized men,’ namely, ‘the right to be let alone.'” The problem with this formulation, of course, is that it applies to practically everything. Don’t like a building code? Hey, I have a fundamental right to be let alone. Don’t want to provide worker’s comp coverage for your employees? Don’t worry, there’s a fundamental right to be let alone. Running a red light, speeding in a school zone? Hey, let me alone!
I do think it is a legitimately difficult question to determine what rights are sufficiently fundamental to warrant serious Constitutional protection. I found the dissenting argument in Bowers to be specious. Other cases are considerably harder, with reasonable arguments on both sides.