Mar 122003

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” What are these unenumerated rights?

Many theorists, of whom Robert “Inkblot” Bork is the most notorious, have denied that unenumerated rights exist at all. The dominant school of legal philosophy, legal positivism, which holds that the only source of rights is the law itself, obliges its adherents to take this position. Unenumerated rights, implying an extralegal standard, are for the positivist a contradiction in terms. Frank positivists, like Bork, say that the Ninth Amendment is meaningless; less frank positivists, like Justice Robert Jackson, simply profess not to understand it. All positivists devoutly hope that if they ignore the Ninth Amendment it will go away. Historically this strategy proved highly effective. Before Justice Goldberg’s famous concurrence in Griswold v. Connecticut in 1965, the Ninth Amendment had been cited by the Supreme Court fewer than a dozen times.

Reciprocists, in a variation on the theme, claim that the Ninth Amendment is a mirror-image of the Tenth, which grants all unenumerated powers to the States or the people. The Ninth grants rights, the Tenth restricts powers, and rights begin where powers end. They’re two ways of saying the same thing. Reciprocism has been surprisingly popular, considering its insuperable problems. There are all sorts of enumerated rights, like the right to be free of cruel and unusual punishment and excessive fines, or the right to a trial by jury, that aren’t implied by the absence of a federal power. The Federalists made this same reciprocal argument against a Bill of Rights at the Convention, and they lost. “It is odd indeed,” as Randy Barnett* says, “to insist that the best interpretation of the Bill of Rights is based on the theory of its most vociferous opponents.”

The text doesn’t support reciprocism either. State governments are enjoined from violating whatever rights the Ninth may grant, by the doctrine of incorporation, which reads the Fourteenth Amendment as applying the Bill of Rights to the states. Incorporation clearly must include the Ninth Amendment; otherwise the rights it grants would be “disparaged” by comparison with the enumerated rights. So the Ninth enjoins state and federal governments equally, while the Tenth grants powers to state governments that the federal government does not possess. These are distinct propositions.

(I have never understood the necessity for incorporation doctrine. Every article of the Bill of Rights except the first is phrased in the passive voice: “the right to bear arms shall not be infringed,” “excessive fines shall not be imposed,” etc. These rules seem to me to enjoin the state governments equally with the federal, ancient case law to the contrary notwithstanding. But until I persuade the Supreme Court to go along with this view incorporation will have to do.)

There are other variations. Raoul Berger argues that even if Ninth Amendment rights exist, they can’t be enforced by the federal government, which is a pretty undistinguished argument from such a distinguished legal scholar. If they aren’t enforceable, how they can be rights at all? If that’s not “disparagement,” relative to enumerated rights, I don’t know what is.

All of these theories effectively read the Ninth Amendment out of the Constitution, thus violating the first principle of Constitutional interpretation: every clause has an effect. This has been reaffirmed countless times and was first stated by Chief Justice Marshall in Marbury v. Madison: “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it.”

There must be some unenumerated rights that are not implied by the enumerated restraints on government power. A few theorists acknowledge this; but as their next line of defense propose to read these rights as narrowly as possible. Calvin Massey, for example, proposes that they be limited to “those having a clear textual foundation in state sources in existence at the time of the Constitution’s adoption.” Of all the clauses in the Constitution the Ninth Amendment, which is deliberately open-ended, lends itself least readily to this sort of historical analysis. The Founders could have easily enumerated these rights from the states if that was what they had in mind.

I see only one way to construe the Ninth Amendment, and it requires, as one might expect, the Founders steeped as they were in Blackstone and Locke, natural rights theory. Now I’m as leery of this venture as the next blogger without a law degree, maybe more so. Generally I’m a pretty strict textualist in matters of Constitutional interpretation, but the Ninth Amendment commands us to look outside the text. This doesn’t mean judges can construct new rights willy-nilly. They must be constructed by analogy with, and under the same philosophy that informs, the enumerated rights. All enumerated rights involve either spheres of action in which the government cannot interfere (e.g., freedom of speech, press, and assembly) or procedural restraints when it can (e.g., trial by jury, unreasonable search). Unenumerated rights must be of the same nature. So there can be no Ninth Amendment right to, say, welfare, or, as Ronald Dworkin has proposed, to “equal dignity.”

John Hart Ely, who himself takes refuge in Ninth Amendment reciprocism, calls this “scary,” and I agree with him. But Constitutional interpretation is a scary business, and in any case, the judiciary constructs rights all the time. The Supreme Court has decreed, besides the famed right to privacy, a right to travel, a right to marry, a right to keep one’s citizenship, and many others, mostly under cover of murky and abstruse doctrines like “equal protection” and “substantive due process.” I wholeheartedly support such decisions as Loving v. Virginia, which struck down anti-miscegenation laws, and Griswold, which struck down restrictions on the sale of birth control. I merely object to the tortured reasoning to which the majority subscribed in these and related cases. Judges make moral and philosophical judgments, and the Ninth Amendment authorizes them to do so, in plain sight.

*Most of the arguments in this article, good and bad alike, come from one or another of the contributors to Barnett’s excellent anthology of essays on the Ninth Amendment.

  7 Responses to “The Ninth Amendment”

  1. Good analysis, especially from a "textualist." (We’ll have to revisit the discussion about how the prohibition against cruel and unusual punishment applied to the death penalty during its long suspension under Supreme Court order.) One small point, however. The Federalists *won* their argument agains the bill of rights in the constitutional convention. That’s why they are amendments, which had to be added later to get several states to ratify the constitution.

  2. All compliments gratefully accepted, even backhanded ones. It’s true that the Bill of Rights was added later as a sop to several states, but since the amendments are on a par with the body of the main text, and the most ardent Federalists, like James Wilson, opposed the addition of any Bill of Rights at all, I think it’s fair to say that in the long run the Federalists lost.

  3. Minor correction: the Bill of Rights was not originally meant to apply to the states, which already had by that time their own "bills of rights." The "privileges and immunities" clause of the 14th Amendment WAS written (and intended) to do so. Early on in 14th Amendment litigation, however, the Supremes nixed that idea. So, while "plain meaning" and "original intent "could easily have justified "incorporation" from the outset of 14th Amendment analysis, it was completely chucked, and only through the vague" due process" clause of 14th Amendment, bit by bit, pieces of the Bill of Rights were slowly applied to states through a series of Supreme Court decisions in the 20th Century. Plessy wasn’t the only abuse of the 14th Amendment from the very start.

    Notice that the Bill of Rights begins, "Congress shall make no law …" and it does not duplicate kind of the language of Article 4 of the body of the Constitution, which does place certain limits upon the States.

  4. The Bill of Rights certainly was not intended to apply to the States, because the Founders regarded the states as guarantors of liberty against the possibly oppressive federal government. But if you just read the language, as I usually do, the matter is unclear. To begin with, it is hard to assert that something is a "right" if state governments are permitted to tread on it with impunity. Second, only the First Amendment contains a specific prohibition on Congress; the rest contain general assertions of rights.

    Even the "privileges and immunities" clause of Article 4, I think, could be held to apply the Bill of Rights to the states, without the 14th Amendment. But judicial history is on your side, not mine.

  5. I have to admire the extended reasoning here, though I lack the legal knowledge to follow it fully.

    As a poet, though, I am struck by the serendipity of the case name: Loving vs. Virgina. I had never heard of it before.


  6. Yes, that case is the source of many a legal joke, and it took all my willpower to refrain. Eugene Volokh called it the most aptly named case in legal history, and I’m sure he wasn’t the first.

  7. We, as Americans are losing most of our rights for just about everything. This includes the ninth amendment in a huge way. We have to watch what we say or we can get arrested, watch what we write, it may be misconstrued, can’t smoke anywhere, have to breathe smoke, watch our music, watch this and that. What next?
    This is supposed to be a free country, “Land of the Free.” Free of what?

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