Stayin' Alive

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Slate legal writer Dalia Lithwick is soliciting thoughts on the idea of a "living Constitution," which even many liberals now seem reluctant to defend. Now, part of the problem is that a lot of people really do seem to think, as Lithwick puts it, that the alternative to some species of originalism is "judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want." Consider some of the approving reactions to decisions in Raich or Kelo: There's usually a sense that they implicitly acknowledge that neither is really defensible as a reading of the Constitution's text, but if they'd gone the other way, then goddamnit, someone might think Congress isn't empowered to protect the snail darter, and the seas would boil. Bad jurisprudence, on this view, seems to be whatever obstructs good policy. (Let me, incidentally, include myself in the class of folks Lithwick mentions who's strongly in favor of the effect of Roe v. Wade without quite being able to convince themselves it's really good law.)

That said, I've never found the popular varieties of originalism particularly tenable either. Sophisticated originalists usually recognize that an "original intent" standard isn't going to be workable in many cases: First, because we don't have many mind-reading time travelers on the bench. Second, because there's no guarantee that a diverse gang of Framers would've agreed on how to apply the text. Third, because questions like (say) whether Gouverneur Morris meant "search" to apply to telephone wiretaps or infrared scanning, or whether blog posts are protected as "speech" or "press" (if we're hyper-literal, they're neither), flirt with meaninglessness. These problems often prompt a shift to an "original public meaning" standard, but the very same problems, mutatis mutandis, reappear there.

There's also the niggling problem of the Ninth and Tenth Amendments. Unless you think the Framers were just, you know, doodling there, those should probably be interpreted to mean something—the trend of modern jurisprudence notwithstanding. The historical record makes it abundantly clear that the Framers did expect the judiciary to use the Constitution to check legislative overreach. But that's got to be a serious problem for the strict constructionist: The Constitution is effectively saying there are things Congress mustn't do (and, by implication, that the courts mustn't let it get away with) but they're not in here, guys. More could be said in this vein, but you get the drift.

At the risk of being tarred and feathered, I'm most inclined toward Ronald Dworkin's approach, based on what I know of it. (Confession: Dworkin's Law's Empire is one of those "classics" I'd love to have read, but haven't thus far actually wanted to actually get through reading.) Dworkin, perhaps like all of us, tends to find a few too many of his own policy preferences—just coincidentally, mind you—endorsed by his preferred jurisprudential approach. But the attempt to navigate a course between an incoherent strict constructionism and monkeys on chandeliers strikes me as sound. Original intent and meaning set some interpretive parameters—smoking a joint in my closet can't be "commerce"—but it's not the end of inquiry either.

Here's one potential application of the approach I have in mind: Consider the question of whether the Fourteenth Amendment's guarantee of "equal protection" should be read to mean that gay couples must be afforded the right to marry or, at the very least, some kind of civil union arrangement that would cover the same legal rights bundled with marriage. I've no doubt that a late 19th century sample of legislators or ordinary citizens would deny that it did. In the cultural context of the time, the question wouldn't even have come up. But, as with "search" or "speech," the proper approach here isn't to try to method-act James Madison—the "intent" or "meaning" we're looking for from the framers is at a higher level of abstraction than the specific application. That either ingrained prejudice or a set of factual misapprehensions about the nature of homosexuality might've prevented the application of Equal Protection to a case like this in 1890 should be neither here nor there; we want to look at the form of the principle they endorsed (the law should not make arbitrary or invidious distinctions between classes of people) and see whether there are internal reasons to extend it (or not) in this way. (Hayek's familiar point about the legitimacy of law residing in its generality also mitigates against fetishising the response we imagine some set of people at a specific historical time would've had to a particular case, which implies that the normative force of law is bound up with some special right to bind future generations possessed by the Framers.)

The phrase "living constitution" has deservedly earned a lot of ugly baggage. A jurisprudence that endorses whatever five judges think our "evolving needs" require reduces the law to meaninglessness; if nobody's willing to defend that anymore, that's all to the good. But the Constitution is a document of broad principles. The best translations of poetry are almost never literal word-for-word transliterations. So, too, good constitutional translation demands some sensitivity to context and probably a greater willingness to abstract than most "strict constructionists" would be comfortable with.

Well, that should be enough blood in the water; attack!

ADDENDUM: The Lawrence Lessig paper [PDF] linked above may actually be what Lithwick's asking for: A good, relatively recent atempt to defend an interpretive method more flexible than what strict construction allows without (one hopes) degenerating into chandelier monkeys.

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  1. Kelo is a bad example, as private-to-private takings for economic development were considered kosher even in the 1790s.

    Perhaps, though, the appeal to orignialism in the Kelo case is a perfect example of people wedding the results they like and a school of Constitutional thought too closely together.

  2. One good test of a theory of jurisprudence/Constitutional interpretation is whether it leads to any outcomes you would not prefer.

    For example, I take a relatively originalist approach and think the church/state separation we have now goes way beyond what the Constitution actually mandates, though I’m happy enough with the de facto situation we have now.

  3. Although I favor gay marriage as a “freedom to contract” issue, I’ve always thought the equal protection argument was kind of weak.

    Right now, everyone has “equal” marriage rights: everyone is equally free to undertake a marriage with one other person of the opposite sex.

  4. Monkeys swinging from chandeliers? Oh, for a moment I thought you were talking about congress… (rim shot)

  5. Right now, everyone has “equal” marriage rights: everyone is equally free to undertake a marriage with one other person of the opposite sex.

    “If the negro is denied the right to marry a white person, [and] the white person is equally denied the right to marry the negro[,] I see no discrimination against either.”

    link

  6. Right, just like everyone under anti-miscegenation laws was equally free to marry someone of the same ethnicity. Courts rejected that as sophistry half a century ago.

  7. What people forget is that the Supreme Court was never intended to be the sole arbiter of the meaning of the Constitution. The states, the Congress and the executive branch were all given the power and the duty to interpret the Constitution. For example, if Bush really believed that McCain Feingold was unconstitutional, it was his duty as President to veto it. Unfortunately, today it would be unthinkable for a President to say that he has the duty to not only enforce but to interpret the Constitution. The details of the meaning of terms like “search and seizure” and “due process” ought to be left to the state legislatures and Congress to interpret. The Supreme Court should only step forward and invalidate a law when there is no rational way that it could possibly be allowed under the plain language of the Constitution. What this would mean in practice is that the courts would apply a rational relationship test to all laws and throw out strict scrutiny. Obviously this would cause the Court to defer to the legislatures a lot more than what they do. It would also mean that people would have to fight for their rights and policies through the democratic process rather than shoving them down their opponents? throats by judicial edict. This would free us from being tied to the “original intent” of the framers and allow legislatures and executives and ultimately the electorate to change the meaning of the Constitution to fit the times within rational boundaries set by the Courts. In short, I understand the impracticality of always divining the “framers intent” but I would rather have elected officials swinging from chandeliers than unelected judges.

  8. One advantage of originalism seems to be predictability in results. The results themselves may seem silly, but at least then there’s a starting point from which to proceed in future legislation or Constitutional amendments to remedy the silliness. A “living Constitution” is a crapshoot. One can’t really predict what penumbras are emenating from which Amendments in the mind of a particular judge, and you can’t really plan future actions based on such things.

    If originalism and the living Constitution are at such odds, then it seems the answer is–federalism. If there are two heated factions in the US who cannot agree on which method to use, at least punt divisive questions to the states. A silly decision at the federal level affects all of us. A silly one in Wyoming or Vermont affects very few of us.

    But I ramble.

  9. Joe, slavery was kosher in the 1790’s. Fortunately some folks had the sense to change things. Took an amendment to get it completely straightened out. Its never too late.

  10. Can’t we limit ourselves to one Constitutional debate thread per day? Please? sigh…I’m already tired from butting heads with gaius.

  11. I have thought for some time that the various labels put on constitutional interpretation are essentially devoid of meaning because the methodology is almost always outcome-driven in the “hard” cases (which are the only ones any one talks about anyway). The problem, at it’s root, is that regardless of what methodology is adopted there will inevitably be cases where an unelected Judiciary is making policy decisions better made by the elected branches of government. So, what is the answer? How ’bout this: If the court invalidates a federal law or governmental action, and the vote is 5-4 or something less than a real solid majority (7-2? 8-1?), then the government may still act if there is a supermajority (2/3?) in favor. I’m not sure what to do about decisions affecting individual states, but perhaps if supermajorities of the particular state legislature AND the federal legislature approved, the ruling could be overruled without the need for a constitutional amendment. OK, I’ve stuck my neck out–start chopping.

  12. When did saying that the government is disallowed to do something become a “policy decision”? Saying that abortion cannot be illegal is not a policy decision. It is an application of Natural Rights theory (although Roe does it in an ass-backwards way). This is what the job of SCOTUS is, and the reason why it shouldn’t be influenced by politics.

  13. The Living Constitution approach should be feared by liberals because for us non-liberals, there’s nowhere to go but up. If a future Supreme Court starts finding new Lochner-esque economic rights and strikes down all the liberal nonsense of the last 50 years, well it’s a living constitution right?

    I would love to see the Court fallin love the 9th and start striking down the FDA and other Drug War related excesses, for instance. It would be perfeclty reasonable in light of the liberal approach.

    of course, next up would be a plethora of labor laws and other regulations that hinder my right to make a living as I see fit…

    nmg

  14. fluffy, in 1950s Alabama, everyone was equally free to go into the bathroom reserved for their race, and everyone was equally unfree to go into bathrooms reserved for other races.

    A gay man equally free to marry someone he is incapable of ever loving or being intimate with, as I was free to marry the love of my life. The statement makes a mockery of the words “equal” and “free.”

  15. MP: OK, delete “policy” from my proposal. Now make your argument. It is the “job” of the Supreme Court to apply “natural rights theory”? I wonder what Scalia thinks of that idea.

  16. A thing can be an offense against liberty without being an offense against equal protection of the laws.

    And I must have missed the section of the marriage laws where they specify that everyone gets to marry the love of their life.

    All law is sophistry.

  17. I wonder what Scalia thinks of that idea.

    Scalia is wrong with regards to what SCOTUS’s responsibility is for enforcing the Ninth amendment.

  18. “And I must have missed the section of the marriage laws where they specify that everyone gets to marry the love of their life.”

    So you’re going to pretend not to know the difference between “get to marry the love of your life” and “free to marry the love of your life?”

    OK, play dumb.

  19. MP: Well, I don’t know if Scalia is “right” or not, but if my state passes a “right to die” law, I don’t want him and his fellow travelers to invalidate it if the majority of people in my state want it. Uh oh, I may have to revise my proposal again–the federal legislature may not agree–OK, they’re out too.

  20. I’m not playing dumb, I’m simply pointing out that from the perspective of government, marriage is a contract arrangement, and the reasons one might choose for entering into that arrangement are irrelevant.

    One might choose to marry because one has met the love of one’s life. One might choose to marry because one’s parents had arranged it. One might choose to marry on a lark. One might choose to marry for pecuniary advantage. One might choose to marry because one party to the marriage has gotten “knocked up”.

    None of these are relevant to getting the license.

    If the state makes its licenses available to everyone on the same terms, it would seem to me that the state is equally applying the law.

    Of course, if those terms are unfair to everyone or absurd on their face, the law could still be offensive to liberty, and I would still oppose it.

    I can think of any number of laws that could be equally applied that would still be offensive and worthy of opposition.

    You seem to be mistaking my belief that the equal protection claim is weak with a belief that gays shouldn’t be allowed to marry – and they aren’t the same thing.

  21. Where is marriage mentioned in the Consititution? Is it between the same lines where y’all found a right to privacy?

    The Ninth and Tenth would seemingly preserve one citizen’s rights to behave abominably toward any other citizen. Our government was not intended to be the means of redress for every difficulty in society. But when you can’t persuade, you legislate. That’s all good for joe, but Julian claims to have a libertarian decoder ring.

  22. Julian, this posting was sweet. I’ve been dabbling in legal studies here lately, and it’s actually a huge problem for scholars. What’s especially interesting is the role reversal that you see on the 2nd Amendment, where avowed non-originalists like Saul Cornell and David Konig suddenly offer very narrow “originalist” readings that claim that the Amendment only offers the right of militia to their arms. It raises a question about what strategy leftist jurisprudes might take – adapt a quasi-, opportunistic “originalism”, that allows them to accomplish whatever policy goals they have in mind, all while putting conservatives on the defensive. That’s precisely what Cornell does in the link above, where it’s the conservatives, supposedly, who are not keeping fidelity with the Constitution. I think it was Laura Kalman’s “Border Patrol” that more or less advocated a strategy like this.

    Yeah, I’m writing a paper on this. 🙂

  23. And Randy Barnett’s approach kicks ass.

  24. If the state makes its licenses available to everyone on the same terms, it would seem to me that the state is equally applying the law.

    I guess that would be the “separate but equal” theory of marriage rights.

    Where is marriage mentioned in the Consititution? Is it between the same lines where y’all found a right to privacy?

    When a “libertarian” is talking disparagingly about the right to privacy, perhaps all hope really is lost.

  25. Well Supreme Court’s view is that the freedom to marry is a fundemental (unenumerated) right.

  26. To my mind the Ninth and Tenth Amendments don’t pose the problem you describe if you just remember that there was controversy about whether a bill of rights was even needed. These amendments are reiterating that Congress’s powers are *limited* to what is allowed in the main text. To suggest that these amendments are intended by themselves to create a bunch of unspecified rights is a red herring — it’s the court’s responsibility to look in the Constitution for positive permission for any particular government action, and if permission is not there then the action is, well, impermissible.

    None of this, of course, addresses the legislator’s inclination to squeeze a new power out of any possible ambiguity, however slight. The question is why the courts let them get away with it.

  27. David-
    Well, no, I think if you look back at the ratification debates, you’ll find one of the arguments that carried some weight in favor of a bill of rights was that even the powers genuinely granted to Congress *could* be used to infringe rights we want protected. Even within a relatively narrow reading of the Commerce Clause, for instance, it only takes a little imagination to gin up scenarios where that power could be used to restrict speech. Ditto, say, the 4th amendment, which involves a check on police powers.

  28. Well Supreme Court’s view is that the freedom to marry is a fundemental (unenumerated) right.

    I know this is what Loving said, but wouldn’t it be an easier sell to claim that Equal Protection requires equal access to marriage? Obviously there are some bases on which the state must discriminate in allowing marriages, but race and sex are generally agreed to be off limits, by virtue of the 14th.

  29. Biff-
    Well, as you doubtless know if you’re familiar with Loving, equal protection analysis is pretty thoroughly tangled up with the status of the liberty being burdened, so I don’t know that the issues are separable.

  30. Even given the history of the Bill of Rights and the 9th & 10th Amendments, I don’t think the 9th should be read purely as a gloss on the preceding 8. It makes more sense to me, especially in context, as a recognition that the list is non-exclusive and that there are other rights protected by the Constitution. Certainly it’s a more plausible source for a right of privacy than emanations from penumbras and undefined “due process”, especially of the substantive variety.

  31. I don’t want him and his fellow travelers to invalidate it if the majority of people in my state want it

    Sorry Ron, but majoritarianism does not grant you a license to piss all over an individual’s Natural Rights. One of the primary functions of the Constitution is the protection of these rights from the whims of the majority. What are the boundaries of these Natural Rights? Well, that’s a big part of the job of SCOTUS, adjucating boundaries based on Constitutionally prescribed parameters. When the Constitution is not specific about a particular “right”, then it is up to the court to utilize hundreds of years of philosophy and law to make its judgement.

  32. My take on all this:

    1) I agree with Shelby on the 9th amendment. I always looked at it this way: Say the feds do something that violates one of your rights. You call them on it. They try to put the burden on you by saying “Well, where in the Constitution does it sway you have that right?” The 9th amendment turns it right back on them and says that the absence of an enumerated right doesn’t imply any extra authority for the feds. So if they want to justify an action they have to, well, justify it. They can’t just say that you aren’t protected. They have to point to something in the Constitution that explicitly authorizes them to do it.

    So, in practice, the 9th amounts to a reiteration of enumerated powers. Now, it may hint at the language of Natural Law or Natural Rights or whatever, but the practical effect is to reiterate the notion that the feds are limited to enumerated powers. Which is, admittedly, somewhat redundant with the 10th, but it’s such a good point that I guess it’s worth making twice. Besides, it emphasizes the concept from the angle of “rights” reserved to the people rather than “powers.” Which, in my practical perspective, is somewhat semantic, but it’s a good enough point that it’s worth making it in more than one way, just to be safe.

    2) On originalism: I’m no expert on all of the different schools of Constitutional thought. Here’s what I do know:

    Anybody who claims that “The Constitution just means what it says and that’s that” is over-simplifying. There will always be ambiguities and gray areas and whatnot. Even the people who wrote it had profound differences of opinion on how to interpret it.

    Nonetheless, while some questions are genuinely gray, no reasonable person can claim that a few phrases in the Constitution are blank checks that render the rest of it meaningless:

    We can debate over the precise limits of Interstate Commerce, but anybody who thinks it means anything and everything under the sun is clearly wrong.

    We can debate the precise powers of the Commander in Chief, but anybody who thinks he can capture a US citizen on US soil and hold him indefinitely without trial is clearly wrong.

    We can debate the preise definition of “public use”, but anybody who thinks it means whatever a City Council spins it to mean is clearly wrong.

    I’m open to interpretations that are broader than what the Founders intended (or allegedly intended), but I insist that judges at least hold these phrases to have circumscribed meanings.

  33. “Kelo is a bad example, as private-to-private takings for economic development were considered kosher even in the 1790s.”

    Can you give some examples?

  34. Can you give some examples?
    joe likes to point to the Mill Acts, which Thomas also pointed to in his dissent. I agree with joe that private-to-private takings have always been part of ED law. The key principal is not the parties involved, but the “public use” aspect. Kelo granted municipalities more leeway in judging for themselves what “public use” meant (which is why it was wrongly decided, but I really don’t want to get into that debate again).

  35. Biff: I disparage the method of defining the right, not the right itself. Privacy is valuable, but not mentioned. Rather than rely on the fickle extrapolations of the Supremes, amend the contract and make it an explicit right of the people (and therefore an explicit limit on state action).

    But then, as thoreau reminds us, the living Constitution has been interpreted such that intrastate commerce is equivalent to interstate. That’s even goofier than ignoring those vague “Congress shall make no law…” pronouncements. What we have is a dead Constitution with living interpretation. If the contract was truly alive, the words themselves would be changing.

  36. So, in practice, the 9th amounts to a reiteration of enumerated powers.

    I don’t think rights and powers should be taken as mutually exclusive and exhaustive. Rights sometimes create exceptions to powers: the power to regulate interstate commerce can’t be used to censor books, movies, music, etc. that are sold across state lines, because it would violate the right to free expression.

    I find Randy Barnett’s take very persuasive: the 9th was intended to protect our ability to do all sorts of things within a “private domain” that the govt has no business interfering with.

    Which is, admittedly, somewhat redundant with the 10th, but it’s such a good point that I guess it’s worth making twice.

    I think you can read the 10th as divvying up powers between the feds and states, but individuals’ rights can still carve out exceptions to either.

  37. I guess what it comes down to is that the 9th and 10th set the ground rules for how the rest of the Constitution is to be interpreted:

    9th: Whatever else one might read into it, the bottom line is that the government can’t use omissions as a blank check.

    10th: When in doubt, any power not explicitly delegated to the feds is, well, out of bounds for the feds. Whether it falls to the states or the people can be a thorny question, but the main purpose of this amendment is to make it quite clear that it’s not a matter for the feds.

  38. A “living Constitution” is a crapshoot.

    a fundamental impulse to the entire idea. fearful of a future they cannot control, originalists pretend to turn back the clock. of course, as with all archaism, you cannot really go back — and the whole idea amounts to revolutionist futurism in drag.

  39. The Supreme Court should only step forward and invalidate a law when there is no rational way that it could possibly be allowed under the plain language of the Constitution. What this would mean in practice is that the courts would apply a rational relationship test to all laws and throw out strict scrutiny.

    thus effectively eliminating the third branch, leaving the other two — mired in groveling populism — to rewrite law on plebiscitarian whim. you say it yourslef, mr john:

    In short, I understand the impracticality of always divining the “framers intent” but I would rather have elected officials swinging from chandeliers than unelected judges.

    that’s all originalism is about, in the end, just as the fight over the filibuster — destroying any remaining barrier to a jacobin dictatorship of freedom.

  40. Anybody who claims that “The Constitution just means what it says and that’s that” is over-simplifying. There will always be ambiguities and gray areas and whatnot. Even the people who wrote it had profound differences of opinion on how to interpret it.

    Nonetheless, while some questions are genuinely gray, no reasonable person can claim that a few phrases in the Constitution are blank checks that render the rest of it meaningless

    amen, mr thoreau.

  41. Wow, gaius and I are in complete agreement on something!

    Incidentally, how are things going for you? Has the baby arrived yet?

    Last weekend I was in San Diego for a conference. I have in-laws in the area, so I went to visit my little nephew. He’s 17 months old now, and I spent a good portion of the weekend riding around on his toy fire truck. Little children are truly a delight.

  42. 9th: Whatever else one might read into it, the bottom line is that the government can’t use omissions as a blank check.

    Well, yes, but…

    Going back to the argument that rights and powers are not inverses of each other: the 9th talks specifically about “rights” of the “people” and not powers of the govt. A right (at least a negative right) is an immunity against govt interference with some aspect of your freedom. Some govt powers involve restricting individual freedom, and some don’t – the 9th must be talking about the former and not the latter.

  43. I’m particularly fond of Randy Barnett’s ideas about constitutional interpretation.

    In particular he advocates Original meaning originalism which, contrary to the Main post, does get around many of the original intent issues. Particularly there is no need to channel anyone, a good dictionary from around the time of the founding will suffice. He then modifies this slightly to avoid the Jefferson didn’t own a computer problem by separating constitutional interpretation, from constitutional construction.

    The idea is that the constitution is often intentionally vague in its original meaning. One must figure out a way to reduce vague statements to practice, so one creates a construction of law to implement a constitutional mandate, for example the Lemon test 🙂 Constitutional constructions are fair game to be changed, subject to stare decisis consideration of course, but the original meaning is not.

    This seems to me to be the most honest approach, as if the meaning of the constition and the ammendments is not kept constant, what exactly were our ancestors ratifying? and why bother writing it down?

    If you wish to change the meaning of a constitutional provision, well that is what ammendments are for.

  44. I’m not sure why this subject is so complicated. No, the framers didn’t know anything about Blog posts or the like, but they did have printing presses- and surely understood that speech came in different forms than simply speaking aloud. But this granular and nebulous debate misses the point.

    The constitution is a document designed to protect individuals from government overreach. There’s few here who disagree, even if they specifically pick a particular argument which defies that principle. But once one comes to complete terms that the constitution is a doctrine of INDIVIDUAL rights, the ‘living constitution’ can be relegated to the dustbin of history, while better maintaining a free nation.

    The supreme court is there to interpret the text. If no interpretation was necessary, then everything would be self evident. However, all elastic interpretations must err toward individual rights.

    A good example is Roe V. Wade. I am one who believes the R.V.W. is not a constitutional issue, but it could be argued that the conclusion was a highly ‘interpreted’ one which err’d in favor of individual rights. But the Kelo case was a highly ‘elastic’ interpretation that strongly err’d towards, as Matt Welch put it, the zillion pound hammer of government. It was, therefore, a poor, nay, a wrong interpretation.

    Ultimately, I have two views of highly interpreted constitutional rulings by the SCOTUS. They are ‘elastic’ and ‘loose’. The elastic interpretation means that the future results could bend either way: towards government power, or towards individual freedom- and may change with the political wind. A ruling which ‘loosens’ the constitution is one way. It opens up an issue PERMANENTLY in one direction. Regardless of what kind of ruling is being put forth, it should ALWAYS err towards individual liberty.

    Roe V. Wade LOOSENED the constitution towards individual freedom. Kelo LOOSENED the constitution towards government power. Raich was an ELASTIC ruling which could turn tide in the future- because all it really did was justify its logic by hiding under the interstate commerce clause. To wit:

    Many years in the future. The nature of federal and state governments change- social perception towards marijuana become more liberal. Slowly, states begin to make Marijuana legal, and the federal government takes no issue due to this new constituency. However, one particularly conservative state outlaws the drug. Congress could OVERRULE that state by saying that making marijuana illegal puts a bummer head trip on everyone in that state, and creates an undue burden on interstate commerce- therefore, they cannot criminalize marijuana.

    Basically, a ruling which ‘loosens’ the constitution is potentially the most dangerous one, especially if the subtstance of that ruling shifts toward government power. It is these rulings which must be watched the most closely, because they have permanent effects.

    Paul

  45. The Ninth Amendment only says that the Constitution itself does not restrict any unenumerated rights. It does not say “Congress shall make no law abridging rights not mentioned in this Constitution.”

    Even if an unenumerated right to privacy exists, I don’t see anything in the 9th or 10th amendments that protects it from state laws, or even federal laws. It seems to me that Congress would have the right to abridge that freedom, provided that it did so in the excercise of one of its enumerated powers, and did so without running afoul of any of the enumerated rights. In addition, the states themselves would have the power to restrict that right in any way that did not involve the use of a power forbidden them by the Constitution.

  46. What about Justice Breyer’s new book, which offers a retort to conservatives who would limit constitutional interpretation to what they say it meant in the 1700s?

    “Active Liberty: Interpreting Our Democratic Constitution”
    http://www.randomhouse.com/acmart/catalog/display.pperl?isbn=9780307263131

  47. Actually, the 10th Amendment doesn’t need to pose a problem for principled originalists. It can easily and sanely be read as a kind of legal backstop for the enumerated powers clause. (Which would, of course, necessarily throw the overwhelming majority of federal law completely out the window…but I’m a libertarian and this is Reason Magazine’s web site, so I don’t have a problem advocating for that here. 🙂 )

    The 9th is still pretty tricky, though. There are a bunch of things it _could_ reasonably mean, but none of them are so obviously _correct_ as to give “originalism” a grasp on the issue.

  48. What about Justice Breyer’s new book

    Hey gaius, would it perturb you if I started this book, and then threw it down in disgust? 😉

  49. Mr. Bahner,

    To elaborate, the Mill Acts (which actually preceded the Bill of Rights, the Constitution, and the United States of America, but were upheld under all of them) allowed a private mill owner to take the land of his upstream neighbors by flooding it for a mill pond – water power being the only way to power a mill back then. The authority to do this was grounded in the eminent domain power. The justification was that the operation of a grist or saw mill served a public purpose – economic development.

    In Thomas’s dissent, he provides a (spectacularly weak) argument for why this precedent doesn’t apply, but for some reason, none of the conservatives or libertarians on this board can bring themselves to repeat it.

  50. “Well Supreme Court’s view is that the freedom to marry is a fundemental (unenumerated) right.”

    That’s right, Julian. Marriage is not, as fluffy says, “from the perspective of government, marriage is a contract arrangement.” Instead, it is one of those “inalienable rights” that are “endowed by (our) creator.” The government gets to tell you who, and on what terms, you can enter into contracts with (within certain boundaries, which will forever be squabbled over). The government does not get to deny you fundamental rights, because like marriage, they are prior to, and above, government.

  51. Sigh.

    I once believed that judicial interpretation philosophies were important. It took a while, but I realized the error in may ways.

    It’s all well and good that there are Randy Barnetts and such out there, making the case for limited government readings of the Constitution. I agree wholeheartedly with him.

    However, it’s all pointless in the end. You have to remember who appoints the judges – federal politicians. So, do you really think any of them are going to appoint someone who will restrict their power? Is there any empirical proof that they will? Sure, there are Justices who restricted power on given issues, but then the next day they would crank out an opinion eviscerating all restraint on another power (think Scalia with his 4th amendment destroying opinion with upside down incoherent reasoning in IL v. Gates).

    Well, you say, isn’t it worthwhile for us to develop this philosophy so we can persuade future Justices of its “rightness”? Again – do you ever see Barnett being tapped? How about even Posner (who is only just barely a libertarian)? See, the only way we can get libertarian Justices appointed, is to elect libertarian politicians. And if we could do that, there wouldn’t be any need for libertarian Justices, would there?

    I’ve lost all faith in the ability of a piece of paper to restrain the growth of Leviathan. There’s just no empirical evidence that it can, over the long term.

  52. As case in point

    “The government gets to tell you who, and on what terms, you can enter into contracts with ”

    Interestingly enough, one of the few ‘rights’ important enough to be included in the body of the Constitution (not in the BOR) was freedom of contract. And yet, as Joe ably demonstrates, it is absolutely ignored and noone even remotely questions the destruction of this right anymore (well, at least not any politician or appointed Judge).

    And of course, there is always the 1st amendment and that stuff about association. Well, that only means association when the government determines that it’s the right type of association. And you know, associating through a contract just isn’t the right type…

  53. “The Ninth Amendment only says that the Constitution itself does not restrict any unenumerated rights. It does not say “Congress shall make no law abridging rights not mentioned in this Constitution.” …It seems to me that Congress would have the right to abridge that freedom, provided that it did so in the excercise of one of its enumerated powers, and did so without running afoul of any of the enumerated rights.”

    More sophistry. If the BOR was not meant to “disparage” any other right not enumerated (as the language of the 9th states), then you shouldn’t treat an unenumerated right any differently from an enumerated one. Otherwise, enumerating those DOES disparage others!

    Barnett does an excellent job of showing what exactly was meant by the 9th, and why it was written the way it was. To condense – they thought that unenumerated rights were so many that you couldn’t possibly list them all.

    So anyone who claims to be following an “originalist” interpretation but ignores the 9th is just another political hack for one side or the other.

  54. quasibill, was a woman free to enter into a contract to exchange sex for money in 1793? Oh my God, what a horrific violation of freedom of contract! Why, you’d almost think that the people who wrote the Constitution realized that the rights they enumerated didn’t amount to a Get Out of Jail Free Card for everyone who could make a passing reference to one of them in his own defense!

    Please try to square your absolutist sloganeering with reason and the historical record.

  55. “was a woman free to enter into a contract to exchange sex for money in 1793”

    probably not, as the states had criminalized it. However, the federal government WAS prohibited from interfering.

    “Please try to square your absolutist sloganeering with reason and the historical record.”

    I have no response but to quote you:

    “Why, you’d almost think that the people who wrote the Constitution realized that the rights they enumerated didn’t amount to a Get Out of Jail Free Card for everyone who could make a passing reference to one of them in his own defense!”

  56. So, do you really think any of them are going to appoint someone who will restrict their power?

    no.

    I’ve lost all faith in the ability of a piece of paper to restrain the growth of Leviathan. There’s just no empirical evidence that it can, over the long term.

    agreed, mr quasibill. all things end — and the secular nation-states of a fractured society tend to die quickly and violently. already most of our nations have fratricidally battered themselves into quiescent decline over the last two hundred years.

    i think the truth is that our time for universal leviathan has come. the peoples of the west largely want some form of supranational great society to be established, be it an american empire or a european union, to try through technique and management to put an end to the debilitating strife of national conflict.

    it’s an illusion, of course, the panacea of the universal state. but it may offer us a hundred years or three respite from our imminent dissolution.

  57. To condense – they thought that unenumerated rights were so many that you couldn’t possibly list them all.

    mr quasibill, i have to say that this is a rousseauian reinterpretation of what the founders were doing.

    one must remember that these men were english parliamentarians — most of them felt a degree of contempt for french intellectualism, and had more in common with burke than danton.

    wanting to characterize the founders as utopians swimming in a sea of individualism and changing the course of western history is a false recasting of history on jacobin lines — a very common historical fraud these days in america. the founders were landowners who instituted a tax revolt — the ideological revolution came some years later, in 1789, on another continent. these englishmen loved and respected their monarch — and most of them had to be battered repeatedly into finally conceding that secession was the only way forward.

  58. Where is marriage mentioned in the Consititution? Is it between the same lines where y’all found a right to privacy?

    I’m still trying to figure out why the federal and/or state governments are even involved in marriage. The only reason I care about the piece of paper from the government is for tax/inheritance purposes (which has nothing to do with marriage).

    It’s the blessing of a religious instituion that matters to me when it comes to marriage… the government’s piece of paper is pretty worthless.

  59. If the BOR was not meant to “disparage” any other right not enumerated (as the language of the 9th states), then you shouldn’t treat an unenumerated right any differently from an enumerated one

    Of course you should. You’ve just confused “not restricted by the Constitution” with “protected, by the Constitution, from restriction”. It is a common error, but an error nonetheless.

    That’s not only the correct way to look at the Ninth Amendment — it is the only safe way. Otherwise Congress and the courts have effectively no limits on their power at all, since they can simply invent a new unenumerated right (e.g., the right to equal distribution of wealth, the right to federal establishment of Christianity, or the right to own slaves) and trump the rest of the Constitution with it.

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