Number Nine, Number Nine, Number Nine

Interesting paper by Randy Barnett that explores historical evidence for the radical view that the Ninth Amendment was not, in fact, a kind of penmanship exercise stuck in at the end of the amendments the Framers really meant.

Comments

[TallDave]

Based on Kelo, the SCOTUS doesn't seem to think they really meant the 4th either.

[Ken]

Thanks for the pointer. I'm on my second tour through Restoring the Lost Constitution.

[deron]

The issue with the 9th is that the nature of power and influence is such that nobody with either has any interest in the amendment meaning what it says.

[Baylen]

Can't wait to read this. Thanks.

What's with the Michael Graham-as-Arafat ad at left? The text is too small to read. It looks like "SAVE SCHLOCK DETERRENT DOLT".

[RandMan]

Prof. Barnett is one of my heroes. Can you imagine the quality of our politics, laws, and lawyers if most politicians shared Prof. Barnett's sensibilities? We need more like him.

[ChrisO]

I haven't had a chance to read the article, but I've always believed that the 9th and 10th were intended to be read together as a sort of "interpretational guide" to the rest of the Constitution. In other words, they don't recognize any additional rights of the people or states, nor do they emanate penumbras of any sort. It's actually rather simple. In interpreting the Constitution:

--powers of the federal goverment are to be strictly contrued, in favor of limited power.

--rights of the states/people vis-a-vis the federal government are to be broadly construed in favor of expansive rights.

In other words, any ambiguity in the Constitution must be read against the assertion of federal power and in favor of individual/state rights.

Doesn't seem that difficult to me.

Now from a libertarian perspective, I don't get all goo-goo eyed over the expansion of states' regulatory power at the expense of the feds. But at least we cut down on the regulatory power of the feds--the states can be worked on through their own constitutions, which usually parallel the fed one.

[Rick Barton]

Randy Barnett for Supreme Court!

[MP]

ChrisO,

I've never been able to understand that perspective, particularly in light of the fact that the Ninth makes no reference at all to States. The Ninth says that that People have more [Natural] rights than are listed. Thus, SCOTUS can invalidate Federal laws that violate unenumerated rights. That seems pretty clear, assuming you agree with Marbury v Madison.

In regards to Incorporation, the 14th says that State law can't "abridge the privileges or immunities". Unless you are claiming that Natural Rights are not somehow "privileges or immunities", your argument falls short.

[Ken]

What Rick Barton said.

Barnett's argument in Restoring the Lost Constitution (much paraphrased and perhaps inaccurately, though I hope not) regarding the Fourteenth is that the "privileges or immunities" did refer to natural rights, and thus that the Fourteenth was intended to limit the power of state governments in the same way as the Constitution was intended to limit the federal government.

[Shelby]

I've always been uncomfortable with the legislative and textual arguments for incorporation of the Bill of Rights via the 14th Amendment (though I'm happy to have that be the outcome). I agree with MP that the Ninth seems to me to clearly state there are more rights out there, and the government can't tread on them any more than it can restrict my right to free speech.

One reasonable question re Incorporation is, if it's via the Privileges and Immunities Clause (a sounder argument than the Due Process Clause, IMHO), why didn't the drafters say "rights" instead of "privileges and immunities"? How certain can we be they meant the former to be read into the latter?

In a lot of ways the 14th Amendment is more of an "inkblot" than the 9th -- people find in it what they want to see.

[ChrisO]

MP, a couple of thoughts on your post:

The Ninth Amendment, obviously, was enacted before the 14th. Prior to the Civil War amendments, the Constitution was solely intended to set out the relationship between the feds and the states, with a secondary relationship between the feds and individual citizens, though I don't think the founders envisioned, with limited federal power, that there would be much of a direct relationship in that way. The federal govt. was only intended to act as an arbiter between the states, and to take on a few specific powers that the states had delegated to it.

As such, you can see how the 9th/10th Amends. work together in the original constitutional framework. Like I said, it's not even that difficult. The Federalists believed so strongly in the structural Constitution that they didn't even think something like the 9th/10th (or the Bill of Rights as a whole) were necessary, since they felt limited federal power was implicit in the Constitution. The Anti-Federalists insisted on a more explicit guarantee, however, hence the Bill of Rights.

However, you are correct in that the states come into the picture with the Tenth Amendment. The Ninth dealt with Natural Rights, the Tenth with the Sovereign Powers of the states. States don't have 'rights', they have 'powers', some of which they delegated to the feds in 1787. Since they deal with a rights/powers dichotomy, it's not difficult to see how they function together in limiting the feds.

The Borkian view of the Ninth as excess verbiage equally applies to the Tenth, since both could be viewed as nothing more than restatements of the limited and enumerated powers of the federal government. But they do have a function--as an interpretational guide, not unlike a definitional section in a statute.

I don't see how the Incorporation Doctrine alters that interpretation. While the 14th did screw up the original constitutional scheme by converting the Constitution into a tool to directly regulate the state governments, it does not actually change the balance of power between the feds and the states, nor the ability of the feds to restrict the natural rights of the people. The states have the same sovereign powers they had in 1859--they simply may not exercise them in a manner that violates the 13-15th Amends., or by incorporation parts of the Bill of Rights. That is a totally different subject than the Ninth Amendment, since I don't recall the Ninth being part of the 'bundle' included in the Incorp. Doct.

[Biff]

why didn't the drafters say "rights" instead of "privileges and immunities"?

Immunity and right mean the same thing.

[Biff]

I've always believed that the 9th and 10th were intended to be read together as a sort of "interpretational guide" to the rest of the Constitution. In other words, they don't recognize any additional rights of the people or states, nor do they emanate penumbras of any sort.

I'd recommend Randy Barnett's take, it's very persuasive.

[thoreau]

Whatever the theory on natural rights, I think the practical upshot of the 9th is that the presumption is always that the citizens are to be left alone, and the only exceptions are enumerated powers.

And yeah, I know, there's a big conceptual difference between enumerated powers and natural rights, but I'm interested in the practical upshot of it all. And I'm pretty satisfied with an interpretation that says the people have to be left alone to do their thing unless the feds are exercising an explicitly enumerated right.

Of course, if we want to get even more practical, the biggest problem facing us is that the 9th is largely ignored: No natural rights, no presumption of liberty, no notion of enumerated powers. Rather, the presumption is that the Commerce Clause is a blank check.