Supreme Court

Ninth Configurations

Rights "retained by the people" make a comeback

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Progressives and libertarians don't agree on much these days, but they are coming together on one point: The Ninth Amendment to the U.S. Constitution tastes great and is less filling. The amendment is short but not simple: "The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people."

"I would argue that, in this day and age, the American people have a right to health care," the blogger Democrashield wrote in November. "The Constitution certainly grants Congress the power to protect that right." In March the liberal columnist Roland Hansen listed "safe food, drinking water, and air" as well as "government-provided comprehensive health care" among rights potentially enforceable under the Ninth Amendment. In his 2007 book Retained by the People, the Berkeley law professor Daniel Farber described vistas of positive rights—from tenant protections to state-funded education to rights drawn from multinational conventions and overseas courts—that could open if Americans "embrace their heritage of support for human rights and join the rest of the world in the effort to articulate those rights."

The amendment's libertarian fans are no less enthusiastic. The Georgetown law professor (and reason contributor) Randy Barnett has argued that the Ninth Amendment should be a guide to the Framers' thinking on rights retained by individuals. In his 2004 book No Price Too High: Victimless Crimes and the Ninth Amendment, Robert M. Hardaway, a legal scholar at the University of Denver, discerns rights of "individual privacy and personal autonomy" in the amendment and suggests that they protect drug use, prostitution, and other currently criminalized behaviors.

Conservatives take a limited view of what rights are retained by what people. During his unsuccessful Supreme Court confirmation hearings, Judge Robert Bork said, "If you had an amendment that says 'Congress shall make no,' and then there is an inkblot and you cannot read the rest of it, I don't think the court can make up what might be under the inkblot."

Supreme Court Justice Antonin Scalia brings a similar philosophy to the bench. In his dissent from Troxel v. Granville, a 2000 ruling that struck down a Washington state law on visitation rights, Scalia wrote, "The Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people."

Liberals also have a history of treating the Ninth Amendment as radioactive. Even the progressive Justice William O. Douglas, who originated the notion of rights found in the Constitution's "penumbras" and "emanations," nevertheless made a point of excluding the Ninth Amendment from the Supreme Court's most famous penumbral ruling. Joining the majority in the landmark abortion rights case Roe v. Wade, Douglas wrote, "The Ninth Amendment obviously does not create federally enforceable rights."

Congressional Democrats who voted for the America's Affordable Health Choices Act of 2009 are equally shy. When I ask Rep. Brad Sherman (D-Calif.) whether affordable, adequate health care should be considered an unenumerated right, he replies: "I have never seen a Supreme Court decision dealing with that issue. I'm not a constitutional scholar." Rep. Xavier Becerra (D- Calif.) also kicks the question over to the courts. "I believe that health care should be a right," he says. "I don't believe that we would get to the point of having a Supreme Court acknowledge that there is a right to health care derived from the Constitution. I wish I could say that there would be a constitutional right to health care. I don't believe that you would find the support to say that's what the Constitution says."

It seems axiomatic that if a piece of the Constitution is hated by liberals and conservatives, it must be good. Would a more vigorous Ninth Amendment be as excellent as Barnett, Farber, and others say? There are reasons to proceed with caution.

The European example makes it clear that positive rights grow like weeds, and that lines which appear bright to libertarians (for example: it's not a right if somebody else has to pay for it) are not so clear to others. A United States with sharply defined rights to equal access, medical treatment, and protection from disparagement would be a place where your rights to innovate, consume unhealthy substances, and speak freely would be more constrained.

But the enumeration of positive rights is just one risk. In his new book The Lost History of the Ninth Amendment, the Loyola legal scholar Kurt T. Lash argues that there is a larger body of precedent dealing with the Ninth Amendment than previously believed, but that it has been concealed by a discrepancy in numbering from the original Bill of Rights: Because two proposed amendments to the Constitution failed to win state ratification, some early legal writings say "11th Amendment" when referring to what we now know as the Ninth.

The results are a surprise win for state and local governments' authority over the individual. "At the time of the Founding, the definition of rights was very rich," Lash says. "It included not just individual rights, but majoritarian rights. There still are broad expanses of policy decision making which are retained by the people in the states. Tort, property, contracts, where to park your horse—none of those are individual natural rights. But all were considered rights retained by the people under the Constitution. It is clear from the context that when James Madison drafted the Ninth Amendment, he linked it to the 10th [which protects states' powers] as reserving a range of governmental decisions to the states." When the amendment empowers "the people," the beneficiaries might be lawmakers, not individual citizens.

Libertarians and progressives have found common purpose in the Ninth Amendment, but this alliance could easily end with progressives as the senior partner. Just imagine an environment where the city council's renewed power over how many petunias you can plant in your yard and the layabout's expanded entitlement to your hard-earned money are both considered essential freedoms protected by the Bill of Rights.

Contributing Editor Tim Cavanaugh (bigtimcavanaugh@gmail.com) lives in Los Angeles.

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  1. James Brown and the Gestapo both favored black.

  2. Can anyone say “positive liberty”?

    1. Not without punching myself in the face.

    2. Just to be a pedant, a right to a trial by jury is definitely a positive right. the test of “it’s not a right if someone has to pay for it” fails here.

      1. Perhaps, but the right to a trial by jury is specifically enumerated in the sixth amendment, not inferred from the ninth.

        1. I’m not complaining. I like the trial by jury system, but, that *does* make me a bad libertarian.

        2. In my view, the attempt in the Sixth Amendment to create and/or protect the positive right to a trial by jury is one of the flaws in the Constitution.

      2. Re: yonemoto,

        Just to be a pedant, a right to a trial by jury is definitely a positive right.

        Actually, not so much a positive right – you do not have a right to have people sit down and hear arguments for hours or weeks just for your benefit. What the 6th Amendment establishes rather is that the State cannot condemn you or try you if you ask to be judged by a jury of your peers and the state cannot provide one. So the amendment is rather a limit to the State’s power and not an entitlement.

        The State reads the amendment wrongly as to meant enslaving 12 poor saps to hear arguments back and forth for little compensation. That is not what the amendment says nor means at all. It says “You, State, cannot have the person tried by a jury? Well, TOUGH – you cannot try him.”

        1. Ok, that was better than my response…showoff 😉

        2. …unless the person waives the right. I like it.

        3. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
          OM, I can’t reconcile the text with your interpretation of it. In some senses, it seems to say the opposite of what you write. The accused can compel the State to provide a trial and a defense counsel, and can compel witnesses to testify on his/her behalf. I’d welcome an explanation of how I’m getting it wrong.

          CB.

  3. “I would argue that, in this day and age, the American people have a right to health care,”

    WTF? Why stop there? Why not just have a right to health? And while your at it, give every girl has a right to a pony, a unicorn pony.

    1. And while your at it, give every girl has a right to a pony, a unicorn pony.

      Or giving every boy access to a girl’s vagina.

    2. And while your at it, give every girl has a right to a pony, a unicorn pony.

      Or giving every boy access to a girl’s vagina.

    3. I’m banking on the right to free food. I need food to live, so why should I have to pay for it?

      1. If only someone would invent a government-supplied token, say a stamp, that, if you were poor, you could exchange for food.

        1. Your pre-supposing I should be poor. Why not free for all?

          1. ’cause the “rights” of the poor are the only ones that matter…

            1. The poor middle class, forgotten until campaign time.

        2. If only someone would invent a process, say “work”, where if you were poor, you could earn pieces of paper that you could exchange for food.

          1. +1

          2. -4

            10% unemployment is not poor people’s fault. You want fewer people needing government assistance for basic needs? Have an economy that benefits people other than the rich. Libertarian quackery need not apply.

            1. Actually, this is largely true – with the caveat that “libertarian quackery” would been unlikely to have resulted in an economy in which banks could make bad and even fraudulent loans, then receive compensation from the taxpayers when the bubble burst.

              In fact, it could be argued that a “Wild West” regulatory environment, in which the bad actors would have had to eat their own losses, would have been less likely to blow up than the current environment.

              1. Yup ? moral hazard (cousin to Dukes of Hazard) is a bitch, ain’t she

            2. Yeah. Brings to mind a time six years ago before I worked for me. I was fresh out of grad school when that rich bastard hired me on. Stingy fuck only paid me 120K/yr. Can you imagine? The only things I could afford were an apartment, clothes, food, spending money to blow at the strip joints, and some shitty German car. Funny thing is, I actually thought I was benefitting. Thanks for setting me straight. I’m gonna call him right after this post, just to let him know that I now know what a pig he is.

              1. You only feel that way because your rich! Trying being poor, then you’ll know oppression.

                /sarcasm

            3. Everyone knows the economy only benefits the rich. That’s why we are all living in caves and starving. No one but the rich has ever gotten any benefits.

              1. He says as he sends this message via morse code beaten out on stones that are transferred through smoke signals ? that’s all that he can do. After all, the internets is part of the economy, which, we all know, only benefits the rich. Sadly, he isn’t rich.

            4. The irony of Tony lecturing anyone about quackery is blinding.

            5. Well,that’s the thing isn’t it? Government meddling and social engineering has produced the economic environment where we have 10% unemployment, so naturally government needs to creat a program to address the problem – which will inevitably lead to more problems which require more programs ad infinitum. Turtles all the way down (which is my new thing I like to say). It was seem as though even the dimmest bulbs among us would have been able to deduce this pattern by now. There are only infinite examples of it.

    4. We should have a right to healthcare and I would like a pony too. I don’t think a unicorn is a good idea because this might happen: http://www.youtube.com/watch?v…..re=related Ok, I really don’t want to clean up after a pony but unquestionably HC is (dare I say it) a positive right. Line up bitches!

    5. I have a right to a ranch on Mars. With easy access to and from Earth.

      1. Terraforming Mars sounds cool. I will help you get started right after we get health care reform.;-)

      2. I have a right to stop the speech of others who gather in groups whose speech I don’t like!

        Oh, wait ?. I’m not a liberal; forget that last statement

  4. I was actually hoping for a Negativland-related image to accompany the article.

    1. I had a chance to see Negativeland post- U2 law suit. Afterwards, there was a Q&A regarding copywrite laws. Marshall McLuhan came up.

      Anyway, that led me to contacting McLuhann’s official archivist at the University of Toronto, who had worked with McLuhan for decades. I learned that despite having sole copywrite of the McLuhan work (per McLuhan’s wishes) the Canadian government took it away and awarded it to McLuhan’s family. Fucking Canucks.

  5. Good Lord. They actually don’t see the utter incoherence of the Ninth Amendment if it is read to mean “positive” rights to stuff you don’t have.

    1. Equally remarkable is that the Bill of Rights is strangely silent on granting items of value that don’t spring from a unilateral action of the state.

      Nowhere are you provided anything just for being so damn awesome for being born. Yet, that’s exactly how progressives see this: as one giant fucking inkblot of handouts simply by dint of your existence on this rock.

      1. Jw, baby Bonuses

  6. I would argue that, in this day and age, the English people have a right to the Black Death.

  7. Libertarians should never forget: To Serve Man is a cookbook, and the statists (whatever “party” they claim allegiance to) are the big-headed aliens. Come on, we know how this story comes out.

  8. “I would argue that, in this day and age, the American people have a right to health care,”

    And you also have the right to pay for it yourself. Go nuts.

    1. A Spanish proverb: “Take what you want” said God, “and pay for it.”

  9. The idea that the ninth amendment can be incorporated like the second amendment is really nonsensical. The ninth amendment is talking about things that are not Federal protections.

    The people can retain a right to health care all they want. It doesn’t mean the Federal government has to enforce a right to health care. It just means the Federal government can do nothing to deny or disparage their right to health care.

    The people can retain a right to crystal meth, or manly butt sex, or abortion, but that doesn’t mean the Federal government has to enforce those rights. It just means that if those rights are so retained, the Federal government can do nothing to deny or disparage them.

    The tricky question is, how do we know which rights are retained by the people? I maintain the only way to know if the people retain a right is to look to the the people’s representatives. State and local governments.

    1. “manly butt sex”

      Is there any other kind?

      1. You can have it, but you got to pay for it yourself.

        http://www.online-piracy.int.tc/

      2. “manly butt sex”

        Is there any other kind?

        Some women are amenable to letting you have butt sex with them.

        1. That still doesn’t make it not manly.

          1. Strap-ons are arguably not manly.

            1. Insufficiently manly, prolefeed.

  10. Roland Hansen listed “safe food, drinking water, and air” as well as “government-provided comprehensive health care” among rights potentially enforceable under the Ninth Amendment.

    OMFG, it’s like “The Moon is a Harsh Mistress” come true. Heinlein’s description of socialist whining is as accurate today as it was then.

    1. Damn. Just damn.

    2. I think that you mean “The Cat Who Walks Through Walls”, though it does take place in the same universe as TMIAHM.

      1. EWOTBM: OK, I don’t have a copy handy, and it’s been a while since my last read, but I recall an unnamed Loony (Loonie) trying to cram a socialist agenda through the nascent legislature, only to be soundly voted down. This was only described in passing by Manny or The Prof.

        1. Ah.

          I was thinking of a different scene. One in which a man, living on the charity of the protagonists advocated fiercely that the air should be free, and that he had a right to have it supplied to him by others.

          Detect a theme much?

  11. Those words “deny or disparage” kinda stand out in the sentence. I’m really having a difficult time figuring out how anyone can construe the ninth amendment as giving government the power to regulate how I exercise some rights. It certainly, in no way, is any kind of mandate for them to provide me with anything whatsoever.

    1. No kidding. That’s why reading it as guaranteeing positive rights is incoherent.

      So, a right to government-paid healthcare is not denied or disparaged because it isn’t listed in the BOR.

      Fine. What exactly is the leap from that to government-paid healthcare is a Constitutional right? Other than “I wanna, I wanna, I wanna! WAAAH!”?

  12. How do we know the Ninth defends negative rights, not positive rights ? i.e., that it defends the freedom, not socialization, of medicine? Well, do the previous amendments defend the freedom or the socialization of religion, speech, the press, assembly, etc.?

  13. Rep. Xavier Becerra (D- Calif.) also kicks the question over to the courts. “I believe that health care should be a right,” he says. “I don’t believe that we would get to the point of having a Supreme Court acknowledge that there is a right to health care derived from the Constitution. I wish I could say that there would be a constitutional right to health care. I don’t believe that you would find the support to say that’s what the Constitution says.”

    In other words, he doesn’t think there are currently enough liberal SCOTUS judges to say health care is a right under the meaning of the Ninth — but if he was in the Senate, he’d vote for confirming such justices.

  14. The European example makes it clear that positive rights grow like weeds, and that lines which appear bright to libertarians (for example: it’s not a right if somebody else has to pay for it) are not so clear to others.

    The “others” being spineless thieves.

  15. Rights pertain to actions, not objects. You have a right to own a gun but not a right to a gun. You have a right to purhcase health care but not helth care.

    1. BS! i want gun stamps!

  16. Here’s a question: Can a U.S. State be run like a totalitarian dictatorship? The bill of rights only applies at the Federal level after all.

    1. No, due to the 14th Amendment.

      1. And the blurb about states having a republican form of government.

        1. “blurb” – hahahaha

  17. “The natural liberty of man is to be free from any superior power on Earth, and not to be under the will or legislative authority of man, but only to have the law of nature for his rule.”
    – Samuel Adams

    1. Ratko, “The natural nature of man is to be subject only to the superior power of females, and to be under the will or legislative authority of women, because it is only right to have this law of nature for his rule.”
      -me

  18. As far as I’ve ever been able to tell, the Ninth is a reading rule. Without the Ninth, the first eight could have been used to justify expansion of enumerated powers simply because [x right] wasn’t listed. It kinda happened anyway, though.

  19. The Ninth is a sleeping giant, a loaded cannon long dormant. But it’s only words, and words must be defined (and sometimes redefined) by the transitory nine. It’s 5 to 4 in the bottom of the ninth…

  20. I realize that elements of the libertarian movement want to make some common cause with the progressive movement because of Bush, but this article is not even remotely coherent. Liberals and libertarians have common cause with the 9th amendment? Huh? Libertarians are supporting government-funded health care and food stamps now? Where the hell is the common cause? Just because both parties believe it to exist doesn’t mean that they remotely agree on it. Doesn’t the Ninth Amendment simply mean that the first 8 amendments are not an exhaustive list of all the rights retained by the people? It doesn’t really imply *any* other rights must exist, but rather that the exclusion of a potential right (potential here meaning that it is newly realized, not that it is being created anew) from the first 8 amendments cannot be used as proof that said right does not exist. It says nothing about whether said right actually does exist. It seems in practice, people use the Ninth Amendment to mean exactly the opposite; if it isn’t expressly forbidden, it’s a right. Which is nonsense; do I have a right to an iPod or not? The Founders never explicitly said I did have a right; therefore I have no right.

    1. I don’t see any enduring alliance between libertarians and progressives, or libertarians and (social) conservatives. Too many core differences.

      I do see a series of temporary, single-issue alliances. Honestly, we don’t have enough power to make policy, but we have enough votes to tilt policy on some issues. And the party making peace with us, however temporarily, will always have to pay for that with concessions to their less-centrist elements. Until there’s a major change in US political thought, we’ll always be marginalized.

    2. Completely agree.

  21. im confused. if they think we have a constitutional right to good affordable healthcare, why do they want to involve the government in it?

    1. Because “they” are not very smart…

  22. +1

  23. “Libertarians and progressives have found common purpose in the Ninth Amendment, but this alliance could easily end with progressives as the senior partner.”

    Since is commonality of method the same as commonality of purpose. Libertarian minded people seek to use 9th to protect those negative rights unspelled out in the Constitution. Leftists have discovered that they might be able to use the 9th to create positive rights that would be destructive of negative rights. Just as a man who strikes a match to light his hearth to heat his home has no common purpose with the arsonist who strikes a match to burn the home down, despite both people using matches.

    The goal is the purpose not the means of acheiving the goal. Where does this kind of sloppy thinking come from Cavanaugh?

    1. “Since when is commonality of method…”

  24. According to the founders a right was something that was created for individuals by forces greater than what man can create. That was why they were deemed to be granted by God to man. They were concerned that government through coercive power could diminish or extinguish these God given rights. The Constition was designed to minimize the authority of government to regulate or control the inalienable rights of man. What government can grant is not a right because if government has the power to grant it also has the power to deny. What government grants are priveliges or warrants but not rights. They are designed to reward a specific group at the cost of intrusion on others and their rights. Framed in this context – what ever government has the power to grant should never be viewed as an inalienable right of the people.

  25. Terrible interpretations and overreaching on what is basically a very simple two part catchall at the end of the Bill of Rights.
    9. Just because we don’t enumerate a right as belonging to the people, doesn’t mean they don’t have it.
    10. If we don’t enumerate a right as belonging to the Federal Government in this document, they absolutely do not have it.” It’s a very simple summation to prevent the over-reaching most of these people are attempting.

  26. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on…the Bible’s books were written by people with very different mindsets…in order to really get the Books of the Bible, you have to cultivate such a mindset, it’s literally a labyrinth, that’s no joke.

  27. The people can retain a right to health care all they want. It doesn’t mean the Federal government has to enforce a right to health care. It just means the Federal government can do nothing to deny or disparage their right to health care. ???? ????? ?????? ??????? ???? ????? ????? ???????
    The people can retain a right to crystal meth, or manly butt sex, or abortion, but that doesn’t mean the Federal government has to enforce those rights. It just means that if those rights are so retained, the Federal government can do nothing to deny or disparage them.

  28. the power to protect that right.” In March the liberal columnist R

  29. described vistas of positive rights?from tenant protections to

  30. state-funded education to rights drawn from multinational conventions and overseas courts?that could open if America

  31. health care,” the blogger Democrashield wrote in November.

  32. l conventions and overseas courts?that could open if Americans “embrace their heritage of support for human right

  33. tate-funded education to rights drawn from multinational c

  34. his day and age, the American people have a right to healt

  35. The Constitution certainly grants Congress the power to

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