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.