The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a post today, Roger Pilon adds the following very important point:
Indeed, if Whelan were right-that we enjoy only those rights that are expressly stated in the Bill of Rights-then prior to the ratification of the Bill of Rights, two years after the ratification of the Constitution, we enjoyed almost no rights against congressional majorities-save for those few mentioned in the original document.
That's right. There would have been no judicially-protected rights of freedom of speech, press, assembly, free exercise of religion or a right to keep and bear arms unless and until the states ratified the first two amendments. Yet, so far as I am away, no one at the time made this claim, or felt this urgency. These natural rights were added, in Madison's words "for greater caution." The only thing that happened in 1791 was that these unenumerated rights were enumerated. For this reason, the Ninth Amendment was added so that folks like Whelan could not later draw the inference or construction from the enumeration of rights that other rights not "in the text" can properly be disparaged or denied. Unfortunately, the Ninth Amendment has not work as Madison intended.
Although I have been making this argument about this two year gap for years, I got it from Gary Lawson and Patricia Granger's influential 1993 article on the original meaning of the Necessary and Proper Clause. Lawson and Granger say that, prior to the additional amendments, a law restricting these right would not have been "proper." So even without the Bill of Rights, or the Ninth Amendment, unenumerated rights were "in" the Constitution's text. In Printz v. United States, Justice Scalia relied on their showing that "proper" was a separate constitutional standard (though Printz did not involve a claim based on an individual right so he did not specifically endorse Lawson and Granger's position on that issue). I cite Lawson and Granger in my 2003 article on The Original Meaning of the Necessary and Proper Clause.
UPDATE: Roger Pilon reminds me that he made the same point at the 1991 ABA convention in Atlanta when he and I were on the same panel at the Bicentennial Showcase program on "The Forgotten Ninth and Tenth Amendments." Here's the relevant line from the text of his talk, which was published in the September/October 1991 Cato Supreme Court Review: "Indeed, if the Framers intended unenumerated rights to be protected without a bill of rights, how can we imagine that those rights were meant to be any less secure with a bill of rights."
Amazing. I remember being at the convention, and I even remember what the meeting room looked like from the dias. But I have no independent recollection of what the panel was about or who else was there, which is a little scary. I asked Roger if he wanted me to update this post, and he replied "no, of course not," but I decided to anyway. It is a very cool point, which I know I did not think of first.
HOMER NODS: While I am posting, I wanted to correct an infelicitous sentence on my previous post that was brought to my attention by Ed. I wrote: "the judiciary should be examining whether laws are within the enumerated powers of Congress (and are both "necessary and proper," the standard provided in the Constitution's text), or within the unenumerated police power of the states." A better wording would have been, "the judiciary should be examining whether laws are both "necessary and proper" (the standard provided in the Constitution's text) to carry into execution the enumerated powers of Congress (and are), or are within the unenumerated police power of the states." (since corrected)