Is Freedom a "Constitutional Right"?

The Rights Retained by the People: The History and Meaning of the Ninth Amendment, edited by Randy E. Barnett, Washington, D.C.: Cato Institute, 416 pages, $22.95

Suppose Congress or some state legislature passed a law requiring people to get up every morning at 5:00. Would there be any legal remedy?

The Bill of Rights protects a few specific freedoms and rights, but it does not say that people have a right to sleep past 5:00 A.M., or to play computer games, or to keep a diary.

"Rights" tend to be asserted and articulated only when a government takes it upon itself to dictate to others what they may or may not do. When that happens, with some luck, the prohibited activity will become protected as a legal right; and the formulation of the right will serve as a kind of historical reminder that somebody once tried to impose his will on others in a particular way. Abortion may be viewed as something of a paradigm of an unanticipated right: At the time the Constitution was adopted, it was not a known "right," but it did not have to be; as Justice Harry A. Blackmun pointed out in Roe v. Wade, there was no law against it.

We are accustomed to calling our most important rights "constitutional rights." But to use the phrase in that way is unfortunate. It is also inaccurate, because it implies that rights not enumerated in the Constitution are not deserving of the utmost legal protection, a notion the Constitution itself explicitly denies. Its Ninth Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Until 1965, the Supreme Court had said essentially nothing about the Ninth Amendment. In that year, in Griswold v. Connecticut, it invalidated a Connecticut statute that banned the use of birth control. The Court found a privacy right in "penumbras, formed by emanations" from several specific guarantees of the Bill of Rights, but Justice Arthur Goldberg wrote a concurring opinion based squarely on the Ninth Amendment. He had the audacity to state a simple, obvious, and yet revolutionary point: "The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold."

While Justice Goldberg's opinion caused a stir in the legal academy and generated a cottage industry of Ninth Amendment scholarship, the amendment has continued to be largely disdained by the Supreme Court. Where it has granted protection to rights not strictly enumerated in the Constitution, the Court has done so by deriving them from rights that are, sometimes torturing reason in the process.

For the express purpose of "clearing a path for the Ninth Amendment," Randy Barnett, a law professor at Chicago-Kent College of Law, has collected a series of thought-provoking essays by 20th-century constitutional scholars, including one by Norman Redlich that anticipated Goldberg's opinion, and combined these with some primary-source material.

The primary sources are scanty, but as John Hart Ely points out, this doesn't really matter: "There isn't much legislative history bearing on the Ninth Amendment, but what there is unsurprisingly confirms that one of the thoughts behind it was the thought that its terms convey."

According to Edward Corwin, the Ninth Amendment embodies John Locke's eternal principles of justice, which are based on human dignity. Those principles outrank the rights explicitly described in the Constitution. Echoing Locke and anticipating Richard Epstein's important 1985 work, Takings: Private Property and the Power of Eminent Domain, Corwin, writing in 1928, explains that "[n]ot even the majority which determines the form of the government can vest its agent with arbitrary power, for the reason that the majority right itself originates in a delegation by free sovereign individuals who had 'in the state of nature no arbitrary power over the life, liberty, or possessions' of others."

The Constitution therefore owes its very legitimacy to the Ninth Amendment. Thus, to Corwin, along with Knowlton Kelsey, Bennett Patterson, Eugene Van Loan III, Calvin Massey, and Simeon McIntosh, the Ninth Amendment reflects the founders' belief in "natural rights."

Using a more modern vernacular to make a similar point, Barnett compares the inclusion of the Ninth Amendment in the Constitution to putting life boats and life preservers on a ship that is supposed to be unsinkable. Barnett suggests that the Ninth Amendment be viewed as a "rights preserver"; it creates a presumption that in pursuing happiness persons may do whatever is not justly prohibited. In the absence of such a presumption, he warns, we are left with a presumption that the government may do whatever is not expressly prohibited.

Such a broad interpretation of the rights protected by the Ninth Amendment seems bound to lead to the invalidation of one law after another, and it is precisely this prospect that seems to terrify majoritarian conservatives. So Russell Caplan, whose views have received the support of Robert Bork (see The Tempting of America: The Political Seduction of the Law), agrees that the Ninth Amendment reflects natural-law philosophy but says that philosophy tells us that "individuals have a right to be governed by representatives whom they have chosen." Locke might have been amazed. Nevertheless, according to Caplan, the Founders were only referring in the Ninth Amendment to rights that were protected by state governments.

Raoul Berger, author of Government by Judiciary (1977), offers a similar view. Expressing dissatisfaction with the Supreme Court's thwarting of popular sentiment in its decisions on busing, affirmative action, the death penalty, and criminal-law enforcement, he worries about the impact of a vigorous Ninth Amendment: "Justice Goldberg would transform the ninth amendment into a bottomless well in which the judiciary can dip for the formation of undreamed of 'rights' in their limitless discretion, a possibility the Founders would have rejected out of hand."

The Founders, one could hope, were concerned more about undreamed-of encroachments than undreamed-of rights. But a primary problem of current political discourse is that so many of the discussants—too embarrassed, bored, or otherwise preoccupied to acknowledge the importance of freedom and private property—have lost sight of the distinction between liberty and rights on the one hand and claims and encroachments on the other. Thus, Simeon McIntosh defines rights as claims created by a government, proposing only a moral balancing test to distinguish between those that deserve protection and those that do not. And Charles Black all but proposes that welfare claims be constitutionally protected.

There is nothing inherently confusing about the language of the Ninth Amendment. The amendment does not specify the rights to which it is referring, but it does not limit them, either. It does not expressly give courts the authority to enforce any of these rights, but the Constitution does not operate that way; that is, it does not allocate individuals' rights to different branches of the government for enforcement. It is not all that complicated: Congress makes the laws, the president executes them, and the courts, under Article III, decide "cases and controversies." Of course, they must decide the cases and controversies in accordance with the Constitution; that is the point.

These stimulating essays show that while the Ninth Amendment might be abused, it need not be, and that the historical neglect of that amendment by the judiciary is an extreme injustice and misfortune. As Barnett suggests, if the Founders did not specifically anticipate that the amendment would be enforced by federal courts, neither did they anticipate the extent to which governments would infringe on individual liberty.

Michael A. Rosenhouse, a member of the Illinois and New York bars, writes frequently on legal and political matters.