Dispatches from the Creation Wars

Sandefur Joins the 9th Amendment Battle

Tim Sandefur has responded to my brief mention of his blog earlier. He thanks me for the mention, and I likewise thank him for his. I think he may have misunderstood something I said though. He quoted my statement in response to Rusty that if the government could show a legitimate state interest for banning sneakers, then such a law might pass constitutional muster, then says,

This would be true only if we define what a legitimate government interest is…When the Court tried to avoid it, it simply assumes the answer: “whatever the people want.” But the Ninth Amendment indicates to us that that cannot be the correct answer, because there are other rights that the people retain.

Actually, I do agree with him on that. It’s obviously not enough merely to say that whatever the people would vote for constitutes a legitimate state interest. What would be the point of judicial review if majority vote determined the limitations of state power? He then says,

What is a legitimate government interest? The Declaration of Independence tells us: “to secure these rights,” namely, “life, liberty, and the pursuit of happiness.” These things are not reasonably related to banning sneakers, and it is therefore unreasonable for the government to do that at all, even aside from the fact that Congress has no such enumerated power. The Ninth Amendment warns us against an expansive reading of federal power, because such an expansive reading will lead us into the losing game of asking the question in the terms of undefined “government interests.”

Hmmmm. I’m not sure I agree with that, but I may be misunderstanding it. I’m not sure the first part is an exhaustive list of “legitimate government interests”. I think a more thorough list would be found at the beginning of the constitution itself, wherein they tell us why they formed the document and the government – “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” Those are all legitimate aims of government and sometimes they are in conflict and we must find some means of balancing them. I don’t disagree that there is no legitimate interest in banning sneakers, of course. When I said that if the government could show a legitimate interest in banning them such a law might be constitutional, I was speaking only hypothetically, pointing out that no right is absolutely inviolable. Even free speech, as fundamental a right as we have, has narrowly drawn exceptions to it. And in broad terms, the government should not place limits on rights, whether enumerated or unenumerated, without a compelling state interest in doing so. Which is not, of course, to suggest that we have an easy and simple way of defining such an interest. But a good place to start, I think, would be with the list from the preamble to the constitution that I just listed.

And let me say that I agree with Randy Barnett in his brief on the Lawrence case as well. At the very least, it seems to me, consensual behavior that does not harm another person or deprive them of their rights should be considered rights even when not specifically enumerated and I agree with Barnett, as I said in a post earlier, when he says that there should be a Presumption of Liberty and the burden of proof should be on the government to justify any and all intrusions and limitations on those rights. So I’m not sure that Tim and I really disagree even on the minutae of this topic. Perhaps he’ll clarify his position further if I am misunderstanding it.