Bill Wallo has replied to my post on the 9th amendment. In the process, he dubs me “Ed the Culture War Guy”. Rusty has previously dubbed me “Ed the Evolutionist”. I’m beginning to sound like a comic book character here, but I shall persevere nonetheless.
My position on the 9th amendment, you may recall, is that it sets the burden of proof on the government to show that where a claim of unenumerated rights is concerned there is a legitimate and compelling state interest in violating the individual’s presumption of self-determination. This follows closely Randy Barnett’s notion of a “presumption of liberty”. Bill Wallo, on the other hand, advocates a “presumption of constitutionality”. He writes:
Actually, I tend to agree with the “presumption of constitutionality” interpretation. If we consider that “we the people” are sovereign (i.e., that sovereignty and thus the power of government is granted by the people, rather than derived from the king or the like), then arguably in a representative form of government (which is what we have), it is the voice of the collective as articulated by the legislative body which is the purest expression of the collective sovereign. The typical notion of “majority rules, minority rights” reflects this fact: namely, that the sovereign (the people) are capable of articulating what they believe to be appropriate legislation, and the best check on that unbridled power is the ability of the courts to review the legislative action to make certain it does not contravene some sort of protected right.
The problem with this, in my view, is that it seems to equate “protected right” with “enumerated right”, and to do so is to construct the 9th amendment in a way which makes it completely meaningless. As Larry Solum pointed out, that’s the one construction of the 9th amendment that is completely ruled out by the text. If the only rights that were protected were those specifically enumerated, and all other violations of liberty were allowed so long as they fell within the enumerated powers of government stated in the constitution, then the 9th amendment is made superfluous. Yet we know that they put the 9th amendment in there for some reason. It was not, as Bork argues, merely an “inkblot”.
The main difficulty here is the issue of abstraction. What Mr. Wallo is really arguing, though perhaps he doesn’t realize this, is that it is permissable to abstract the powers granted to government almost without limit, but the rights of individuals are limited to the “letter of the law”, i.e. only to those rights specifically enumerated. Under the constitution, the government is given authority to “promote the general welfare”. One could easily abstract that enumerated power to justify, for example, a ban on eating fatty foods or, as it once did, a ban on drinking alcohol. But that is clearly an abstraction of the very general language of the constitution regarding the purpose of government. Allowing the full abstraction of governmental power, far beyond anything the founders intended, while demanding that individual rights be limited only to those rights that are specifically enumerated, is a recipe for the sort of authoritarian overreach that we are seeing in America today.
Beyond that, as I mentioned previously, Bill is reading the 9th amendment as to be essentially meaningless. If the presumption is that anything that garners 51% of the votes in a legislative body is constitutional unless specifically prohibited by the constitution, then on what basis could an individual assert any unenumerated right? And if there is no basis for asserting any unenumerated rights, then what was the point of writing the 9th amendment in the first place? This construction renders the text redundant with the 10th amendment and redundant with the enumerated powers, but the entire reason for putting the 9th amendment into the bill of rights in the first place was to avoid such a reading. This construction is essentially to read the amendment as saying what Hamilton said was unnecessary, but the very fact that they found it necessary argues against such a construction.