I’m on the ReligionLaw listserv moderated by Eugene Volokh, an email list of dozens of law profs around the country with the discussion focused on areas where religion and law intersect. Yesterday a discussion kind of veered off that subject and into the 9th amendment and libertarian legal theory, until Prof. Volokh herded us all back onto the ranch. But I think the way the discussion went before it stopped is indicative of a real split between libertarian and conservative thinking. The discussion was primarily between myself, Rick Duncan (a Nebraska law professor) and Sam Ventola (a Denver attorney). It began with the two of them saying that one can be a libertarian and a social conservative at the same time, which I didn’t bother to dispute simply because such terms can be used in so many different ways. I jumped in after Duncan said that he was a libertarian because, “I strongly support the liberties (including the economic liberties) expressly contained in the written Constitution.” And Ventola said:
Anybody, not just a libertarian, can contend that the government should support certain liberties, but admit that these liberties are not necessarily protected by the Constitution. So, such a person (if he or she is a strict constructionist) would support Constitutiional decisions which protect rights actually located in the Constitution, and support legislation to protect other liberties.
As a libertarian myself, I disagree strongly with this and consider it to be the antithesis of an originalist or “strict constructionist” argument. We must remember several things here. First, that the entire purpose of the bill of rights was to protect liberty from democracy – to insure that no majority, no matter how large, could violate the rights of individuals. Second, that there was a raging debate over whether such a bill of rights was a good idea because, many of the founders argued, if you enumerate a list of specific rights, future governments will presume that anything not specifically enumerated is fair game for the government – i.e. the majority – to regulate or prohibit or do with as they will. All of the founders, as near as any historian can tell, agreed that this would be a bad thing because all of them agreed that no list of rights could possibly be exhaustive. Madison came up with the 9th amendment as a means of avoiding this negative outcome. On that much, we should all be able to agree…
So when one takes the position, as Ventola has here, that those rights “actually located in the Constitution” deserve protection but that all unenumerated rights are open to “legislation”, he is taking the exact position that the 9th amendment was designed to avoid because “legislation” means allowing the government – i.e. the majority – to regulate any unenumerated right as it sees fit. It renders the entire concept of unenumerated rights meaningless and reads the 9th amendment out of the Constitution entirely. If those rights not specifically enumerated may be limited or removed as a majority or their representatives see fit, then of what possible use is the 9th amendment at all? It wouldn’t actually DO anything, but we know from the clear words of the founders that it was intended to do something that they viewed as very important. It was intended to avoid the very position that is being taken here. Certainly any interpretation which eliminates an entire amendment from actually doing anything and which takes the very position that the founders were unanimous in opposing cannot possibly be considered an “originalist” intepretation, and the first rule of construction is that a given passage has to mean something.
Duncan then followed up on another conversation by saying that he thinks the 9th amendment was “designed to make clear that the Federal Government is a government of strictly limited powers and to protect state-created rights and liberties against federal interference.” And he went on to say:
To foillow up on my response to Marc’s question about the 9th Amendment, it seems to me that good examples of unenumerated liberties within the meaning of the 9th Amendment are school choice laws enacted in the states and state RFRAs. When states act to protect liberty–either through state constitutions or state legislation–they act to protect rights recognized (but not created) by the 9th Amendment.
To which I replied that the founders believed that all rights are recognized but not created. The founding premise of this nation is that we are all endowed with rights which pre-exist governments and that the purpose for which governments are formed is for the protection of those rights. All rights, therefore, are recognized by government, not created by government. The constitution is “a charter of power granted by liberty, not a charter of liberty granted by power”, as Madison said. Brad Pardee from the University of Nebraska-Lincoln then chimed in with this question for me:
The challenge with this argument would seem to be determining what is a right and what is not. Otherwise, we create a situation where anybody who wants to do anything can claim that they have a right to do so.
Suppose, for the sake of example, a person was to say that they have the right to crank up their stereo at 2 am. We can have noise ordinances to prohibit that, but the person claiming that right would say, “If it is my right, then you can’t pass an ordinance to take that right away from me.” It would then fall to the courts to say either “Yes, there is a right to crank your stereo at 2 am” or “No, there is no such right”.
While the explicitly listed rights are clearly recognized, somebody somewhere is going to have to determine what are the unlisted rights that are also recognized. In my hypothetical, what is going to stop the stereo cranker from saying, “This is a right that you must recognize”?
He’s right, of course, that the challenge is in determining what is a legitimate unenumerated right and what is not. But this is not really an argument against my position at all. The fact that there will be disagreements over what is and is not a legitimate unenumerated right does not change what I consider to be the indisputable fact that the opposite position – that any right not specifically enumerated is fair game for the government to regulate or prohibit – simply cannot, by any logical argument, be true in our constitutional system. It runs entirely against the clearly stated position of the founders that the bill of rights was not exhaustive and that no one could possibly list all of the rights an individual has and it voids the meaning of a provision of the bill of rights that was not only of the utmost importance, but without which the bill of rights would almost certainly not have been ratified.
So the first part of my argument is only to establish that the position offered by Duncan and Ventola – and very commonly taken among conservatives in general – is an untenable position. Once we agree – and without any substantive argument to the contrary, it seems we ought to – that there must be unenumerated rights that are binding upon the government and that no majority may justly violate, then we can move on to the question of how we go about discerning between a legitimate and illegitimate assertion of an unenumerated right. For that, I would argue, we must turn to the conception of natural rights upon which all of our notions of liberty in America were based, and the way to implement those natural rights is through what Randy Barnett calls the presumption of liberty.
I will go into more detail on that in a future posting, but for now let me just say this: asking “where does the constitution say you have the right to do X” is asking the wrong question. Instead, one must ask where in the Constitution is the authority given to prohibit X. Barnett argues:
As long as they do not violate the rights of others (as defined by the common law of property, contract and tort), persons are presumed to be “immune” from interference by government. This presumption means that citizens may challenge any government action that restricts their otherwise rightful conduct, and the burden is on the government to show that its action is within its proper powers or scope. At the national level, the government would bear the burden of showing that its acts were both “necessary and proper” to accomplish an enumerated function, rather than, as now, forcing the citizen to prove why it is he or she should be left alone. At the state level, the burden would fall upon state government to show that legislation infringing the liberty of its citizens was a necessary exercise of its ‘police power’ – that is, the state’s power to protect the rights of its citizens…
While the presumption of liberty is not the only implication of the Ninth Amendment, it provides a practical and powerful method of protecting unenumerated rights. As lawyers well know, the outcome of legal disputes is often determined by the burden of proof. For example, the First Amendment has been held to impose a serious burden on the government to justify any of its actions that restrict the natural right of free speech. In countless cases, this “presumption of free speech” has effectively protected this retained but enumerated right. The Ninth Amendment simply extends the same protective presumption to all other exercises of liberty.
I’ll examine the presumption of liberty in more detail later. This is not the only possible way of discerning between legitimate and illegitimate assertions of unenumerated rights, of course, but it’s the one I think will be most effective and consistent. But the important point is that we must find some way to do so because the opposite position, that unenumerated rights are in no way binding and the government may violate them at will, simply cannot be true given the history and text of the 9th amendment.