Dispatches from the Creation Wars

Reading the 9th Amendment

I am having an extended debate with Jimmy G in the comments on this thread over the nature of the 9th amendment. Jimmy’s argument is that the 9th amendment must be read as a federalism provision and that the “unenumerated rights” mentioned in it are limited to those rights found in state constitutions at the time of the ratification. I thought I’d move it up top and explore it in a bit more detail. His position is what Randy Barnett calls the “rights-powers conception” of the 9th amendment in an article in the Harvard Journal of Law and Public Policy. But as Barnett points out, this reading still renders the 9th amendment meaningless:

First, this interpretation treats the Ninth and Tenth Amendments as exactly the same. The Tenth Amendment reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.

The idea that animates the rights-powers conception that powers not delegated are reserved is clearly expressed here. If the only intention of the Framers was to state the theory of enumerated powers, the Tenth Amendment was entirely sufficient to the task. There was absolutely no need for another amendment written confusingly in terms of “rights” retained by the people to express exactly the same idea.


Barnett argues further that this reading prevents the 9th amendment from having “any potential application” and therefore simply reads it out of the Constitution. But the first rule of textual interpretation is that a given passage has to mean something, it must have some application in some situation. Barnett goes on to argue that the purpose of the Bill of Rights was not merely to reinforce the limits on governmental authority, but to prescribe the methods by which they could exercise that authority as well:

The idea that constitutional rights are simply what is left over after the people have delegated powers flies in the face of the amendments themselves. For example, it is simply impossible to find a right to “a speedy and public trial, by an impartial jury,” a right against double jeopardy or self incrimination or a right to be free from “unreasonable searches and seizures” by closely examining the limits of the enumerated powers of the national government. The reason for this is that the delegated powers provisions limit the proper ends or scope of federal powers, while these examples of enumerated rights limit the means by which the federal government may use those powers that are within its proper scope.

I agree.

Comments

  1. #1 Ed Darrell
    January 31, 2006

    I used to have comments from Madison, but I doubt I can find them easily again. My recollection is that his emphasis was on rights to the people — consistent with his correspondence with Jefferson on the issue of a bill of rights at all, in late 1787 and 1788. Madison’s notion was that all rights are held by the people, and that only those things delegated to government can be done by government. On the issue of religious freedom, Madison pointed out that the people held all religious rights and duties, since each state had long gotten rid of established churches (1778), and the vestiges of establishment that clung on after were no threat to anyone’s rights; consequently, he told Jefferson, states lacked the ability to establish a church, since no state’s charter at that time delegated that power to the state government, and each charter instead guaranteed religious freedom.

    The 9th Amendment, then, suggests that there are some rights (which ones?) that are denied the federal government, but which could be delegated to the states, at least hypothetically.

    But, why does anyone care?

  2. #2 Sonik
    January 31, 2006

    Ed Darrell asked why anyone cares about the 9th Amendment’s delegation to the states, or to the people.

    I think the big reason why we should care is that the key issue with originalists is that every word of the Constitution ought to have some meaning, and more importantly must be incorporated in judicial decisions as they were first intended by the framers. However, nobody on the Court right now has even attempted to really explain what the 9th Amendment means and how it ought to be applied in current case law.

    This is especially true with Justice Scalia, who “only” looks to the text of the Constitution in order to make his decisions. However, he has clearly overlooked the 9th’s command that things not said in the Constitution “shall not be construed to deny or dsparage others retained by the people.” Thus, if Scalia and other originalists really beleive that there is no right to privacy, or that the Constitution does not specifically provide for Affirmative Action and other major policy goals, then they have answer why those powers cannot be merely certain rights “retained by the people.”

    In other words, the 9th Amendment’s text seems to suggest to me at least that even if there are no positive rights within the Constituion, the federal government has an obligation to protect some unlisted positive rights that are inherently possessed within the people, like a right to privacy.

  3. #3 Mr. Upright
    January 31, 2006

    Please correct my history, but wasn’t the 9th amendment expressly included in the BOR because there were many who feared that some future government could claim that the enumerated rights were the only rights of the people? It’s easy enough to predict — it’s one of the bedrock principles of the Federalist Society.

    I could not agree more with Barnett that “these examples of enumerated rights limit the means by which the federal government may use those powers that are within its proper scope”. Search, seizure, trial, etc. are necessary powers of any reasonably stable government. The amendments are clearly intended to establish limits on them.

    Every element of the constitution, particularly the BOR, involves a careful balance between “powers” of the government and “rights” of the people. The 9th and 10th amendments continue this trend.

    The federal government has the power to mint money. The states have no right to do so, neither do the people. The people have a right against unreasonable search and seizure. The federal and state governments have no power to act unreasonably in these matters.

    What happens when there is a question about powers vs. rights? Let’s take Holmes’ “fire in a crowded theater” example. The people have the right to free speech. The government, by any reasonable person’s reckoning, has the power to prohibit speech that creates a public danger (as that example clearly does).

    The way I’ve always read the Constitution, the 9th guarantees that innumerable rights exist — just claim it and it is a right. That is, unless the government can prove to the courts that it has a constitutional power over that issue. Even then, as the BOR certainly shows, those powers may not be universal.

    Ed says,

    the 9th Amendment, then, suggests that there are some rights (which ones?) that are denied the federal government, but which could be delegated to the states, at least hypothetically.

    I disagree that “some rights…are denied the federal government”. The Constitution nowhere grants any rights to the federal government, only powers.

    The way I read 9 and 10, states have rights in so far as the federal government does not have powers (or has limited powers) in those areas. The people have rights in so far as the federal and state governments do not have powers. In many cases, such as those listed in the BOR, the people have rights precisely because the constitution limits those powers that the governments have.

    That’s what really galled me about Roberts’ confirmation hearing, in which he said something like, “if you want a right, let Congress pass a law granting that right.” That’s backward! Congress cannot grant rights, period. It is not anywhere in the Constitution.

    More importantly, it should be noted that no amendment to the Constitution grants a new right. The wording is subtle, but important. The rights (such as voting rights) are seen as inherent, and what is new is that they can no longer be denied. Contrast this with the 16th, which does grant a new power (income tax) to congress.

    Or am I full of crap?

  4. #4 Ed Brayton
    January 31, 2006

    I think Mr. Upright is pretty much on track here.

  5. #5 Ed Darrell
    February 1, 2006

    Yeah, what you guys said.

    I must have heard that same section of Roberts’ hearing that got the gall of Mr. Upright. [Piano? Behavior? Non-quadruped?] I think this is an area of assault the conservatives will make on Constitutional rights and freedom. The right to privacy is critical to the decision in the abortion cases, but it’s not an enumerated right. The right to travel, and the right to find a toilet and a place to sleep are critical to civil rights cases. Were conservatives to get ruling that unenumerated rights do not exist, it would be the quiet gutting of the Constitution, much as the foolish decisions in Barron v. Baltimore and Dred Scott quietly put the rights battle back a century or more each.

    Some “public interest” lawfirm for the conservatives is out there now trying to find a case to allow motels to discriminate on race, or to allow states to ban the sale and use of condoms. Hoping they won’t find the case is not enough; I hope we’re ready to defend if the case is ever brought.

  6. #6 Mike Heath
    February 1, 2006

    Ed Darrell said

    Some “public interest” lawfirm for the conservatives is out there now trying to find a case to allow motels to discriminate on race, or to allow states to ban the sale and use of condoms. Hoping they won’t find the case is not enough; I hope we’re ready to defend if the case is ever brought

    I believe the next new type of attack on our freedoms by conservatives will be legislation that will deprive business owners of their current right to discipline or dismiss employees who refuse to sell a product or service marketed by their employer that while legal, is morally reprehensible to the employee, e.g., “day after” pill, vaccine developed with embryonic stem cells, sales of alcohol in grocery store, etc.

    While the employee certainly should have a right in their actions, so should the employer have a right to legally market their product and services without intervention by their paid employee. The market would then decide which employer consumers would reward with business, as it should be.

  7. #7 Jimmy G.
    February 1, 2006

    But as Barnett points out, this reading still renders the 9th amendment meaningless:

    ONCE AGAIN THE ABOVE IS NONSENSE.

  8. #8 Jimmy G.
    February 1, 2006

    The idea that constitutional rights are simply what is left over after the people have delegated powers flies in the face of the amendments themselves. THIS “IDEA” SIMPLY IGNORES THE FACT THAT THE STATES WERE SEPARATE FROM THE FEDERAL GOVERNMENT. THE ENTIRE PURPOSE OF THE BILL OF RIGHTS WAS TO PROTECT THE PEOPLE FROM THE FEDERAL GOVERNMENT NOT THE PROTECTION OF THE PEOPLE FROM THE STATES OR THEMSELVES. ANY CONCERNS REGARDING THE STATES INFRININGING ON INDVIDUAL RIGHTS WERE TO BE LEFT TO EACH STATE TO ADDRESS.

  9. #9 Jimmy G.
    February 1, 2006

    Were conservatives to get ruling that unenumerated rights do not exist, it would be the quiet gutting of the Constitution, NONSENSE. IT WOULD SIMPLY PUT THINGS BACK INTO THE FRAMEWORK THE PEOPLE AGREED TO WHEN THEY RATIFIED THE CONSTITUTION.

    Some “public interest” lawfirm for the conservatives is out there now trying to find a case to allow motels to discriminate on race, or to allow states to ban the sale and use of condoms. Hoping they won’t find the case is not enough; I THOUGHT THAT THIS MIGHT ACTUALLY BE AN HONEST DEBATE FORUM. POSTS LIKE THIS ONE HAVE DASHED THAT HOPE. APPARENTLY IT IS JUST LEFT WING DOGMA IN DISGUISE.

  10. #10 Jimmy G.
    February 1, 2006

    My recollection is that his emphasis was on rights to the people — consistent with his correspondence with Jefferson on the issue of a bill of rights at all, in late 1787 and 1788. Madison’s notion was that all rights are held by the people, and that only those things delegated to government can be done by government. On the issue of religious freedom, Madison pointed out that the people held all religious rights and duties, since each state had long gotten rid of established churches (1778), and the vestiges of establishment that clung on after were no threat to anyone’s rights; consequently, he told Jefferson, states lacked the ability to establish a church, since no state’s charter at that time delegated that power to the state government, and each charter instead guaranteed religious freedom.
    YOU REALLY NEED TO REREAD YOUR HSITORY.

  11. #11 Ed Brayton
    February 1, 2006

    Jimmy G:

    Your habit of splitting your comments up into 5 or 6 separate posts is getting quite annoying. Try to think of all your bad arguments at once, please.

    ME: But as Barnett points out, this reading still renders the 9th amendment meaningless:

    ONCE AGAIN THE ABOVE IS NONSENSE.

    I love the fact that you snipped out all of Barnett’s substantive argument just to declare the introduction to that argument “nonsense”. Do you really think this is a convincing argument? Do you think it’s an argument at all, for that matter? Barnett laid out a reasoned and supported argument for his position that the rights vs powers interpretation of the 9th amendment is invalid because it makes the 9th amendment superflous and identical in content to the 10th amendment. If you have a substantive reason why his argument is either illogical or unsupported by the textual evidence, you would do well to offer up such an argument. If you can’t, then blustering about “nonsense” only makes you look foolish.

    Randy Barnett: The idea that constitutional rights are simply what is left over after the people have delegated powers flies in the face of the amendments themselves.

    THIS “IDEA” SIMPLY IGNORES THE FACT THAT THE STATES WERE SEPARATE FROM THE FEDERAL GOVERNMENT. THE ENTIRE PURPOSE OF THE BILL OF RIGHTS WAS TO PROTECT THE PEOPLE FROM THE FEDERAL GOVERNMENT NOT THE PROTECTION OF THE PEOPLE FROM THE STATES OR THEMSELVES. ANY CONCERNS REGARDING THE STATES INFRININGING ON INDVIDUAL RIGHTS WERE TO BE LEFT TO EACH STATE TO ADDRESS.

    Actually, you’re conflating two entirely different issues. Barnett is addressing the notion of rights vs powers specifically in regard to the Federal government. He is arguing against the position that the sum total of individual rights vis a vis the Federal government is limited to those rights specifically laid out. And he is arguing that the Bill of Rights goes further than simply giving those rights outside of the delegated powers because even where a given power is delegated to the Federal government, the Bill of Rights prescribes how they may go about exercising that power. For example, it is undeniably within the government’s power to hold trials but the 4th and 5th amendments restrict how that power may be exercised. Thus, his argument is quite straightforward – the sphere of individual rights is not merely “everything left over after powers are delegated.” And I just love the scare quotes around “ideas”, as though his idea isn’t really an idea.

    I THOUGHT THAT THIS MIGHT ACTUALLY BE AN HONEST DEBATE FORUM. POSTS LIKE THIS ONE HAVE DASHED THAT HOPE. APPARENTLY IT IS JUST LEFT WING DOGMA IN DISGUISE.

    First of all, this isn’t a debate forum at all; it’s a blog. Second of all, you are committing the classic argumentum ad labelum fallacy. You apparently think that by merely labelling a position “left wing dogma”, you have refuted that position. Sorry, it doesn’t work that way.

    YOU REALLY NEED TO REREAD YOUR HSITORY.

    You’re really quite adept at these empty rhetorical non-answers. Do you ever offer actual arguments and evidence to support them? What can we expect next, “I’m rubber and you’re glue”? it’s becoming quite obvious that you are way out of your depth here. I suspect you’d be more comfortable in an AOL chatroom.

  12. #12 Jon Rowe
    February 1, 2006

    On the issue of religious freedom, Madison pointed out that the people held all religious rights and duties, since each state had long gotten rid of established churches (1778),

    Ah no. Each state had not “long gotten rid of established churches.” Mass. held theirs until 1833.

    And yes Madison did believe something like “the people held all religious rights and duties.” But that was in spite of the fact that states had not yet disestablished their Churches. That’s why Madison proposed an Amendment which he regarded as the most valuable one on the list which forbade states from violating “the equal rights of conscience.” But it was subsequently voted down.

  13. #13 Ed Darrell
    February 2, 2006

    Jon,

    By late 1776 only four states had not officially disestablished — Virginia, New Hampshire, Connecticut and Massachusetts. Only three states only had what can only technically be called “establishment” after 1778, after Mason and Jefferson finished their major rounds of legal reform in Virginia — and Virginia went even farther in 1786 in response to Patrick Henry’s proposal to make a minor re-establishment, passing the still-valid Statute for Religious Freedom instead. By the time of the Constitution, only the three Congregationalist states “remained out of step with the rest of the country,” according to Winthrop Hudson’s Religion in America (pick your edition). In these three cases, this “establishment” was a system by which the state would collect tithes (or smaller donations) from people to pay to a church; if you recall, when the Baptists in Connecticut grew concerned that there might be a state re-establishment, they wrote to the president for help and got the famous proclamation from Jefferson that troubles the wackoes today.

    Connecticut erased even the vestiges in 1818; New Hampshire followed in 1819; and to John Adams’ irritation, Massachusetts clung on until 1833. IMHO, such a completely emasculated establishment does not merit the title, and coupled with the guarantees of religious freedom present in the state charters since 1778, I think it’s fair to acknowledge that establishment was long dead before the Constitution (which is one reason the convention ignored the issue, Hudson notes).

    Jimmy G, when you call this Republican Revolution, former-Reagan appointee a liberal, when I write on the blog of Ed Brayton who is well to the right of me on many issues, smile, pardner.

    Have you ever read anything by Owen Wister?

  14. #14 Ed Brayton
    February 2, 2006

    Ed Darrell wrote:

    Connecticut erased even the vestiges in 1818; New Hampshire followed in 1819; and to John Adams’ irritation, Massachusetts clung on until 1833. IMHO, such a completely emasculated establishment does not merit the title, and coupled with the guarantees of religious freedom present in the state charters since 1778, I think it’s fair to acknowledge that establishment was long dead before the Constitution (which is one reason the convention ignored the issue, Hudson notes).

    I’ll just note that those emasculated establishments, while clearly not as heinous as earlier colonial establishments that imprisoned folks of the wrong sect or worse, were still a major concern for Madison. His opposition to Patrick Henry’s “minor re-establishment”, against which he rallied the troops in the Virginia Assembly and for which event he wrote the brilliant Memorial and Remonstrance, does not suggest that he saw such establishments as minor. He firmly believed that to tax a man for support of any church against his will was tyranny and must be stopped. He went to some lengths, in fact, to insure that the Memorial and Remonstrance was distributed far and wide to maximize its influence and push others to similarly get rid of any vestiges of establishment in other states.

  15. #15 Ed Darrell
    February 2, 2006

    Mr. Brayton, we may have had this discussion before.

    You’re absolutely right: Madison saw no encroachment of freedom of religion as minor. The Congressional chaplain bill bothered him greatly, even when he could see the arguments of the proponents — too close to establishment. Madison even opposed asking for “occupation” on the census, on the grounds that clergymen should not have to answer such a question, since it revealed that they had religious beliefs.

    I hope I didn’t give the impression that such an establishment is acceptable. It wasn’t, and to the credit of the four of the thirteen states who did not disestablish by 1778, they never backtracked, either — and each continued to completely dis-establish.

    And that’s rather my point. The ball started rolling toward religious freedom, and like that monster bearing down on Indiana Jones at the opening of the first movie, it didn’t pause, it didn’t roll back — it kept going the way it was going. The trend has no counter trends.

    But for the purposes of just what existed in 1787 and 1789, it is absolutely incorrect to paint a case that any had something like a theocracy. Especially after beating Patrick Henry’s proposal, Madison understood both that religious freedom needed to be promoted actively, and that such promotion was a winning position. There were no state churches, there was no formal role for a church in any government, there was no formal role for a government in any church, so far as one telling the other what to do. Any claim that a state can establish under the First Amendment is specious. The First Amendment does not roll back the freedom clock from 1789 to 1774 — there is no grant of a right to a state to establish a church in the First Amendment, nor could there be, since that was beyond the power of the federal government.

    I find a lot of people who argue for state establishment rights fail to understand that the states did not approve the Constitution. It is a compact between people (“We, the People . . .”), and not an agreement of the states. There isn’t significant litigation on this point that I’ve ever found, and it rather slips into the floor cracks in discussions.

    Just remember: By 1778, nine of the thirteen colonies had disestablished completely, and the other four had almost completely disestablished their churches. It’s not a debatable point about whether the states had captured churches or a church had a captured state government. Religious freedom was the rule, and increasingly so.

  16. #16 Ed Brayton
    February 2, 2006

    Ed Darrell wrote:

    Any claim that a state can establish under the First Amendment is specious. The First Amendment does not roll back the freedom clock from 1789 to 1774 — there is no grant of a right to a state to establish a church in the First Amendment, nor could there be, since that was beyond the power of the federal government.

    The first amendment doesn’t deal with what states can and can’t do, certainly not as originally written (Madison wanted to apply it to state actions, but it was voted down). After the 14th amendment, states are now forbidden from establishing official churches, but they were not prior to that. The message of Barron v Baltimore was that the Bill of Rights could not be applied against state actions, a ruling that was explicitly overturned by the passage of the 14th amendment.

  17. #17 Ed Darrell
    February 3, 2006

    I suppose one could argue that the states, hypothetically, could have established churches — that’s exactly contrary to the Jefferson proclamation, but let’s ignore that for a moment.

    Out of what well could the states have drawn the authority to establish a church? Each state constitution assures freedom of religion and worship, and some go farther. Congress can’t grant authority to the states to do it, I think we agree.

    And, if that authority existed, why didn’t anybody exercise it? For example, neither those who wanted the Mormons gone, nor the Mormons when they had Utah, established a state church, though that certainly would have solved some of their claimed difficulties.

    I don’t think it was just an unused tool in the toolbox of every state; I think that tool was absent.

  18. #18 Ed Brayton
    February 3, 2006

    Ed Darrell wrote:

    Out of what well could the states have drawn the authority to establish a church? Each state constitution assures freedom of religion and worship, and some go farther. Congress can’t grant authority to the states to do it, I think we agree.

    Congress wouldn’t need to, but Congress also could not prevent a state from doing so prior to the passage of the 14th amendment, nor could Federal courts. It simply isn’t true that all state constitutions at the time assured freedom of religion. Many of them, in fact, had explicit religious tests for office even after the Constitution was passed, the last of which (Maryland) was not struck down by the courts until 1961 (Torcaso v Watkins). The Federal ban on religious tests for office applied only to the Federal government, as did the first amendment’s religion clauses. Any state could have established a religion at the time, and if their state constitutions forbid that then they could simply amend those state constitutions. The Federal courts and Congress could not have done a thing about it until 1868.

    And, if that authority existed, why didn’t anybody exercise it?

    Because the trend that began with Virginia’s example was powerful. The movement to religious freedom was inevitable, but that doesn’t mean the Constitution required it of the states. Until the 14th amendment, it simply did not.

The site is currently under maintenance and will be back shortly. New comments have been disabled during this time, please check back soon.