Tim Sandefur has an excellent essay at Positive Liberty about Randy Barnett’s groundbreaking scholarship on the 9th amendment and a counter-argument made in a book by Dan Farber. He quotes the following from Farber’s book:
The libertarian view espoused by writers like Randy Barnett is that the Ninth Amendment creates a general presumption in favor of liberty, rather than requiring the identification of specific protected rights. In pursuing this analysis, Barnett has done important work in sifting the historical record. His analysis is partly right, where all the other conservative analyses [sic] are wrong, in stressing the connection between the Ninth Amendment and individual rights. But his analysis then makes the mistake of confusing right, which come in discrete packages, and liberty, which is a vaguer concept of unrestricted action. The Amendment clearly speaks in terms of rights rather than some undifferentiated concept of liberty.
This is wrong in spectacular ways and Sandefur does a terrific job of shredding the argument. He writes:
How many other things are wrong with this paragraph? Well, first of all, the text of the Ninth Amendment does not refer to “discrete packages” of rights. It refers to “others retained by the people.” The term “others” is undifferentiated! It echoes the Declaration’s reference to “among these [rights]”–that is, this text exists specifically to point out the fact that the act of differentiating some rights and setting them aside as discrete packages must not be construed to deny the existence of an undifferentiated (and insusceptible of differentiation) mass of other rights that together make up the concept of liberty. The Ninth Amendment would be self contradictory if it were interpreted in a way that required that all the rights to which it refers be “discrete packages.”
Farber’s error here is not unlike the error committed by Bork and others, who assume that rights must be identified and specified before they can be accepted as constitutionally recognized entities. The Amendment exists precisely to block such a theory: it exists because liberty is made up of an infinite number of undifferentiated rights, and to cut some out from the herd might lead some people, like Bork and Farber, to assume that only those which have been cut out deserve respect.
This is the same argument I’ve been making for many years. Whenever you hear someone say something like, “where does the constitution say you have a right to do that,” they are making the exact argument that the founding fathers made clear should never be made in regard to unenumerated rights. That was the sole and specific purpose of the 9th amendment, as Madison made clear when he presented and explained his initial list of amendments that became the Bill of Rights. His words could not be more clear:
“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].
The argument that the only rights that warrant constitutional protection are those specifically enumerated was the very argument that the 9th amendment was written to disprove, yet that is the exact position taken by Bork and other conservatives today. Barnett is absolutely right, the 9th amendment was designed to establish a presumption of liberty and set the burden of proof on the government to assert a legitimate reason and the constitutional authority to deny any particular freedom of action, not on the individual to show that they have a given right.
It should perhaps also be noted that Prof. Barnett himself cited the post above at Volokh and referred to “the always insightful Tim Sandefur.” High praise indeed and well deserved. I got similar praise in a private email this week from Paul Krassner, but Paul’s done enough acid in his life to perhaps make one doubt his judgment (with tongue firmly in cheek).