Dispatches from the Creation Wars

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).

Comments

#1 nal
June 29, 2007

The position of Bork, and others, (that rights must be identified and specified) is not supported by the Constitution, by original intent, by original meaning, by the words of the founders, or by any other method of interpretation. None of that even slows them down. They are deathly afraid of the people having “too many” rights.
#2 delurking
June 29, 2007

I’m sorry, I must be missing something and I hope you can explain. Both you and Farber are trying to make a distinction that seems pointless (or nonexistent) to me. All rights are discrete.

I have a right to walk down the street.
I have a right to walk down the street chewing gum.
I have a right to walk down the street chewing gum wearing red shoes.
I have a right to walk down the street chewing gum wearing red shoes humming 80′s show tunes.

If some doofus asks me “where in the Constitution does it say you have a right to walk down the street chewing gum wearing red shoes humming 80′s show tunes?”, I will say “That particular (discrete) right is in the 9th amendment”.

Actions are discrete. By adding up the discrete right to perform each action, we have liberty.
#3 Greg
June 29, 2007

Just an aside, but why is “analyses” sic’ed? The plural of analysis is analyses.
#4 Ed Brayton
June 29, 2007

Greg-

The “sic” is for the phrase “conservative analyses.” Tim argues quite strongly that libertarianism is a form of liberalism, not conservatism. I agree with him.
#5 Rhampton
June 29, 2007

It’s oddly-amsuing that Justice Scalia agrees with Bork’s position that Rights must be granted because he also considers himself to be a Textualist and an Originalist.

“Textualism” is just what it sounds like. As Scalia puts it, “The text is the law, and it is the text that must be observed.”

How that man’s mind works is a mystery. The text of the 9th Amendment, as well as the intention of James Madison:

“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 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.”

Does anyone know how Scalia can justify such contradictory views on such an important principle?
#6 Mike
June 29, 2007

I think that the 9th and 10th Amendments are two of the abused Amendments that are in the Constitution.

Libertarianism is classical liberalism. Both modern conservatives and modern liberals have picked and chosen pieces of libertarianism. The recent Supreme Court case nullifying part of the McCain-Feingold legislation is very much a libertarian ruling and has been denounced most strongly by liberals. Gun rights are also libertarian and are most attacked by liberals. But conservatives also have their anti-libertarian moments such as their war on drugs. I personally think of politics not as a two way continuum of liberal versus conservative, but rather a 4 way plot, with liberals versus conservative on one axis and authoritarian versus libertarian on the other axis.
#7 THobbes
June 29, 2007

Mike–

Good point about the multi-axis plot being the best way of classifying people’s political beliefs. That very idea has been adopted in a variety of ways; each one focuses on some different aspects of the left/right authoritarian/libertarian freedom/security divide:

http://en.wikipedia.org/wiki/Nolan_chart
http://en.wikipedia.org/wiki/Political_compass
http://en.wikipedia.org/wiki/Pournelle_chart
#8 Ahcuah
June 30, 2007

I’m a real fan of Barnett; I’ve read the books, read the law journal articles.

But I’m beginning to wonder if whether “the presumption of liberty” is just a fool’s errand in terms of making any sort of difference when it comes to governmental busybodyness.

Take a look at the two decisions referenced here in Howard Bashman’s appellateblog. The case is over the constitutionality of a Glendale, OH ordinance prohibiting “For Sale” signs on parked cars. The original 6th Circuit Court of Appeals decision was 2-1 saying the ordinance was OK. The Court then granted en banc review, and ended up going 8-7 the other way.

The standard of review was the commercial speech standard, using the Central Hudson test. As part of the Central Hudson test, the government must demonstrate “that the challenged regulation advances the Government’s interest in a direct and material way.” This is very close to Barnett’s “presumption of liberty” standard.

The District Court ruling that the appeals court was reviewing allowed Glendale to use “common sense” to say the ban on “for sale” signs directly and materially advanced the government’s interest in traffic safety and aesthetics. If “common sense” (which is usually neither common, nor sensical) is the standard that applies to commercial speech (and similarly would apply in the “presumption of liberty”), then there is no protection at all — it’s just a restatement of the rational basis test, in effect. (Also note how the difference between the “legitimate” governmental interest of the rational basis test and the “substantial” governmental interest of intermediate scrutiny are more and more being merged together, so that almost any governmental interest is now being declared to be “substantial”.) Intermediate scrutiny is now the new rational basis — the government almost always wins.

OK, so the en banc court sent the case back to the District Court. But it did so 8-7. If the presumption of liberty were to mean something, i.e., that it is up to the government to demonstrate the direct and material advancement, this should not have been close at all. It bodes ill for any sort of hope that a presumption of liberty would amount to anything at all.

As a side note, notice Bashman’s breakdown on Democratically vs. Republican appointed judges.