The 9th Amendment Battle is Joined

Bill Wallo of Walloworld has joined my ongoing conversation with Rusty (see posts here and here) about the 9th amendment. Mr. Wallo is an attorney and a writer. Welcome to the fray, Bill. He begins:

From the tenor of the discussion, Ed reminds me of me - way back in undergraduate school, after I'd taken a couple of constitutional law classes and everything seemed like a constitutional issue.

For the record, I've never taken a constitutional law class and never been to law school. I did take one class on constitutional history as an undergrad back in the middle devonian period. He quotes my obviously trivial example of a law that banned the wearing of sneakers, and says:

Here's the problem in a nutshell, inasmuch as the sneaker analogy goes. Congress could ban the sale and wearing of sneakers under its enumerated powers as long as there was some sort of legitimate governmental interest. If Congress conducted hearings and concluded that sneakers were somehow harmful, or it were possible to tie it to some governmental interest, such legislation would arguably pass constitutional muster - and there would be no "right" which it infringed.

I think perhaps Bill misunderstands my position, and it's partly because he is jumping ahead a bit. In my previous replies to Rusty, I did not actually state my own conception of the 9th amendment and the status of constitutional rights, and that was intentional as I was waiting for him to clarify his own position. Rusty seems to be taking the position that only enumerated rights are "valid" and unenumerated rights are not, but he also seemed to imply that that's not his position; I was waiting for him to clarify for me what his position was before actually giving my own.

For what it's worth, I agree with Bill completely that IF Congress could show a legitimate governmental interest that justified banning sneakers, such a law would be constitutional. Where I disagree with him, and perhaps this is just a matter of semantics, is that I don't think that merely because a law could pass constitutional muster means that there is no "right" which is infringed. Remember that the standard he sets up (which I fully agree with) for when it is permissable for the government to intervene is just as true of enumerated rights as it is of unenumerated rights. The enumerated right of freedom of speech is not absolute and inviolable, the infamous example being the shouting of "fire" in a crowded theater when there is no fire. There is obviously a compelling interest in avoiding panic that will result in deaths with totally unrestrained free speech, so we accept limits on that right for that specific and narrowly drawn purpose; that does not mean that free speech is not a "right", it just means that there are circumstances in which that right can be legitimately limited.

All of the enumerated rights have exceptions to them, but legal theory and the weight of precedent, not to mention common sense, gives us a means by which to determine when such limitations are legitimate and when they are not. The courts have developed several levels of scrutiny that are brought to bear, depending on how fundamental they regard the right being circumscribed to be. And again, this is true of enumerated rights, so it would obviously also be true of unenumerated rights as well. Despite Bill's assertion that I am reading a constitutional question where there is none, this is a question of constitutional law, it's just a broader question than my narrowly drawn example suggested. The constitutional question is not merely "is there a right to wear sneakers?", but rather, "does the government have a compelling state interest in violating the right to wear sneakers?". And this is where it comes back to our conceptions of the 9th amendment - and here is where I will state my own position on unenumerated rights more fully.

My position on the 9th amendment and unenumerated rights is essentially identical to Randy Barnett of the Boston University Law School, which he briefly described in a post on Volokh yesterday. In his book Restoring the Lost Constitution: The Presumption of Liberty, Barnett argues that the way to give the 9th amendment meaning separate from the 10th amendment and other provisions (one of the fundamental rules of legal theory is that you cannot read a given text in a manner that makes it superfluous or redundant) is to set the presumption in terms of unenumerated rights on behalf of the people and, as a result, set the burden of proof against the government:

I propose we can implement the original meaning of the Ninth Amendment (and the Privileges or Immunities Clause of the 14th) by adopting a "Presumption of Liberty" that would place the burden on the government to show that its laws were necessary to achieve a proper end. At the federal level the ends are provided by the enumerated powers; at the state level by a proper conception of the police power. But this doctrine would be a construction of the Constitution--as is the current "presumption of constitutionality"--and not an interpretation of the original meaning of either the Ninth Amendment or the Privileges or Immunities Clause.

This is essentially what Bill advocates above, so it seems we are in agreement on that question. The only real disagreement, it seems, is that I consider unenumerated rights to be just as "real" as enumerated ones, but still subject to limitations where there is a compelling state interest in doing so. And that is why I said to Rusty in my first response that he is throwing the baby out with the bathwater. Rather than arguing, in the case of gay marriage and other judicial rulings he may disagree with, that there is a compelling interest at stake, he seems to want to throw out unenumerated rights entirely and argue that if a right is not specifically stated, the government can do whatever it likes.

Using his own example of Roe v Wade (which he of course objects to, and which I have zero interest in debating with him or anyone else), it seems far more reasonable to me to make the argument that there is a compelling state interest in protecting unborn life that overrides any concerns about the right to privacy, as opposed to arguing that the right to privacy doesn't exist because it isn't explicitly stated in the constitution. There is no need to throw the baby of unenumerated rights out with the bathwater of whatever extension of those rights you may disagree with in a specific case.