Despite the fact that the first thing he did upon returning from his weekend getaway was bust my chops for my take on the Dan Rather fake memo story (LOL), I'd like to congratulate Timothy Sandefur both on his award from the Clarement Institute and on the recent publication of his article about the Declaration of Independence in Constitutional interpretation in the Harvard Journal of Law and Public Policy. He was kind enough to send me a copy of that article, and I give it a big thumbs up. I hope it will be available online at some point so that you can all benefit from his insights into a very important issue.
His HJLPP article is titled Liberal Originalism: A Past for the Future and it draws on the work of scholars like Randy Barnett and Scott Alan Gerber, particularly on The Declaration of Independence: Origins and Impact, a collection of essays edited by Gerber. He distinguishes liberal originalism (by which he means classical, Jeffersonian liberal, not modern liberal) from the conservative originalism of, for instance, Bork and Scalia, as well as from the "living constitutionalism" of some modern liberal scholars.
The most interesting part of the article for me was the section on the 9th amendment and the ways in which conservative originalism simply negates its meaning. He writes:
The question is not, as conservative originalists would have it, one of whether the right to privacy is "in the Constitution" - this version of the question is foreclosed by the Ninth Amendment - but whether any legitimate government has a right to police such activity. The Declaration answers no. There are things that are simply beyond the legitimate reach of any government.
Reading the footnotes in this section crystalized my own thinking on this issue. When the founders framed the Bill of Rights, the primary argument against it was that by enumerating specific rights, it will send the message that anything not specifically enumerated was within the province of government's reach. Madison addressed this objection during the hearings on the subject and came up with the Ninth Amendment, which specifically addresses this question, in order to avoid that from happening. So when conservatives today object to the judicial protection of an unenumerated right, such as the right to privacy, by accusing the judge of "inventing a new right", they are doing exactly what the founders said they should not do, and what they intentionally wrote the Ninth Amendment to avoid. They are making exactly the argument that Madison warned would be made if they attached a Bill of Rights to the Constitution, pretending that if a right is not specifically enumerated then the government may do as it pleases. In fact, liberal originalists should be accusing the legislators who came up with the laws that violate an unenumerated right of "inventing a new power" for government, because the Ninth Amendment makes clear that the presumption is on the side of the individual, not on the side of government (hence Randy Barnett's book The Presumption of Liberty).
Anyway, if you have access to the Harvard Journal of Law and Public Policy, I urge you to read Mr. Sandefur's excellent article on this subject. It's in the Spring 2004 edition. I also urge you, if you do not already, to read his blog, Freespace, on a daily basis. I really believe that, at his young age, he is well on his way to becoming a very important scholarly voice for the cause of freedom in the United States, a position he will surely achieve unless Dan Rather digs up some dirt on him.
- Log in to post comments
Thanks for the pointer. I will have to see about getting a copy of that article.
I've always wondered why the Ninth Amendment has had essentially no impact on legal practice in the United States, while a layman's reading of the Constitution would suggest that it was among the most important sections of the entire document.
And yet I must ask, because I know that this is the conservatives' question: If WE find certain rights to emanate from the Ninth Amendment, while the founders would certainly not have found those rights to emanate from it--then how do we decide?
And yet I must ask, because I know that this is the conservatives' question: If WE find certain rights to emanate from the Ninth Amendment, while the founders would certainly not have found those rights to emanate from it--then how do we decide?
Fair question. In those cases, I think we apply the principles behind the Declaration and the Constitution to that specific situation. The primary principle is that the individual has the right to "life, liberty and the pursuit of happiness", and that those rights are inalienable. Even if in some circumstances the founders themselves, as men of their age, did not see fit to apply those principles as widely or as uniformly as they ought to be applied, that is not an impediment to our doing so. Indeed, one could argue that the entire history of America can be viewed as the slow and steady application of our founding principles to those not initially covered by such protections, particularly to women and to blacks. Many have argued, for instance, that the principles of the Declaration, while not specifically condemning slavery, created the atmosphere that led inevitably to the end of that horrible institution. It should also be said that some of the founders, Jefferson in particular, anticipated that and hoped for it. It also should be said that the mere fact that the states did not guarantee protections for things we today wish to be protected should not be seen as evidence of what the founders wanted from the new government, because they intended for the states to have the power to do many things they did not think were just.
"If we find certain rights to emanate from the Ninth Amendment, while the founders would certainly not have found those rights to emanate from it--then how do we decide?"
Great question. The honest, but, I'm sure, unsatisfying answer: political philosophy.
More sophisticated abortion opponents that I've heard accept that there is a 9th Amendment right to privacy. Instead, they argue that the privacy right does not extend to criminal acts such as murder (of the unborn). If it becomes legally established that abortion is murder then a finding of probable cause could leaed to a warrant that would sunder the veil of privacy.
I long to have the 9th Amendment included in constitutional rulings, but it seems as though we are still left with the basic argument -- is abortion murder? I'd be interested in hearing what Mr. Sandefur has to say about this. Is privacy the wrong foundation on which to establish the woman's right to reproductive choice? Or is her self-ownership a better foundation, whatever one may think about the status of the fetus?
Congratulations, indeed, to Mr. Sandefur. This topic is an important and timely one; it transcends constitutional interpretation and goes to the very heart of this question: what kind of a nation do we want to be? The American nation was born and nurtured in the spirit of classic, post-Enlightenment liberalism. Within the past quarter-century, a conservative shift has taken place. Politicians of all stripes seek, of course, to co-opt the judiciary. Balkin and Levinson have used the phrase "partisan entrenchment" to describe efforts by politicians to have the judiciary embrace and extend well beyond their elected terms of office their constitutional world views. Within the context of the present discussion, this becomes relevant when political actors seek to entrench a conservative originalist view on the bench. (The same can be said, of course, for liberals who seek to entrench their own views.) That is what is happening right now, and is responsible, in part, for the confirmation wars we've seen over the past couple of years.
Conservative originalists are, as I'm sure Mr. Sandefur points out in his article (I haven't read it, but look forward to doing so), much more inclined to adopt a narrow, formalist reading of the Constitution to restrict individual rights versus the rights of society, at least where non-economic rights are concerned. Originalism is simply a shortcut for "the Constitution doesn't say it's a right, so it's not a right." This view is, in my opinion, clearly at odds with what the founding generation understood when it crafted the Constitution and the Bill of Rights. They knew it was beyond the capacity of any charter to anticipate and enumerate all of the rights possessed by free people in a liberal democratic society, so they did the best they could using general and, admittedly, imperfect language.
When I teach Constitutional Law, I try to get the students to see the right/power dichotomy in a different perspective. They tend to ask "Does X have the right to do Y?" And then they go looking for that right somewhere in the law. Indeed, that is precisely what most students of the law in this country are trained to do. I ask them to think about it this way: "Does government have the power to prevent X from doing Y?" And then I send them off to find the appropriate delegation of authority giving government that power. It's all a question of perspective, but I want my students to see both sides of it. We have some great discussions when we talk about the Ninth Amendment.
I'm working on a paper that responds to Professor Larry Solum's formulation of neoformalism and strict stare decisis. This post reminds me -- what am I doing here, instead of working on finishing that paper? In any event, a fascinating subject, and one that merits a great deal of attention and discussion. Again, congratulations, Mr. Sandefur.
When I teach Constitutional Law, I try to get the students to see the right/power dichotomy in a different perspective. They tend to ask "Does X have the right to do Y?" And then they go looking for that right somewhere in the law. Indeed, that is precisely what most students of the law in this country are trained to do. I ask them to think about it this way: "Does government have the power to prevent X from doing Y?" And then I send them off to find the appropriate delegation of authority giving government that power. It's all a question of perspective, but I want my students to see both sides of it. We have some great discussions when we talk about the Ninth Amendment.
But this is the correct perspective, the one that should be trumpeted far and wide. As Sandefur puts it, the Constitution is a charter of power granted by liberty, not a charter of liberty granted by power. The government was given limited authority in specific areas and those things outside of its sphere of authority were intended to be reserved to the individual. When looking at any individual case of an assertion of authority - the right of a state to outlaw sodomy, for example, or contraceptive use - the relevant question is not "does the Constitution give people the right to do this" but rather "does the Constitution give the government (i.e. the majority) the authority to prevent this". In cases where authority is not specifically spelled out, the legislatures are "inventing a new power" for government. Randy Barnett is right, we have the burden of proof exactly backwards most of the time. Conservative originalists want to abstract all of the powers granted to government, but demand that none of the rights be abstracted - except, of course, the ones they like. No conservative would ever claim that when the courts upheld the right of parents to send their child to a private school that the court was "inventing a new right". Yet that is nowhere to be found in the Constitution. Here we have an unenumerated right being recognized on the basis of various penumbra, and no conservative would complain about that. But if an unenumerated right that they disagree with is recognized by a court, the cries of "unelected judges" and "judicial tyranny" are heard from every rooftop. It's a dishonest little sham and it has been going on for far too long.
But this is the correct perspective, the one that should be trumpeted far and wide.
I agree. But the analytical construct courts tend to use is "Does X have the right or liberty to do Y?" Hence the fundamental right/strict scrutiny analysis we see today in due process and equal protection cases. It is all quite literally constructed on the premise that we must first find the right or liberty, not that the state must first articulate the power. Until the Supreme Court sees fit to undo about a hundred years of constitutional jurisprudence (don't look for that anytime soon) I have to teach both perspectives.
You're also absolutely right that original meaning depends upon what sort of rights we're debating, and who is engaged in the debate. Original meaning is every bit as underdetermined as some of the most underdetermined parts of the Constitution (for example, equal protection, due process, cruel and unusual, etc.). Taking your example, if it is perfectly clear to conservatives that original meaning can be stretched to encompass school vouchers (and equally clear to liberals that it cannot), it is just as clear to conservatives that original meaning does not contemplate the liberty to engage in consensual, non-commercial, adult sodomy (and just as clear to liberals that it does). The original meaning pendulum swings both directions, and accusations of "judicial tyranny" or "activist judges" can be heard from both sides of the political spectrum, depending on the issue. Its all part of the contest over American Constitutionalism, and it is a fascinating contest with real-world consequences.