Patterico left a comment below that harkens back to a prior exchange we had on the subject of the legitimate exercise of authority by the government. I thought I'd move it up here in the hope that we could continue that discussion and others could jump in as well. Patterico writes:
Where liberals have gone wrong is in relying upon an expanding and mysterious group of "rights" the existence of which is subject to the whims of unelected judges. Conservatives would rather stake their claim to liberty on the premise that the authority granted to a centralized government is limited in scope. If that leaves power to the States, I'd rather trust the electorates of the States. At least they can change their minds. When judges read made-up rights into the Constitution, that can't be easily changed.
Well, this gets us closer to a real discussion of the issue that matters here. I would hope you aren't labelling all unenumerated rights as "made up rights", because the existence of the 9th amendment makes that an untenable position. The founders made very clear that they could not possibly list all of the rights that an individual has and that is why they put the 9th amendment in the Bill of Rights, specifically to shoot down the position that all rights not explicitly listed are fair game for governmental intrusion. I hope we can at least agree on that much. If we can, then we can get on to the real crux of the issue: what criteria do we use to determine what is a legitimate unenumerated right and what is an illegitimate one? How do we distinguish between genuine unenumerated rights which we know must exist, and false assertions of rights? There must be some criteria we can develop to distinguish between them. Unfortunately, those who oppose the courts in enforcing a particular unenumerated right have a habit of labeling any ruling that they disagree with as involving a "made up right" without spelling out what criteria they use to determine when a right is "made up" and when it is valid.
Nowhere in the constitution does it mention a right to marry. Does that mean that the ruling in Loving, which said that people have a right to marry the person of their choice even if they are of a different race regardless of what the majority in a state may otherwise desire, was invoking a "made up right" based on the "whims of the judges"? Is this unenumerated right legitimate or illegitimate? And how do we distinguish between those two conclusions?
I would argue that we distinguish between them by placing the burden of proof always upon the government (i.e. the majority) to show that a given law is a legitimate exercise of governmental authority. By what legitimate authority does any government assert the authority to tell an adult that they may not marry another consenting adult because they are of a different race (or religion, or political affiliation, or anything else for that matter)? What legitimate governmental interest is served by such a law? I would submit there is none served. Hence, the ruling was correct.
Madison said that the constitution was not a charter of liberties granted by power but a charter of power granted by liberty. The founding premise of this nation is that we are each endowed with rights that precede the existence of governments and we form governments for the purpose of protecting those preexisting rights. Hence, the burden of proof should never be on the individual to prove that they have the right to do something; the burden should always be on the government (i.e. the majority) to prove that they are engaged in a legitimate exercise of authority over the lives of others. So it's not a question of choosing either an assertion of rights or an assertion of the limited scope of the government's power, one can in fact have both. That's the libertarian position, which is the one I defend.
As far as trusting the electorates of the states, I think history shows that this is a bad idea. From slavery to the Jim Crow laws to laws against interracial marriage and laws throwing gay people in jail, the states have done a pretty abysmal job of protecting individual rights. The courts were correct to overturn those violations of rights in each case. The majority may not legitimately choose to violate individual rights and it is not tyranny to prevent them from doing so. Indeed, it would be tyranny to allow them to. The primary lesson of the bill of rights is that liberty trumps democracy.
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"I would argue that we distinguish between them by placing the burden of proof always upon the government (i.e. the majority) to show that a given law is a legitimate exercise of governmental authority"
That is it; it is just that simple. I am always irked when I hear (usually from a conservative) "I can't find the right to X in my copy of the constitution."
And while we're on the subject, how about putting some teeth back into rational basis review and requiring heightened scrutiny in more circumstances.
Patterico stated:
The central claim -- that limiting the scope of centralized government in favor of local government is a boon for liberty -- may, in some circumstances, be pragmatically true, but I certainly don't think it is generalizable as a politcal principle. The local majority can certainly trust the local government it has created more than it can trust the central government, which may be reflective a majority with different interests. But majoritarianism does not equal liberty. Increasing the authority of the central majority at the expense of the local majority may in many circumstances be of benefit to liberty -- in the case of voting rights in the 60s, it was, whereas in the case of Raich it was not: it simply depends on what the attitudes of the relevant majorities are as to whether it will be in any given case.
Protecting basic principles of liberty against majoritarian tyranny requires more than shifting authority from central to local, or vice versa. Review by a judiciary insulated, to some extent, from partisan interests, is as an effective system as has been devised. It acts as a brake, at best, on majoritarian excesses, but perhaps slows the majority down enough to make it lose interest whatever vendetta is currently engaging it.
I find the direction of the Current Administration to be amusing and frightening at the same time.
The notion that the constitution is to be construed as That your claim to rights not explicitly granted in the constitution are denied is frightening.
The theory of made up rights is particularly worrisome. The same sex marriage issue is clearly one of not providing equal protection under the law (14th admmendment) period.
Must agree with your statement...
"The courts were correct to overturn those violations of rights in each case. The majority may not legitimately choose to violate individual rights and it is not tyranny to prevent them from doing so. Indeed, it would be tyranny to allow them to. The primary lesson of the bill of rights is that liberty trumps democracy."
The current effort to undermine the 1st ammendment and establish a Christian Theocracy by the conservatives is clearly a case of made up rights for the Dominionists and Reconstructionists. This is clearly a case of the American Taliban at work.
The main argument for federalism isn't the rational fear of "centralised government", or even the responsiveness of local government. It's much more general - too much concentration of power at any level is dangerous. Conservatives, of all people, should realise this, given that their philosophy is supposedly based on an honest appraisal of the human will to power. If there were no federal government and all the powers granted to the federal government were given to the states, that would be a much worse situation for liberty than we have now, for the reasons Ed gives above. The surest way to protect liberty in a democracy (and not just in a democracy) is to spread the power around as much as is practical. If that means giving judges the power to make anti-majoritarian laws in certain circumstances, then so be it.
Well said, Ginger.
Ed,
I hate that I don't have time lately to respond to such good arguments; I am studying for a promotional exam. Re the 9th Amendment and the "should we trust judges or the people?" argument, let me let the Curmudgeonly Clerk make my argument for me, since he does it so well here.
Read the whole thing -- really. He has an analysis of the Ninth Amendment that differs from yours; I'd be interested in your response to that.
But let me excerpt favorite parts:
Exactly.
Patterico-
I'll take a look when I get the chance. Good luck on your exam.
The problem with the Curmudeonly Clerk's argument about the 9th amendment is that it does precisely what the founding fathers made clear could not be done. He argues that unenumerated rights should be determined by the legislature, which means by the majority, rather than by the courts. But this means that the government (which is the majority) may decide whether or not to violate any right not explicitly stated as a right, and we know from the historical record that this is exactly the position that the 9th amendment was intended to prevent. Hamilton, among many others, argued that a Bill of Rights was a bad idea because future leaders would assume that if a right was not specifically listed, it is fair game for government regulation. Madison, when introducing his list of amendments that included what became the 9th amendment, said:
The 4th resolution became the 9th amendment. But if the meaning of the 9th amendment is left to the legislature itself to determine, then there are no limits on what the government can do other than the enumerated rights; the whole concept of unenumerated rights goes away and the 9th amendment is made superfluous. And one of the basic rules of construction in constitutional interpretation is that you may disagree on what a provision means, but it must mean something. The Clerk's position, and Patterico's presumably, would read the 9th amendment out of the Constitution entirely and make it meaningless. But not only was it put there for a reason, it was put there for a very important reason - to insure that we all understood that the government is limited by more than just those rights they thought to mention at the time.
The Clerk's position is not that the Ninth Amendment is meaningless. It is that it is a rule of construction. The idea is that there may be rights out there that should not be disparaged because they are not in the Constitution -- but the Ninth Amendment does not substantively accord them constitutional status. The clerk quotes Michael Rappaport at the end of his post as follows:
For me, where the rubber hits the road on these sorts of issues is abortion -- in particular partial-birth abortion. I do not believe that partial-birth abortion is something that the Founders would have recognized as a natural right that cannot be unduly burdened by legislation. So, to get this discussion headed from the abstract and towards reality, I'd like to know how you feel about our vaunted Constitutional right to abortion. Do you think it's a natural right? Do you think it's lurking there in the penumbras and emanations of the Constitution? Do you think the Founders would have agreed? Does that last question matter to you?
I don't think that among the Framers in 1787 there would be much support for abortion at any stage. But it would not surprise me that if the Framers were here today that they would be just as divided as we are.
I also think that our Framers would have a taken a dim view of interracial marriage, and we already know they were divided on slavery.
I would be willing to gamble that if they were here today they would be of one mind on both interracial marriage and slavery, and they would say that within their constitution a right to marry one of another race would be found.
I think our Framers would indeed find rights within prenumbras and emanations.
Yes, it matters to me what our Framers would have thought, but I would like to think that their views would be different today.
And they would express those views by passing constitutional amendments -- as their successors did when slavery was abolished.
Patterico,
You might be right, but I tend to doubt it. When Jefferson felt a Consitutional amendment was required to buy Louisiana, was is not Madison himself the found power in Section 8, clause 1, and convinced Jefferson that no amendment was needed? This, after he argued so eloquently in Federalist 84 that that that clause could be taken out of the context of the enumerated powere?
Patterico wrote:
I don't know what labelling the 9th amendment a "rule of construction" does to help the argument here. The fact is that the Clerk says that the way we should determine whether an unenumerated right is legitimate or not is to allow the legislature to decide. But let's think about that for a moment. Wasn't the whole idea of a bill of rights to limit what legislatures may do, to draw a line around those individual rights that no majority, no matter how large, may violate?
So they made very clear that we each had rights, rights which precede the existence of government, that no legislative majority could justly violate. And they made very clear that just because they listed some of those rights did not mean it was an exhaustive list, that there are other rights that preexist the institution of government, also which therefore no legislative majority may justly violate. If you leave it up to the legislative majority itself to decide what those limits are, then whether you mean to or not, you are voiding the meaning of the 9th amendment and declaring it useless. You are taking precisely the position that they made very clear one could not take, that if a right is not specifically listed, the government may do as it pleases.
I think you're conflating two very different issues, with the implication being that if one can be wrong in asserting an unenumerated right, then the whole concept must be done away with. This is a "baby out with the bathwater" kind of argument, and it is often made in regards to abortion. For instance, many conservatives in attacking Roe attack the notion of a right to privacy rather than the reasoning by which the court applied that right to privacy to the subject of abortion. The fact that people may argue in favor of a natural right to do something you disagree with does not invalidate the notion of natural rights. It may well just mean they are applying the idea incorrectly, and that is entirely a matter of argument. I think there are very good arguments against the validity of Roe, which was by all accounts - even most of those who are strongly pro-choice - very poorly reasoned. But even if that was true, it does not invalidate the notion of natural rights, unenumerated rights, or even specifically a right to privacy. It only invalidates the specious application of those ideas.
As for the larger question, I don't think it matters necessarily that the founders would not have applied their own principles in a specific way. And I do not speak here of abortion, but for instance of interracial marriage. I would go along with Harry Jaffa in arguing that we should be guided by principles stated, not by sometimes inadequate application of them. For instance, I doubt any of the founders would have believed that interracial marriage was acceptable or constitutionally protected. I know that those who wrote the 14th amendment not only did not believe that they were protecting the right to marry someone of another race, but argued explicitly that it would not protect that right. But I also know that the principle that they announced is empty and meaningless if it does not protect that, regardless of their own hypocrisy in refusing to apply it where such application violated their own prejudices. The text clearly establishes a legal principle that goes far beyond their personal limitations and compromises with those principles. Here I agree with Scalia, who forcefully argues that the text is far more important than legislative intent.
And I think there is a danger in making the argument that if the founders themselves applied the law in a given way, or didn't apply it in a certain way, that this determines the full meaning of the text itself. For example, one could use this logic to argue the passage of the Sedition Act shows that the founders did not intend the first amendment to protect anti-government speech. But if that is the case, the free speech clause of the first amendent means nothing at all. Or one might argue that the fact that many states had laws punishing blasphemy at the time the first amendment was written proves that they didn't intend it to encompass such speech. But if blasphemy may be punished, then again the first amendment means virtually nothing. We must not allow their own limitations to override the principles set out in the text.
Make it simple for me, Ed. Say what principles you would use to decide what unenumerated rights are protected. Then say how you would use those principles to rule on the right to abortion. Then, if you would rule differently from Roe, explain how your principles apply (or don't) to the right to abortion.
Me, I'd leave it up to the states. How about you?
Notice that liberals are comfortable saying Roe was crap -- but only started admitting it after Casey. Now they have the stare decisis argument: sure, the decision's reasoning sucked, but it's now the law!
Patterico wrote:
The issue under discussion is not whether abortion is an unenumerated right, but whether unenumerated rights A) exist and B) are constitutionally protected. I'm not going to make it easy on you in this regard because even if i took a position on abortion that you thought was 100% wrong, it would have no bearing on the real issue we have been discussing. Unjustified application of a principle does not invalidate the principle, any more than disagreement with a free speech ruling invalidates the principle of free speech.
I'd probably do the same. But honestly, I've never given it all that much thought. And I don't bother to argue with people on either side about it, ever. And I'm not gonna start with you. It's a distraction from the issue we've been attempting to discuss.
I really don't care what "liberals" are comfortable or uncomfortable saying, I speak only for myself. And I've never made a stare decisis argument about Roe. In fact, I tend to make arguments against stare decisis in general. I've never made an argument for Roe at all, in fact.
I understand and accept (in the abstract) your argument that an incorrect application of principle does not necessarily invalidate the principle. That's not the argument I'm making.
My argument is this: the problem with the approach you suggest is that, while it may sound nice in the abstract, it has to be applied in the real world. A judge applying your philosophy will have to face a real, actual issue and make a decision.
I'm interested to hear the principles you would apply -- and I recall that you began to articulate them in a previous post. But, with all respect, those principles are meaningless in the real world unless you can apply them to a concrete issue.
You can call my challenge a distraction, but in my opinion, it's not. I think that a refusal to apply principles to a real issue (if you continue to refuse) is a dodge.
That doesn't mean the issue has to be abortion, of course. The reason I'm picking abortion is because I am looking for an issue that I strongly believe should not be decided by the courts, and that's the most obvious one I see.
If your articulated principles wouldn't apply to abortion, I'd like to know why not.
Note that I'm not asking you to discuss abortion policy, just the application of the Constitution to abortion. If you're not willing to discuss that, "ever," then I don't see how you can expect people to engage you in discussions of the Constitution's reach. It's only the hottest constitutional issue out there.
If you answer my question, then of course you're entitled to challenge me to take on an issue of your choice as well. But I warn you now that any such challenge will have to wait another week or so, because my test is next Saturday.
Patterico wrote:
Of course. But why do you see that as a problem? The same may be said of every single provision in the Constitution as well. Every day, judges have to face real, actual issues and make decisions based upon the broad principles and somewhat less broad provisions of the Constitution. I don't see why you view this as a problem - it's just reality. And my position doesn't change that reality a bit. Your position doesn't change it either, I might add, since it would only mean that legislatures would have to face those real life situations and make decisions. But my argument is that the 9th amendment can't possibly mean that the limitations of unenumerated rights are left to the legislatures to decide because that would void the meaning of the 9th amendment entirely. That argument is thus far unanswered.
I have articulated them in many places, but most obviously here in a reply directly to you. It's far too long to quote, but in essence I took the same position that Randy Barnett and others have taken, which is that the 9th amendment and the founding philosophy articulated by Madison and others compels us to place the burden of proof upon the government at all times to show a legitimate reason for violating the liberty of individual citizens in any particular instance. This in contrast to the notion that a citizen must show that they have a valid right to do something. The entire founding premise of this nation, stated in the Declaration, is that we are endowed with rights which pre-exist the institution of government and that governments are only instituted in order to secure those rights. Madison further said that the constitution itself was a "charter of power granted by liberty, not a charter of liberty granted by power." Hence, the default position is that an individual has the right to take action X unless and until the government can show that it is exercising legitimate authority in preventing him from doing so.
Now, would that apply to abortion? To be perfectly honest, I don't know. I have very ambivalent feelings about abortion and I can see arguments either way. In fact, I can see arguments either way even within the terms of the principles I've stated. There's no question that abortion would amount to a hard case where it all comes down to competing values and which one you believe holds precedence. But that is not a problem for my position any more than it is a problem for the Constitution as a whole. We come to the same sorts of difficult decisions involving competing values every day with nearly every provision in the Constitution. The fact that there are specific instances in which it is difficult to apply a principle and on which reasonable people may disagree does not invalidate a principle or set of principles; if it did, our constitution itself would be invalid.
On the other hand, I can give you lots of examples of unenumerated rights that have been upheld by the courts and I believe rightfully so by application of the principles I have elucidated. I'll begin with Loving v. Virginia. There is no legitimate authority exercised by a government which bans interracial marriage. It is a law designed only to foster racism, not to achieve any legitimate governmental interest. I would make the same argument for Lawrence and many others. For that matter, there are lots of unenumerated rights that have been upheld by the court that no one thinks particularly controversial today. A standard con law textbook lists many of them, which I reproduced here. They include the right of free association and the right to travel freely within the US, neither of which is listed in the Constitution as a right.
I remember your articulating that in an earlier post, which is why I said that I remembered that you had begun to articulate your philosophy in a previous post. In fact, I had wanted to reply to you at the time but didn't have time.
I'm on a lunch hour now and have just a second.
I am philosophically sympathetic to your general statement. Obviously, as the recent medicinal marijuana case shows, that's not the kind of government we have.
I have a hard time getting past the concept that abortion is something that can be decided by the courts rather than the people. A lot of people use Brown v. Bd. of Education as a make-or-break case for judicial philosophy; I feel somewhat the same about Roe. If one's judicial philosophy would produce Roe, I'll hear the argument, but I am unlikely to be convinced. To me, abortion (with the conflicting interests of autonomy and life) is the paradigm example of an issue that should be left to the people to decide.
To me, it's less about individual vs. government and more about who gets to decide the issue: judges of the people.
I also want to re-emphasize the Clerk's point that crowning a right with the mantle of constitutionality removes any flexibility in dealing with the issue.
I meant "judges or the people"