Paperback
-
PICK UP IN STORECheck Availability at Nearby Stores
Available within 2 business hours
Related collections and offers
Overview
Product Details
| ISBN-13: | 9781935308379 |
|---|---|
| Publisher: | Cato Institute |
| Publication date: | 11/16/2010 |
| Series: | Cato Supreme Court Review Series |
| Pages: | 250 |
| Product dimensions: | 5.90(w) x 9.00(h) x 1.30(d) |
Read an Excerpt
CATO SUPREME COURT REVIEW 2009–2010
Cato Institute
Copyright © 2010 Cato InstituteAll right reserved.
ISBN: 978-1-935308-37-9
Chapter One
The Ninth Amendment in Light of Text and HistoryMichael W. McConnell
The Ninth Amendment may seem a strange subject for a lecture at a conference on the recent decisions of the Supreme Court. After all, the Court has never squarely based a holding on the Ninth Amendment and has scarcely even discussed its meaning. Some scholars regard the amendment as an "inkblot" or as nothing more than a warning not to read the enumeration of powers too liberally or the enumerated rights too narrowly. It plays virtually no role in modern constitutional litigation. And yet the Ninth Amendment is the subject of two recent books and many articles, and rightly so: the amendment, properly understood in light of its text and history, helps us understand the constitutional structure of powers granted and rights reserved, the relation of the Bill of Rights to the original Constitution of 1787, and the role of natural rights in American constitutionalism.
I. Text
The Ninth Amendment is only 21 words long: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." What are these rights? What is their legal status? What is their relation to the enumerated rights of the Bill of Rights? We know that we must not regard the enumeration as "denying" or "disparaging" these other rights, but what does that mean? Does it mean that these other rights are now judicially enforceable constitutional rights, just like the rights of freedom of speech and due process, and the right to confront witnesses?
Let us begin with the text. The Ninth Amendment refers to two different sets of rights. First are "certain rights" that are the subject of "enumeration in the Constitution." These are the rights (some positive, some natural) that are spelled out in the Bill of Rights, as well as in the few rights-reserving provisions of the original Constitution, such as Article I, Sections 9 and 10 (the prohibitions on bills of attainder, ex post facto laws, and state laws impairing the obligation of contracts), plus Article III's guarantee of jury trials in criminal cases. Because these are express constitutional rights, they have the status in our law as judicially-enforceable "trumps": even if violation of these rights would be an otherwise appropriate means of effectuating an enumerated power, the government may not infringe or abridge them. As James Madison explained to the First Congress, if protections for these rights
are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.
Significantly, as positive law, Madison insisted that these rights were judicially enforceable, and by the logic of constitutionalism, superior to enacted law, whether federal or state.
The second set of rights to which the Ninth Amendment refers are the "other" rights that are "retained by the people." This is the language of Lockean social compact theory. At the time of the social compact—which for late-18th-century America meant the time of constitution-making—the people make an authoritative decision regarding which powers to delegate to the government and which rights to retain. As the delegates to the Constitutional Convention explained in the letter transmitting the proposed Constitution to Congress for submission to the ratifying conventions:
Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstances, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved....
The essence of the Lockean social compact is that we relinquish certain of our natural rights and we receive, in return, more effectual protection for certain of our rights, plus the enjoyment of positive rights, that is, rights created by the action of political society. As articulated by the New York Anti-Federalist writing as Brutus:
The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order, that what remained should be preserved: how great a proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall now enquire. So much, however, must be given up, as will be sufficient to enable those, to whom the administration of the government is committed, to establish laws for the promoting the happiness of the community, and to carry those laws into effect. But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life, etc. Others are not necessary to be resigned, in order to attain the end for which government is instituted, these therefore ought not be given up. To surrender them, would counteract the very end of government, to wit, the common good. From these observations it appears, that in forming a government on its true principles, the foundation should be laid in the manner I before stated, by expressly reserving to the people such of their essential natural rights, as are not necessary to be parted with.
Madison offered a similar account of social compact theory on the floor of the House in the First Congress. He explained that a bill of rights would "specify" two types of rights: those "which are retained when particular powers are given up to be exercised by the Legislature," and "positive rights," like trial by jury, which "cannot be considered as a natural right, but a right resulting from a social compact."
Brutus and Madison thus employed the common language of Lockean rights theory. Certain natural rights are "surrendered" or "relinquished," while others are "retained" or "reserved." In interpreting the rights language of the Constitution, it is important to understand the meanings then attached to these words, and to bear in mind the differences between those meanings and modern usage.
The key words here, as used by Brutus, Madison, and the transmittal letter, are natural rights, positive rights, retained rights (also called reserved rights), and relinquished rights. "Natural rights" are rights human beings possess in the state of nature—principally ownership of one's own body and the product of one's labors, and the right to use violence against others to punish violations of the law of nature. Importantly, these natural rights do not necessarily survive into civil society; some are "retained" and others are "surrendered" in exchange for greater security in those that are retained. They are not the same as modern "human rights," which governments everywhere and always must respect. "Positive rights" are rights not enjoyed in the state of nature. Madison gives the example of trial by jury; no one has the right to a jury trial in the state of nature. "Retained rights" comprise only a subset of natural rights. No positive rights—no rights that are the product of civil society—are included. As the Federal Farmer explained, many important rights, such as the right to trial by jury, to the writ of habeas corpus, to the assistance of counsel, and to confront witnesses, are not "reserved" natural rights but "stipulated rights" that "individuals acquire by compact." And in this compact some natural rights—such as freedom from taxation or military conscription—are relinquished.
Thus, the "other rights" to which the Ninth Amendment refers, which are "retained" by the people, comprise the set of natural rights that have not been surrendered or relinquished under the social compact in order to promote the good, prosperity, and safety of society. This set does not include positive rights, which are not "retained" but rather are created by the social compact—such as the enforcement of contracts. Nor does it include those rights "expressly stipulated for in the Constitution by the declaration of rights." Examples of unenumerated natural rights that might be "retained by the people" include the right to control the upbringing of one's children, the right to travel, the right to engage in nonprocreative sex, the right to read, the right to control one's own medical care, the right to choose one's own friends and associates, the right to pursue a job or profession, the right of self-defense, and many others. During the Bill of Rights debates, reference was jokingly made to the right to wear a hat, and to go to bed when one pleases.
II. Legal Status of Natural Rights Before and After the Bill of Rights
What is the legal status of retained natural rights? The Ninth Amendment seems to say that retained natural rights have precisely the same status they had before adoption of the Bill of Rights or the rights-protecting provisions of the original Constitution. They are neither "denied or disparaged," nor are they elevated to the status of expressly enumerated rights. As Professor Randy Barnett has written, "The purpose of the Ninth Amendment was to ensure that all individual natural rights had the same stature and force after some of them were enumerated as they had before."
In order to understand what force these unenumerated retained rights have under the law, we must therefore examine how natural rights were invoked before the Constitution. Some scholars, among them Professor Barnett, argue that unenumerated natural rights are now constitutional rights, with the same status as rights spelled out by the First through Eighth Amendments. Other scholars regard the Ninth Amendment as a protection for federalism, for certain collective rights of a republican nature, or as a unenforceable truism or inkblot. My reading of the historical materials suggests a middle ground: that unenumerated natural rights are protected through some combination of political self-control on the part of the political branches (reinforced by the separation of powers) and equitable interpretation by the courts, which entails the narrow construction of statutes so as to avoid violations of natural rights. In other words, natural rights control in the absence of sufficiently explicit positive law to the contrary. This can be understood as a clear statement rule for abrogating unenumerated natural rights.
The historical evidence indicates that natural rights in the pre-constitutional world did not have the status we now ascribe to constitutional rights—meaning supreme over positive law. With the possible exception of Dr. Bonham's Case, a hotly contested and frequently misinterpreted decision by the great Chief Justice of the Court of Common Pleas, Sir Edward Coke, there appear to be no examples in English jurisprudence of courts upholding natural rights claims in the teeth of contrary statutes passed by sovereign authorities. John Locke himself presupposed that "the body of the people" is the only available judge of "whether the prince or legislative act contrary to their trust," and that if the government should "decline that way of determination," the people's only recourse is rebellion: the "appeal ... to heaven." As Blackstone explained in his Commentaries on the Laws of England, Parliament had "no superior on earth," and if Parliament made its intent clear, "there is no court that has power to defeat the intent of the legislature." With minor departures, this became established doctrine in American colonial and state courts as well.
A striking example of pre-constitutional natural law jurisprudence was Lord Mansfield's 1772 decision in Somersett's Case, involving the legality of slavery within the Kingdom of England. Mansfield operated on the premise that "[t]he state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law.... It is so odious, that nothing can be suffered to support it, but positive law." Finding no positive law to support slavery within England, Mansfield required Somersett's captors to set him free. This famous decision, well known to the American colonists, illustrates how natural law could be enforced in court, but it also made plain that natural law cannot trump explicit positive law, however odious. Despite its odiousness, under the logic of the Somersett decision, slavery remained legal and enforceable in parts of the empire where there were slave codes or other authoritative pronouncements establishing slavery.
A particularly clear illustration of the relation of natural rights to positive law may be found in the famed Virginia Bill for Establishing Religious Freedom, authored by Thomas Jefferson and championed by Madison. It concludes with the following observation:
And though we well know that this assembly elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act will be an infringement of natural right.
This concluding observation makes clear that the founding generation, despite its regard for "the natural rights of mankind," believed that in the absence of express constitutional protections, legislatures had the power (if not the right) to infringe those natural rights. If the rights affirmed by the Virginia Bill, which Madison regarded as not only "natural" but "unalienable," could in fact be revoked, repealed, or narrowed by future legislatures, this demonstrates that (at least prior to express constitutionalization) "natural" and "unalienable" rights enjoyed a status inferior to legislation.
That natural law did not trump positive law as a legal matter in court did not mean that it was wholly without effect. To begin with, legal theorists regarded natural law as morally binding on Parliament itself. It may have been true that courts were not free to hold acts of Parliament "unconstitutional" or "void," but Parliament remained subject to the unwritten constitution of the realm, and was under an obligation, albeit not judicially enforceable, to control itself. Even after the ratification of a written constitution, Americans expected that Congress and the president, and ultimately an alert and engaged citizenry, would be the principal bulwarks against violations. This was, indeed, the principal reason the Federal Farmer gave for supporting enactment of a Bill of Rights: "If a nation means its systems, religious or political, shall have duration, it ought to recognize the leading principles of them in the front page of every family book." Rights should be declared so "that the people might not forget these rights, and gradually become prepared for arbitrary government." Recall the stern warning the enactors of the Virginia Bill for Establishing Religious Freedom gave to future legislators who might contemplate repeal.
But natural rights were not merely political principles. They also had purchase in court, albeit not as constitutional rights—that is, not as superior to positive law. It was understood that courts had the power to engage in equitable interpretation, under which statutes were interpreted narrowly so as to avoid violating the law of nature. As Blackstone explained:
[I]f the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution, that is vested with authority to control it.... But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it.... [T]here is no court that has power to defeat the intent of the legislature, when couched in such evidence and express words, as leave no doubt whether it was the intent of the legislature or no.
(Continues...)
Excerpted from CATO SUPREME COURT REVIEW 2009–2010 Copyright © 2010 by Cato Institute. Excerpted by permission of Cato Institute. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
Contents
Foreword Roger Pilon....................viiIntroduction Ilya Shapiro....................1
The Ninth Amendment in Light of Text and History Hon. Michael W. McConnell....................13
Citizens United v. Federal Election Commission: "Precisely What WRTL Sought to Avoid" James Bopp Jr. and Richard E. Coleson....................29
United States v. Stevens: Restricting Two Major Rationales for Content-Based Speech Restrictions Nadine Strossen....................67
Church and State at the Crossroads: Christian Legal Society v. Martinez Richard A. Epstein....................105
Doe v. Reed and the Future of Disclosure Requirements Steve Simpson....................139
The Tell-Tale Privileges or Immunities Clause Alan Gura, Ilya Shapiro, and Josh Blackman....................163
The Degradation of the "Void for Vagueness" Doctrine: Reversing Convictions While Saving the Unfathomable "Honest Services Fraud" Statute Harvey A. Silverglate and Monica R. Shah....................201
Taking Stock of Comstock: The Necessary and Proper Clause and the Limits of Federal Power Ilya Somin....................239
Free Enterprise Fund v. PCAOB: Narrow Separation-of-Powers Ruling Illustrates That the Supreme Court Is Not "Pro-Business" Hans Bader....................269
Federal Misgovernance of Mutual Funds Larry Ribstein....................301
Forward to the Past Michael Risch....................333
Antitrust Formalism Is Dead! Long Live Antitrust Formalism! Some Implications of American Needle v. NFL Judd E. Stone and Joshua D. Wright....................369
Looking Ahead: October Term 2010 Erik S. Jaffe....................407
Contributors....................429