The Ninth Amendment: Some Thoughts

     Today at Maggie’s Farm, contributor Bruce Kesler revives an essay of his from a few years ago about the Ninth Amendment to the Constitution. Inasmuch as the Ninth was one of the original Ten, and therefore an element in what Isabel Paterson called “the price of ratification,” one would expect that jurists would take it seriously. However, that has not been the case:

     The 9th Amendment is the least cited or relied upon in Supreme Court cases. The lack of agreement among constitutional scholars as to the specific meaning of the 9th Amendment is largely the reason. This lack of agreement also exceeds the general lack of agreement – usually along liberal and conservative lines – as to many other sections of the Constitution. Focus on transgressions of the first eight Amendments, more specific as to particular rights, and cases specifically concerned with how broad should be an enumerated (listed) power, was usually enough until now.

     And later in the same essay:

     Constitutional scholar Robert Bork famously said that the 9th Amendment is like an inkblot, which without more specificity could be subject to many interpretations and, thus, cannot by itself protect an unwritten right not included in the Constitution. That is true.

     I disagree completely, for reasons which will soon be apparent. However, Kesler does make a valuable contribution by reminding us that James Madison preferred an alternate wording for the Ninth:

     The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

     So Madison, often called “The Father of the Constitution,” believed that there are unenumerated rights as well! If there is any difficulty, it would arise from determining what those rights are...a process that would begin when one of them is attacked by the State.

     That is our starting point.

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     A deadly phrase that appears in many Supreme Court opinions, liberty interest, is the first tool with which to explore this subject. “Interests” are many and varied. Moreover, not everyone has the same ones. What, exactly, is a liberty interest? Is it a right, an ideal, or a vague desideratum not everyone shares?

     Before following that track, consider that in many of the SCOTUS decisions that include that phrase, it’s counterpoised against another, even deadlier phrase: compelling government interest. Another interest! And this one is attributed to a government, an abstract agent to which certain duties have been attached, with certain powers delegated for their discharge. But an agent qua agent cannot have interests; it can only have designated duties and delegated authorities.

     These phrases have created ambiguity in judicial language, and therefore in judicial thought. Yet both are beloved of federal appellate courts, for they enable those courts to rule on matters far from their proper jurisdiction.

     Does it strike you as at all indicative of the tenor of our times, Gentle Reader, that on nearly every occasion when “liberty interest” and “compelling government interest” appear in the same decision, the decision grants additional powers to governments?

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     Madison’s preferred wording of the Ninth Amendment, once again:

     The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

     The emphasized clauses are of critical importance. In English of the Twenty-First Century, Madison might have said this:

     If some power, authority, or responsibility claimed by a government does not appear explicitly in the Constitution’s text, the claim is invalid.

     Limitations of power are merely alternate methods for protecting rights. For example, if a government claims the power to license certain occupations but there is no grant of authority for this in the Constitution, then individuals have the right to practice that occupation without government interference, and other individuals have the right to patronize whatever practitioners they prefer. Similarly, if a government claims the power to decree the ingestion of certain substances but there is no grant of authority for this in the Constitution, then individuals have the right to eat, drink, smoke, snort, and shoot whatever they damned well please without government interference. If a government claims the power to regulate the hiring and firing practices of employers but there is no grant of authority for this in the Constitution, then individuals have the right to hire and fire whomever they please, for any reason or none, without government interference.

     It could hardly be clearer...but as with Hammurabi, governments, and the courts that serve them, are not friendly toward clarity about the limitations on what they may do.

     The Ninth Amendment, and the Tenth, which reinforces the doctrine of explicit delegation of powers, were beloved of one of my favorite American statesmen, President Grover Cleveland. He considered them essential protections to Americans’ rights. He refused to countenance any action of Congress that went beyond the explicit terms of the Constitution. Had it not been for the rise of Progressivism (and the virulence of its present-day excrescences), Cleveland would be better remembered as a friend to freedom.

     Few are they in high office who can sincerely claim to be friends of freedom today.