Friday, February 29, 2008
Ninth
I’m sure most of us around these parts consider ourselves to be somewhat knowledgeable in Constitutional matters, since issues such as freedom, security, and the preservation of the Republic are near and dear to our hearts. The progressive movement has led a full-on attack against the Constitution and what it stands for, for around 100 years now. What we have to show for it are, among other things, a bunch of nonsensical Supreme Court decisions that employ tortured logic to reach a conclusion that was not at all intended by the Founders. It’s a living, breathing document, right? Meaning of course, that ignoring what it says, twisting the logic, and creating legal precedent is both desirable and necessary to reach the predetermined end.
Conservatives typically react to this sort of logical gymnastics by calling themselves “strict constructionists” or “literalists”. We believe that the Constitution means what it says, it says what it means, what it means needs to be interpreted in the context of what the Founders meant it to mean, and the concepts embodied in that document are there for the purpose of preserving the Republic. They are no less valid and important today than they were when they were written.
However, there is one amendment that can be taken too literally, I think. That is the ninth.
Here is the text:
The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.
Most of the other amendments in the Bill of Rights are quite straightforward. They deal very directly with very specific issues.
Freedom of speech - check.
Freedom of religion - check.
Right to bear arms - check.
So what in the heck does the ninth mean?
At the time the Bill of Rights was being hammered out, there was quite a bit of concern that if a listing of rights was made, the government could at some point in the future find a way to circumvent those rights and suppress the people in some other way. The difficulty comes in anticipating those attempts at circumvention and heading them off at the pass. Such a thing is virtually impossible, so an attempt to assert other vague, general rights was made, resulting in the ninth amendment.
In essence, the first eight amendments list explicit rights. The ninth is intended to plug any gaps that may become apparent in the future.
It’s vague. It’s not specific. After reading it, can you say what rights you are granted by it? From a literalist perspective, what does it mean?
Robert Bork, who generally has a good reputation in conservative circles for not buying any of the revisionist garbage, famously said that the ninth amendment is an “ink blot”, meaning that it has no legal weight whatsoever. It doesn’t mean anything, since it does not specifically enumerate anything.
Is that really where we want to go? We would be throwing out our catchall, our amendment designed to protect ourselves from forms of oppression that were not conceived of at the time the Bill of Rights was written. Are we going to follow literalism over that cliff?
On the flip side - what if someone asserts their right to health care under the ninth amendment? It very clearly says that we have other rights, but does not give us any clue as to what they are. Why not health care?
How about a right to privacy? The courts have asserted that right on multiple occasions.
At first glance, these assertions of rights seem to fit right in with the language of the ninth amendment. However, look at this list.
Right to free speech
Right to free exercise of religion
Right to bear arms
Right to trial by jury
Right to an abortion
Which one of these is not like the others? The first four on the list, along with the rest of the first eight amendments, assert rights that are vital to the preservation of democracy and freedom. Without these things, the ability of the people to maintain their independence and self-determination would be severely compromised. The right to an abortion or the right to health care have nothing to do with any of this, and they are completely out of place when put alongside the items and the intent of the rest of the Bill of Rights.
The Constitution is about maintaining a free and stable society. It is about preventing the government from crushing the right of the people to have a say in their governance.
It is not about asserting your personal right to anything.
This distinction brings to mind the changing attitudes about liberalism, and in particular, how the societal norm has changed from classical liberalism to modern liberalism. At the time the Constitution was written, societies were looking to declare independence from churches and kings. The assertion that a society should elect it’s own leaders and make it’s own rules was a fairly novel one, for at the time, kings and popes had largely been the final arbiter of law for centuries. The Constitution was intended to set up a stable government where societal self-determination was possible, and prevent future autocratic encroachments when they were attempted.
This is the context in which the meaning of the ninth amendment is to be determined.
Now, however, we are seeing those very same words being used to justify an attempt by people to declare independence from society. One’s asserted right to privacy allows one to challenge the standards of to society around you - to claim that your individual right trumps the right of society to govern itself in the way it sees fit. That is modern liberalism and libertarianism, in a nutshell. It is not what the Founders intended, it is not what they meant when they wrote the words of the ninth, and frankly, it is a dangerous sentiment. Modern political thought not only allows but encourages people to declare independence from the society in which they live, fractionating it and tearing it apart. Look at the movement to multiculturalism for a local example. Then look to England, the Muslim sub-culture, and the recent comments of Rowan Williams about the possibility of dual legal systems (western and Sharia) in England, for a clue as to where this all leads.
It was once said that there are only two things that hold a nation together - a common culture, or a welfare state. If we allow a reading of the ninth amendment where individual rights are asserted that having nothing to do with freedom and societal self-determination, and instead actively prevent society from governing itself as it sees fit, we only hasten the day that our culture tears itself apart.
This is not the goal of modern liberalism and libertarianism, but it is the eventual result - the mother of all unintended consequences.
Comments
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I take it literally. It does not say you, or I, have a right to anything. Just a notice that the fact that some rights were specifically listed, does not mean that there are not other rights.
You touched on how the constitution is about mantaining a free and stable society. It seems to me that a lot of people forget what the constitution is - an agreement by the states to form a federal government.
It lays out how that government will fuctions and what powers the states have delegated to it. IT specifically states that the federal government has no powers beyond what it is given in the constitution.
The amendments are just that. To get the states to trust this new government the bill of rights spelled out certain rights that federal government was not to infringe upon. The ninth is there because some feared that to list certain rights, would be mean any other rights would be assumed to not exist.
Since it is not a power delegated to the goverment by the states, nor, enumerated in the bill of rights, regulation of abortion (amongst many other part of our lives the federal goverment is involed in) is not a function of the federal government.
This leaves it up to the states to deal with.
Cobar | 3/2/2008 11:16 PM CDT -
Looks pretty good. I would add (but it’s just me), “Right to Abortion” should include “The Right of the General Government to deny it.” The Constitution is moot on these matters, so it has no authority, but local governments MAY (at The People’s discretion) decide PRO or CON.
Folks just don’t get the difference between the limitation on what the fed government may do, what states may do, and what neither may do.
One of things that has become more apparent to me (as a typical disconnect in the minds of the masses) is that when the Founders said “liberty” they weren’t addressing it generally or vaguely. It had a specific meaning to them, ie, “the recognition of the right of people to make and be part of your own government.” Liberty, as a word/concept is specious and vague beyond that, and beyond Original Intent. It was limited to making government, not other liberties or other rights.
It was a recognition of that specific liberty, within those narrow confines, that the Declaration of Independence was written to address--that the liberty of the people to be recognized as having a say in how they were governed had been either abused or disregarded. The list of abuses and usurpations goes on to list what they were, that caused them to decide to throw off THAT government, and replace it with a new one, and “liberty” as ordained by our Creator is what gave them the authority to do that. People have the liberty to form a new government, but that is beginning and the end of the liberty they have been endowed in this context.
Many have, as you indicated, come to the wrong conclusion that the Ninth Means that the people have unalterable and unrestricted rights to do anything and everything they please. It was merely an attempt to qualify that “The above are what we think are most often abused and usurped by general government, but the above were not articulated to be inclusive of all that may be abused or usurped, or that the list is inclusive of all inalienable rights.” It just stipulated that the remainder, whatever they might be, are not in the Federal government’s purview.
It was a restrictive clause (not an umbrella clause) on what the Federal government may do, not a broad statement that there are other rights that MUST be recognized by state or fed, what they might be, or where they belong (if they even exist) or may be articulated at some future point.
Mrs. du Toit | 3/3/2008 08:39 AM CDT -
I think where the discussion gets interesting though is in the wording. As you said, the constitution is an agreement between the states, yet throughout the entire constitution they maintain a strict distinction between the government, the states and the people. Many of the amendments don’t deal with the rights of the states, but specifically the rights of the people. The question is, by enumerating the rights of the people, were the founders explicitly defining those rights that could not be infringe by either the state or the government? Up until the courts decided that the 14th amendment restricted the states in these matters, it seemed the answer was no, but then again, why bother with the distinction between the people and the states? It’s especially interesting given that the very next amendment reserves all other rights to the states OR the people (but doesn’t specify who gets what).
I think both amendments need to be taken together, with amendment 9 clarifying that the constitution is not an exhaustive list of the rights retained by the government the states or the people, and then amendment 10 reserving all rights not explicitly given to the government to the states and the people.
But if the rights retained by the people are not individual rights that each person can enjoy on their own (the right to free speech, or not, the right to bear arms, or not, the right to privacy, or not etc) then whose rights are they and how do they differ from state rights?
tpmoney | 3/3/2008 12:41 PM CDT -
It’s because the first eight are so narrow that we needed a ninth.
Otherwise, as any fule kno, the Gummint would start limiting other rights, claiming that as long as it’s not one of the first eight, it’s open season.
(Mr.) Kim du Toit | 3/3/2008 12:59 PM CDT -
14th amendment restricted the states in these matters,
Just a point of order regarding this comment--no, the 14th wasn’t written (its Intent) to restrict the states in every conceivable thing, essentially (as it has been wrongly and ludicrously interpreted) requiring that every state that confers some right or privilege on someone must be recognized and delivered to every person in every other state.
It had a specific (narrow) purpose, given what had just transpired, ie, that the Dred Scott decision stated that a citizen born in, say, Illinois, could not be denied their rights as A CITIZEN in another state. It was amending any confusion about how someone would be recognized as a citizen, given that the Supreme Court had decided that slaves could NEVER be citizens. To close the matter for all time, it did a one-off, by declaring that all slaves COULD be citizens, and defined that the laws/rules for determining citizenship were at the Federal (not state) level, else we’d have Wisconsin deciding that someone born 3 feet into Canada could be a citizen.
Citizenship HAD to be recognized by ALL the states, in the same way, and those rights that were extended to citizens (such as habeas corpus) had to be extended to all citizens, regardless of what a particular state wanted to do.
The context of why/when it was applied MUST be used to derive its intent.
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.It even specifically states the limitations to citizenship and “life, liberty, and property” and equal protection of our laws. But folks still try to read it as something broader than that--as a cancellation of ALL state discrepancies.
How they get there requires a twist of logic that is beyond my comprehension.
Read the Dred Scot decision and you can see exactly what they were revising.
Mrs. du Toit | 3/3/2008 01:00 PM CDT -
Edit to introduce: The difference between health care and the other enumerated and unenumerated rights American Farmer discussed is that the former is a formulation of positive right: the right to be provided a good independent of one’s own ability or effort. All the others are negative rights, requiring only that the individual be let alone. That doesn’t cover all eventualities, but it’ll do for the moment. I’ll argue that positive rights cannot be natural rights, because they cannot be provided without compelling someone else to provide them.
On to my main point: Professor Randy Barnett, in Restoring the Lost Constitution (highly recommended for its scholarship, even if you question Barnett’s thesis or prescriptions), offered what he called the “presumption of liberty.” To preface, he started by trying to address the Spoonerites with respect to the “consent to be governed” question. Along the way he also addressed the “original intent is tantamount to rule by the dead” question (and he got in a couple of good substantive shots at Judge Inkblot too).
It’s been a couple of years since I read his book, so I may not do the argument justice. Further, Barnett was not concerned with specific individual liberty issues with respect to the Ninth, but with the “presumption of constitutionality"-fueled overreach of Congress via the commerce and necessary-and-proper clauses. At any rate, here goes:
Applying the presumption of liberty, an act of Congress is constitutional if it is necessary and proper to the carrying out of a specifically enumerated federal power, and is not unjust toward those upon whom it is imposed—but for details on that, I’m going to have to refer you directly to the book, because I don’t remember the argument well, and the Wikipedia entry strikes me as an overly simplistic and sweeping summary of what Barnett actually wrote. It may be fair to say that “strict scrutiny” will give you a point of departure, maybe not.
Full disclosure: Barnett is a libertarian, and you may disagree with his view on the limits on the police powers of the several states, but I think you’ll find the book worth your time and trouble anyway.
MiddleAgedKen | 3/3/2008 01:04 PM CDT -
As long as we define and use liberty the way the Founders did “with respect to the right of people to cast off, modify or form government where they are it” then it sorta/kinda works Ken.
But the Founders dealt with the issue by allowing Constitutional Amendment, and The People can call for a Constitutional Referendum. Without defining and voting on a new contract (by a super majority of each state) the contract applies to all who wish to remain here.
The options are simple:
1. Get everybody else to agree and change it.
2. Leave.
This corporeal globe, and everything upon it, belong to its present corporeal inhabitants during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority. That majority, then, has a right to depute representatives to a convention, and to make the constitution what they think will be the best for themselves.
--Thomas Jefferson, 1816Which is why folks need to get over this idea that the Constitution is sacred in the sense that we cannot or should not change it. We should not treat it lightly, but if we do not feel that our government is the one we want, or we wish to alter some facet of it, the WAY we do that is through Constitutional Amendment, not by ignoring the enforcement of our laws (and the various powers given to each branch of the Federal government or the states), a broader interpretation than its Original Intent, or through judicial activism.
It is OUR contract and we should be emboldened to make sure it says what we want to comply with and how we want our government to comply, or we comply if we like it or not!
Mrs. du Toit | 3/3/2008 01:15 PM CDT -
And, the contract isn’t with The People, per se. The Constitution is a contract with The States.
It doesn’t jump from Fed to people. Each State is sovereign, beyond those things SPECIFICALLY granted to the Feds (or specifically recognized as belonging to The People, ie, those things in the Bill of Rights)… and The People of those states can decide anything they want, beyond those things not prohibited to them by the Constitution, and The People in each county, town, borough or city can decide whatever they want, except those things not specifically prohibited to them by the Fed or State Constitutions.
Mrs. du Toit | 3/3/2008 01:18 PM CDT -
On the point of order: my apologies I didn’t mean to imply that the amendment does do that, only that current law and interpretation does that based on rulings about that amendment.
On the point above: You mention that the constitution grants to the states all rights not explocitly granted to the government or specifically to the people, yet the tenth amendment specifically reserves all rights to the people OR the states, whuch is why i said i beleive the 9th and 10th should be taken together. Where exactly did they mean to draw that line or did they mean to draw it at all?
Also a minor note, though you quote it, i dont see my previous entry. Is it my browser or is it really missing?
tpmoney | 3/3/2008 07:14 PM CDT -
The constitution doesn’t grant anything to the states. That’s backwards. The States grant to the Feds those things specifically listed in the Constitution.
The capital and leading object of the Constitution was to leave with the States all authorities which respected their own citizens only and to transfer to the United States those which respected citizens of foreign or other States; to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction if the words will bear it, and in favor of the States in the former if possible to be so construed.
--Thomas Jefferson, 1823As was the point of Farmer’s post, the Ninth and Tenth were traditional boiler plate language, to clarify that the list was not intended to be inclusive of all or everything. That’s the beginning and end of what the 9th and 10th do.
It is similar to a standard consulting services contract where you include a sentence “Consultant may provide these services to others.” The purpose of that sentence is to stipulate that the contract is not exclusive. It doesn’t go on to define who others are or any other details that might be limited or binding on either party (such as during the term of this contract, what other services may be provided, a requirement to recommend, etc.).
Again, we have to go back to the Founders original discussions on the matter to see why they were reluctant to include a Bill of Rights in the first place, the discussions of why some thought it wasn’t necessary (and some were very much against it), why others thought it was critical (and wouldn’t vote for passage of the Constitution without it) and what the BoR was intended to do.
A constitutive act may, certainly, be so formed as to need no declaration of rights. The act itself has the force of a declaration as far as it goes; and if it goes to all material points, nothing more is wanting… But in a constitutive act which leaves some precious articles unnoticed and raises implications against others, a declaration of rights becomes necessary by way of supplement. This is the case of our new Federal Constitution. This instrument forms us into one State as to certain objects and gives us a legislative and executive body for these objects. It should therefore guard against their abuses of power within the field submitted to them.
--Thomas Jefferson to James Madison, 1789.[The objection has been raised that] experience proves the inefficacy of a bill of rights. [This is] true. But though it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkable difference between the characters of the inconveniences which attend a Declaration of Rights, and those which attend the want of it. The inconveniences of the Declaration are that it may cramp government in its useful exertions. But the evil of this is short-lived, trivial and reparable. The inconveniences of the want of a Declaration are permanent, afflicting and irreparable. They are in constant progression from bad to worse.
--Thomas Jefferson to James Madison, 1789If we take the Constitution literally as written (as the Founders intended it to be used), the concern was that by including a BoR that at some later point government could get the idea that those were all the Rights individuals maintained, or that because nothing was listed as to what states were allowed to do, that they didn’t have any specific rights/powers either.
Since The People are the government, through their representatives, they can at any time delegate additional powers to the Feds, remove powers previously delegated, establish or delegate powers/rights at the state or local level, etc.
Those clauses make clear that it was the intention that The People generally, and The People of a specific state could do that.
The Constitution as a whole lists what each branch of the Federal government MAY do, and only that they may do.
They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please… Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers and those without which, as means, these powers could not be carried into effect.
--Thomas Jefferson, 1791Keep in mind that there were TWO methods by which the Constitution could be changed:
1. The People, through 2/3 of the state legislatures, call for a Constitutional Referendum (hasn’t happened), and then having it voted on by the states with a 3/4 vote of The States required for passage for anything they propose (the intention was never that passage would be by popular vote, only by majority of STATES).
2. The State legislatures vote on amendments fist approved by Congress and then voted on by the States.In both methods, passage requires 3/4 of the states to agree.
It is really, really important to keep the state passage as THE context for amending the Constitution. We are a Republic (and a union of sovereign states), not a Democracy. The People, in mass, do not vote on these measures. Their respective state legislatures vote on them, which is why we are a Constitutional Representative-Republic, not a Democratic-Republic. Our legislatures vote on our behalf, within the various states, but may do (at all levels) only what we have specifically granted/delegated to them.
Again, the purpose of the 9th and 10th was not to delineate the powers of The People OR the States, but ONLY to limit Federal power.
I consider the foundation of the [Federal] Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [10th Amendment] To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.
--Thomas Jefferson, 1791Mrs. du Toit | 3/4/2008 07:56 AM CDT -
I agree that that was the primary purpose to be sure. But as I said, the curiosity and trouble is in the wording. If the intent was only to limit federal power, why make the distinction at all between the people and the states? Wouldn’t the 10th amendment have accomplished the same with just reserving those powers to the states? Similarly, why didn’t the 9th include anything about the states, just the people?
These were smart men and it seems unlikely that these words and distinctions were made without careful consideration, the question is, what was the intention of the distinction?
I suppose you could answer the question about the ninth by pointing out that the bill of rights lists individual rights (that is, it makes no sense to say the right of the states to be secure in their persons and effects), but what of the 10th, why include “the people”, and to what extent did the founding fathers mean for the people and the states to be distinct? And assuming that distinction, does that really mean that the bill of rights are rights that even the states can not infringe (their wording suggests no, that the states have more leeway than the feds) and if so, then what weight does that confer to the 9th? What are the rights retained by the people and how are they different from the rights of the states?
tpmoney | 3/4/2008 09:57 AM CDT -
Wouldn’t the 10th amendment have accomplished the same with just reserving those powers to the states? Similarly, why didn’t the 9th include anything about the states, just the people?
By including both it infers nothing, ie, that it could be EITHER the States or The People, but the mechanism nor a preference is inferred.
Try reading it without both and you can see that it MIGHT be inferred the the only remaining rights/authority belonged to either The People (individually) or the states.
Try applying something intentionally trivial, such as going to the bathroom. We know we (as individuals) have the RIGHT to do that (beyond just the physical demand), but WHERE is determined by the states. We don’t have the right to go to the bathroom anywhere we choose. We can’t pee on the sidewalk, for example, and States (or locales smaller than state) make the laws that define where we may exercise that right (but the Feds can’t).
Mrs. du Toit | 3/4/2008 11:05 AM CDT -
Maybe this will help: The Founders were careful to maintain that The People can do whatever they want in delegating (or rescinding previously delegated) powers to government. The only thing they defined (at the Fed level) was the mechanism by which The People did that (Constitutional Amendment).
The Constitution doesn’t say how The People do that other than at the Fed level, as that would be micro-managing how The People in a state go about doing that. The fact that many states have a similar, but smaller scale, mechanism for amending their State Constitutions should not construe that it is the required way.
The People in California can delegate exclusive powers to the state to educate all children, for example (and ban private schools), but the People of Texas can prohibit the state from being the exclusive provider of education. One state might modify their Constitution by plebiscite, another by a vote by their Legislature. The mechanism may be unique and The People determine (either by plebiscite or through their representatives in their legislatures) what their government MAY do.
California is famous for passing things by plebescite--Propositions that restrict, prohibit, or grant powers to the state.
The People have the right to delegate as much (or as little) as they want at the state/local level. The ONLY thing prohibited to the states are the things listed as prohibited by the U.S. Constitution.
Within the broad umbrella of “civil rights,” other than the Bill of Rights and the additional restrictions in Article I, Section 9, the Constitution didn’t specify anything else that cannot be done locally (state, locale, or The People).
(The above doesn’t include those things that are outside of the state borders--a state cannot, for example, declare war or enter into treaties with a foreign country because that HAS been delegated to the Feds.)
Mrs. du Toit | 3/4/2008 11:23 AM CDT
