The 9th, Cont'd
This is a response to this comment (scroll down).
It is a big no-no to adopt any interpretation of the Constitution that renders any other aspect of it superfluous. That weakens your argument significantly, IMO, and Steve points this out above.
You could argue that the BOR was superfluous, which is indeed what Madison thought, but my answer to that, quite simply, is that both you and Madison are wrong. And my point is not that the BOR is superfluous, but I rather refer to an age-old hallmark of stautory interpretation: courts are loathe to adopt interpretations that tender specific parts (or specific amendments) of the Constitution meaningless, with good reason.
The Founders knew what they were doing; they would not have amended the Constitution, much less in 1791, unless they intended their words to have effect. If you toss that canon out as nonchalantly as you seem to here, you grow oh so close to the very "activism" you despise, IMO.
So I think it is a very big problem for your interpretation, and it certainly isn't no argument at all.
No offense, Owen, but I don't think you (or I) is qualified to opine on exactly why the SCT has ignored the 9th Amendment. It might be because they loathe the incorporation doctrine, but that's unlikely given the readiness with which even conservative judges apply the other amendments to the states.
My own opinion, unqualified as it is, is that they ignore the 9th because they're honestly unsure what to do with it. But, as Steve has said in the past, that's why they pay these judges the big bucks, to figure out the tough problems.
If it were an unethical decision, like Korematsu, I can understand (and agree) with refusing to apply poor doctrine. But this is not just a bad decision--this is a entrenched, fundamental, basic precept of our constitutional jurisprudence. This is NOT something judges can just overturn because they don't like it. Doing so would without a doubt effect a complete jurisprudential revolution. And even if SCT judges can ignore it, if we have incorporation, then we have the 9th, and it is precedent which at least some courts are supposed to honor--and none do. The 9th Amendment is completely ignored by the entire federal judiciary, and it can hardly be said to invoke the same kind of ethical concerns as decisions like Plessy or Korematsu or Roe.
If Owen Courrèges, noted conservative, wishes to advocate legal revolution, I'm down for it, and while we're doing so, we can toss out the egregious Slaughterhouse cases and their preposterous interpretation of the 14th Amendment.
Otherwise, we're stuck with incorporation, and if we're stuck with incorporation, it is internally inconsistent for a judge to ignroe the 9th Amendment because he/she is not sure what to do about it.
Consistency for its own sake is indeed unwise. But my point is (1) this is not just consistency for its own sake; and (2) this is not a matter of ignoring a poor decision; this is a matter of turning right upside down the entire development of American constitutional law.
As for the 14th, I wasn't referring to the incorporation doctrine, though I think you are mistaken on that point as well. I was referring to the P&I clause, which has, like the 9th, been completely read out of the Constitution. And, unlike the 9th, there is NO question that the 14th Amendment itself was completely intended to apply to the states. Therefore, even if everything you've said is correct, which I don't believe, you run into even more serious problems with the same concept under the 14th Amendment: the people possess unenumerated rights which can be used either as a shield or a spear against the states.
UPDATE:Timothy Sandefur has some excellent takes on the Ninth Amendment argument. You can read his posts here, here, and here. Unlearned Hand has an excellent summary of the debate here.
If the Curmudgeonly Clerk happens to be reading, I would personally love to hear his/her take on the matter.
Daniel,
It is a big no-no to adopt any interpretation of the Constitution that renders any other aspect of it superfluous. That weakens your argument significantly, IMO, and Steve points this out above.
This doesn't strike me as logical. Why does it weaken my argument to claim that the Ninth Amendment was "somewhat superfluous?" The amendment can have little practical effect and still be meaningful.
In fact, I have consistently argued that the the Ninth was a good complement to the Tenth Amendment, serving to state in no uncertain terms that the federal government could not assume powers by claiming that they were implied by the Bill of Rights. The Federalists thought this was a cause of concern, and just because we haven't encountered this problem doesn't mean that it couldn't have arisen had the Ninth Amendment not been added. A refusal to address the issue could have justified expansions of federal power not intended.
You could argue that the BOR was superfluous, which is indeed what Madison thought, but my answer to that, quite simply, is that both you and Madison are wrong. And my point is not that the BOR is superfluous, but I rather refer to an age-old hallmark of stautory interpretation: courts are loathe to adopt interpretations that tender specific parts (or specific amendments) of the Constitution meaningless, with good reason.
Again, as I explain back on Southern Appeal, I AM NOT advocating that the Ninth Amendment be rendered meaningless, just that it be brought back to its original intended meaning. Applying the meaning that Steve recommends would run completely counter to any valid concept of originalism; it would demand that we interpret the Ninth to mean nearly the polar opposite of what it was intended to mean.
The Founders knew what they were doing; they would not have amended the Constitution, much less in 1791, unless they intended their words to have effect.
Yes, and the Ninth Amendment DID have an effect. It prohibited the federal government from reading the Bill of Rights as an implicit grant of power. If this had not been resolved, can you honestly say that certain parties would not have invoked the Bill of Rights to justify federal expansion? The founders were wary of federal tyranny, and through the Ninth and Tenth Amendments, they created vehicles to guard against it.
This is what the founders intended, and I do not consider it a small thing. The federal government today is HUGE, and this is certainly not what the founders wanted.
If it were an unethical decision, like Korematsu, I can understand (and agree) with refusing to apply poor doctrine. But this is not just a bad decision--this is a entrenched, fundamental, basic precept of our constitutional jurisprudence.
The incorporation doctrine is indeed entrenched, but the incorporation of the Ninth Amendment is not. The Ninth has never, by itself, been the basis for any Supreme Court ruling. It is not some crucial linchpin for current constitutional jurisprudence. Accordingly, all I am suggesting is that the Supreme Court affirm that the Ninth Amendment does not apply to the states, because it cannot be legitimately read to apply to the states.
Furthermore, I do believe that it is unethical to use a restriction on federal power to restrict state and local governments without valid legal cause (such as the incorporation doctrine). That undercuts the very fabric of representative democracy. Since I do not believe it is possible to apply the Ninth Amendment to the states without effectively rewriting it, I believe invoking it leads to a kind of federal tyranny, the same tyranny the Ninth was supposed to protect against!
As for the 14th, I wasn't referring to the incorporation doctrine, though I think you are mistaken on that point as well. I was referring to the P&I clause, which has, like the 9th, been completely read out of the Constitution. And, unlike the 9th, there is NO question that the 14th Amendment itself was completely intended to apply to the states. Therefore, even if everything you've said is correct, which I don't believe, you run into even more serious problems with the same concept under the 14th Amendment: the people possess unenumerated rights which can be used either as a shield or a spear against the states.
There is no mention of "unenumerated rights" in the 14th Amendment, just the vague notion of "privileges and immunities." I assume you are claiming that these are the same thing, but they aren't. First of all, you still can't effectively apply the "unenumerated rights" of the Ninth Amendment to the states that way, since the Ninth involves enumerated federal powers. State and local governments simply couldn't function under parameters designed for the federal government.
Moreover, you would be rendering the Tenth Amendment invalid, as it explictly reserves powers to the states. I don't believe you will find any historical support for any viewpoint which says that the Fourteenth Amendment invalidates the Tenth Amendment.
It may weel be that we need a better method for interpreting the Privileges or Immunities Clause, yet your proposal seems to raise more problems than it actually solves. My personal opinion, at least given the little study I have done on the subject, is that the Privileges or Immunities Clause was simply intended as justification for the incorporation of the Bill of Rights, and this is something I have never challenged. What I've challenged is the specific incorporation of the Ninth Amendment.
Posted by:Owen Courrèges | February 18, 2004 at 06:35 PM
I know that I should have a well-developed position on the Ninth Amendment, but it is an issue to which I have devoted little attention. Some time ago, I printed off a few hundred pages of law review commentary to read on it, but I have yet to make the necessary time to do so. I am under the impression that there is little in the way of elaboration on the Ninth Amendment in caselaw.
Nonetheless, I am inclined to disagree with the views expressed by Steve Dilliard. To my ears, the notion of an originalist Ninth Amendment jurisprudence promises to be as large a disaster as Randy Barnett's view, because everything really depends on how you frame the supposed Ninth Amendment rights accepted by the Founders. Any principle or right may be stated at a high enough level of generalization to encompass just about any result or in narrow enough terms to preclude any given result. The framing of the legal question makes all the difference. Just consider the difference in how the issues were framed in Bowers v. Hardwick and Lawrence v. Texas, for example.
So it seems to me that what will be outcome determinative if the Ninth Amendment is employed to recognize substantive rights is nothing more than the political preferences of the sitting members of the Supreme Court. I doubt that anyone could seriously dispute this notion. Folks like Barnett and Dillard are just articulating political preferences in legal language. Where the Ninth Amendment is concerned, my intuition is that the legislative process is a better guarantor of our unenumerated rights (whatever they might be) than judicial decisionmaking, if for no other reason than that we, the people, may more easily revisit mere legislative enactments than constitutional rulings.
So when Bork says that the Ninth Amendment is the equivalent of an ink blot, my inclination is to say that he is probably right. Or more accurately, the Ninth Amendment is a Rorschach blot. People see what they want to see in that Amendment's single enigmatic sentence.
Moreover, from a purely textualist point of view, I do not see why the Amendment ought to be construed to provide for any substantive rights. Many complain that Bork's view reduces the amendment to meaningless surplusage. If viewed in terms of the text alone, this criticism seems baseless. Like the Tenth Amendment, the Ninth strikes me as stating a mere truism. It reads:
To me, this seems like nothing more than a constitutional rejection of the legal maxim expressio unius est exclusio alterius.
Posted by:The Curmudgeonly Clerk | February 19, 2004 at 01:05 AM