A Revived 9th Amendment At Supreme Court?

Saturday, February 11. 2017

A Revived 9th Amendment At Supreme Court?

Steven Hayward at Powerline blog discussed the Finnis Connection of nominated Supreme Court Justice Gorsuch. Judge Gorsuch took time off from his former law practice to earn a PhD at Oxford under John Finnis. Finnis is noted for his book about how natural law is central to jurispridence. This learning by Gorsuch may portend a renewed attention to the 9th Amendment to our Constitition, a key part of our Bill Of Rights all but ignored since the 1930s. The concept of natural rights reserved to the people is the core of this Amendment, and Gorsuch's learning in this concept may resurrect respect for our inalienable rights, as the Declaration of Independence phrased it.

I'm glad to see this potential, as I wrote about the 9th Amendment here in 2012:  

The Renewed American Revolution: The 9th Amendment

With the enlargement of federal powers and intrusions into individual’s lives, the 9th Amendment to the US Constitution, part of our Bill Of Rights, may well gain more judicial attention. The 9th Amendment should be elevated to central prominence, as it was intended, in applying judgment of all federal legislation, regulations and actions. Our revolution is based in restriction of central powers and must again be reignited to, no exaggeration, save our liberties. Here's the spare words of the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

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.

But constitutional scholars do agree on a basic point: the 9th Amendment was intended to be a guiding construct to interpretation of the rest of the Constitution, although specifics may be either lacking or in contention. After all, the 9th Amendment was considered necessary to be part of our Bill Of Rights without which the Constitution would not have been ratified.

Today, there are new factors requiring more attention to the 9th Amendment: the cumulative and continuing expansion of federal legislation into territories formerly outside its enumerated reserve, the almost unchecked latitude claimed by federal regulatory rules, and technologies’ facilitation of increased central controls and uniformity. The runaway employment of the federal purse and tax to compel obedience is, simply, out of control at the same time that it is evident that the economic security of the nation is imperiled by it.

There is an unprecedented crisis of confidence by most members of the public (the “people” referred to repeatedly in the Declaration of Independence and the Constitution). Polls and protests repeatedly demonstrate the widespread unrest that the “peoples” federal government is unrepresentative of their concerns and needs or not protective of individual rights. This alienation from government is lamented but the proliferation of narrow lobbies at contention with each other has proven to not be the answer, instead furthering discontent and fractiousness rather than encouraging unity and common purpose.

This is not so much a liberal or conservative issue but one that gets to the core of our Founders’ construction of the American experiment. Conservative Congressmen and Senators, although much less so than liberals, have often acquiesced in or cooperated in stretching the enumerated powers in the Constitution into areas formerly outside federal action. It is largely libertarian constitutionalists and careful historians of various stripes who are leading the way toward a broader understanding of the 9th so it may more frequently be applied to the protection of individual rights, and by extension to preserving the successful uniqueness of the United States governance.

This will not be a one-way street. For example, the results may not please those who support the legislation of traditional moralities. Particularly, the 9th Amendment can be selectively construed by liberals to forbid the federal or state governments from barring an individual’s choices. In the Griswold predecessor to the Roe v. Wade decision that struck down state laws barring abortion, the primary reliance was upon the 14th Amendment that extended the Bill Of Rights to the states, but the 9th was referred to as supporting a “right of privacy” that is not one of the first eight Amendments. Legislators have properly narrowed the carte blanche of Roe v. Wade, and in other Supreme Court decisions the “right of privacy” is seldom mentioned, rather relying on other sections of the Constitution. Similarly, restricting the contractual rights and obligations of union between same-sex couples may be struck down by a renewed 9th Amendment, although there are strong Constitutional "states rights" arguments to the contrary. Legislation for “civil unions” has been a correct step, but sacrament, i.e. “marriage”, should be left to voluntary houses of worship.

In other words, elevating the 9th Amendment may be disruptive but experience shows that widely acceptable adjustments will result. There is little or no evidence that our justified interests in strengthening family life is seriously undermined by abortion in reasonable cases, as woeful or immoral as it is, nor by civil unions. There are far more direct influences on family life.

The upcoming ObamaCare individual mandate decision from the Supreme Court was argued around the Commerce and Necessary and Proper clauses of the Constitution, relying more on their injunction by the Obama administration and more common precedents. I haven’t read all the plentitude of briefs submitted but don’t recall the 9th Amendment being raised or focused upon. If there were wider attention to the 9th, perhaps it would have added force to the opponents’ arguments.

That is why prudent legislators and judges are even more necessary to avoid excesses in any direction. Ultimately, that comes back to the “peoples” power to elect representatives. That is why the role of legislators is so important. Further, unless found to clearly cross a line of enumeration, the Supreme Court tends to defer to the Congress. The other reason that legislative elections are so important is the Senate must agree to Supreme Court appointments by the President. The current Supreme Court frames its decisions in Constitutional text, understandings and precedents, their applications often leaning away from many liberal assertions. Future decisions and Court members would be influenced by a renewed interest in the 9th Amendment.

To get to the point, Patrick Henry said,

The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government -- lest it come to dominate our lives and interests.

In drafting the 9th Amendment, perhaps the wording by Madison would have been preferable.

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.

But, that was not to be. 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. Nonetheless, the 9th can not only buttress the restriction of other sections of the Constitution but also lends credence to the intended limited meaning of other sections.

On the other hand, 9th Amendment law professor Randy Barnett suggests that a layman’s reading of the words of the 9th Amendment is most reliable. That may also be true. But there are many laymen. Barnett points us to “natural rights”, but aside from they being innumerable are also subject to selection or contention as to whether there are any. Others point to any individual rights that existed in each state prior to joining the Union. But many were not listed, are arcane, or not applicable to many of today’s issues, aside from many state restrictions on individual freedoms unacceptable today. I particularly point the reader to Randy Barnett’s law journal argument (download here), and to Kurt Lash’s two-part exploration of the “lost” history and jurisprudence of the 9th Amendment (Part 1 history, Part 2 jurisprudence). There are disagreements but a commonality that we have paid too little attention to the 9th and that it may and should today more enter into judicial decisions, as it did before the New Deal. As Lash ends his second Part,

Perhaps the Ninth is but a truism. But before we too quickly consign the Ninth to the dustbin of history, we would do well to recall the prescient words of Justice Goldberg who reminded us that “since 1791 [the Ninth] has been a basic part of the Constitution which we are sworn to uphold.” His words were truer than he knew, as we can now see in the recovered jurisprudence of the Ninth Amendment.

One cannot predict with specificity where a renewed prominence may lead this or future Supreme Courts. One can predict with confidence that it will heighten respect for individual rights, in keeping with today’s and tomorrow’s challenges to them.