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Saturday, February 11. 2017
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.
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Actually the Declaration of Independence phrased it as unalienable rights.
Constitutional scholars bloviating on the ninth amendment should use care in discussing "natural rights", an extremely pliable, amorphous concept.
I've always thought that the 9th amendment has meaning as straightforward as its words.
(1). where the Constitution is silent it does not automatically mean the government has rights that are not enumerated. Non-enumerated rights default to the people.
(2). if the people decide, thru their representatives, that they wish to grant additional rights to the government, the Constitution must be amended by the due process outlined in the Constitution.
Natural rights may be amorphous, but the founders defined them in the Declaration of Independence, "life, liberty, and the pursuit of happiness".
I just purchased Neil Gorsuch's book, "The Future of Assisted Suicide and Euthanasia". I think it's important for citizens to read and educate ourselves now more than ever, so thank you for posting this BK.
I see why the court just about refuses to decide a case based on the Ninth. When a claim of a right not enumerated is made as a defense a defendant is asking the court to invoke a constitutional provision not evident. They court is being asked to make law.
IMHO, a Ninth Amdendment defense must start with a trial jury decision acknowledging an unenumerated right. Court officers are loath to allow that kind of plea yet this might be the way or if a jury be so informed, to secretly consider and defend unenumerated rights. Then SCOTUS, should a case proceed that far, can look to the jury for what is, in that one case an unenumerated right defense.
This article reads like something Ashley Jude would have written but lacking the clarity and reasoned thought.
in 1790, the Founders decided "natural rights" guaranteed the slave trade in the United States. in 1859, "natural rights" no longer included the slave trade, but allowed slavery to exist and be expanded, because political co-existence required some blacks to have, and others not have, natural rights. by 1865, a war was under way to determine whether or not slavery was a "natural right". turned out it wasn't.
so fuck natural rights.
given that jurors don't make law, and issues not raised at trial are typically waived on appeal, and that a jury decision means the wasn't a plea, from one lawyer to someone probably isn't, put in legal context how,
"defense must start with a trial jury decision acknowledging an unenumerated right. Court officers are loath to allow that kind of plea yet this might be the way or if a jury be so informed, to secretly consider and defend unenumerated rights. Then SCOTUS, should a case proceed that far, can look to the jury for what is, in that one case an unenumerated right defense."
the USSC says its part of American jurisprudence, but you can't argue to or instruct a jury that it has this right.
so there's nothing to appeal.
Spot-on, Maggie's Farm! This must be the most important article written regarding the United States for this century. Only one small bit of information is needed to complete the thought.
Consider that prior to the Civil Rights Acts and the 14th Amendment, U.S. citizenship was through the states; the federal government could not directly affect a state citizen. Today, the situation has been reversed. Why?
Because the U.S. government of the District of Columbia (Art. 1, Sec. 8) created a citizenship of its own! Read the qualifying statement in the first sentence of the Fourteenth Amendment: "...and subject to the jurisdiction thereof..." You will see that here are TWO national citizenships from which to choose.
The first citizenship is natural, and your birthright. The second is CONTRACTUAL.
That is how you lose your natural rights; because today's SUBJECTS don't have any. The rights protected by the original Constitution have not been GIVEN to the subject to the jurisdiction. See the U.S. Constitution Annotated, 14th Amendment. USGPO for an enumeration of all rights bestowed upon U.S. SUBJECTS.
There- you gave a perfect example of how the natural rights of some slaves were denied.
That's exactly what we don't want to happen.
That is because the lawyer/judge politicians in black robes decided to keep the juror ignorant of his rights to be the ultimate judge of the law. That would be way to dangerous to the ruling elite.
Re: tommy gun said, "so f___ natural rights"
What is the point of using the f word? Is it supposed to signal the depth of your passion? Or intimidate the person you're replying to? It just weakens your argument by making you look like an emotional basket case.
If I were the Maggie's Farm moderator, I'd block uncivil posters. On the other hand, it's helpful to know what people are thinking. It's an eye opener for sure.
Also, you might want to look up the definition of "natural rights" since it doesn't appear that you understand the concept. I don't know what you were talking about with the slave example.
Natural Rights are the inherent rights that each of us are born with. Slaves were denied theirs.
did I trigger you? do you need some kitten videos to calm down?
you're another one of these weird guys who have this persecution complex about "the ruling elite" and how we're out to get you. and yet, for all our efforts, you somehow seem to know about jury nullification. so I guess we're not too effective in keeping this secret away from You The Sheeple.
did I hit all the magic words?
holy shi'te, I didn't think you people actually existed. and here you are, a bona fide constitutional loony.
no one who sees daylight has any idea what you're blathering about. you're so far out of the loop you've got to reach up to touch wrong.
but I gotta warn you, the federal jackboots are triangulating on your position now, you'd better not post here again or they'll run you down and toss you in a FEMA Reeducation Stalag.
I think you mean "powers", not "rights", as the government doesn't have "rights". I'm also assuming that you're talking about the federal government, not the state governments, whose powers are general and not specific grants.
why do these forums never seem to get the distinction?
the executive branch has the implied (and usually express) power to enforce a federal statute, so if a statute says, "thou shalt have clean water" the EPA can make rules to enforce that edict. both statute and rules are subject to court interpretation of the constitutional grant of power.