In the Saturday edition of the Wall Street Journal (sub. req’d), Randy Barnett of Georgetown’s law school urges the federal courts to take up the Ninth Amendment in defense of the “natural liberty rights retained by the people when they established government.” In Barnett’s view, such rights would include the “right to preserve one’s life” by the use of experimental drugs that have been deemed “safe” in Phase I trials by the FDA but not finally approved for general prescription use after complete testing for their efficacy. And they would include the “right to preserve one’s health” by means of a partial-birth abortion as long as there is some “disagreement among reputable medical authorities” as to whether such an abortion was “necessary” to a pregnant woman’s health.
Barnett professes a species of originalism, but these are very peculiar conclusions to draw from any reading of constitutional history. We could begin with the commonplace observation that in matters of health regulation, there is no reason to prefer the views of courts over those of legislatures, and every reason to believe that Congress is a more able fact-finder for general public policy purposes than are courts of law (which typically excel in far narrower factual determinations in particular cases). Or we could begin by observing that it is exceedingly odd, even rather shocking, for an avowed believer in natural rights to prefer a questionable “right to health” to the solid claim of a right to life on the part of the unborn child killed in a partial-birth abortion.
But Barnett’s problem goes far deeper than that, into fundamental errors about the meaning of the Constitution. As Ramesh Ponnuru cogently remarked in his fair but critical review of Barnett’s Restoring the Lost Constitution in 2004, “Barnett assumes that every provision of the Constitution must be enforced by the courts, and that to meet this condition a judicially enforceable meaning for each provision must be found.” Barnett is fond of quoting James Madison’s speech in the First Congress on the meaning of the Ninth Amendment, but he does not notice that Madison promises no judicial enforcement of its terms. Madison refers to the Ninth only as “guard[ing] against” a “plausible argument” made against an enumeration of rights, that it might be read to “disparage those rights which were not placed in that enumeration.” That is far from declaring that judges are authorized, with some alchemical incantation over a steaming brew of the Ninth Amendment and the Declaration of Independence, to conjure additional constitutional rights into being that they may enforce. For when Madison comes a moment later to stating the role that “independent tribunals of justice” will play as the “guardians” of rights, he refers only to the “rights expressly stipulated for in the constitution by the declaration of rights” (emphasis added). It’s a good question how an amendment devoid of express stipulation of any rights at all can be comprehended within the argument of Barnett’s hero Madison.
In one of his more trenchant opinions on our rights-manufacturing jurisprudence (a dissent, more’s the pity), Justice Scalia had this to say, in Troxel v. Granville (2000): “The Declaration of Independence . . . is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal [in the Ninth Amendment] to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”
Just so. And anyway, “not . . . deny or disparage” is strange language to use in a provision calling for the judicial vindication of rights. How does one disparage a right, after all? Point and giggle?