Robert P. George, the McCormick Professor of Jurisprudence at Princeton University, writes a follow-up to my recent article about Judge Bork and the Ninth Amendment:
In January of 2008, I was honored and more than a little flattered to receive a note from Judge Bork asking for my perspective on the meaning of the Ninth Amendment. He had thought about the Amendment as much as anyone had, and was dissatisfied by the accounts that had been offered by scholars and jurists over the years. As a professor who had, by then, been teaching constitutional interpretation at Princeton for more than twenty years, I too was dissatisfied; so I welcomed the opportunity to turn my mind to the question and think it through afresh. I am here publishing my message in reply to his inquiry. He graciously wrote back to say that he would give the matter some thought then we would discuss it. Unfortunately, his deteriorating health made that difficult, and though we were together a few times on social occasions, we were not able to discuss the theory of the Ninth Amendment I had proposed to him.
I think that not only the 10th amendment, but also the 9th, needs to be understood in light of the argument advanced by Hamilton and other Federalists against including a bill of rights in the Constitution. Hamilton and the others thought that a bill of rights made no logical sense as applied to a government of delegated and enumerated powers (as opposed to a government of general jurisdiction exercising police powers in a plenary fashion); and they feared that a bill of rights would be worse than superfluous, because it would undermine the delegated powers understanding. It would send a message both to the people and those exercising power in the national government that federal power was limited only by specific constitutional prohibitions. Far from protecting important freedoms, this would undermine freedom generally.
#more# Of course, the Federalists lost the political argument and we got the Bill of Rights. But everyone understood that it applied to the federal government, not to the states. And some of the liberties and rights it included were liberties and rights that the founders plainly did not think of as what we would today call “human rights” or even “civil rights.” These pertained to matters where plainly freedom could be legitimately restricted by some level of government, but they did not want decisions as to its restriction to be made and enforced by the central government. That explains the (otherwise deeply puzzling) comprehensiveness of the language of the First Amendment: “Congress shall make no law . . . “ This did not reflect a belief that criminal or civil laws against, say slander and libel were violations of (what we would today call) a human right to freedom of speech. For the founders plainly thought that such laws were legitimate and even desirable. It simply reflected the view that such laws should be made and enforced at the state level, not by the national government. So, if we are to speak of a 1st Amendment “right” to free speech (which the Amendment itself does not do, as you know), it is a “right” that runs against the national government and can only run against the national government. It exists as a kind of logical implication of the absence of a power delegated to the national government to restrict speech even (as with slander and libel laws) where speech could in their judgment legitimately be restricted by a different level of government.
You’re probably wondering when I’m going to get to the 9th Amendment. Well, if I’m correct, the “unenumerated rights” contemplated by the 9th Amendment exist wherever there is the absence of a federal power to restrict freedom. But, of course, logically this means that the 9th Amendment can’t be incorporated and made to apply to the states. That would make no sense whatsoever, just as it would make no sense to attempt to incorporate the 10th Amendment and apply it to the states. And it also helps us to understand what the 9th Amendment is doing in the Constitution and why it is placed where it is. The 9th and 10th Amendments have the same goal — to reinforce the original delegated powers theory (which is the true constitutional restraint on the power of the national government), in view of the concern that attaching a bill of rights would undermine that theory in the minds of the people as well as those exercising power over them at the federal level. The 9th Amendment addresses the issue from the perspective of rights (that is, rights that the people retain precisely insofar as they have chosen not to delegate a certain power to the national government); the 10th addresses it from the perspective of powers (if the people haven’t delegated a certain power to the national government, the national government just doesn’t have it). So here’s a way to look at it. Vis a vis the national government (but not the states, since they are not governments of delegated powers), the people begin with all rights and then give certain of them up as they delegate powers. But whatever they don’t delegate in the form of a power, they retain in the form of a right (but remember, it’s not necessarily what we would call a human right — it might be something that should be restricted by some level of government, but not by the central government).
So, a sound 9th Amendment argument, as I see it, would be like a sound 10th Amendment argument. It is an argument that could legitimately and successfully be made even if the Amendment in question did not exist, and even if there were no bill of rights. Let’s say that there were no 9th or 10th Amendment or bill of rights, and the federal government tried to restrict speech by enacting slander and libel laws. (Assume for purposes of this example that there is no basis in the commerce power or elsewhere for such laws.) Someone arguing for the unconstitutionality of the legislation would observe that the federal government had been delegated no power to do so, and (in view of the absence of any such power) the legislation would violate rights retained by the people.
In any event, that’s the only way I know to make sense of the 9th Amendment. I assume it’s there for a reason, but that reason can’t be to be some sort of receptacle of rights that are something other than implications of the absence of delegated powers. That really would make it, as you famously said, an inkblot. And to invoke it would be to open Pandora’s Box.
I hope that you and Mary Ellen are flourishing, and that our paths will cross soon.
The one and only.