Bench Memos

Re: Deny or Disparage

I agree with Matt’s criticisms of Randy Barnett’s Wall Street Journal op-ed (available online here) on supposed applications of the Ninth Amendment and offer these additional (and, I think, compatible) comments against the original meaning that Barnett posits.


1.  By its express text, the Ninth Amendment merely sets forth a rule of construction governing the first eight amendments.*  Its text cannot plausibly be read as a font of any rights.  True, the Ninth Amendment presupposes the existence of “other[] [rights] retained by the people,” but the source of those rights must lie elsewhere.  (See point 3.)


2.  The history of the Ninth Amendment and the specific quote from Madison that Barnett relies on fully support my textual reading.  Defenders of the original Constitution argued against a bill of rights on the ground that such a listing would imply that the national government’s powers were far greater than they were.  When the bill of rights was added, the Ninth Amendment was crafted to guard against this implication.  In response to Edmund Randolph’s objection that the language of the Ninth Amendment should have stated that the existence of the bill of rights should not be construed to “extend[] the powers of Congress,” Madison wrote to George Washington that Randolph’s proposed distinction between preventing the extension of powers and protecting other rights was “altogether fanciful”:  “If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.”  (I have used as a resource on this point the essay by Ninth Amendment scholar Thomas McAffee in The Heritage Guide to the Constitution.)


3.  In other words, these “other[] [rights] retained by the people” referred to (but not granted) by the Ninth Amendment include the freedoms that are the correlative of the limited powers of the national government.  They also include the various rights set forth in the body of the Constitution (such as, to identify just a couple, the Article I, section 10 bar on state bills of attainder and ex post facto laws).*  And they include as well the broad array of non-constitutional rights that state law is free to protect, including (to the extent not covered by the Constitution’s guarantee of a “Republican Form of Government”) the basic right of the people to engage in self-governance.  Indeed, those who seem to think that any right that is really, really important must be constitutional engage in the very disparagement of non-constitutional rights that the Ninth Amendment is designed to guard against.


4.  Barnett begins his op-ed with the rhetorical question whether “discussion of ‘judicial restraint’ or deference” means deference to “the legislature or the individual”.  This question deserves an answer.  “Deference to the individual” is a clever way to recast the judiciary’s decision that an individual right trumps the people’s right of self-governance.  That trumping obviously will be merited in some circumstances and not in others.  When it is merited, it is a proper exercise of the judicial function (but not an exercise of judicial restraint, which is a prime, but not exclusive, judicial virtue).  When it is not merited, it deserves the very different label of “judicial activism”.  And that label, I believe, is exactly what would be earned by the courses of conduct that Barnett is encouraging in the two cases that he discusses.

* See Errata.



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