Conservative legal theorists spend a lot of time talking about how the text of the Constitution should be construed only as it was understood at the time of the Founding and Ratification. Building on this idea, they rail against “judicial activism” and the “creation of new rights” that are not “found in the text” of the Constitution. This provides a theoretical basis for conservative claims that there is no Constitutionally protected right to many things they despise: gay marriage, abortion, health care, housing, food, etc.
As I will describe below, this textual originalism is bad history and bad law. Furthermore, this theory only has any jurisprudential legs at all because of an unfortunate happenstance of 20th Century Supreme Court jurisprudence.
(This is a repost of a guest-post I wrote at Home of the Brave, a great blog on constitutional issues in contemporary politics.)
The fundamental problem with textual originalism is that it considers individual rights to be things that are created by the Constitution and Bill of Rights. Once you accept this, it is perfectly reasonable to conclude that any rights not explicitly enumerated in the text of the Constitution and Bill of Rights do not exist. But this interpretation of the origin of individual rights is total nonsense.
The Founders were children of the Enlightenment, disciples of Locke, who manifestly believed in a natural law origin for individual rights. They considered individual rights arising out of natural law to be prior to, and independent of, any government. Indeed, they considered any government that did not respect and defer to the natural rights of individuals to be illegitimate.
This conception of natural rights is embodied in the most famous line of the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Unalienable rights are those rights that exist independently of any government, and that must be respected by any government, or that government is illegitimate and deserves to be overthrown.
This line also foreshadows the arguments over the drafting and ratification of the Constitution and Bill of Rights, where it prepends “among these” to the enumerated unalienable rights: life, liberty, and the pursuit of happiness. While the existence or non-existence of any particular unalienable natural right does not depend on enumeration, or lack of enumeration, in any founding document, the addition of “among these” was meant to clearly and explicitly emphasize that there may be other unalienable rights besides those mentioned, and the list was not meant to be exhaustive, only illustrative.
Madison argued strenuously in the Convention against the inclusion of any Bill of Rights in the Constitution. His concern was exactly that illustrative enumeration of particular individual rights would be misconstrued as being exhaustive, and thus allow illegitimate incursions by the Federal Government on the unalienable natural rights of the individual. He believed that there was no need to specifically address the existence of natural rights of the individual, precisely because they are prior to any government, and any government that didn’t respect them automatically rendered itself illegitimate. And there was, of course, no Bill of Rights in the Constitution as presented for ratification.
However, during the ratification debates, it quickly became apparent that getting enough votes in favor was going to require assuaging the fears of those who (presciently) were afraid that the absence of enumeration of particular individual rights would be misconstrued as implying that the Federal Government was not obliged to respect those rights. Prominent supporters of ratification–many of whom were perceived as shoo-ins for Senate and House seats–promised to present Bill of Rights amendments for ratification as one of their first actions in the newly constituted legislature.
Keeping their promise, the first Congress went right to work, both illustratively enumerating some natural rights, but also–not surprisingly, at the insistence of Madison–making it abundantly clear in the Ninth Amendment (just like “among these” in the Declaration) that any enumeration does not invalidate or deny any rights that are not enumerated:
The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.
In fact, the Founders’ theory of natural law included the idea that as human beings become more and more enlightened over historical time, they would develop a richer and deeper appreciation of true scope of natural law. It was thus totally expected that there would be natural rights that were not even known to the Founders at the time of the founding, but were nontheless unalienable and could not be infringed by any legitimate government.
So it sounds like the natural rights principle embodied in the Ninth Amendment is a good, simple basis for individual rights jurisprudence. As we as a society develop a richer view of the scope of our unalienable rights, they become enforceable against the government in the fullness of that evolving view. This is because these unalienable rights are independent of the text of the Constitution and Bill of Rights, independent of the specific views of any people at any point in the course of history, and dependent only on the best contemporaneous good-faith understanding of natural rights at the time of enforcement.
Unfortunately for political progressives, Ninth Amendment natural law origin for unenumerated individual rights never developed in Supreme Court jurisprudence. Instead, unenumerated individual rights were justified as being implied by one or another enumerated right, or arising as a penumbrae of enumerated rights. As you might imagine, this has lead to a great deal of confusion and inconsistency in the jurisprudence of unenumerated individual rights, and has clearly hindered their full enforcement in ways desired by progressives.
Conservative legal theorists have exploited this confusion and inconsistency, driving wedges of “making up rights”, “legislating from the bench”, and “judicial activism” into the cracks in this cobbled-together Rube Goldberg unenumerated rights jurisprudence. This creates fertile soil for arguing that the only individual rights enforceable against the government are the enumerated ones, which are to be interpreted according the understanding of those rights that held sway the time of ratification.
This theory is, of course, very convenient for furthering the conservative goal of greater power of the government over the affairs of individuals (but not over corporations), as in application it hampers the full enforcement of our naturally endowed individual rights against government action. But it is contrary to both history and law, and represents a willful misunderstanding of the clearly written text of the Constitution and Bill of Rights and the intent of both the drafters and ratifiers.
(This is not a law review article. It represents my opinion, laid out in simple terms to possibly pique a politically interested, but not legally trained, readership. There has been a lot more technical discussion and analysis of this issue at blogs and in law review articles. These two blog posts provide an excellent starting point for those who are interested to go deeper.)