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Mar 14 2009

REPOST: Constitutional Originalism, Natural Law, and The Ninth Amendment

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.)

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  1. 1
    Isis the Scientist

    This is a fascinating post, PhysioProf. I am intrigued by one statement:

    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 would make it seem as though there is some fundamental truth (ie, natural law) that we will be able to discern with time. What do you think the source of said lawis? I would be afraid to ask the conservative right what the source is.

    Personally, I think Madison was pretty on point. I will continue to contemplate his greatness as I go eat a brownie.

  2. 2
    Paul Gowder

    Speaking as someone who is legally trained, and also with the magic political theory wizard’s hat capacity: this is a really great post. It should be very helpful to people who are unfamiliar with these sorts of issues.

  3. 3
    Paul Gowder

    Oh, Isis — you don’t have to buy in to a full-on “there is an external natural law” theory to accept that the framers meant for rights external to the constitutional text to be recognized over time — you could see the source of that recognition in some other extra-textual source of normative claims, like cultural change. (Hence the supreme court jurisprudence on the cruel and unusual punishment clause of the 8th amendment, which revolved around the “evolving moral standards” of the nation to give content to cruelty and unusualness.)

  4. 4
    Anonymoustache

    Outstanding stuff, CPP.

  5. 5
    Dr. Jekyll & Mrs. Hyde

    I’ve always thought that our natural laws derived from our need to live in large communities in order to maximize the benefits from our abnormally good communication skills. Thus, the greater the density of people, the greater the need for agreed-upon rules to live and let live.

    Could it be that cities trend more liberal and rural areas more conservative because, simply, fewer society-stabilizing rules are needed when you live 1 mile from the nearest human rather than 1 meter? (Ignore the social conservative agenda of gays and abortions here; I’m talking about guns, unemployment assistance, business regulations, etc.)

  6. 6
    Donna B.

    I wrote a rather lengthy comment here which I decided to convert to a comment on my own blog:

    http://opiningonline.com/2009/03/15/constitutional-originalism-and-whatever/

    I agree and disagree… you know, nuance or something. Or not. Maybe I’m just stupid.

  7. 7
    'cheweasel

    Fantastique! Can’t wait for your take on the Second Amendment!

  8. 8
    Nancy Ortiz

    Excellent thinking on the Ninth Amendment which is the most important and the least understood amendment. The “originalists” currently in the SCOTUS are the “Know Nothings” of Con. law. If it ain’t right there, it don’t matter. Yeah, Right, you literal minded twits.

    You particularly deserve a great big attaperson for your insight into the independence of the rights from the document. It always encouraging to find another fan of the Ninth Amendment. Outstanding work. Keep it up.

  9. 9
    Isis the Scientist

    Oh, Paul Gowder — I’m not buying in to anything. I’m just curious, for those who discuss these issues, what the source of the natural law is. If, as you say, it comes from our evolving moral standards, I’m cool with it. But then, one can’t fault someone for using the term “activist judge,” can they?

  10. 10
    Paul Gowder

    Isis, I’d probably still fault them for using the term, because “activist” implies that the judges are somehow imposing their personal preferences on the law, and doing it regardless of what the law is. The evolving moral standards argument, on the other hand, is meant to capture the notion that the law itself changes with those standards, and that what judges do is just track that.

  11. 11
    reluctant leader

    Dear Mr. Gowder, according to your own definition of “activist” judges, Scalia is an activist judge.

    His dissent on the Texas homosexual sodomy case is an example. If you can make it through all his legalese, his arguement boils down to the fact he doesn’t like homosexuality, and sides with those who agree with him, while he hides behind the “Constitutional Originality” arguement, just like he always does.

    Another example is his opinion on the Indiana voter ID law. If he was such a strict originalist, he could have never voted the way he did.

    Let’s hope Scalia, and his fellow conservative SC justices, only writes dissents.

  12. 12
    Michael C.

    My, this is a very different reading of the Ninth Amendment than I have. There are “rights” and then there are “Constitutional rights,” aka Constitutionally-recognized and protected rights.

    For example, I think I have a right to read my child a story before bedtime. If a legislature bans me from doing that, shame on them – they are violating my rights.

    But this is not among the enumerated rights that the Founders agreed needed to be protected by a written Constitution. The Ninth Amendment reminds people that that does not mean that it is not a right … but the Supreme Court has no business stepping in in such a situation, just because it, at any given time, agrees with me that reading a bedtime story is a right that I have.

    The theory presented in this post gives the SC veto power over every single thing that Congress (and, with the 14th Amendment, every other legislature in the country) does. The speed limit on the road I live on is 40MPH. But maybe people have a right to drive 45. Or maybe drivers’ right to drive safely is violated by the speed limit not being 35…

  13. 13
    combinator

    Peter Rodino taught a wonderful course on Ninth Amendment jurisprudence and the Preamble of the Constitution at Seton Hall Law that was very much on point with this post.

  14. 14
    rjwalker

    Notice that the chorus against “activist judges” has pretty much dispersed since the Roberts Court has established itself as one of the most activist courts in our history.

    In Anglo-American law, also known as the common law, judges have always made law and they will continue to do so.

    And, in the tradition of our checks and balances, judge made law can always be over-ruled – by constitutional amendment in the case of Con law issues.

    @ recent examples, the Ludbetter case and the Kelo case, where Supreme Court decisions were round rejected by the people and legislation was passed to change the law made by the supreme court.

    Legislatures can be slow to act, or needed action can be blocked by special interests. In such cases, courts are, as they should be the source of justice.

  1. 15
    Opining Online » Constitutional Originalism And… Whatever

    [...] is nothing important I disagree with in Comrade PhysioProf’s essay — Constitutional Originalism, Natural Law, and the Ninth Amendment, except an apparent inability (or unwillingness) to discern whose ox is being [...]

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    [...] Physioprof is really on a roll lately, putting out some extremely good posts. There’s a reason I say this dude is my favorite blogger. Well, now he throws down [...]

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    A new dualism « The Droning Inquisition

    [...] a post by Comerade PhysioProf, I found a new dualism. The post itself is very interesting, explaining why originalism makes no [...]

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