Retained by the People

Preface

Everyone knows about the First Amendment right of free speech and the Fifth Amendment right to avoid self-incrimination. Even the once-forgotten Second Amendment, with its “right to bear arms,” has reemerged in public debate. But few people know about the Ninth Amendment, which reaffirms in broad terms rights “retained by the people.” Indeed, the Ninth flies so far under the radar that it has rarely been mentioned even by the Supreme Court.

What a pity. Even more, what a terrible oversight: the Ninth Amendment bears directly on such modern-day constitutional issues as abortion, the right to die, and gay rights.

The Ninth Amendment is key to understanding how the Founding Fathers thought about the liberties they expected Americans to enjoy under the Constitution. They did not believe that they were creating these liberties in the Bill of Rights. Instead, they were merely acknowledging some of the rights that no government could properly deny. The history of the Constitution reveals the purpose of the Ninth and the Founders’ intent: to protect what constitutional lawyers call unenumerated rights—those rights the Founders assumed and felt no need to specify in the Bill of Rights. Unenumerated rights include, for example, the right to privacy. In the America of today, unenumerated rights account for freedoms like a woman’s right to abortion.

By delving into the history and the ideas that shaped the values of the Founding Fathers, I will attempt to clarify the Ninth and thrust it into the pivotal role it deserves in resolving our thorny constitutional debates. The truth is that anyone interested in the political and legal issues of the day can and should look to the Ninth Amendment for guidance.

The Ninth Amendment is paired with an almost equally forgotten provision, the Privileges or Immunities Clause (P or I Clause) of the Fourteenth Amendment, which draws from the same intellectual roots. The Ninth Amendment is like the rest of the original Bill of Rights: it speaks only to limits on federal power rather than to the powers of state governments. Limitations on state governments came along later, with the post–Civil War Fourteenth Amendment. Thus, the Ninth Amendment addresses the federal government; the Fourteenth addresses the states.

The human rights vision that survived the Civil War and was confirmed by the Fourteenth Amendment consciously complements that of the Founders. Confronting what these provisions really mean has the potential to reshape the way we think about the Constitution.

In particular, a look at this history helps us address the very controversial question of Supreme Court reliance on foreign law. The Framers thought that fundamental rights were embedded in what they called “the law of nations,” and we should follow their lead in seeking inspiration abroad. However, their openness to foreign law is not universally shared today. When Justice Kennedy referred to foreign law in two judicial opinions on the issues of homosexuality and the death penalty, he was subject to an onslaught of criticism from legal commentators. Many of those same commentators question whether the United States is bound by international human rights laws, such as the Geneva Convention’s prohibitions on mistreatment of prisoners.

My goal in this book is not to provide an encyclopedic view of how the Founding Fathers or their Civil War successors thought about rights. That would take a book two or three times as long as this one. Such a tome would allow me to indulge my scholarly inclinations. It would give full scope to probe ambiguities and inconsistencies in the historical record and to tease out the complex interplay between political forces and conceptual developments. But this is not the place for such a detailed historical exploration. Instead, I have emphasized the key developments and tried to provide a coherent narrative of those developments, which generally follows the views of leading current historians such as Jack Rakove and Gordon Wood.

This book was a long time in the making. It is the culmination of research that I started at the beginning of my career with John Muench, who later left teaching to become a stellar appellate lawyer. It also builds on my work on constitutional history with my former colleague and frequent coauthor, Suzanna Sherry. I am particularly in debt to her work on the intellectual context of the Framing era and on judicial enforcement of unwritten constitutional rights. Readers who wish to see the relevant portions of the historical documents I discuss can find most of them in a book we wrote together, A History of the American Constitution.¹ The endnotes in the current volume contain only references to a few secondary sources and some hard-to-locate primary sources. Sources such as the Federalist Papers are not footnoted since they are easy to locate in most libraries.

It is customary to end prefaces such as this with thanks to family for their support during the writing process. Such thanks are unusually appropriate in this case. During the time I was writing this book, I also felt an obligation to work on some of the issues arising from Hurricane Katrina, which combined with this writing took up almost all of my time for the past year. Not only were they remarkably tolerant, but my wife, Dianne, and my daughter, Sonia, took time to help greatly with the final edit. Hopefully, it was all in a good cause.

Dan Farber

A Reference Chart of Constitutional Provisions

If you’re not a lawyer, you may have trouble keeping track of the various constitutional provisions discussed in this book. This chart may help. The entries are roughly in order of how often the provision is mentioned in the book.

Another provision I will sometimes refer to is the P and I Clause, a provision in Article IV that prohibits any state from discriminating against citizens of other states. This has almost the same language as the P or I Clause in the Fourteenth Amendment but has been interpreted narrowly in recent years. It is relevant to our discussion only because the Framers of the Fourteenth Amendment used it as a model.

1
Who’s Afraid of the
Ninth Amendment?

The Ninth Amendment is a constitutional orphan, forgotten by most and reviled by some—especially on the conservative end of the spectrum. One of the only exceptions is Justice Arthur Goldberg’s concurring opinion in the famous Griswold case, which upheld the right of married couples to use birth control.¹ Yes, there was a time, only four decades ago, when some states made this a crime. Some jurists still do not see any constitutional problem with such legislation; it is no coincidence that they seek to keep the Ninth Amendment safely neutered.

In the contraception case Justice Goldberg recounted some of the history of the Ninth Amendment. He reminded his fellow judges that “since 1791 it has been a basic part of the Constitution which we are sworn to uphold.” As he demonstrated, the language and history of the Ninth Amendment show that the Framers of the Constitution believed in additional fundamental rights, protected from governmental violation, alongside those listed in the Bill of Rights. But Goldberg’s remarks were a rare departure from the usual pattern of judicial deafness toward the Amendment, and they were rapidly forgotten.

While political parties clash over the morality underlying these rights, lawyers and judges debate their legality. “Unenumerated rights,” the lawyer’s term for these unlisted fundamental rights, is the battlefield on which these struggles play out. Most Americans are unfamiliar with this term, yet it determines how free we are to make the decisions that shape our private lives. And it is the great, and wholly American, ideal that gives the Ninth Amendment its meaning.

The Ninth Amendment does not stand alone in the Constitution. A similar provision in the Fourteenth Amendment guarantees each of us the “privileges or immunities of citizens of the United States.” The drafters of this provision, like the original Founding Fathers, believed in the existence of natural rights. Unlike the Ninth Amendment, which was adopted with an eye toward abuses by the federal government, the Fourteenth Amendment protects rights against violation by state governments.

So why haven’t the Ninth and its Fourteenth Amendment counterpart had more impact on the war of constitutional interpretations that has plagued Congress and the courts for the last twenty years? Because their meaning is implied, linked as they are to history and an understanding of what the Framers believed. Thus their purpose seems easy to dispute and distort.

Both provisions also came at the peak of an interest in individual rights but were soon relegated to obscurity when states’ rights emerged as the more pressing concern. Through a series of historical accidents, the Supreme Court later ended up attaching fundamental rights to another—and less appropriate—part of the Constitution, the Due Process Clause of the Fourteenth Amendment. The result has been conceptual confusion and vulnerability to conservative critiques.

THE CONSERVATIVE FLIGHT FROM THE NINTH AMENDMENT

Liberals (for lack of a better term) have as yet to directly embrace the Ninth. They argue the case for rights on the basis of clauses like Due Process or give up on fundamental rights in favor of arguments based on discrimination law. I believe that’s because they find the Ninth too elusive. Buried as it is in eighteenth-century ideas, in debates among the Founders as they wrote the Constitution, and in James Madison’s oratory before Congress, the Ninth seems shadowy, a battle that cannot be won.

For historical reasons, the Supreme Court has mostly protected fundamental rights under the guise of the Due Process Clause rather than the Ninth Amendment. For many liberals it has not seemed to matter much that this was the wrong clause, with the wrong language and the wrong historical background. But it does matter. Today, text and history have become crucial to constitutional argument. We should not let the opponents of personal freedom lay claim to these crucial forms of support. The Constitution and the Framers’ vision are potent allies of anyone arguing for liberty. And in protecting rights already granted by law, the Supreme Court has begun to take this vision into account.

It is conservatives who should fear and deny the Ninth—and many do, especially the so-called movement conservatives who make up the “base.” Those who seek to legislate the private decisions of millions of Americans will strenuously object to this book, and for good reason. The Ninth challenges both what they believe about the Constitution and what they publicly offer as their rationale for imposing their morality on others. To most conservatives, the Bill of Rights is complete: the Framers meant nothing other than what it explicitly says. For all their talk about fidelity to the Constitution, however, they prefer to ignore inconvenient parts of it.

Since many conservatives do not want to hear its message, they pretend that the Ninth does not exist. They claim that, with its murky language, it is a meaningless fragment, not at all amenable to intelligible interpretation. Robert Bork compared the Ninth to an “ink blot” during his confirmation hearings. He said, “I do not think the court can make up what might be under the ink blot if you cannot read it.” In other words, unenumerated rights simply do not exist.

Other conservatives argue that the Amendment was really intended to protect states’ rights, either by requiring strict construction of federal powers or by preventing the federal government from overriding state laws and constitutional provisions. Apart from a few libertarians, who are well out of the mainstream of political influence within the conservative movement, conservatives have no use for the Ninth Amendment.

Both the Bork view and the states’ rights argument are strained and desperate efforts to avoid the plain meaning of the Amendment. All we have to do is look fully at what it says. It speaks of rights “retained by the people,” not rights “retained by the states.” It openly tells us that by listing some rights, the Constitution does not thereby “deny or disparage others retained by the people.”

The Framers picked their words carefully and understood just what they were doing. They meant the Bill of Rights to be illustrative, not complete: the Ninth Amendment adds a crucial “etc.” to the Bill. This “etc.” represents the liberties the Framers viewed as fundamental—rights that were part of their political and ethical vision, what they had fought a revolution to honor. For them, as men of their time, these rights were based in “natural law” and the “law of nations.” These two terms had significant meaning for the Framers and were expansively defined.

Some conservatives acknowledge that the Ninth Amendment, like the Declaration of Independence, refers to innate human rights.

But they contend that these unenumerated rights lack any legal weight and were merely entrusted to the political process. This theory conveniently allows these conservatives to pretend belief in innate rights without ever having to do anything about them.

Justice Scalia put forward this theory in a case involving parental rights that I will discuss in detail later in this book. He conceded that a right of parents to bring up their children is among the inalienable rights of the Declaration of Independence. It was also, he said, among the right retained by the people under the Ninth Amendment. So far, so good. But according to Justice Scalia these rights are paper tigers, without any legal effect. For Scalia, the Ninth Amendment’s refusal “to ‘deny or disparage’ other rights is far removed from affirming any one of them.” The Ninth is also, he said, “even further removed” from authorizing judges to identify and enforce those rights. In other words, it is fine to make use of the Ninth in political debate. Yet, Justice Scalia said, he lacked any power as a judge to strike down these laws when in his opinion they infringe upon a valid unenumerated right.

The specific case before him involved the right of parents to bring up their children; according to Justice Scalia, this right has no legal standing. This is a peculiar position—if you read Justice Scalia’s opinion carefully, he seems to be saying that the right of parents to raise their own offspring is an unenumerated right and that it is covered as such by the Ninth Amendment. The trouble is that for Scalia, the Ninth Amendment speaks to him when he is a citizen but not when he puts on his black robe and climbs on the bench. When you think about it, Scalia’s view is even less defensible than Judge Bork’s. Bork said that he could not enforce the Ninth Amendment because he has no way of figuring out what it means; Scalia seems to say that he does know what it means, but he won’t enforce it anyway.

For the most part, in this book I will put forward the best interpretation of history without delving into the debate that swirls around some of these issues. However, readers who want a more detailed rebuttal of some alternative explanations should turn to the Appendix on “Misunderstanding the Framers” at the end of the book.

FUNDAMENTAL RIGHTS AND THE FOUNDING FATHERS

Given what we know about the legal thinking at the time the Constitution was written, the Ninth Amendment cannot be dismissed as a mere moral admonition, devoid of legal import. Fundamental rights had their roots in natural law and the law of nations, and these were not merely collections of pious wishes to embroider political rhetoric. In the Framers’ view, these rights had very real legal application.

The Framers took seriously the idea that government has no legitimate authority to violate human rights, regardless of what specific laws might say. We can never understand the Ninth Amendment until we grasp that basic premise of the Founding Fathers: human rights come first, and legal regimes come second.

This was the axiom proclaimed in the Declaration of Independence: “all men are endowed by their Creator with certain inalienable rights.” The Declaration embodied the perspective of natural law: that individual rights are not simply privileges granted in legal documents, but instead they are the birthright of all humans everywhere.

The idea of natural law had broad intellectual support in the eighteenth century. Of the natural law writers who were familiar to the Framers, the philosopher John Locke is clearly the best known today. His theory of the state of nature and the social compact provided a philosophical foundation for natural rights.

Locke’s theory is based on the idea of the state of nature, in which individuals are free from all government. In this state of nature, individuals are subject to certain natural duties and possess certain natural rights. Among these natural rights are the right to continued life and the right to whatever property is created by one’s own labor. All individuals are equal in the sense of having an equal right to this natural freedom. Unfortunately, in the state of nature, although all have equal rights, they are also equally vulnerable to the invasion of their rights by others. The solution is to band together to protect their rights.

In Locke’s view government comes into existence when people create a central authority by means of a social contract. This authority has only the power it is granted through this delegation or compact, that is, the power to protect individuals in their natural rights. “The law of nature stands as an eternal rule to all men, legislators as well as others.”²

Although they have been largely forgotten today, three other writers of the school of natural law were highly influential in eighteenth- and early nineteenth-century America. These were Samuel Pufendorf, Emmerich de Vattel, and Jean Jacques Burlamaqui. As his major modern commentator says, “Samuel Pufendorf is known to American students—when he is known at all—as an obscure German with a funny name who followed Grotius in the early development of international law.”³ Nevertheless, he was a highly influential thinker.

Pufendorf ’s natural law system stressed the social nature of human beings and their duty to protect each other’s welfare. Like Locke, he also stressed human equality and the compact theory of government. Pufendorf was no obscure figure at the time: sixteen editions of his most famous work on natural law were published in England in the decades before the American Revolution.

Burlamaqui’s theory shared the same theological foundation underlying Locke’s work. In his view, since God gave humans life and the desire for happiness, God must have wanted them to pursue these goals, thereby imposing on other people the duty not to interfere with these rights. Like Pufendorf and Locke, Burlamaqui adopted a compact theory of government under which government acts in excess of the granted power were invalid.

Vattel’s work mainly involved international law but contained some important observations on natural law. He postulated that society is obliged to preserve its members and cannot override their natural right to self-defense. If the sovereign violates fundamental rights, the nation as a whole can withdraw its obedience. Vattel’s extensive writings on international law have been deeply influential in terms of U.S. law—for example, he has been cited more than 150 times by the United States Supreme Court, including as recently as 2004.

For the Framers, unlike Justice Scalia, natural law was not a legally irrelevant moral theory. And natural law ideas were not simply a passing expression of revolutionary fervor. Natural law continued to play an important role in American law well into the nineteenth century. In particular, natural law ideas influenced the drafters of the Fourteenth Amendment at the end of the Civil War.

One of the best-known early instances of reliance on natural law was the 1798 Calder opinion by Justice Samuel Chase. In that opinion, written soon after the Constitution went into effect, he declared that state governments were limited by “certain vital principles in our free Republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power.” Less well-known are opinions by Chief Justice John Marshall taking the same position. Like the Framers, Marshall understood that government authority is subject to inherent limits. A host of state law decisions articulated the same view. In short, natural law was not a dead letter for the Founding Fathers; it was hard, enforceable law.

I believe that when the Supreme Court protects an unenumerated right like privacy, it is simply doing what the Framers directed. And in denying the existence of those kinds of rights, conservatives are doing precisely what the Framers feared: denying or disparaging the rights retained by the people.