Congress and the Ninth Amendment
posted by Brian Kalt
An idea I have been kicking around for about twelve years now, and should finally be writing down this summer: Congress and the Ninth Amendment. I have a lot of dimensions of this question to hunt down, but I am very open to thoughts and suggestions from anyone.
Congress is talking about the Constitution more these days, and that should be good news for Democrats and Republicans alike.
The House’s new Republican majority now requires that proposed legislation include a statement of constitutional authority, identifying which of Congress’s constitutional powers the legislation is based on. This forces both sides to think about, and publicly debate, the proper scope of federal legislation, which is supposed to be directed only at the items (like interstate commerce, defense, etc.) listed in Article I, Section 8 of the Constitution.
Some critics deny that interpreting the Constitution is any of Congress’s business. “It’s the courts’ job,” they say. But the Founders expected Congress and the president to consider the Constitution before passing laws. It worked for a while; many of the greatest constitutional-law arguments in the nation’s first century played out in Senate debates and presidential veto messages, and not in the Supreme Court. Gradually, however, Congresses and presidents relinquished their share of the responsibility. Often now, courts not only get the last word on the Constitution, they get the only word. But the original vision is surely more protective of the Constitution, just as it is healthier to brush and floss your teeth than it is to delegate things entirely to your dentist.
Liberals are understandably unenthusiastic about debating the constitutional bounds of federal power—a debate they thought they won decisively back when Franklin Roosevelt was president. But they (along with conservatives, libertarians, and everyone else) should be excited about a parallel opportunity: to debate the constitutional bounds of rights. In particular, Congress can finally give meaning to the Ninth Amendment.
The Ninth Amendment declares, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In other words, listing some rights in the Bill of Rights doesn’t weaken the unlisted ones. The Supreme Court has never done much with the Ninth Amendment. Unenumerated rights are by definition difficult to identify—there are many theories, but no consensus, on what these Ninth Amendment rights are. Even when the Court concludes that a new right exists, it resists calling it unenumerated, instead contorting the law to find it somewhere in the Constitution’s text and its penumbras.
The Ninth Amendment has much better potential in Congress. Its message is important there, even if it has been forgotten: do not read the Bill of Rights as an exclusive list, with any sort of government action permitted as long as it is not specifically forbidden. This is particularly powerful when combined with Congress’s renewed determination not to leave constitutional interpretation solely up to the courts. Instead of Congress asking only, “Would the Court strike down this law on First Amendment grounds? Second Amendment? etc.?”, it can also ask “Do we think that this violates free speech? Gun rights? Any rights not specified in the Constitution?” The Court will still get its chance to weigh in on a law’s constitutionality, but only if Congress and the president first conclude that the law is constitutional and pass it.
Take privacy as an example. Instead of just dissecting (or ignoring) the Court’s complicated privacy jurisprudence, Congress should make up its own mind on what privacy is all about, and on which government actions cross the line. The debate on one potentially intrusive law could pick up where the last one left off. The public would benefit from hearing what its representatives and senators truly think about privacy, and could keep it in mind when the next election comes along.
There is something here for everyone: the right to abortion and the right to life; the right to health insurance and the right not to have health insurance; the right to class equality and the right to purely individual treatment. Making these things a matter of congressional debate—of shifting political majorities and public opinion—admittedly means that any such rights are weak, and potentially reversed by shifting political whim. But lately, that’s how rights often get treated in court too. This sort of flexibility is unsettling there, but at Congress it is right at home. Besides, since by definition these are rights the Court is not protecting right now, proponents of the right would have nothing to lose.
The Ninth Amendment helps us remember that there is more to rights than what courts write about them, or even than what the Constitution says about them. The more that Congress elevates its discussion about the proper bounds of government power and individual liberty—and the less that those things are left to the sole discretion of our courts—the better off we are.
April 19, 2011 at 9:12 pm
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Responses (10)
Seth Finkelstein - April 19, 2011 at 11:01 pm
I don’t see the point of the statement in terms of doing much – wouldn’t most of them just be “Commerce Clause”? Don’t they pretty much do that now, in terms of actual drafting that uses commerce boilerplate definitions?
Brian Kalt - April 20, 2011 at 7:15 am
I think that it really matters most–both for powers and for what I’m talking about here (rights)–in cases at the margins. Most of what Congress does doesn’t test the margins, because the Court has given Congress so much power it is easy to fit almost anything they do inside it. But sometimes a case is at the margins and really requires some careful debate. By teeing up that debate, requiring the statement could help.
tom beebe st louis - April 20, 2011 at 10:02 am
I like these words. To me we’re not to say what our rights are, but rather to spell out through debate, then legislation, what limits are to exist on those rights. In short, “don’t tell me I can’t do such-and-such, I’ll do it until you can show me a (constitutional) law that says I can’t.” I think Brian’s making the point that it must be a law on the books that specifically limits our rights as individuals, not just some SCOTUS decision on what existing laws mean. Enumerating limits is, to me, far preferable than enumerating rights.
birtelcom - April 20, 2011 at 11:29 am
If one understands Constitutional rules (including the of individual rights established expressly or impliedly by the Constitution) to generally be about the limits of Presidential and/or Congressional authority (and, by extension, of the parallel bodies at the state level), then doesn’t asking Congress and/or the President to weigh in on the scope of their own authority seem largely tantamount to asking the foxes to opine about the desirable opening hours of the chicken coop? Or comparable to (using the “umpire” analogy that ocassionally arises in disccussions of judicial authority) asking the batter and pitcher to opine as to whether the pitch was a ball or a strike? It doesn’t seem as if such opinions would really add much light to the relevant debates.
Patrick J. Charles - April 20, 2011 at 12:54 pm
I find this Ninth Amendment interpretation to be inconsistent with Founding Era constitutionalism. Indeed, the First Amendment’s purpose was to ensure an open political discourse on the Constitution to both the majority and minority, but the Ninth Amendment was never supposed to be a vehicle to carve out further rights through congressional debate or popular constitutionalism. Instead, the Ninth Amendment ensured the Constitution would not be interpretated as a restrictive document. I discuss this in detail here (http://patrickjcharles.wordpress.com/2011/04/06/the-simplistic-ninth-amendment/) in my forthcoming article.
Brian Kalt - April 20, 2011 at 2:52 pm
birtelcom, I think that some of this already gets discussed now. The thing different that I am suggesting is just how it is framed. But look at the legislative debates on gun control pre-Heller; or on abortion or federal marriage legislation; and I think you’ll agree that there are two sides to the debates and plenty of fodder for “rights” talk.
Patrick, I freely admit that originalists will not find much to like in my argument.
Ryan - April 20, 2011 at 8:46 pm
Professor Kalt,
Your response to Patrick probably renders this moot but I wanted to pass along my own take on the originalism/Ninth Amendment issue — available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1676530 and here: http://www.columbialawreview.org/articles/the-ninth-amendment-as-a-rule-of-construction
More generally, I’m curious what you think would be gained if legislators framed their arguments about individual rights in Ninth Amendment terms rather than simply arguing that such rights should be respected as a matter of political morality? If the argument isn’t that legislators are obligated to respect such rights because doing so is required by the Constitution (as a matter of either original meaning or judicial doctrine) what, exactly would talking about the Ninth Amendment add to the debate?
Brian Kalt - April 20, 2011 at 11:03 pm
Ryan,
I saw your Columbia article the other day on SSRN, downloaded and printed it, and am looking forward to reading it.
I don’t think that they would be framing their arguments in Ninth Amendment terms, or talking about the Ninth Amendment.
This is also not an argument about what the unenumerated rights in question are–political enforcement would mean that the situation would be very fluid.
I think that 9A requires them not to use the Bill of Rights as a checklist. It eliminates an argument from the legislative debate: “this law doesn’t violate anything in the Bill of Rights as currently construed in court, so we can pass it.” It encourages them to think broadly about rights, rather than to limit themselves to whatever is written there, and whatever the Courts have done with it.
Once they do that, they would likely come up with rights based on political morality, as you put it. To a large extent, I am just calling for “simply arguing that such rights should be respected as a matter of political morality.” 9A reminds them and us that these other things can rise to the level of a “right,” if enough people agree that it is one.
Patrick J. Charles - April 21, 2011 at 4:54 am
Professor Kalt,
Yes, as a matter of historical originalism, I don’t see much agreement. However, I do believe it is good that Congress discuss laws in the constraints of the Constitution. Naturally, most of this debate will be political posturing, with very little insight as to the true scope of constitutional rights, but it will allow for a more fruitful public discourse on government. Perhaps the founders belief in the “public good” will return to fruition with said debates.
Ryan, I too look forward to reading more of this article than the introduction. If you read my blog post, we agree that the Ninth Amendment is not a complicated amendment. In fact, none of the amendments were complicated as a matter of political thought in the eighteenth century. Unfortunately, as we evolve as a society, so too does our understanding of the Constitution’s text.
Best,
Patrick J. Charles
Gary Boatwright - May 17, 2011 at 3:04 pm
At the risk of over simplifying, I vaguely recall that the 9th Amendment was included to aleviate the concerns of the Anti-federalists who were adamantly opposed to a Bill of Rights on the grounds that they were too explicit and therefore limited rather than expanded the realm of individual freedom and liberty our founders were attempting to carve out. They must have been concerned about their contemporary Sean Hannities who were already saying, “Oh yeah? Show me where it says that in the Constitution!”
Their foresight was incredibly remarkable. I suspect they were also dealing with Galtians and Tea Baggers.
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