A great many books have been written about the U.S. constitution. We have enjoyed some, particularly those, which have pointed out problematic areas, clauses that the authors regretted or wished could be fixed or just would prefer to be understood as they were when they were written.
Here are pulled together some facts and thoughts on 10 clauses in the U.S. constitution that have been ignored, misunderstood or misapplied. Some of the authors merely want the correct meaning to be restored by educating the judiciary, others wish to amend the constitution so as to correct the way the constitution is applied (to repeal or correct the problem clauses), and yet others would like an entirely new constitution. The focus here will be on one of the 10 troubling constitutional clauses:
- The commerce clause
- The contracts clause
- The due process clause (amend 5 and 14)
- The privileges or immunities clause
- The equal protection of the laws clause
- The general welfare clause
- The necessary and proper clause
- The supremacy clause
- The takings and tax clauses
- The enumeration of rights clause (amend 9)
We have now come to the tenth of these clauses, The enumeration of rights clause.
The enumeration of rights clause
This clause, more properly called "the non-enumeration of rights clause" is an alternate name given to the Ninth Amendment to the United States Constitution, which reads:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Some states objected to adopting the original 1787 constitution because it lacked a bill of rights. Supporters of the constitution pledged that a bill of rights would be added. Several states drafted proposed amendments for this when they conditionally ratified the constitution.
Two years later congress met to deal with this matter. Debates ensued in which some people argued that a bill of rights would be 1) unnecessary because the government was already limited by enumerated powers, which limits constituted a bill of rights, and 2) that it would be dangerous because it could not possibly enumerate all of the rights that the people retained. Others argued that without it the powers delegated to the government would be expanded so as to reduce those rights. The objector states won, but not without James Madison concocting what he thought would be a remedy to the danger of a partial enumeration of rights.
Almost at the last moment, before the Bill of Rights was put before the Congress, James Madison came up with additional language to keep the possible harm of naming specific rights from becoming a problem. He added the ninth (quoted above) and tenth amendments. The tenth reads, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people."
Desperation and futility
The founding fathers had argued about the lack of adequate protection for rights in the constitution. They had argued about the impossibility of making a complete list of these rights. They had argued about the danger of listing such rights in amendments. There was general agreement on the meaning of rights as Natural Rights -- a boundless collection of liberties or privileges and immunities.
Finally, in order to end the debate, the Bill of Rights came up for voting. Eight rights, or rather eight clusters of rights were accepted. The danger was clear: there were other rights, which could not all be listed, and they would be vulnerable to government infringement. The danger was addressed as directly as it could be, with the ninth amendment. Indirectly supporting it, the tenth amendment was created to restrain the government to the enumerated powers and leave the full set of natural rights to the people.
Strict but open construction
Against so-called strict constructionists, who would hold us precisely to the words in the constitution and allow nothing else to be considered as foundational law, I would argue that it is in the very text, of the ninth amendment, that the constitution demands supplementation. It is not complete. The rights of the people are open-ended. That does not detract from the written constitution; that stands. However, it itself says there are more natural rights, and no complete list is possible. Natural rights are boundless, with some powers expressly delegated to the government.
There are items in the constitution which imply that the written text of the document may be supplemented. Unlike "loaded" phrases such as "life, liberty and property" or "privileges and immunities," the ninth amendment demands supplementation, or rather asserts and does not merely imply it may be supplemented. There are other, unenumerated rights, retained by the people (and some, which are delegated by the people to the states).
Barnett's research (Restoring the Lost Constitution, p.103 and pp. 234-252) into the original public meaning (note: not intention) reveals that
- the unenumerated rights are not the residual of powers or rights left by the ceding of powers to the United States ,
- the unenumerated rights are not the set of rights defined and protected by the states,
- the amendment embodies a guard both against adding powers to those enumerated for the United States and
- against a guard against extending the powers that are ceded to the federal government; the ninth amendment is a guard against a loose construction of the powers.
The avoidance of application of the ninth amendment, let alone outright disparagement of it by such people as Robert Bork, reveals a fear. There is a fear of the unenumerated rights. The rights of the people, as understood by the public in 1789, were open-ended, boundless, limited only by the imagination of man at any given time. "Life, liberty and property," "privileges and immunities" and other rights "retained by the people" are signals and pointers to principles of natural rights. Without this philosophical foundation, they would have little meaning. If the people of the United States in the twenty-first century do not accept this, they should explicitly amend the constitution.
This author believes that further restrictions on enumerated government powers could have been set in the constitution. A more restrictive power to snoop, search and seizure, a fair way of setting the value of property "taken," a recognition that taxation implied "taking," which deserved compensation (?), applying federal government restrictions on individual rights to the states, control of foreign interventions, etc. However, our government would undeniably be influence by the changing habits of foreign governments, in their invention of new powers. In addition, the problem remains of the problem of fully defining the rights of the individual citizen (and non-citizen) as a constraint on government.
When a law might constrain liberty, liberty should be presumed
The public meaning of the ninth amendment at the time it was enacted was that natural rights that were not named in the bill of rights or in the original constitution were not to be held to be less important than those that were named. It was part of a two-sided strategy to have a government that united the states that had limited powers and to have all of the people's natural rights protected.
The problem area was where there was no sharp line between enumerated powers and retained rights. The ninth amendment was intended to give a presumption favoring individual liberty, to natural rights, in the area outside the enumerated powers, rather than to encourage extending powers delegated to the United States . Even in applying the enumerated powers, a new law should be proven to be constitutional, challenged by the presumption of liberty.
What congress proposes that the government must do in that fuzzy area should be construed to favor individual rights, should presume that the people should have liberty, rather than that the law they are voting on is automatically constitutional. The burden of proof must be on congress to establish that it is constitutional.
Judges have made a real difference in how this clause or amendment now is understood and applied. The first generation that lived under it made a difference, but their thoughts have long been forgotten. Even judges of that time have had their thoughts forgotten. Judge St. George Tucker wrote about the matter in the appendix to his edition of "Blackstone's Commentaries," where he strongly paralleled James Madison's thinking. He asserted that "every power which concerns the right of the citizen, must be construed strictly, where it may operate to infringe or impair his liberty, and literally, and for his benefit, where it may operate to his security and happiness, the avowed object of the constitution..."
How can this clause be applied?
Where or in what arena should we expect the power of this clause be applied? Where can it do its work?
Is a congressional representative expected scrupulously to avoid proposing certain bills or fight against bills being passed for infringing what this amendment or clause protects? What content in the clause “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” would a Senator or Representative use to oppose a bill introduced in congress? Can he or she oppose it because it would violate a certain unenumerated right? Which right?
It seems by fate that the bill must pass, be enacted into law, and then be challenged later by a citizen in a court of law when the government has tried to enforce that law. And how can that citizen do that? What content of the clause can be argued to make the law unconstitutional?
Emptying out the Ninth Amendment
In time, the presumption that new laws had to avoid restricting the liberty of the people weakened. By the time the New Deal was under way, it had tipped all the way, new legislation was presumed constitutional, rather than having to be proven to avoid restricting liberty.
The Supreme Court eventually made the clause practically irrelevant. Justice Reed wrote in the decision regarding United Pub. Workers v. Mitchell (1947):
The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.
Some attempts at retaining some meaning in the ninth amendment have been made since them. Read
Wikipedia for more. At one time judge Robert Bork held that it protected rights defined by the states and by common law. He subsequently abandoned that. What was then left?
In 1987 Senate Judiciary Committee chairman Joseph Biden grilled Judge Bork, who had been nominated for the supreme court, about a "general right of freedom" (the meaning of the ninth amendment). Bork responded that he would be happy to use the ninth amendment "if anyone shows me historical evidence about what [the ninth amendment] meant." He also provided his now famous analogy about a “general right of freedom” as follows:
I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says 'Congress shall make no' and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.
Not an acceptable reply. No candidate for that office has given an answer like that since. His new position was evidently taken because, as a judge, he abhorred the apparent duty to invent additional rights out of the opening that the amendment identified.
In total disregard of the ninth and the tenth amendments, congress has enacted laws that the courts presume are constitutional. It fails to check against those amendments and writings on natural rights, as to whether some right is denied or disparaged. The battle to retain the original meaning of the clause appeared lost, except for the blustering of a few senators.
Bork did yield one benefit. His answer during the confirmation hearing sparked the modern debate about the meaning of the ninth amendment.
Originalists, such as
Thomas B. McAffee, have argued that the Ninth Amendment protects the unenumerated "residuum" of rights, which the federal government was never empowered to violate. Constitutional historian Jon Roland has argued that the Ninth Amendment included by reference all of the rights proposed by the state ratifying conventions, beyond those enumerated in the first eight amendments. Originalist Randy Barnett (Restoring the Lost Constitution) has argued that the Ninth Amendment requires what he calls a presumption of liberty.
The academic world does have its influence on law making and especially on how the judiciary applies and reviews laws. Let us hope that additional support comes from authoritative thinkers on natural rights. Moreover, understanding of natural individual rights is critical to having the ninth amendment or the non-enumeration of rights clause become effective again.
The United States government was constituted to be a better alliance of the states and to secure our liberties. Natural rights could be protected by the constitution, but not all of them. It was impossible to name them all. It was argued that a Bill of Rights was needed, with the knowledge that it could not be complete. The natural rights that would be left out would be in danger of being denied or disparaged. The Ninth Amendment was added in an attempt to prevent this.
In time, its meaning was forgotten. Recent academic research and debates on the matter have raised hopes that the memory of its meaning will be restored. However, without a general acceptance of the philosophy of natural rights, this may not happen. Natural rights and the Ninth Amendment are inseparable.
This concludes the series of 10 chapters on Troublesome Clauses in the U.S. Constitution. Some have been critical of how the clauses were formulated, most have criticized the manner in which they have been interpreted and applied. These are part of an effort by the author to stimulate thinking about amending the constitution. Further thinking should also be done with this in mind on errors and contradictions in the constitution, to which I may return in the future.
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