Positive Liberty

That’s the thesis of a new article by Randy Barnett in the Texas Law Review, and I quite agree. This, in my view, is the single most important issue in constitutonal law. Barnett has been leading the fight for restoring the genuine meaning of the ninth amendment and giving it a real influence over judicial decisions involving unenumerated rights for many years. In this paper, he delineates the 5 different schools of interpretive thought regarding the 9th amendment and shows how the historical evidence effectively eliminates two of them and strongly argues against a third, leaving only two of them as legitimate interpretations.

The first is the states law rights model, advanced most prominently by Russell Caplan. Caplan argued that the “other rights” mentioned in the 9th amendment referred to state constitutional rights and common law rights then in existence. He quotes Caplan:

[T]he ninth amendment is not a cornucopia of undefined federal rights, but rather . . . is limited to a specific function, well-understood at the time of its adoption: the maintenance of rights guaranteed by the law of the states. These state rights represented entitlements derived from both natural law theory and the hereditary rights of Englishmen, but ninth amendment protection did not transform these unenumerated rights into constitutional, that is, federal, rights. . . . [The amendment] simply provides that the individual rights contained in state law are to continue in force under the Constitution until modified or eliminated by state enactment, by federal preemption, or by a judicial
determination of unconstitutionality.

What this means, essentially, is that the states were free to change the rights guaranteed in their constitutions, or in their common laws, but that the Federal government could not place limitations on those rights. But as Barnett rightly notes, there simply is no evidence for this view. In the debates over ratification of the Bill of Rights, and the 9th amendment specifically, this issue never came up at all. The concern, rather, was that a listing of some rights would lead the government to argue that all rights not listed were fair game to prohibit.

The second interpretive possibility is the residual rights model, advanced by Thomas McAffee. Barnett explains this model:

According to McAffee, the Ninth Amendment was originally intended solely to prevent later interpreters of the Constitution from exploiting the incompleteness of the enumeration of rights to expand federal powers beyond those delegated by the Constitution. “On the residual rights reading, the ninth amendment serves the unique function of safeguarding the system of enumerated powers against a particular threat arguably presented by the enumeration of limitations on national power.” So, for example:

If the government contended in a particular case that it held a general power to regulate the press as an appropriate inference from the first amendment restriction on that power, or argued that it possessed a general police power by virtue of the existence of the bill of rights, the ninth amendment would provide a direct refutation.

In sum, according to McAffee, the exclusive function of the Ninth Amendment is to protect the scheme of delegated powers by arguing against this specific sort of inference. As he puts it:

The ninth amendment reads entirely as a “hold harmless” provision: it thus says nothing about how to construe the powers of Congress or how broadly to read the doctrine of implied powers; it indicates only that no inference about those powers should be drawn from the mere fact that rights are enumerated in the Bill of Rights.

McAffee denied that what he dubbed the “residual rights” retained by the people “are to be defined independently of, and may serve to limit the scope of, powers granted to the national government by the Constitution.” Instead, he maintained that “the other rights retained by the people are defined residually from the powers granted to the national government.

Barnett goes on to cite evidence from James Madison, the principal author of the Bill of Rights, and in particular the man who proposed the 9th amendment as a means of preventing the negative effect its opponents argued it would have. If anyone can be looked to for an authoritative statement of the scope and purpose of the 9th amendment, it is Madison. Yet in a debate over the establishment of a national bank, Madison invoked the 9th amendment in a situation where neither of the two things that the first two models claim it was intended to avoid were present (that is, there was nothing in the situation that diminished state constitutional rights, as in Caplan’s argument, nor any suggestion that the Congress had the authority to set up a national bank merely due to the existence of the Bill of Rights, as McAffee argues).

The third interpretive possibility is the individual natural rights model. This is the model favored by Barnett, and by me, as well as by most libertarian legal thinkers. The thesis here is that the “unenumerated rights” referred to in the 9th amendment refers to the entire mass of individual natural rights. Those natural rights, argued Madison, Jefferson and many others, were pre-existing (that is, they exist prior to the formation of governments, which are instituted for the purpose of protecting those rights) and inviolable (that is, it is always unjust to violate those rights, regardless of what form of government violates them). As Barnett puts it:

According to the individual natural rights model, the Ninth Amendment was meant to preserve the “other” individual, natural, preexisting rights that were “retained by the people” when forming a government but were not included in “the enumeration of certain rights.” These other rights retained by the people are as enforceable after the enactment of the Bill of Rights as the retained rights of freedom of speech, press, assembly, and free exercise of religion were enforceable before the enactment of the Bill of Rights when they too were still unenumerated. In other words, the purpose of the Ninth Amendment was to ensure the equal protection of unenumerated individual natural rights on a par with those individual natural rights that came to be listed “for greater caution” in the Bill of Rights.

On this reading, the Ninth Amendment has the important function of negating any construction of the Constitution that would protect only enumerated rights and leave unenumerated rights unprotected.

What this means is that when someone asks, “Where in the constitution does it say you have a right to do that?”, they are asking precisely the wrong question. The 9th amendment means that unenumerated rights are every bit as protected and judicially enforcable as enumerated rights. This is the standard conservative response to any judicial protection of unenumerated rights that they disagree with (interestingly, they never make that argument if the unenumerated right protected is one that they support, such as the right to send your kids to private schools, the right to travel freely within the country or the right to free association - none of which are enumerated anywhere in the Bill of Rights). From that perspective, unless there is a specific constitutional “source” for a given right, it does not really exist and the government can do what it wants. Barnett deftly answers this charge:

It should be stressed that the individual natural rights model does not claim the Ninth Amendment to be a “source” of independent rights–or, as Russell Caplan mistakenly characterized it, “a cornucopia of undefined
federal rights”–that are immune from any government regulation. First, natural rights precede the Constitution, and the Ninth Amendment is not their “source.” Instead, according to this model, the Ninth Amendment refers to these preexisting rights and requires that all natural rights be protected equally–not be “disparaged”–whether or not they are enumerated.

He also properly notes that unenumerated rights, like enumerated ones, do not preclude all government regulation entirely:

Second, this model does not view constitutional rights as necessarily trumping all laws that may affect their exercise. This model does not exclude the regulation of natural rights, any more than an individual natural
rights model of the First Amendment excludes all time, place, or manner regulations of speech, press, or assembly. A proper regulation is not a prohibition, but instead proscribes the manner by which a particular liberty is to be exercised to protect the rights of others. The individual natural rights model would not end all regulation, but would instead scrutinize a regulation of liberty to ensure that it is reasonable and necessary, rather than an improper
attempt by government to restrict the exercise of the retained rights.

This is exactly right. No right is considered absolute, whether enumerated or unenumerated. Though the first amendment says that Congress shall pass no law restricting freedom of speech, Congress has in fact passed many laws that restrict speech - libel laws, laws against inciting violence, and so forth. And those laws do not violate the first amendment at all. Why? Because those forms of speech do tangible harm to the rights of others and thus are not a rightful exercise of one’s liberty.

Likewise, the right to free exercise of religion is not absolute. If your religion commands that a man beat his wife, that man does not have the right to do so and the law properly prevents his free exercise of that particular religious belief. And again, for the same reason, because his actions then deprive another person of their equal rights. That is the test of rightful liberty and it is inherent in our conception of the enumerated rights; it would no less inform our recognition and regulation of unenumerated rights. The rightful exercise of government authority under the natural rights model is that the government impedes our freedom of action only when our actions injure another against their will and deprives them of their equal rights. As Barnett puts it:

In addition, an individual natural rights model would provide no barrier to prohibiting (as opposed to regulating) wrongful behavior that violates the rights of others. Under this approach, while rightful exercises of liberty may only be regulated (not prohibited), wrongful acts that violate the equal rights of others are not exercises of liberty and may be prohibited, not just regulated. What adhering to this model would bar is the prohibition–as
opposed to the regulation–of rightful exercises of natural rights.

Most importantly, Barnett argues (and I agree), this model means that the 9th amendment requires judges not to identify which particular rights might be on the “expanded” list of natural rights, but rather it requires judges to shift the burden of proof when considering unenumerated rights. What this means is that the presumption resides with the individual and his or her right to do X; the burden is on the government to establish a legitimate and compelling interest in regulating or prohibiting it:

Third, the individual natural rights model does not require that judges identify particular natural rights and then protect them. Instead, the courts could put the burden of justification on the federal government whenever
legislation restricts the exercise of liberty. As I have explained, this presumption may be rebutted by a showing that a particular law was a necessary regulation of a rightful act or a prohibition of a wrongful act. What is barred by the Ninth Amendment under this model is the prohibition or unnecessary regulation of rightful acts. According to a presumption of liberty, the unenumerated liberties retained by the people would receive the same presumptive protection as that now accorded some of the enumerated rights.

This is a very, very important point. As I noted above, we apply this standard all the time when dealing with enumerated rights. In order to justify the many limitations that are currently placed upon specifically enumerated rights like freedom of speech or freedom of the press, the government has to show a legitimate and compelling interest for such regulation. And in order to do that, they have to show that the regulation is necessary to prevent harm or the violation of the rights of other individuals.

We prohibit libel because it unjustly does damage to another person (but we require that the regulation be drawn very narrowly, requiring a high degree of proof of genuine harm, not merely a presumptive harm). Likewise, we prohibit certain exercises of religious freedom when there is a clear danger to the rights and well being of others, such as banning human sacrifice or beatings during exorcisms. This conception isn’t perfect, of course; there will always be difficult cases at the margins. But the presumption of liberty is, in my view, the single most important consttutional concept.

There is much more in the article, for those who are interested.

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