by Matt Barr

Nine minus fourteen

One last point about the logical relationship between the Ninth and Fourteenth Amendments. As quoted in an earlier post, Sandefur says:

The Constitution ... is silent on the issue of whether the state may interfere with the liberty to engage in private, adult, consensual sexual activity. And since it is silent, we may not deny or disparage the existence of such a right. Further, since that right may not be denied and disparaged, it is among the privileges or immunities of citizens with which no state may interfere under the Fourteenth Amendment.

Emphasis supplied. This is plainly wrong, and Sandefur makes a halfhearted effort to correct himself in an update, but it's too important a point to gloss over.

The common, mistaken interpretation of the Ninth Amendment is exactly as quoted above: (a) If the constitution is silent, (b) the right may not be denied or disparaged, and (c) therefore the right is inviolable. The error occurs somewhere between (a) and (b), closer to (b). The constitution's silence itself may not be construed to deny or disparage a right:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The fact that duck hunting isn't mentioned in the constitution must not be taken as evidence that there is no right to hunt ducks in the United States. While Sandefur, properly, contends that there is a right to hunt ducks in the United States, but that the state may regulate it for a good reason, the existence of a right (he thereby concedes) in no way makes it inviolable. So Sandefur makes a very basic error when he says, "since [the constitution] is silent ... [the right] is among the privileges or immunities of citizens with which no state may interfere under the Fourteenth Amendment."

But we needn't even reach that error -- counterintuitively equating the constitution's silence with inviolability -- if we understand that "we" are not forbidden by the Ninth Amendment from "denying and disparaging" anything. Authorization and prohibition are left till the Tenth Amendment ("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"). The Ninth Amendment is evidentiary in nature. The relevant question for state action is whether a power is "prohibited by [the constitution] to the States." If it is (or if the power is delegated to the federal government), the state may not pass a law. If it is not, it is, as far as the federal constitution is concerned, a matter for some other entity to deal with.

I would think the kind of verticality involved with consulting your federal constitution before you decide if you can legally hunt ducks or not would be against everything a libertarian stands for. Sandefur knows that the meaning was read out of the privileges and immunities clause he cites from the Fourteenth Amendment about five minutes after it was ratified (subsequent Courts have gone on to read the privileges and immunities clause's logical meaning into the due process clause, giving us amusing concepts like "substantive due process," so all may be well, if you're a fan), which ought to be a cautionary tale about casting your lot with the U.S. Supreme Court on every little thing.

Anyway, it's after all this that you get to the question I raised earlier, whether simply because the constitution doesn't forbid a state from acting, the state should act, and what other restraints might there be on states and subdivisions. But the contortions and convolutions that have always attended the Ninth Amendment shouldn't be this impenetrable, and we should be able to move to the more interesting questions sooner.

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