by Matt Barr

Don't do that, it's unenumerated

Wading into this issue is a good way to provoke derision, but there's a thoroughly interesting discussion evidently going on in the e-mail listserv ether about the Ninth Amendment. Ed Brayton writes:

[W]hen one takes the position, as Ventola has here, that those rights "actually located in the Constitution" deserve protection but that all unenumerated rights are open to "legislation", he is taking the exact position that the 9th amendment was designed to avoid because "legislation" means allowing the government - i.e. the majority - to regulate any unenumerated right as it sees fit. It renders the entire concept of unenumerated rights meaningless and reads the 9th amendment out of the Constitution entirely. If those rights not specifically enumerated may be limited or removed as a majority or their representatives see fit, then of what possible use is the 9th amendment at all? It wouldn't actually DO anything, but we know from the clear words of the founders that it was intended to do something that they viewed as very important. It was intended to avoid the very position that is being taken here. Certainly any interpretation which eliminates an entire amendment from actually doing anything and which takes the very position that the founders were unanimous in opposing cannot possibly be considered an "originalist" intepretation, and the first rule of construction is that a given passage has to mean something.

It seems to me the answer points the way to a harder question. The Ninth Amendment, appended to what was still a document conferring limited powers, does not prevent the people from governing themselves as they see fit; quite the contrary. Where there are unenumerated rights but enumerated powers, the clear intent is to ensure that the federal government steer clear of, say, the right to hold hands in public, or whatever the ACLU is going on about these days; but not by the mechanism of the Ninth Amendment, by the mechanism of Article I. The federal government has no power that could conceivably reach that far into our lives. Demanding federal constitutional protection for every unenumerated right you can think of has always struck me as an alarming concession of power to the federal government. That it's the Article III part isn't mitigating, it's aggravating, since as limited as Congress' powers are, the courts' are far more limited.

The harder question that arises is whether the Fourteenth Amendment prevents the states from enacting laws regulating certain unenumerated rights (it certainly doesn't prevent them from enacting laws on all unenumerated rights, but the question which are and which aren't off limits -- an incredibly important question if you think state government power in this area is forbidden -- is beyind the scope of this post). But that can be set aside for now, because we're talking about the Ninth. The answer as I've always seen it, and it sounds like Ed's correspondents see it this way, too, is that the Ninth Amendment doesn't prevent Congress from passing laws on intimate liberties, Article I does. In that respect, it's unfortunate most of Article I has been read out of the Constitution, never mind the Ninth Amendment.

Ed writes that "the entire purpose of the bill of rights was to protect liberty from democracy - to insure that no majority, no matter how large, could violate the rights of individuals." I think the purpose of the Bill of Rights was to protect democracy from democracy -- most every provision operates to guarantee access to the political process against hamfisted majorities. It's when "majority" and "democracy" become dirty words that we forget those are the things that are, at the root of the constitution (and Declaration of Independence and Federalist Papers and whathaveyou), supposed to be the way we govern ourselves. It's not easy and can be easily abused, but it's preferable to almost any alternative.

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