Friday, March 27, 2009

What's Liberty Got To Do With It (With It, With It)?

Pop quiz Hot-Shots! What does the following mean? What substantive demarcations can be made so as to give the following addressable standards?

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


  1. I assume that you are talking about the dichotomy between positive and negative rights--and the fact that government handouts could potentially be construed as taking benefits away from others, and redistributing them.

  2. The Ninth Amendment has no legal significance.

  3. @ 12:31
    I was thinking bigger picture than just governmental handouts.

    @ 12:46
    Please explain? It obviously has some significance (be it legal or otherwise) as it was placed in the first 10 amendments to the Constitution. You know, the Constitution-- the governing document of the United States.

  4. Fred,

    I wasn't being clear. What I mean is that it is only historical/structural, and confers no rights. This is a similar point to the one 12:31 was mkaing.

  5. "Confers no rights"? None of the Amendments "confer" rights, nor were they ever meant to confer rights. The Constitution was never intended to be a rights-conferring document; rather, it was an authority granting (and limiting) document. The Amendments are enumerations (or, reiterations) of the rights that we all hold by virtue of being human and in this sovereign nation.

    What's this language of "conferring rights"? Since when did my or your inherent humanity derive from the government?

  6. I believe that 12:46 is right. As a practical matter, the 9th Amendment has never been used to confer substantive individual rights.

    Which is probably right -- all the 9th really says is that the list of rights enjoyed by the people is not exhaustive. Or in other words, the people do not only possess the rights enumerated.

    However, I don't believe it elevates the unenumerated rights to Constitutional status taking them outside the realm of potential legislative restriction.

    That's what the 14th Amendment is for.

  7. Fred --

    While it's all well and good to say that we hold rights by virtue of being human (Jefferson said it, and those who didn't see the need for a Bill of Rights said it), the Anti-Federalists clearly understood that a Bill of Rights was necessary to confer "constitutional rights."

    Constitutional rights are inherently different from natural rights. Natural rights, while they might be rigorous philosophically (or they might not), have no independent legal significance other than perhaps some moral or normative force. The legislature, as the expression of the people, can modify and negate certain natural rights, such as the right to sell yourself into slavery or the right to possess cannabis. Constitutional rights are those rights that cannot be touched by the legislature -- such as the right to engage in consensual adult sexual intercourse.

    With that distinction in mind, I think it is perfectly reasonable to talk about the Constitution conferring rights, especially the enumerated ones.

    Whether all so-called natural rights are protected by the 14th Amendment is a different question, but as an initial matter raises the problem of enumeration and definition. I believe same-sex marriage is a natural right. Many disagree with me.

  8. Josh:
    As a practical matter, I call your attention to Goldburg's concurrence in Griswold v. Connecticut, as well as the background section of Scalia's opinion in Heller v. D.C. Scalia's opinion, in particular, at least opened a door (in my mind) to a potential rejuvenation of 9th Amd. jurisprudence [if only he had walked through it!]

    Josh, as a practical matter, I have to disagree with your statement "I don't believe it elevates the unenumerated rights to Constitutional status taking them outside the realm of potential legislative restriction." Umm... you might want to read the language of the 9th Amd. over again. It's pretty clear that unenumerated rights were intended to be of equal status to enumerated rights.

    As for the distinction between Constitutional and natural rights: take no offense, as it is not your fault, but such a distinction is disingenuous at best. The Founders understood Constitutional rights to be the same as the natural rights. Natural rights, to be sure, are not unlimited, but they are inalienable (thus, it becomes impossible to sell oneself into slavery). Of what business is it to the federal government whether or not I possess cannabis or want to establish a joint/tenancy in love with a same sex partner? None.

    The 14th Amendment applies to the states and has no bearing on this issue in the least, save for a question of incorporation. At first blush, I am a fan of incorporating such an amendment to the states; then, I realize that such an incorporation would be against the concept of federalism itself. As such, I don't think the 9th Amendment should be incorporated onto the states.

  9. @ Freddy--

    I vaguely recall hearing Justice Scalia say the "Ninth Amendment has no legal significance" (exactly what 12:46 said) at a college lecture when he was defending originalism. (As an aside, I think everyone should check out this article for a well-thought out critique on many of the arguments Scalia's by two fantastic Profs from 1L year:

    I tried to find similar language in a Google search, but came up empty--so all I've got to back up my claim is my (ever weakening) memory. But I *really* think he said that. Take it for what it's worth.

  10. *When I say "Scalia made" I mean arguments he made at the lecture, and continues to make at such lectures, and in various opinions (e.g. that originalism is the "only coherent theory" and is better than other theories for constitutional interpretation because it's a unified, static theory, etc.)

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