Further on the Ninth Amendment

In a private response to my post earlier this afternoon, Ed Whelan has brought to my attention two errors in this paragraph:

The addition of the Bill of Rights, in short, did not reduce the number of rights we enjoy, limiting them to those fairly clearly “in” that document. It simply enumerated some of the rights in that vast sea of previously unenumerated rights—all of which, enumerated and unenumerated alike, were later incorporated against the states through the Fourteenth Amendment, properly read.

He alerts me that in his post last Thursday, to which I responded on Friday, he had written:

These proponents of originalism and judicial restraint aim, in other words, to have judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth, and to prevent judges from inventing rights and powers that are not in the Constitution. (emphasis added)

Fair enough. By placing the emphasis on judges limiting power (which they rarely do since the New Deal constitutional revolution), Ed doesn’t have to worry about whether the Constitution “sets forth” unenumerated rights pursuant to the Ninth Amendment, and so I stand corrected—at least in the case of challenges to federal power.

But of course most unenumerated rights questions arise in challenges to state power, which brings me to a misstatement in that passage of mine above. I wrote that all of our rights, “enumerated and unenumerated alike, were later incorporated against the states through the Fourteenth Amendment, properly read,” and that of course is not correct. For just as we give up some of our rights when we constitute ourselves nationally, so too we give up others when we constitute ourselves at the state level. The usual state cases, however, (Griswold, Troxel, etc.) involve rights that we do not give up—all of which, to fully explain, requires a more detailed theory of both state police power and the rights retained pursuant to the Ninth Amendment. I thank Ed for bringing that to my attention.

While I’ve got your attention, however, I might as well take this opportunity to call into question a contention that many conservatives, including Ed, are fond of making, namely, that the Ninth Amendment should be read as a rule of construction. As he writes in this morning’s post, “defenders of the original Constitution argued against a bill of rights on the ground that such a listing might imply that the national government’s powers were far greater than they were.” True, that is one reason they opposed a bill of rights. But he continues:

When the Bill of Rights was added, the Ninth Amendment was crafted to guard against this implication. The text of the Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”), which sets forth a mere rule of construction (“shall not be construed”), comports perfectly with this purpose.

True again, the Ninth Amendment does guard against that implication. But that does not mean that the amendment “sets forth a mere rule of construction.” For the object of “construed” is “to deny or disparage other[] [rights] retained by the people.” And that brings us to a different rule of construction: expressio unius est exclusio alterius. An additional fear opponents of a bill of rights had was that the enumeration of some rights in such a bill would be construed as excluding other, unenumerated rights from protection, and that too is why, if a bill of rights were to be added, the Ninth Amendment would be needed to ensure that both enumerated and unenumerated rights were protected. True, the question comes up most often in challenges to state laws, but with the demise of the doctrine of enumerated powers it comes up in federal cases as well.