Tag: ninth amendment

How Would I Amend the Constitution? End All Extra-Legal Amendments Thereto

The Fiscal Times recently asked me and a number of others, “How would you amend the Constitution?“ Here’s how the Times categorized my response:

DON’T CHANGE A THING

Several major conservative thinkers suggested that the Constitution does not need to be changed, but rather to have its principle of limited government guide both Congress and the president.

Michael Cannon at the Cato Institute noted that the Fourth Amendment protects against warrantless searches, “yet the National Security Agency tracks everybody with Congress’ tacit if not explicit consent.”

First of all, and I fear I will be explaining this to reporters for the rest of my life, I am not a conservative. I support gay marriage, cutting military spending, closing all U.S. bases in foreign nations, and ending the prohibitions on drugs, gambling, and prostitution. Of such stuff conservatives are not made.

Second, the above excerpt scarcely captures my response to the Times’ inquiry. Don’t change a thing?? Here is my response in full:

There are constitutional amendments I want to see. And yet.

Americans don’t need to amend the Constitution so much as they need politicians to honor what the Constitution already says. The Constitution creates a government of enumerated and therefore limited powers; Congress and the president routinely exceed those powers. The First Amendment protects freedom of speech, particularly political speech; Congress heavily regulates and rations political speech. The Fourth Amendment protects “persons, houses, papers, and effects” from “unreasonable searches” and requires “no warrants shall issue, but upon probable cause”; yet the NSA tracks everybody with Congress’ tacit if not explicit consent. The states could ratify an amendment that says, “Hey, we mean it!”; but the Constitution already contains two amendments saying that (the Ninth and Tenth). What is the point of amending the Constitution if Congress will just ignore that amendment too?

This could soon become a Very Big Problem. If Congress keeps acting like it is not bound by the Constitution, then eventually the people will conclude that they aren’t either.

That is, I don’t want to amend the Constitution so much as I want to stop politicians and bureaucrats from amending it unlawfully – i.e., without going through the Article V amendment process  – and stop the courts from rubber-stamping those extra-legal amendments. 

It would be great if, as the Times writes, the Constitution’s principle of limited government were to guide both Congress and the president. I would settle for having the plain words of the Constitution constrain Congress and the president. That constraint will have to come from the people, and federal judges.

Guns and the Commerce Clause: On the Way to the Supreme Court?

Nearly two years ago, I wrote about an intriguing Commerce Clause case involving the Montana Firearms Freedom Act.  To wit, Montana enacted a regulatory regime to cover guns manufactured and kept wholly within state lines that was less restrictive than federal law.  The Montana Shooting Sports Association filed a claim for declaratory judgment to ensure that Montanans could enjoy the benefits of this state legislation without threat of federal prosecution.  The federal district court ruled against the MSSA.

On appeal to the Ninth Circuit, Cato joined the Goldwater Institute on an amicus brief, arguing that federal law doesn’t preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which is a state-specific market distinct from any related national one.

The lawsuit’s importance is not limited to Montana; a majority of states have either passed or introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

Well, after much delay – in part due to the Ninth Circuit’s waiting for Supreme Court instruction on the Commerce Clause in the Obamacare litigation – MSSA v. Holder finally saw oral argument two weeks ago.  The Goldwater Institute’s Nick Dranias, who was the principal author of our joint brief, was able to get 10 minutes of argument time and sent me this report afterwards, which I reprint with his permission:

Randy Barnett and the Health Care Overhaul

Cato senior fellow Randy Barnett is featured on the front page of today’s New York Times as the chief academic critic of the constitutionality of the 2010 health care law. He spoke at Cato on that topic last Friday; video here.

The article notes his longstanding interest in the Ninth Amendment, the subject of his book published by Cato and the George Mason University Press in 1989, The Rights Retained by the People: The History and Meaning of the Ninth Amendment.

Professor Barnett also cooperated with Cato on his most recent book, Restoring the Lost Constitution: The Presumption of Liberty.

Our Constitution Is Out of Step with the Rest of the World

Is the Constitution out of date? That’s the impression that comes across from an article in yesterday’s New York Times, written by the paper’s crack Supreme Court reporter, Adam Liptak. It comes in turn from an article he points to by two law professors, David S. Law at Washington University in St. Louis and Mila Versteeg at the University of Virginia, scheduled for the June New York University Law Review. In it the authors conclude that the Constitution appears to be losing its appeal as a model for constitution drafters in other countries, despite its having served that role up until as recently as 1987, the year of its bicentennial. So what’s changed over the past quarter century?

Unfortunately, from the Times article we don’t get a clear picture of just how it is that the constitutions other countries have drafted in recent years differ from our own, except for the emphasis throughout the piece on rights. Yet right there is a clue about what’s going on. On that score, in fact, Liptak cites striking comments Justice Ruth Bader Ginsburg made in a television interview during a visit to Egypt last week:

“I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

Liptak then notes, not entirely accurately, that “the rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber.”

To be sure, the rights enumerated in our Constitution and in the amendments that were added later, including in the Bill of Rights, are few in number. But numbers alone, like rights alone, tell only part of our constitutional story. To tell the story more fully and accurately, we have to step back a bit.

It’s true that our Framers, unlike many others, especially more recently, did not focus their attention on rights. Instead, they focused on powers— and for good reason. Because we have an infinite number of rights, depending on how they’re defined, the Framers knew that they couldn’t possibly enumerate all of them. But they could enumerate the government’s powers, which they did. Thus, given that they wanted to create a limited government, leaving most of life to be lived freely in the private sector rather than through public programs of the kind we have today, the theory of the Constitution was simple and straightforward: where there is no power there is a right, belonging either to the states or to the people. The Tenth Amendment makes that crystal clear. Rights were thus implicit in the very idea of a government of limited powers. That’s the idea that’s altogether absent from the modern approach to constitutionalism—with its push for far reaching “active” government—about which more in a moment.

During the ratification debates in the states, however, opponents of the new Constitution, fearing that it gave the national government too much power, insisted that, as a condition of ratification, a bill of rights be added—for extra caution. But that raised a problem: by ordinary principles of legal reasoning, the failure to enumerate all of our rights, which again was impossible to do, would be construed as meaning that only those that were enumerated were meant to be protected. To address that problem, therefore, the Ninth Amendment was written, which reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Over the years, unfortunately, that amendment has been misunderstood  and largely ignored; but it was meant to make clear that the people “retained” a vast number of rights beyond those expressly enumerated in the document.

Thus, the rights expressly enumerated in the Constitution may be “parsimonious,” but understood in light of the larger theory of the document, they are not. Neither, moreover, are they “frozen in amber,” because the courts are called on regularly to interpret and apply them in the varying factual contexts that surround the cases or controversies that are brought before them. Thus, the right to freedom of speech has been read to entail the right to desecrate the flag, and the right to liberty has been read to entail the right to engage in sexual practices that others may dislike. Judges may sometimes fail to draw the proper inferences, of course, or draw inferences not entailed. But that says nothing about the Constitution itself.

The idea, then, that our Constitution is terse and old and guarantees relatively few rights—a point Liptak draws from the authors of the article and the people he interviews—does not explain the decline in the document’s heuristic power abroad. Nor does “the commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century” explain its fall from favor. Rather, it’s the kind of rights our Constitution protects, and its strategy for protecting them, that distinguishes it from the constitutional trends of recent years. First, as Liptak notes, “we are an outlier in prohibiting government establishment of religion,” and we recognize the right to a speedy and public trial and the right to keep and bear arms. But second, and far more fundamentally, our Constitution is out of step in its failure to protect “entitlements” to governmentally “guaranteed” goods and services like education, housing, health care, and “periodic holidays with pay” (Article 24 of the UN Universal Declaration of Human Rights). And right there, of course, is the great divide, and the heart of the matter.

The modern view, which we too have followed, at least statutorily if not constitutionally, is to recognize all manner of “entitlements” of a kind that can be provided only through massive governmental institutions that engage in material and regulatory redistribution. We are constitutionally out of step in that, to be sure. Countries like Greece, Italy, Spain, and Portugal are far ahead of us.

Republicans and the New York Marriage Law

Since New York passed a law extending marriage to same-sex couples, Republican presidential candidates have been mostly silent. But not Rep. Michele Bachmann, who has had a long and strong interest in gay rights issues. In an interview on Fox News Sunday she endorsed both New York’s Tenth Amendment right to make marriage law and the federal government’s right to override such laws with a constitutional amendment, confusing host Chris Wallace:

WALLACE: You are a strong opponent of same-marriage. What do you think of the law that was just passed in New York state—making it the biggest state to recognize same-sex marriage?

BACHMANN: Well, I believe that marriage is between a man and a woman. And I also believe—in Minnesota, for instance, this year, the legislature put on the ballot for people to vote in 2012, whether the people want to vote on the definition of marriage as one man, one woman. In New York state, they have a passed the law at the state legislative level. And under the 10th Amendment, the states have the right to set the laws that they want to set….

WALLACE: But you would agree if it’s passed by the state legislature and signed by the governor, then that’s a state’s position.

BACHMANN: It’s a state law. And the 10th Amendment reserves for the states that right.

WALLACE: All right. I want to follow up on that, because I’m confused by your position on this. Here’s what you said in the New Hampshire debate. Let’s put it on.

(BEGIN VIDEO CLIP)

BACHMANN: I do support a constitutional amendment on marriage between a man and a woman, but I would not be going into the states to overturn their state law.

(END VIDEO CLIP)

WALLACE: That’s why I’m confused. If you support state rights, why you also support a constitutional amendment which would prevent any state from recognizing same-sex marriage?

BACHMANN: Well, because that’s entirely consistent, that states have, under the 10th Amendment, the right to pass any law they like. Also, federal officials at the federal level have the right to also put forth a constitutional amendment….

WALLACE: My point is this, do you want to say it’s a state issue and that states should be able to decide? Or would like to see a constitutional amendment so that it’s banned everywhere?

BACHMANN: It is— it is both. It is a state issue and it’s a federal issue. It’s important for your viewers to know that federal law will trump state law on this issue. And it’s also—this is why it’s important—

WALLACE: And you would [sic] federal law to trump state law?

BACHMANN: Chris, this is why it’s so important because President Obama has come out and said he will not uphold the law of the land, which is the Defense of Marriage Act. The Congress passed the Defense of Marriage Act and Bill Clinton signed it into law, to make sure that a state like New York passed a definition of marriage other [sic] one man, one woman, that other states wouldn’t be forced to recognize New York’s law….

WALLACE: So, just briefly, you would support a constitutional amendment that would overturn the New York state law?

BACHMANN: Yes, I would. I would. That is not inconsistent, because the states have the right under the 10th Amendment to do what they’d like to do. But the federal government also has the right to pass the federal constitutional amendment. It’s a high hurdle, as you know.We only have 27 amendments to the federal constitution. It’s very difficult. But certainly, it will either go to the courts, or the people’s representatives at the federal level.

Congratulations to Chris Wallace for his tenacious questioning. Presumably the way to understand Bachmann’s position is that she thinks states have a Tenth Amendment right to make their own laws in any area where the federal government doesn’t step in, and she supports a federal law overriding state marriage laws. That includes the Defense of Marriage Act, whose Section 3 says for the first time in history that the federal government will not recognize marriage licenses issued by the states. And it also includes a federal constitutional amendment to prohibit states from implementing equal marriage rights for gay couples.

Bachmann is not the only Republican who should be asked about the tension between support for the Tenth Amendment and support for federal laws and amendments to carve exceptions out of the Tenth Amendment. This month George Will has praised two Texas Republicans: First, Senate candidate and former Texas solicitor general Ted Cruz, whom he called a “limited-government constitutionalist” and who wrote a senior thesis at Princeton “on the Constitution’s Ninth and 10th amendments. Then as now, Cruz argued that these amendments, properly construed, would buttress the principle that powers not enumerated are not possessed by the federal government.” And second, Governor Rick Perry, who “was a ‘10th Amendment conservative‘ (‘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’) before the Tea Party appeared.”

Cruz boasts on the same page of his website of his support of both the Tenth Amendment and DOMA. Does he really think, as a staunch defender of the Tenth Amendment, that the federal government should override the marriage law of the great state of New York? Perry may be a consistent Tenth Amendment conservative. In his book Fed Up! Our Fight to Save America from Washington he makes his opposition to gay marriage more than clear. But he does write, “Crucial to understanding federalism in modern-day America is the concept of mobility, or the ability to ‘vote with your feet.’ If you don’t support the death penalty and citizens packing a pistol, don’t come to Texas. If you don’t like medical marijuana and gay marriage, don’t move to California.” And an NPR interviewer reported:

States should be free to make decisions regulating such things as taxes, marijuana and gay marriage, Perry says.

“If you want to live in a state that has high taxes, high regulations — that is favorable to smoking marijuana and gay marriage — then move to California,” he says.

Now that a large state has made national headlines by passing a gay marriage law—without any prodding from the judiciary—more political candidates, from President Obama to his Republican challengers, are going to be pressed to make their positions clear on the issue of marriage equality itself, on federalism and the powers of the states, and on the lawsuits that are moving through the courts.

Two Cheers for the Bill of Rights!

As Tim Lynch has already blogged – and as Cato is currently featuring on its front page, today is Bill of Rights Day.  But of course, this is less of a big deal than Constitution Day (September 17, when we release the Cato Supreme Court Review at an annual conference) – because the Bill of Rights is essentially redundant of the Constitution’s original structural protections:  Whenever the government exceeds its constitutionally granted powers, it violates rights of some sort.

Tim Sandefur explains over at the Pacific Legal Foundation’s blog:

Madison, along with his colleagues like James Wilson, Alexander Hamilton, and others, expected the Constitution to give Congress only a limited set of powers—powers that were listed in the text of the document. If it wasn’t listed in the text, then Congress couldn’t do it. So the federal government could collect taxes or run a post office, but it couldn’t do other things—like run a national health care program, for instance. Since Congress’s powers were, in Madison’s words, “few and defined,” there was no need to add a bill of rights to declare that the federal government couldn’t do such-and-such, because they already couldn’t do such-and-such.

Indeed, the argument went, if you enumerate various rights, some will later claim that this is an exhaustive list – even though it’s impossible to list all of our rights at every conceivable level of specificity – with everything else subject to state regulation and control and perhaps implied powers too.  That concern is why, even though Jefferson and others won the debate over whether to have a bill of rights, Madison and others ensured that the Ninth Amendment would be included as a safeguard against those who would “deny or disparage” other rights that are “retained by the people.”  And why the Tenth Amendment reiterated that, conversely, the powers “not delegated to the United States” are “reserved to the States respectively, or to the people.”

We’re fortunate that both Jefferson and Madison got their way because, as we’ve seen over the last 70+ years, the Supreme Court read out of the Constitution the structural protections for liberty that are plainly there in the pre-amended Constitution.  Not that the Court has done a very good job on the “rights” side of the coin, either – think eminent domain abuses (earlier this week it denied cert. in the Columbia University case, by the way), or the Second Amendment before Heller, or, perhaps most infamously, economic liberties since the rights bifurcation of 1937’s Carolene Products footnote 4 – but if it weren’t for these little bones that it has thrown our way, why the government would always be the sole judge of its own powers.  (Which, of course, is what Obamacare proponents argue, that the check on Congress’s power is purely political.)

In any event, bully for the Bill of Rights, even if it’s not – as many people think – the most important part of the Constitution.

Update on the Legal Challenges to Obamacare

Since I first issued my challenge to debate “anyone anytime anywhere” on the (un)constitutionality of Obamacare, a lot has happened.  For one thing, Randy Barnett and Richard Epstein, among many others, have published provoctive articles looking at issues beyond the Commerce Clause justification for the individual mandate – such as the argument that Congress’s tax power justifies the mandate penalty and that the new Medicaid arrangement amounts to a coercive federal-state bargain.  (Look for to a longish article from yours truly due to come out in next month’s issue of Health Affairs.)  For another, as Michael Cannon noted, seven more states – plus the National Federation of Independent Business and two individuals – have joined the Florida-led lawsuit against Obamacare.  Perhaps most importantly, such legal challenges are gaining mainstream credibility.

Here’s a brief look at some important legal filings from the past 10 days:

  1. On May 11, the U.S. government filed a response to the Thomas More Center’s lawsuit asking a federal court in Michigan to enjoin Obamacare on various grounds, including, distinct from other suits I’ve seen, religious liberty violations from having to pay for abortions.  The government argues that the plaintiffs lack standing because it’s unclear whether the individual mandate will harm them and in any event this provision doesn’t go into effect until 2014 at the earliest. The government also predictably argues that the mandate is a valid exercise of Congress’s power to regulate interstate commerce and to provide for the general welfare.  There is nothing surprising here and we now await the court’s preliminary ruling.
  2. On May 12, the U.S. Citizens Association (a conservative group) and five individuals filed a new suit in Ohio, as Jacob Sullum notes.  In addition to the government powers arguments that are being made in most Obamacare lawsuits (most notably the state suits), this suit claims a violation of: the First Amendment freedom of association (the government forces people to associate with insurers); individual liberty interests under the Fifth Amendment; and the right to privacy under the Fifth Amendment’s liberty provision, Ninth Amendment retained rights, and the rights emanating from the First, Third, Fourth, Fifth, and Ninth Amendments (such is the Court’s convoluted jurisprudence in this area).  I’ll add that the attorney filing this suit, Jonathan Emord, worked for Cato over 20 years ago.
  3. On May 14, Florida filed an amended complaint that, along with adding seven states, two individuals, and the NFIB – so all potential standing bases are covered – beefs up relevant factual allegations and, most importantly, shores up a few legal insufficiencies to the previous claims.  This is a solid complaint, and alleges the following counts: (1) the individual mandate/penalty exceeds Congress’s power under both the Commerce Clause and taxing power and, as such, violate the Ninth and Tenth Amendments; (2) the mandate violate’s the Fifth Amendment’s Due Process Clause; (3) the mandate penalty is an unconstitutional capitation or direct tax because it is unapportioned; (4) the Medicare expansion constitutes a coercive federal-state bargain that commandeers state officials; (5) a different formulation of coercion/commandeering; and (6) interference with state sovereignty and functions under the Tenth Amendment.   After further briefing, oral arguments on the government’s expected motion to dismiss are scheduled for September 14 in Pensacola.
  4. At least one enterprising analyst has determined that the 2,400-page bill lacks a severability clause.  This means that if one part of the bill is struck down as unconstitutional, the whole thing falls! – and would mean that the drafters committed legal malpractice of the highest order.  I guess it goes to show that nobody has read the whole thing.

Finally, if anybody is reading this is in Seattle, I’ll be debating Obamacare at the University of Washington Law School next Thursday, May 27 at 4:30pm.  This debate, sponsored by a number of groups, including the law school itself and the Federalist Society, is free and open to the public.  For those interested in other subjects, I’ll be giving a different talk to the Puget Sound Federalist Society Lawyers Chapter the day before at 6:30pm at the Washington Athletic Club ($25, rsvp to Michael Bindas at mbindas [at] ij [dot] org).  The title of that one is “Justice Elena Kagan?  What the President’s Choice Tells Us About the Modern Court and Confirmation Process.”  Please do introduce yourself to me if you attend either event.