Over at his “Bench Memos” blog at NRO, Ed Whelan has taken exception to my Cato@Liberty post of Friday last wherein I called into question his critique of George Will’s column of Thursday last, which had defended Randy Barnett’s recent speech at Berkeley, drawn from his 2008 B. Kenneth Simon Lecture at Cato, arguing that the Constitution is libertarian and that judges should actively enforce its protection not only of enumerated but of unenumerated rights as well, pursuant to the Ninth Amendment. Got that? Now let’s get to the substance of the matter.
Whelan’s latest, entitled “More Ninth Amendment Confusion,” is mercifully brief. I had argued, among other things, that conservatives’ long‐standing (and often understandable) fear of what they see as “judicial activism” has led them to read the Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”) as a mere rule of construction, not as an affirmation of unenumerated rights. Thus they are wary of judges finding rights that are not fairly clearly “in” the Constitution. (There is some wiggle room there: thus, for example, most would allow freedom of speech to entail the right to burn the flag.)
But a core problem with that view, I wrote, is that it implies that “prior to the ratification of the Bill of Rights, two years after the ratification of the Constitution, we enjoyed almost no rights against congressional majorities—save for those few mentioned in the original document.” Whelan responds:
The “rights against congressional majorities” that existed before the Bill of Rights was ratified arose from the Constitution’s limitations on Congress’s powers. In Madison’s words: “If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.”
Just so! Where there is no power—by virtue of the doctrine of enumerated powers—there is a right. In other words, prior to the ratification of the Bill of Rights we had a vast sea of rights within which there were islands of federal power. But as I noted in an exchange with Randy over the weekend, way back in 1991 I had written:
Indeed, if the Framers intended unenumerated rights to be protected without a bill of rights, how can we imagine that those rights were meant to be any less secure with a bill of rights.
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.
Whether judges discover those unenumerated rights expressly—as when they discover a right to sell and use contraceptives (Griswold v. Connecticut) or a right of fit parents to control access to their children (Troxel v. Granville) or many other such rights—or do so only implicitly by finding no power is not the issue since either method comes to the same thing—as Madison said. The Ninth Amendment simply affirms that we “retain” all the unenumerated rights we held prior to the ratification of the Bill of Rights. In expressly stating that, it can be said to be a font of rights, even though the actual font is the theory of natural rights, which rights we retained when we reconstituted ourselves in 1787.
ADDENDUM: Ed Whelan has kindly brought to my attention a couple of mistakes in this post, which I correct, plus more, in this new post.