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Saturday
September 24, 2005

Machan's Musings - Why They Fear the Ninth Amendment by Tibor R. Machan

In short, taking the Ninth Amendment to the U.S. Constitution seriously implies that politicians would have no just powers to do 99 percent of what they are doing. That is why they and their cheerleaders in the academic world insist on ignoring and belittling this most freedom-loving provision of the most freedom-loving -- though by no means perfect -- legal
document in human history. (Read more...)
Discuss this Article (19 messages)

Post 0

Saturday, September 24 - 10:37am

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A wonderful piece, Tibor.

I'd say that one of our biggest, current problems is team-focus (support your team -- Left, or Right -- in whatever "they" come up with, as policy). But this is 'bass ackwards.'

As I've said about the administration of US government: When we vote a new president in, we're supposed to get a new "administration" -- but it's supposed to be administration of the SAME (constitutional) government -- not a new (unconstitutional) "government."

Even Article 17 of the UN Universal Declaration of Human Rights (our first official foreign policy guide) reads: "Everyone has the right to own property alone as well as in association with others." Yet, we have the Kelo verdict saying, in essence, that the property (that we have "the right" to own) is but an ineffable thing that is "transferable" into ultimately arbitrary, centrally-ascribed units of value (what THEY think your property ought to be "worth" to you).

In my view, our political officials ought to be put on the stand (in a Court of Reason) and asked: What has happened to the "Supreme Law of the Land?"

Ed

Post 1

Saturday, September 24 - 6:14pm

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THIS IS ONE OF THE FINEST AND MOST IMPORTANT ARTICLES THAT HAS EVER APPEARRED ON THIS SITE. Bravo, and sanctioned.

Post 2

Saturday, September 24 - 6:15pm

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Well said, Tibor.

What's really interesting about the evasiveness of the political classes vis the Bill of Rights is the sophistry that goes on in an effort to deny the applicability of said rights while not going so far as to deny that they should exist. After all, that would show their true motives.

I know there are several sites that list Supreme Court decisions but does anyone know of a resource that interprets and explains significant rulings from a libertarian perspective?

Ross

Post 3

Saturday, September 24 - 10:45pm

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   The Ninth Amendment was written in order that a Bill of Rights be added to the Constitution. Some Founders were afraid that a Bill of Rights would be used to disparage or take away other rights not listed.

   There is also a relationship of the Ninth to the Tenth Amendment. The Tenth reads "The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people."

   Madison successfully fought to get these last four words in. My Grandfather, Irving Brant, in his The Bill of Rights, Its Origins and Meaning (1965) relates how Madison fought also to keep the Tenth from reading "The powers not expressly delegated by the Constitution...." Madison was for admitted federal powers by implication. (pp. 65-66)

   My Grandfather gave one of the reasons for writing his six volume biography of James Madison as because he was taken to task in the 1930s for citing Madison to support Roosevelt's New Deal (and the packing of the Supreme Court too boot) in Congressional testimony. Irving Brant was a New Dealer, pioneering crusading environmentalist and midwestern socialist. Think Warren Court.

--Brant

Post 4

Sunday, September 25 - 7:55am

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Wonderful article, Tibor.

I wonder if the Ninth Amendment could be used as legal grounds to attack abusive legislation in the courts in the manner you laid out, sort of as a spearhead if the right precedent could be set.

That would be wonderful to see.

Michael

Post 5

Sunday, September 25 - 12:44pm

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Randy Barnett has a two-volume set regarding the nineth amendment, The Rights Retained by the People...

Post 6

Sunday, September 25 - 10:35am

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When Judge Robert Bork was being questioned by the committee he refered to the 9th amendment as an inkblot. This and some of his other opinions led me to oppose his being raised to the Supreme Court and reinforced my opinion that consveratives are not our real friends. I am convinced the 9th amendment is a secret weapon.

Post 7

Sunday, September 25 - 4:19pm

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THIS IS ONE OF THE FINEST AND MOST IMPORTANT ARTICLES THAT HAS EVER APPEARRED ON THIS SITE. Bravo, and sanctioned.

Ditto.

---Landon

Post 8

Sunday, September 25 - 7:06pm

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Ross,

Good question. Maybe I should make such a site.

To all,

The problem with the Ninth Amendment is it leaves open (1) how to determine which rights are those others retained by the people and (2) who should make that determination. US v. Caroline Products Co (1938) is largely responsible for today's jurisprudence on the subject. Justice Stone, writing for the Court, opined that legislative acts should be held presumptively constitutional, that the burden of proving unconstitutionality falls to the party challenging the legislation, and that courts should broadly defer to Congress in determining an act's constitutionality unless the act deals with some special class of people

(Sidenote: Today, Justice Stone might be lauded for being a non-activist judge. I have a big gripe with deriding judges as being activist. I find it far more dangerous for judges to be legislative puppets. But I digress.)

Randy Barnett (the guy Robert mentioned, and interestingly, one of the guys defending Raich in Gonzales v. Raich, the medical marijuana case) has urged that the burden of proving constitutionality should be the government's, not that of the party challenging the act. That sounds peachy, but I don't see how it answers the problems I laid out in my first paragraph. These problems - who should determine rights, and how - are basic jurisprudential problems. Any ideas?

Jordan

(Edited by Jordan on 9/25, 7:07pm)

(Edited by Jordan on 9/26, 8:22am)

Post 9

Sunday, September 25 - 8:12pm

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Jordan,

Good point. An objective Ninth Amendment jurispudence requires an objective theory of rights. Without an objective criterion, the legislature can declare that any legislation that it wishes to impose, is necessary to protect to protect one of those "rights retained by the people" - whatever it decides to declare as a "right." Then, the legislators can change their minds and declare a "right" to the opposite.

A real-life example:

Back around 1985, New Jersey had a "Smokers' Rights Law," which declared that owners of private "public accommodations" such as hotels, restaurants, and even workplaces had to "accommodate" smokers. There was supposedly a Ninth Amendment "Right to Smoke," so smoke-free workplaces were outlawed.

A decade later, the legislature of that same state "found" that there was a "right" not to be exposed to second-hand smoke, and so to protect that "right," smoking in "public accommodations" and workplaces was prohibited.

As long as Ninth Amendment advocacy remains the province of "philosophy-free" libertarians, it will remain a subjectivist swamp. Tibor is to be commended for taking Ninth Amendment advocacy back into the realm of objective philosophy.

Post 10

Sunday, September 25 - 9:56pm

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Then, too, as the writings of the founding fathers attest - especially those of Madison and Gov. Morris - the burden of proof was put upon the government, not the other way as is assumed today...

Post 11

Tuesday, September 27 - 2:51am

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As to this: "The problem with the Ninth Amendment is it leaves open (1) how to determine which rights are those others retained by the people and (2) who should make that determination...," the solution cannot be to ignore it, to deny that it exists, to forget about it, which is how many justices and constitutional scholars have dealt with the Ninth. Whatever the problem with the Ninth, it needs to be addressed by anyone who sets about to argue about what is constitutional and what isn't. In fact, none of the Amendments constituting the Bill of Rights is all that simple to understand and to square with the rest of the Constitution. But the answer isn't to simply toss whatever gives one difficulties. Bork, Scalia and others have simply tossed something they have problems with and that's irresponsible. This doesn't mean I believe the Ninth offers up no difficulties for the US Supreme Court or anyone concerned with constitutional law.

Post 12

Tuesday, September 27 - 6:46am

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Jordan:

These problems - who should determine rights, and how - are basic jurisprudential problems. Any ideas?

I do not think the government should be trusted to determine rights, as those in power will abuse the authority to determine rights in order to retain the power they possess and gain further power. I think that the prevailing assumption should be that individuals are sovereign, but delegate certain powers to the government in order to protect the bulk of their liberties.

James Madison (author of the Constitution) once wrote that government is necessary because men are not angels. However, by instituting government we place some men above others, and it is precisely because men are not angels that the government must never be trusted. You would not trust a fire to refrain from raging out of control; why would you trust a government?

Post 13

Tuesday, September 27 - 7:37am

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To be sure, Tibor, the courts haven't ignored the Ninth. They just largely passed the responsibility to Congress to determine whether an act denies or disparages a right retained by the people. I think the idea behind this is largely threefold. The courts didn't want to (a) overtake Congress' lawmaking ability, (b) divert too much of the people's money for defending congressional acts in court, and (b) open the floodgates to suits complaining that every right under the sun is hiding in the Ninth. So the courts created several deterrents to judicial entry: say congressional acts are default constitutional, shift the burden of proof away from the government; and broadly defer to Congress.

The courts will look under the "inkblot of the Ninth" when Congress passes a law affecting some special class or perhaps some special activity. In such cases, the act is default unconstitutional; the burden shifts back to the government; and the courts grant much less deference to Congress. If this is insufficient, what should we have the courts do? Who should determine which unenumerated rights are those retained by the people, and how?

Jordan

Post 14

Tuesday, September 27 - 8:47am

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Jordan, how can the judiciary check and balance the executive and legislative branches if the courts 'broadly defer' to Congress?

Post 15

Tuesday, September 27 - 9:48am

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Hi Mattew,

The balance of power would tilt strongly in the courts' favor if they could arbitrarily strike any congressional act that they think denies or disparages some right retained by the people. To keep Congress in check while avoiding arbitrariness and the the balance tilt, the courts have devised different standards of review depending on the class or activity that an act deals with. The more special the class or activity, the less likely the courts will defer to Congress.

Jordan

Post 16

Tuesday, September 27 - 10:42am

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As it is, the balance of power seems to rest with the executive branch. Bush says "jump", and the Republicans in Congress meekly ask "How high, Great Leader?"

Post 17

Tuesday, September 27 - 10:54am

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Yeah, how the Executive branch gains such power is truly astounding.

Post 18

Wednesday, September 28 - 7:16am

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This point, namely, "The balance of power would tilt strongly in the courts' favor if they could arbitrarily strike any congressional act that they think denies or disparages some right retained by the people," begs the crucial question. If the First Amendment sanctions the courts' striking down legislation or lower court rulings that violate rights to freedom of speech or freedom of religion, then the Ninth Amendment could also sanction the courts' striking down legislation that violates other (but not enumerated) rights. This would not be arbitrary at all.
Why not look at it in a good libertarian way: We have rights to do anything that does not violate others' rights and that does not impinge on the limited powers of government? The burden of proof should be on those who would deny us any right to do anything at all other than those that fit the picture above.