Stuart Taylor Goes Through The Looking Glass

by hilzoy

In his column this week (h/t), Stuart Taylor argues that most Americans want racial preferences abolished, and 71% want the Ricci decision overturned. (That's the case in which New Haven threw out a test for promotions when all but one of the candidates who passed were white.) 

Personally, I don't think that judges should decide cases on the basis of polls, especially when the poll questions do not include a summary of the relevant laws and precedents. I would have thought that conservatives who oppose judicial activism might agree. But not Stuart Taylor:

"But is it judicial activism when the justices stretch the Constitution to go over the heads of the political branches -- which are dominated by special-interest lobbies -- not to overrule the voters but rather to give them what they want?

Maybe not. And it's clear that the voters want racially preferential affirmative-action programs abolished.

Scholars have long applauded liberal justices who have stretched the Constitution's meaning to get rid of unpopular laws that had persisted only because of special-interest pressure. One example is the 1965 decision striking down Connecticut's anti-contraception law.

Conservatives could invoke similar logic, as well as several major Supreme Court precedents, to justify curbing unpopular racial-preference programs that -- like that anti-contraception law -- have persisted only because of special-interest pressure."

I'm opposed to judicial activism, though I disagree with a lot of commenters about what counts as 'activism'. I don't think it's activism when courts settle on a specific meaning for a contested term that Congress has not defined, for instance. Much more controversially, I think there's a very interesting argument to be had about what response to the existence of the ninth amendment would count as 'activist'.* In general, I don't think it's always obvious when someone is engaging in "judicial activism", but I do think that it should be avoided.

But I would have thought that if anything counts as judicial activism, "stretching the Constitution" to enact policies that the Congress has not passed would. But apparently I am wrong! I look forward to further articles by Stuart Taylor explaining why it would not be "judicial activism" if the Supreme Court created a program of national health insurance -- after all, a majority of people in the US favor that as well.

In all seriousness: I can't believe that Stuart Taylor wrote this article with a straight face. Of course it's judicial activism when you "stretch the Constitution" to enact new policies. Of course you don't find out how a case should be decided by taking a poll, especially when that case involves the application of some fairly complicated law that there's no reason to think the poll respondents know much about, and double especially when you claim to be concerned about judicial activism.

It's hackery, pure and simple.

***

*The ninth amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This plainly implies that the people have rights other than those enumerated in the Constitution, and that these should be respected, but it does not say what these are. Is it more "activist" to try to come up with some such rights, at least in the easiest cases (e.g., the right not to have the government expropriate one of your kidneys, which the framers would surely not have looked kindly on), or to pretend that the ninth amendment does not exist? Isn't it plausible to read the ninth amendment as implying that the courts should protect not only those rights that are enumerated in the Constitution but other unenumerated rights as well, and doesn't this imply that it actually invites "judicial activism"? 

If so, doesn't the ninth amendment force us to choose between the 'activism' of discovering unenumerated rights, and the opposite 'activism' of pretending that there is no ninth amendment? And if you choose the latter on the grounds that granting courts the power to discover new rights in the Constitution is too dangerous, aren't you just disregarding the plain text of the Constitution in favor of producing the consequences that you think are best -- which is judicial activism if anything is?

Comments

[Cato The Elder]

It's too bad Sotomayor and others made sizable errors in their analysis of the case, so much so that the Obama D.O.J. actually recognized this and filed an amicus brief (read it!) requesting that the Second Circuit's judgment be vacated and the case remanded to a lower court, because it really doesn't want the judgment to create binding precedent, and it also really doesn't want the Supreme Court analyzing the decision and Title VII under an Equal Protection framework. That could end the rampant fraud and race huckstering which Obama is partial to, across the many different municipalities and civil service systems in the US altogether!

[Catsy]

Cato, what on earth are you babbling about?

If you have a point, feel free to make it and back it up.

[Jesurgislac]

Silly Hilzoy. Just as conservative Christians are allowed to decide which bits of the Bible they will read literally and which bits they will ignore, while attacking everyone else for cafeteria Christianity - so conservative Americans are allowed to decide which bits of the Constitution they will read exactly as the Framers intended them and which bits they will ignore, while attacking everyone else for being activist, not originalist.

[kid bitzer]

i love the ninth amendment.

I love the precision of "deny or disparage".

"shall not be construed to deny": there are other rights, not enumerated in the constitution and the amendments. they really exist; undeniably. the enumerated ones are just a sample.

"shall not be construed to disparage": the unemumerated rights are no less important than the ones that happened to get listed explicitly. enumeration does not give certain rights any greater centrality, worth, or importance. lack of enumeration does not make the others second-tier or subsidiary rights.

and "enumeration" itself: listing, counting, writing down.

not "creating"; the constitution does not create our rights. not "granting": it does not grant them to us, either.

we have always had them. they belonged to us before there ever was a constitution. the drafters mention a few; they enumerate certain of them.

but there are others, maybe one or two, maybe lots, awaiting further discovery.

that's what it says.

[Hartmut]

I have even heard the claim that the whole constitution is just a commentary on and implementation regulation for the 2nd amendment (and I am not sure that that was meant as a joke). [Sorry, can't give a link for that].
---
Are there no showcase judicial passivists for comparision?

[chmood]

Great to see all the love for the Ninth Amendment - kid bitzer says it best!

Would a "judicial passivist" agree with Congress every time? Or with the Court's majority opinion? Put that way, is Justice Log the ideal?

[rea]

The rigthwignnut theory is that the 9th Amednment is like an ink blot on the Constitution--we can't know what those unenumerated rights are, because the Constitution doesn't tell us in a way we can comprehend; therefore, they are not enforceable in a court of law. A contrary rule means that judges are making law themselves (shudder).

To me, that seems like an agressively active constrution of the Constitution in favor of an allocation of powers among the branches not contemplated by the founders, but heck, ymmv.

[Brett Bellmore]

Sounds like a joke to me, Hartmut, and I'm pretty hard core when it comes to the 2nd amendment.

"Judicial activism" isn't a terribly useful term, unless you're of the opinion that judges should never strike down laws as unconstitutional, which is not a very respectable opinion.

"Judicial malfeasance" would be better. It's every bit as much an offense for a judge to uphold an unconstitutional law, as it is for them to strike down a constitutional law. BOTH are instances of the judge substituting their own preferences for the law, in the former case their preference for the legislature to be superior to the Constitution.

And the former offense is hugely more common. By orders of magnitude. Of course; Willingness to commit it is the primary criteria for choosing judges...

As for the 9th amendment, that was meant to prevent the Bill of Rights from being treated as an exhaustive list. But it was certainly NOT intended to give judges a blank check to invent new rights with no real basis. Essentially, if you resort to the ninth amendment, and a large fraction of the population responds, "WTF???", you probably got it wrong. If you can't point to evidence that your 'right' was previously respected, and only now is being infringed, you almost certainly got it wrong.

It's there to keep the feds from going, "Aha! You forgot to mention a right to eat meat, we can pass a law compelling everyone to be a vegetarian!" Not to give judges the power to repeal laws against things nobody THOUGH was a right, and which were illegal all along.

[Hartmut]

I know of no constitution that explicitly states the right to breathing (but a Kishon satire whre Israel bans it* to increase revenue through fines for violations) ;-)
Jokes aside, the US reality is indeed that judges are selected for political preferences (and life appointments) while other countries are able to keep party politics out of it for the most part (and have term limits**). And there lies the problem

* except for members of parliament and government.
** and a very strict professional code that ex-judges keep out of politics and commerce (academia, honorary positions and/or retirement are the usual ways).

[Joe]

"a blank check to invent new rights with no real basis ... things nobody THOUGHT was a right"

whatever this means, it doesn't seem much more useful than "judicial activism." Unless "no real basis" or "nobody" is code.

"other countries are able to keep party politics out of it for the most part"

I find this questionable, but maybe it's just that I lived in this country too long to think otherwise.

[cleek]

OT. stonetools, if you're out there: it's official, Roeder is a terrorist:

Scott Roeder called The Associated Press from the Sedgwick County jail... “I know there are many other similar events planned around the country as long as abortion remains legal,” Roeder said.

[novakant]

I find this questionable, but maybe it's just that I lived in this country too long to think otherwise.

Well, it's certainly true for Germany. I doubt that even political junkies there could name more than one or two of the judges on Germany's highest court from the top of their head, let alone describe their different political and judicial views. The decisions of the highest court are generally accepted as the last word that ends political conflict - it's all a bit more consensual.

[Johnny Pez]

Your problem, Hilzoy, is that you're assuming conservatives are arguing in good faith against "judicial activism". As many others have noted, "judicial activism" is a code phrase meaning "decision I disagree with".

[liberal japonicus]

cleek, how dare you call a group of like-minded people who can't make their points about a public issue 'terrorists'. And while you are at it, shame on you for your mind reading of Roeder. No one can really know what someone means when they call up the AP and claim they are part of a larger organization. That's just crazy talk.

[cleek]

That's just crazy talk.

i apologize. it's early, and i wasn't thinking clearly.

[Snarki, child of Loki]

So, where exactly in the Constitution are such things as "executive privilege" and "state secrets" enumerated?

Smells like pure, unadulterated, judicial activism to me.

[Brett Bellmore]

"whatever this means, it doesn't seem much more useful than "judicial activism.""

I'll grant you, that's true. Reason has no force against the unreasonable, once a judge has decided they're going to invent a new right to do something that was illegal in the states that ratified the 9th amendment, pointing out to them that it has no historical basis IS going to be a bit futile.

[Joe]

FWIW ... Few people can name the judges of the NY Court of Appeals either, but politics surely was involved in its formation. Also, the general public really pays little attention to its rulings. It rarely gets much mention even in major publications like the NYT.

Anyway, the Federal Constitutional Court of Germany sounds like an interesting institution. Coverage of judicial review in this country is aided by transnational comparisons.

[stonetools]

@cleek

I conceded as much in the previous thread, even acknowledging that I was wrong. But thanks for hammering the point. I know it makes you feel better.

The problem with the Ninth, of course, is that whenever you base a decision on it, people who disagree with the decision will claim that you are creating new rights out of whole cloth, while using the Ninth Amendment as a pretext. It's difficult to refute that charge. Supporters of Roe v Wade have never been able to convincingly refute it-at least to the general public's satisfaction.

I think on the whole, its best to go the explicit amendment route if you are going to recognize new rights-but of course, that's a tough row to hoe.

[Johnny Pez]

I agree with Brett. People should have as few rights as possible. The last thing we need is for some judge to decide that someone has a right he shouldn't have.

[cleek]

But thanks for hammering the point. I know it makes you feel better.

it does. it really does.

i'm glad you understand.

[Cyrus]

This plainly implies that the people have rights other than those enumerated in the Constitution, and that these should be respected, but it does not say what these are.

Indeed, if the Ninth Amendment did list those rights, whether only as a partial list or exhaustively, then those rights would no longer be other than rights enumerated in the Constitution. They would be enumerated in the Ninth itself. The Ninth Amendment cannot be more specifically than it already is. This seems a bit like a logic puzzle.

IANAL, but I think the best way out of this dilemma is to reject the unspoken assumption that an enumerated list of rights is possible. OK, so it's not. Every freedom conceivable is presumed to be a right, which means that enumerating them would be impossible, unless proven otherwise.

The only possible sources of such proof are the text of the Constitution or the practical facts of life, what the drafters of the Constitution called "natural law." In other words, my understanding is that the Ninth Amendment makes most sense as a preamble to the amendment that follows it*: "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." All powers. The people are sovereign. To quote a document written a few years before the Constitution, "Governments are instituted among Men, deriving their just powers from the consent of the governed..."

Hindsight being 20/20, I wish the Founders had phrased the Ninth more precisely, maybe using something closer to Madison's original language. And the ideals espoused by the drafters of the constitution were never implemented flawlessly to begin with and judicial precedent and later amendments have changed things in the intervening centuries. But as long as we're talking about the original Constitution, it seems obviously false to dismiss the Ninth as an inkblot, as conservatives tend to do when in power.

* Unfortunately, the Tenth is also vague in its own way. Which powers are reserved to the states, and which to the people?

[novakant]

Joe, I'm not sure what the use of comparing the Constitutional Court of Germany to the NY Appeals Court is, you would have to compare it to the Supreme Court.

[Brett Bellmore]

No, I don't think you agree with me. My position is that the 9th was intended to safeguard existing rights against infringement based on the fact that nobody had thought to include them in the Bill of Rights. It wasn't supposed to be an engine for expanding rights. It should only be applied to things which were so uncontraversial at the time the 9th amendment was ratified that it wouldn't have occured to anybody they needed to be explicitly guaranteed.

In large measure this includes rights which would get in the way of the regulatory leviathan; For instance, the law upheld in Wickard v Filburn is a perfect example of where the 9th amendment SHOULD come into play. So a judiciary which is selected on the basis of their not wanting to get in the Leviathan's way has little use for real 9th amendment analysis.

I happen to believe there are wide areas where our legal rights SHOULD be expanded. But I don't think you can derive a right to genetically engineer yourself, for instance, in the 9th amendment.

[cleek]

It should only be applied to things which were so uncontraversial at the time the 9th amendment was ratified that it wouldn't have occured to anybody they needed to be explicitly guaranteed.

but that's not what the text of the amendment says.

[Brett Bellmore]

"Unfortunately, the Tenth is also vague in its own way. Which powers are reserved to the states, and which to the people?"

I think that's a question to be answered by refering to state constitutions. Essentially, all the non-delegated powers belong to the people, who are free to delegate them to their state governments, if they so wish.

[Ben Alpers]

the US reality is indeed that judges are selected for political preferences (and life appointments) while other countries are able to keep party politics out of it for the most part (and have term limits**). And there lies the problem

I'd say that the process is less about party politics per se and more about results. Everyone wants judges who will rule the way they want on the issues likely to face the court. When it comes to judicial appointments all our politicians are legal realists.

And there's a further complicating factor: nobody is allowed to say that he or she is a legal realist. Everyone has to pretend that the conversation--which is actually about getting a justice on the court who'll rule in the way one wants the court to rule--is in fact not results-oriented...or even ideological. So instead we have a national conversation about a lot of things that nobody actually cares about, as each side tries to frame an argument for or against a nominee that will resonate with the public but that's about something other than what all the actors in the process actually care about--judicial outcomes.

I actually think the process would be greatly improved if everyone involved in it were simply more honest about its essentially political dimensions.

[Joe]

The problem with the Ninth, of course, is that whenever you base a decision on it, people who disagree with the decision will claim that you are creating new rights out of whole cloth, while using the Ninth Amendment as a pretext. It's difficult to refute that charge. Supporters of Roe v Wade have never been able to convincingly refute it-at least to the general public's satisfaction.

The "general public" supports the constitutional right behind Roe, some taking Justice Ginsburg's approach of focusing on gender equality. It is true that some might not be "convinced," but it is not the "general public" as a whole.

Griswold itself did a pretty good job suggesting why the right to privacy was not formed "out of whole cloth" in part because past rulings back to the 19th Century discussed privacy rights. Likewise, it set up one pretty good path on how to determine how to formulate the contours of the 9A.

So, it's not really too difficult.

[Hartmut]

In Germany the only institution (apert from some RCC bishops) semi-regularly attacking the Constitutional Court is the ruling party of Bavaria (CSU) and they are as close to the GOP as you can get over here. The topics are btw also the same (abortion, school prayer, Christian symbols in public schools).
It may play a role that judges for that court have to be confirmed with a 2/3 majority, so no single party can enforce its will, => only mainstream judges are considered in the first place. Also there is a traditional wall between political and jurisdictional careers (although many politicians are lawyers, once you choose the way of the judge ;-), you have to abstain from political activity*).
---
Sorry, have to leave until to-morrow.

*I can think of only one counterexample (Schill) and he was highly controversial to put it mildly.

[Jesurgislac]

It should only be applied to things which were so uncontraversial at the time the 9th amendment was ratified that it wouldn't have occured to anybody they needed to be explicitly guaranteed.

Conveniently, that means the Ninth Amendment can only be used to rule on rights for straight white men as equal citizens of the 18th century American Republic. It's an interesting justification for maintaining bigotry: any advancements in political and social equality for all that would be considered controversial in the 18th century, are obviously not included under the 9th Amendment: as are any infringements on people's rights made possible by technology unknown to the 18th-century Framers.

Because the US is a country that in Brett's view has got to have its head firmly stuck up its 18th-century ass... because that's how the Framers must have wanted it.

Onwards to 1776!

[Johnny Pez]

Ah, my mistake, Brett. You're right, I didn't understand your distinction between existing rights and expanded rights.

An "existing" right, as you define it, is one that would have been considered uncontroversial by the people of the United States on (Googles) December 15, 1791. Any rights beyond those uncontroversial rights fall under the heading of "expanded" rights, and it should be up to the legislative process, or even the constitutional amendment process, to secure those rights.

Gotcha.

[russell]

"An "existing" right, as you define it, is one that would have been considered uncontroversial by the people of the United States on (Googles) December 15, 1791. Any rights beyond those uncontroversial rights fall under the heading of "expanded" rights, and it should be up to the legislative process, or even the constitutional amendment process, to secure those rights."

That's as good a precis of the originalist approach as I've read.

Well done.

[kid bitzer]

"Essentially, if you resort to the ninth amendment, and a large fraction of the population responds, "WTF???", you probably got it wrong. If you can't point to evidence that your 'right' was previously respected, and only now is being infringed, you almost certainly got it wrong."

1)
i would emphasize the "probably" here, and once it is sufficiently emphasized, i agree.

that is: the test of "previous respect", i.e. the popular sentiment on some issue at the time of ratification, is a fairly good rule of thumb for figuring out which rights are retained by the 9th.

but it is really no more than a rule of thumb, and a pretty inexact one at that.

lots of 18th century people would have said "wtf?" about women or black people voting. lots of 18th century people would have "previously respected" your right to own black people as slaves.

so the test of antecedent custom only gets us so far. the founders were people of uncommon wisdom and foresight, in my opinion, but even they suffered from various myopias and blindspots. time really has improved our understanding of the nature and shape of the fundamental rights we always had, and will continue to improve that understanding in the future.

2)
as to whether the 9th amendment is supposed to "give judges the power to etc." or "give judges a blank check to etc."--of course not. that is a mere straw man.

the 9a is not meant to give judges anything. rather, it is meant to empower the people to keep what is theirs.

it is meant to restrain all governmental power, legislative, executive, and judicial too, in its confrontation with the rights of the people.

i'm fairly sure that you and i will disagree over which particular rights we include among the unenumerated ones, and i'm fairly sure that my tendency will be in some sense more inclusive and expansive than yours. fair enough--we can argue over that in lots of ways.

but it would simply misrepresent the entire structure of the argument to suggest that what i want to do is give more power to *judges*. f*ck the judges--they are just public employees, no better than clerks at the dmv. i have no interest in increasing their power. the 9a is meant to to retain *my* power, *our* power, not theirs.

on the other hand, the constitution is a law, and in a common-law system, it is the proper and peculiar province of judges to interpret the law when questions as to its interpretation arise. that is a power that we grant to judges by creating courts of common law, which we cannot un-grant without deleting article iii.

so when a question arises as to the proper understanding of the 9th amendment, our system turns to judges as the final authority on its interpretation. they can get it right or they can get it wrong; judges can do better and worse jobs. but their job in this case is no different from their job in other cases.

and there is absolutely no basis for supposing that they are doing it right only when they find fewer rights, and doing it wrong when they find more.

just as important: if you are worried about empowering judges, then it should be clear that you grant them just as much power when you advocate a *restrictive* reading of 9a as when i advocate an *expansive* reading of it. you think i am giving judges a power to create rights; i think you are giving judges a power to ignore rights that we properly retain. the power to deny rights that exist is just as fearsome as the power to create "rights" that do not. indeed, when the rights in question are rights of the people that restrict the power of the government, an expansive reading of 9a is a restrictive reading of governmental power, and your preferred, restrictive reading of 9a is really an expansive reading of governmental power. there is much to be feared on both sides.

so this matter of "giving judges power etc." really does not help us to think about the 9a, any more than it helps us in particular cases to decide whether some right properly belongs among the unenumerated ones.

[Brett Bellmore]

"lots of 18th century people would have said "wtf?" about women or black people voting."

Right, a claim by women or blacks to vote should be on the basis of the 19th or 15th amendments, not the Ninth.

I don't advocate a "restrictive" reading of the 9th, I advocate an accurate reading of it. It should find a great deal of application in modern cases, given the extent to which the government sticks it's nose into matter which were widely understood at the founding to be none of ANY government's business.

[Johnny Pez]

He's got you there, kid. They did use the amendment process to secure the rights of women and nonwhites to vote (not that it kept nonwhites from being denied the right to vote anyway).

OTOH, I don't know whether the people in 1791 would have considered the right to be secure in one's electronic communications to be uncontroversial.

[Sebastian]

"If so, doesn't the ninth amendment force us to choose between the 'activism' of discovering unenumerated rights, and the opposite 'activism' of pretending that there is no ninth amendment?"

No it really doesn't. I would say that the best understanding of the 9th amendment is that it allows for all sorts of unenumerated rights from the time of the signing but that new rights come into being in one of two ways:

A) by amendment
B) by overwhelming acceptance in the general population.

Note that B) is NOT an anti-majoritarian function.

There is no C) Whenever judges feel like it.

The problem I have is that people, when discussing the Supreme Court, feely mix its limited anti-majoritarian function into everything. You can't have the Court discover new unennumerated rights which are simultaneously not accepted by a very large majority of the American public. That doesn't make sense functionally (you wouldn't design a system that way) and wasn't designed that way (has no basis textually and very little basis contextually).

[kid bitzer]

no, the 19th and 15th amendments are simply new acts of enumeration. they did not *create* new rights, they merely codified the recognition of rights that had, all along, been among the unenumerated rights referred to by the 9th.

yes, of course it is simpler, as a matter of procedure, to point to their codification in 19a and 15a than to derive them de novo from the 9th on every occasion (enumeration has its uses, after all).

but the rights there codified are exactly the kind that are referred to in the 9a, despite the fact that 18th century popular opinion would have said "wtf".

[von]

"An "existing" right, as you define it, is one that would have been considered uncontroversial by the people of the United States on (Googles) December 15, 1791. Any rights beyond those uncontroversial rights fall under the heading of "expanded" rights, and it should be up to the legislative process, or even the constitutional amendment process, to secure those rights."

That's as good a precis of the originalist approach as I've read.

The advantage of this approach is that it is fairly clear regarding which rights are in the 9th and which are not. (You'll have disagreements, sure, but at least the scope of disagreements are limited.) I have always had touble conceptualizing the alternative approach.

Conveniently, that means the Ninth Amendment can only be used to rule on rights for straight white men as equal citizens of the 18th century American Republic. It's an interesting justification for maintaining bigotry: any advancements in political and social equality for all that would be considered controversial in the 18th century, are obviously not included under the 9th Amendment: as are any infringements on people's rights made possible by technology unknown to the 18th-century Framers.

Not necessarily true under an originalist approach. The 13th, 14th, and 15th Amendments amend the Constitution, and any rights protected by the 9th would extend via the language of the 14th.

[hilzoy]

Seb (and possibly also Brett): my question is not 'can judges just make stuff up?', to which I think the answer is 'no'. It's rather: how do we tell when a right is one that we "have", one that the ninth amendment covers, and when it's just making stuff up?

This gets trickier if you imagine that the founders might have thought that their own views about which rights they had were mistaken, and/or if their views were not cashed out as 'this list of unenumerated rights', but something more like: 'the fundamental rights that obviously no government should interfere with', or any other set like that, which is defined not as a list but as rights with some property whose extension might be better understood over time, and/or which might change as new circumstances, and thus new threats to individuals, developed. (By the latter, I mean things like: of course the framers had no view about the threats to privacy produced by computers and computerized communication and data. Does it obviously follow that the ideas they did have do not apply in this case? I don't see why.)

But this is absolutely not about whether judges should be bale to make stuff up; it's about how you tell the difference between making stuff up and enumerating unenumerated rights that we really have, supposing you agree that the Constitution protects the latter.

[hilzoy]

Also, for the record: I am not arguing here, and I'm not sure I believe, that the ninth amendment should be used as the basis of constitutionally protected rights. What I am sure of is that if I said 'no', and I were a judge, I would be engaging in judicial activism, since what would motivate me is precisely the danger (i.e., the bad consequences) of letting judges loose with the ninth amendment. This would strike me as a less bad kind of judicial activism, since it would, essentially, involve judges refusing an invitation to a more expansive role that I take to be plain in the 9th amendment, but it would be judicial activism all the same.

[kid bitzer]

"The advantage of this approach is that it is fairly clear regarding which rights are in the 9th and which are not. (You'll have disagreements, sure, but at least the scope of disagreements are limited.) I have always had touble conceptualizing the alternative approach."

well, sure: and the advantage of looking for your keys under the lamp-post is that the ground is well-lit there.

but that just shows that you should never mistake your heuristic for your real goal. looking for well-lit-lost-keys is not a bad way to start the process of looking for lost keys, but it would be a silly way to end it.

if you think that there are unenumerated rights referred to by the 9a, and that they have always existed, then it is going to be a deep puzzle how to find them, and how to be sure we have found a right and not a boojum.

it's going to be hard work. it will not lend itself to easy decisions.

but to say, "that's too hard; i can't conceptualize it; i am going to replace that with a different search altogether because it is an easy search i know how to do," is simply to disregard the constitution itself.

[Jesurgislac]

von; I have always had touble conceptualizing the alternative approach.

Suggest you talk to a Reform rabbi sometime. They seem to be able to conceptualize the idea that their religion can move on from written laws from three thousand years ago while remaining faithful to the spirit expressed by those laws: perhaps from that you can figure out how the US can move on from a written constitution from a couple of centuries ago, while remaining faithful to the spirit expressed by those laws.

Obviously it's all much easier if you go with the "We can't move on, everything has to have an 18th century benchmark,because that's when our country was founded" if you're a white man. Especially if you're a straight white man.

But, with the perspective of a country with a thousand years of history, you do have to quit trying to look at everything from the perspective of the ruling classes at the time it was founded some time.

[Sebastian]

"But this is absolutely not about whether judges should be bale to make stuff up; it's about how you tell the difference between making stuff up and enumerating unenumerated rights that we really have, supposing you agree that the Constitution protects the latter."

Sure, but so far as I can tell you have provided us with absolutely no guide or even the slightest hint of a guide of how you do that for new rights. And it isn't just you, I've been looking at jurisprudential theories for decades now and I still have no clear idea how the living Constitutionalist theories work. If you give me an example of a proposed right, I literally have no idea (other than "could it possibly get 5 votes) whether or not the theory would suggest that a Supreme Court Justice ought to vote one way or another.

It would be an interesting game to propose rights and see if say Balkin or Tribe's living constitutionalism couldn't justify it as a right. I would venture to say that it would be difficult to find them without going into the violation of the deepest norms of morality--and even then it would only be because judges would vote 'no'. (Maybe the right to kill people who irritate you with sneezing wouldn't pass muster, but I'm not certain).

My guide is "new text" (amendment) or incredibly clear acceptance in the general population.

I would note that I use the word 'rights' in the way that the founders used it. Under the modern terminology that is "negative rights" (rights to protect from interference) not "positive rights" (like a theoretical right to have a pony).

My beef with modern jurisprudence is that it really doesn't offer any guide to how you tell the difference between making stuff up and enumerating unenumerated rights. For example it allows for explictly anti-textual readings (that the death penalty might be wholly unconstitutional) and of course doesn't care at all what the majority of the population thinks on any topic. It doesn't follow any particular moral theory. It doesn't follow any historical theory. It doesn't restrict itself to incremental change. It doesn't respect Congress. It doesn't require amendments for anything other than technical issues (like what day the president is sworn in), and I'm not really sure why those count.

[stonetools]

no, the 19th and 15th amendments are simply new acts of enumeration. they did not *create* new rights, they merely codified the recognition of rights that had, all along, been among the unenumerated rights referred to by the 9th.

Isn't this just a legal fiction, though? The right to own slaves was baked right into the original Constitution and slaves had no constitutional rights.

http://www.usconstitution.net/consttop_slav.html

The 13th-15th Amendments abolished the right to own slaves and then gave the ex slaves equal rights with whites.It was, as Abraham Lincoln put it, a "new birth of freedom".
Similarly, a federal constitutional right for women to vote could simply not have been read into the pre-19th Amendment constitution. The 19th Amendment created a new right-I think its wrong to think of it as enumerating what had simply been unexpressed by the original framers of the constitution.

Now legal fictions may have their uses- but lets understand that we are talking about legal fictions, not a plain and simple reading of the Constitution.

[kid bitzer]

no, the "plain and simple reading of the constitution" is that the constitution itself does not create rights. it is not the source of rights. the original constitution did not create an original stock of rights. new amendments do not make new rights.

all of our rights, both those enumerated in the constitution, and any further ones mentioned in successive amendments, come from the same source, i.e. from our pre-existing stock of rights that were there before the constitution was, and which we retain no matter whether they are mentioned or not.

that is the reason why 9a talks of "enumeration"; the point is that the right to a jury trial is not *created* by iii.2; it is simply enumerated there. the right of the people to keep and bear arms is not *created* by the 2a; it is simply enumerated there.

the constitution contains various enumerations and listings of rights. but it is not the source of those rights. it does not, and cannot, create them.

that is exactly what the 9a means.

and this is why it is not a "legal fiction" to say that black people always had the right to their freedom. non-black people, too, always had the right to their freedom; they did not have to wait around for the constitution to create it. they retained it.

in the case of black people, that pre-existing right was denied to them by 18th century custom and by (covert and euphemistic) provisions of the original constitution. so much the worse for 18th century custom, and the original constitution.

but the 9a makes it clear that the constitution and amendments are not the *source* of our rights. the constitution does not and cannot *create* rights, new ones or old ones. it merely enumerates them.

that is the "plain and simple reading" of the 9a.

[von]

but to say, "that's too hard; i can't conceptualize it; i am going to replace that with a different search altogether because it is an easy search i know how to do," is simply to disregard the constitution itself.

*****

Obviously it's all much easier if you go with the "We can't move on, everything has to have an 18th century benchmark,because that's when our country was founded" if you're a white man. Especially if you're a straight white man.

But, with the perspective of a country with a thousand years of history, you do have to quit trying to look at everything from the perspective of the ruling classes at the time it was founded some time.

Kid and Jes -

I agree that it's "difficult." I also agree that the fact that something is difficult is not a reason not to do that something. You offer criticisms -- some quite reasonable -- of the originalist approach. However, neither of you provided what is lacking in the non-originalist approach to the 9th amendment*: An alternative process that one would use to decide whether a right was "inside" or "outside" the 9th amendment that amounts to more than the preference of the deciding judge.

Originalism has the benefit of providing a clear process that limits judicial discretion. You may think that discretion is wrongly limited -- that's basically what Kid Bitzer is saying -- but what's the alternative process that is (1) acceptable to you and (2) imposes some limit on judicial discretion?

Saying, well, it's really hard so let's decide what rights exist on an ad hoc basis seems to be a political approach to the issue -- and one guaranteed to ensure that the Constitution always means what you want it to mean. That's a way to create a Court of nine philosopher kings, which isn't the kind of Court that most folks would want.

*Actually, the typical non-originalist approach to the 9th amendment is to ignore it. (That may be my preferred approach as well, even though I tend to approach matters from a more originalist perspective.) What there hasn't been is a non-originalist approach to the 9th amendment that gives the amendment any teeth whatsoever.

[russell]

"The advantage of this approach is that it is fairly clear regarding which rights are in the 9th and which are not. "

I see your point, and I understand why that would be attractive.

But I wonder if it's realistic to think we can make an accurate and/or objective appraisal of what would or would not have been controversial in the late 18th C.

First, none of us were alive then, so what we rely on are texts. History, contemporary writings, letters, recorded statements. The same issues of interpretation apply to these as apply to the text of the Constitution itself.

Who is doing the interpretation? What assumptions and prejudices do they bring to the task?

For that matter: what texts have survived? Are they an accurate representation of what folks thought then?

What if the only surviving documentary record from our day was the WSJ editorial page? What if was the collected NPR commentary of Daniel Schorr? Or, perhaps, the Autobiography of Malcolm X?

Second, it's not clear to me that there are always good analogies from the 18th C to rely on in trying to sort out current-day issues.

Take Ricci. Racial issues aside (and good luck with that), there's an underlying question of whether applying the principle of "equality before the law" can take results into account, or whether we must apply it without regard for results.

It seems like you can't really get to the bottom of Ricci without addressing that. Did any such issue even exist in 1791?

So, assuming that there are handy analogues to current-day situations available in the 19th C. experience, and assuming that there was some reliable record of what folks thought about it then, and assuming we could confidently assume that our reading of that record was accurate and impartial, I'd say you have a great basis for an originalist approach.

I'm not confident that all of those assumptions hold.

[Brett Bellmore]

"that is the reason why 9a talks of "enumeration"; the point is that the right to a jury trial is not *created* by iii.2; it is simply enumerated there."

I think you're confused. There are two sorts of rights involved here: The natural rights of Man, (Women included, of course.) which exist prior to, and indendent from, any government. And procedural rights which exist only in relation to government.

The Constitution recognizes the first sort, but does indeed create the second. A right to trial by jury, for instance, doesn't even make sense apart from the existance of a legal system. The right to vote is equally incoherent in the absence of elected positions to vote for.

On the other hand, you don't need a government around to publish, or speak, or own weapons for self defense.

[ThatLeftTurnInABQ]

"But, with the perspective of a country with a thousand years of history, you do have to quit trying to look at everything from the perspective of the ruling classes at the time it was founded some time."

Jes raises a really interesting issue - isn't the originalist approach to Constitutional interpretation fighting a losing battle with time? Given sufficient time even the late 18th Cen. English of the original document will be reduced to unintelligble gibberish as the modern language continue to mutate and grow. In another 800 years the text of the US Constitution will scan to late 28th Century Americans about as well as the original text of Beowulf does to us today.

To base a system of government on a document which nobody but philologists can read is obviously absurd. So what is to be done about this, as we slowly walk down the long road which leads to this destination in time? Should the original document be repeatedly updated with hundreds of admendments so that it becomes a sort of palimpsest? Or should it instead be encrusted with layers of interpretation via the judiciary, in a manner which updates the language while leaving the original document untouched? Or should we slowly evolve towards a more English style of informal constitution based on custom and precedent, relying less and less over time on the written text as such?

[someotherdude]

Saying, well, it's really hard so let's decide what rights exist on an ad hoc basis seems to be a political approach to the issue -- and one guaranteed to ensure that the Constitution always means what you want it to mean. That's a way to create a Court of nine philosopher kings, which isn't the kind of Court that most folks would want.

Do you believe there is a “non-political” approach?

It seems, the whole endeavor is tainted with politics.

[Sebastian]

"Take Ricci. Racial issues aside (and good luck with that), there's an underlying question of whether applying the principle of "equality before the law" can take results into account, or whether we must apply it without regard for results."

The law as passed by the legislature doesn't require the result in Ricci. What suggests (though I would argue doesn't require) the result in Ricci is a long line of incremental steps interpreting the law such that now there have been so many steps that it almost seems to contradict the law as originally passed.

And that is of course the danger of too much judge created law--that it will become wholly divorced from the underlying law. At that point it becomes a serious question where the judicial law derives its power (because in theory it is supposed to draw it from the law itself.)

[liberal japonicus]

I'd like to have everyone refer to the originalist approach as, based on the discussion here, the 'wtf approach', given that it is based on what an 18th century group of white men would say 'wtf' to. It has the advantage of being shorter and therefore much easier and it codifies the basic understanding. Seems like a winner to me...

[Nathan]

If your reading of the 9th amendment is that it protects the rights of the people from the government, then how does that protection get expressed?

The judicial branch would seem to be the most obvious side to protect people from government overreach. Individuals and companies challenge government actions in court all the time. We rely on a court system to strike down laws as unconstitutional.

How can you argue that the rights of individuals need to be better protected from the government and that judges have too much authority?

[kid bitzer]

brett, i'm confident that i'm confused. comes with not knowing anything about the subject matter.

at the same time, i think your distinction does not show exactly what you want it to.

i agree that some rights can only be exercised within a governmental framework (e.g., the right to petition the government for redress, just for starters).

but conditions for exercise are not equivalent to conditions for possession, and those in turn are not equivalent to conditions for creation.

so the fact, e.g., that i cannot exercise my right to a jury trial outside of a legal system does not mean that i do not have it outside a legal system. everywhere i go, i have the right to a jury trial.

or take the right to vote. did my ancestors have that right under monarchies? obviously they could not exercise it. but even then, they had a right to self-determination. they had a right to government that enjoyed the consent of the government, and they had a right to alter and abolish that government should it become destructive of their rights.

and they had no ability to exercise such rights. but that's neither here nor there as to possession, or as to the origin and nature of those rights.

what a constitution can do is to create political opportunities for the exercise of rights. (or, as in the case of slavery, it can deny opportunities for the exercise of rights). by creating a system of courts, it can make it possible for me to exercise my right to jury trial, so that i no longer have to be tried by ordeal or by ducking in a pond. by creating a government, it can make it possible for me to exercise my right to petition the government for redress.

so my proposal is that you have a good and useful distinction between those rights that can be *exercised* without a government and those which cannot. but i do not think it follows that either kind is *created* by the government (or by whatever constitution creates that government).

von, i agree that i have not provided you with an algorithm. at the same time, i think russell is right to note how very un-algorithmic your preferred strategy is, as well. the difference in degree of regimentation, and corresponding need for interpretation, is far smaller than you make it out to be.

and, once again, i have no interest in giving judges greater discretion. i have no interest in empowering judges whatsoever--they can all go rot for all i care. i want to empower myself, and the people, by making sure that our rights are properly recognized.

[Sebastian]

"von, i agree that i have not provided you with an algorithm."

Instead of providing an algorithm, how about a hint? How would you know that "the right to a pony" didn't exist in the 9th amendment?

[Brett Bellmore]

"The law as passed by the legislature doesn't require the result in Ricci. What suggests (though I would argue doesn't require) the result in Ricci is a long line of incremental steps interpreting the law such that now there have been so many steps that it almost seems to contradict the law as originally passed."

I refer to this as "the game of telephone"; The courts keep basing new rulings on previous rulings, instead of on the source material, and errors creep in. (Or are deliberately inserted.)

That's how we got from the Miller Court's finding of an individual right to own weapons of war, (With the case sent back to the circuit level to decide if a sawn off shotgun had any military uses.) to most of the circuits maintaining that it denied any individual right at all. By playing "telephone".

[Jesurgislac]

In English/Welsh law, there are three clauses of the Magna Carta which are still recognized as law - the freedom of the English church, the ancient liberties and laws of the City of London, and the famous bit about "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice."

What the Magna Carta established, which still stands, is that the rule of law applies even to the monarch - or to the Crown. The rule of law is not a single document, no matter how great the writers of that document were, and it cannot be paused at any one moment in time. It is a principle of integrity, which can and has been damaged by unjust judges or monarchs (or modern-day Prime Ministers making use of the powers of the Crown), but which cannot be altogether overthrown except by direct attack.

The originalist approach takes away the principle of the rule of law, and replaces it with a principle of devotion to a document, to be interpreted according to the intent of the writers insofar as a present-day person can understand what that was. It's a totemistic approach, in effect. It doesn't remove power from judges: it restricts power exclusively to judges who can demonstrate their acquired learning of 18th-century legal thought: just as the Imperial Chinese civil service was open to anyone who could pass the requisite examinations, but in order to pass the examinations you had to have learned perfect calligraphy and how to express yourself correctly in all of the classic forms of poetry.

[cleek]

How would you know that "the right to a pony" didn't exist in the 9th amendment?

you can't know either way.

as with the 2nd, and the 1st's "establishment" clause, the Framers botched this, by failing to use language clear and concrete enough to be truly meaningful to anyone but themselves. they wrote in a code that only 18th C politicians could really understand, because they were writing for other 18th C politicians.

the forgot to take into account that the high-minded ideals they were trying to codify might not be shared by future generations.

[Brett Bellmore]

Give me a break, we're talking about language which is indeed fairly clear, but which has been subjected to decades of efforts to obscure it's meaning. The ambiguity is mostly manufactured.

The 1st's establishment clause barred the federal government from legislating on the subject of established churches, which more than one of the states had. It could neither establish one of it's own, nor interfer with the states doing so.

"they forgot to take into account that the high-minded ideals they were trying to codify might not be shared by future generations."

They probably figured that, in that event, no constitution could stand. A constitution can be ever so high minded, but if it doesn't have the support of the people, it's a shield of paper.

[Tony P.]

How would you know that "the right to a pony" didn't exist in the 9th amendment?

In agrarian 18th-century America, I should imagine that "the right to a pony" was taken for granted:)

In all seriousness, Seb, we can never agree about "rights" until we use the word consistently. "The right to a pony", can mean two different things: you are entitled to be provided with a pony by the state; or, the state is forbidden to exercise its power to prevent you from acquiring a pony. The Bill of Rights reads to me like a list of restrictions on government power. If you don't agree that there are additional, unenumerated restrictions on government power, that's fine. I can't see how you'd reconcile that with a preference for "small government", but maybe you don't feel the need to.

--TP

[jrudkis]

This is the fundamental debate over whether we should have a bill of rights at all. Recognizing at the time it was a discussion about limiting only federal power (ie, pre-incorporation), the delineation of certain rights was believed by some to therefore limit other rights not enumerated and allow unintended expansion of federal power:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power...

Federalist 84

Noah Webster wrote in the American Magazine that “if a bill of rights was necessary, then it should include a provision ‘that Congress shall never restrain any inhabitant of America from eating and drinking, at seasonable times, or prevent his lying on his right side, in a long winter’s night, or even on his back, when he is fatigued by lying on his right.’”

Halbrook, Stephen P. A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees, Greenwood Press, NY 1989. p. 100-101.

So to the extent that the 14th amendment changed the compact by incorporating the bill of rights against the states, I think we are in a position where the USSC has to determine what other rights government cannot infringe upon. Even if the federal government was restricted to the powers it was originally given and intended under an originalist theory, the 14th amendment limitation on state power makes the determination of rights the Court function.

[Mike Schilling]

I'm sure interracial marriage wasn't overwhelmingly accepted in the general population in 1967. I *think* it is accepted pretty overwhelmingly today, but I'm really not certain of it. I gather, then, that the originalists here all consider Loving vs. Virgina an illegitimate, activist decision.

[Turbulence]

Seb, why does the criteria have to be "overwhelming public support"? Why shouldn't a majority suffice? And shouldn't support among younger demographics matter more than that of older demographics? After all, if you're talking about an evolving public consensus, young people are almost certainly going to lead it.

[Joe]

Joe, I'm not sure what the use of comparing the Constitutional Court of Germany to the NY Appeals Court is, you would have to compare it to the Supreme Court.

I used it as a judge of a fairly important court (interpreting the law of a state of over 30 million people) based on knowledge of who is on the court and concern by most of the public of its ruling.

Don't know how useful of a metric this might be, but it came to mind when you referenced few knew who was on the Constitutional Court of Germany and that its rulings generally are uncontroversial.

[Brett Bellmore]

I'm talking about having that sort of support if you're going to claim a Ninth amendment basis for a right, that or historical evidence.

If you've got the text of an actual amendment on your side, the 9th amendment doesn't even enter into it.

[cleek]

The 1st's establishment clause barred the federal government from legislating on the subject of established churches

not everybody agrees with this interpretation.

[Sebastian]

Tony, sometimes I wonder if you disagree with me just because my name is there. :)

"The Bill of Rights reads to me like a list of restrictions on government power. "

That was you.

I wrote: "I would note that I use the word 'rights' in the way that the founders used it. Under the modern terminology that is "negative rights" (rights to protect from interference) not "positive rights" (like a theoretical right to have a pony)."

I think you're right, that the 9th is meant to protect against interference from the government. But that is a historical and textualist argument, not much in fashion under modern jurisprudential theories.

What I want to know is how someone like kid bitzer, or publius, or hilzoy for example knows when a right is and is not found in the 9th amendment or elsewhere in the Constitution. How do they know that there isn't a right to have the government provide each and every person with a pony? And I don't mean that to be flip, but rather as a stand in for any right that our intuition would suggest isn't really there.

The answer thus far appears to be "there is no way to tell" which makes attacking the historical/texutalist approach for being incomplete look like making the non-existent the enemy of the good.

[jg]

There's a danger in quoting Halbrook given his oft-times sloppy scholarship.

At the time Webster wrote these words in his magazine, Webster was an ardent supporter of having a BoR. Webster underwent something of a religious conversion in the late 18th century and became somewhat disillusioned with democracy and government.

[Joe]

I would say that the best understanding of the 9th amendment is that it allows for all sorts of unenumerated rights from the time of the signing but that new rights come into being in one of two ways:

A) by amendment
B) by overwhelming acceptance in the general population.

There is the question of what is a 'new' right. For instance, is it 'new' to protect contraceptive rights, or 'old' since it concerns privacy over areas that were seen of private concern for a long time?

Or, is the 'new' right the result of an old right that grew in scope? Like the people in the 1770s having a broad understanding of what the Magna Charta secures. This would occur in various ways, case by case, influenced by various factors, including broad public acceptance.

You can't have the Court discover new unennumerated rights which are simultaneously not accepted by a very large majority of the American public.

This often is a question of definition. Thus, the right to choose an abortion is deemed 'new' by some when others think it fits in an earlier system of rights. Or, the 'new' right logically fits in the old, but the reasons they are not recognized is arbitrary in some way. For instance, homosexuals are singled out.

The debate on some level too often is not very productive. Take this:

For example it allows for explictly anti-textual readings (that the death penalty might be wholly unconstitutional) and of course doesn't care at all what the majority of the population thinks on any topic. It doesn't follow any particular moral theory. It doesn't follow any historical theory.

It is not "anti-textual" to suggest the death penalty might be wholly unconstitutional. The fact the Due Process Clause says "life" does not mean that it can always be done with "due process" especially within the terms of the 8th Amendment.

Likewise, it is untrue that they do not care 'at all' what the public thinks, not by the tests they use in various cases, nor when you actually look at how the courts work in the real world.

As to not following a 'moral' or 'historical' theory, again, where's the evidence of this? At least Scalia argues they single out a certain moral theory, apparently thinking they have one. They also use history, though yes, there is no one size fits all system used.

[von]

Russell, I agree with you that the originalist approach is not perfect -- for exactly the reasons you identify. But I'm not looking for perfect. I'm looking for better than the alternatives. And even though originalism includes all of the problems you identify, it still has the benefits of telling us (1) where we should look and, while looking, (2) what we should prize as relevant.

Kid Bitzer, you're not providing those alternatives. You're essentially saying that originalism is a bad idea because it has disadvantages. You're right; it does. But what's the alternative process that is (1) acceptable to you and (2) imposes some limit on judicial discretion?

Jes, we can't unring the bell of the written constitution -- which is essentially what you're requesting. (I agree with you that the English system has some advantages.)

[mds]

The US Constitution is an extremely bare-bones document, especially by modern constitutional standards. It was left sketchy by 18th-century politicians who were intimately well-acquainted with the English common law system, with the state-level phenomenon of judicial review, and who wrote paeans to the judicial power in the Federalist Papers. Chief Justice Jay's Court applied judicial review to state actions in Chisholm, and reiterated the equality and independence of the judicial power, while embracing England's Court of King's Bench as a model, in Hayburn's Case. All of this must naturally be jettisoned in favor of "strict readings" of the original text that are plainly obvious to conservatives with sufficient application of their own intellectual toolkit. This must be coupled with repeated appeals to an entirely mythical age when judicial appointments weren't political. This begins to smack less of "originalism" and more of religious fundamentalism. So I would second Jesurgislac's call to consider Reform Judaism as a better model than Grace Baptists, if we have to go there at all.

[hilzoy]

Seb: "Sure, but so far as I can tell you have provided us with absolutely no guide or even the slightest hint of a guide of how you do that for new rights. And it isn't just you, I've been looking at jurisprudential theories for decades now and I still have no clear idea how the living Constitutionalist theories work."

My point is not that there is such a method, and I know what it is, but rather: (a) the 9th Amendment pretty clearly presupposes that there are unenumerated rights, and that they should be protected; and (b) this implies (if one is going to be an originalist about such things) that there ought to be some method of finding out what these rights are, whether any of us know what it is or not.

Moreover, I don't think "ask what rights the founders recognized" works as an answer. Leaving aside the usual problems about which founders, how many, how we know what they thought, etc., and ask: if they meant 'the rights we currently believe exist', why didn't they say so? Why did they instead talk about the rights that the people actually have?

Is it because they believed that they were infallible, and obviously so, so that the possibility that they might be in error didn't occur to them, and thus they saw no need to distinguish between 'the rights we think people have' and 'the rights people actually have'? That seems pretty unlikely. But if they didn't think that, then an originalist ought to say: however we go about determining what rights people actually have, we should do that, and then protect those rights. Possibly she might add: there should be a presumption of caution; when the argument that we have some right seems iffy, we should not claim that it is protected under the Constitution.

But originalism only gets you the claim that we should restrict ourselves to the rights the framers accepted if (a) you believe they believed themselves to be infallible on this question, or (b) you believe that they were, in fact, not mistaken. Otherwise, I think that originalism, as applied to the 9th amendment, should lead one to try to figure out how to determine what those rights are, and then protect them, whether or not the framers would have agreed that we have those rights.

Because, again, they did not say that we should protect all and only those rights that they thought we have; but that we should protect those rights that the people do have.

[kid bitzer]

i'm inclined to think that the right to a pony is not one of those retained by the people.

but i could be wrong about that.

seriously: it is a consequence of my understanding of the nature and status of rights that not only can one person (e.g. me) be wrong about them, but also great numbers of people all at once can be wrong about them.

hilzoy i think would tell you that this is a fairly common consequence of platonism in some area; if we think that there really are facts out there about some domain x, which are not simply determined by our opinions about them, then we have to rest content (or discontent) with the possibility of more or less systematic error about facts in domain x. (please clean that up for me where i'm wrong, hil--if there's anything i know less about than the constitution, it is platonism).

but this kind of platonism about rights is not something i invented: it is exactly the view about rights that inspired and guided practically all of the founders' writings about rights, from the declaration, to the federalist papers, to the anti-federalists like brutus and webster. they practically all took rights to be natural features of the world, not artificial human constructs. things we learn about through a slow process of rational enlightenment, constantly approximated though never perfectly attained. not things we create by fiat, ruling, vote, or ratification.

in other words: that is the view of rights you have to take *if you want to claim to be an originalist*.

and it follows from that view that there is no way to avoid the possibility of error.

there really is no way to no way to know, beyond the reach of error, whether there is a retained right to ponies or not. we can only try to work it out, in ordinary fallible ways.

what methods can we use to better our approximations? what kinds of kludges and heuristics are likely to help?

well, i do not have anything surprising to say here. there are no methods open to others that are not open to me as well.

so i am happy to look at the "wtf question"--that will sometimes be helpful. in addition, familiar methods of reasoning by analogy and extension will be worth trying. if the founders clearly thought there were rights connected to printing presses, then by analogy we may suppose that there are rights connected to fax machines and iphones.

the difference lies not in the rules of thumb each side can employ, but in the respective understandings of the very nature of the project.

[hilzoy]

von: "I'm not looking for perfect. I'm looking for better than the alternatives."

Shorter me: but recognize that this search for the best approach is not originalism.

[Sebastian]

"It is not "anti-textual" to suggest the death penalty might be wholly unconstitutional. The fact the Due Process Clause says "life" does not mean that it can always be done with "due process" especially within the terms of the 8th Amendment."

It is anti-textual to suggest that the death penalty might be unconstitutionally "cruel and unusual". The fact that the due process clause allows for it (and that both were passed simultaneously) shows that whatever "cruel and unusual" meant (and we can have all sorts of fun debates about that some other time) it definitely did not mean that the death penalty was entirely off the table. And that is one of the benefits of textual analysis. It actually puts *some* things off the table. As opposed to modern jurisprudence where quite literally anything appears to be analytically available as a legitimate right or Court ruling.

[kid bitzer]

von--sorry, wrote my 2:39 before reading your this:

"You're essentially saying that originalism is a bad idea because it has disadvantages."

not quite; i'm saying it's a bad idea to the extent that it misconceives the project. as to its disadvantages, it may have no more practical disadvantages (e.g. for trying to figure what rights we have) than the stance i advocate. certainly, where it has advantages, i am happy to adopt them.

here once more, i think it is important to separate questions of the origin and nature of rights, from questions about how we can gain access to them and know more about them.

if originalism is construed merely as an epistemic stance, i.e. that a due respect to the text of the constitution and opinions of the founders is a good starting-place for trying to figure out what rights we have, then i don't see why i should have any objection to it.

at the same time, an originalist of that stripe need not take the view that the existence of a right is constituted by the text and the opinions. they might agree with me that the right is constituted by facts elsewhere, and that the text and the opinions are merely a better-than-average guide to it.

and that will change how disagreement is understood. (since there will, inevitably, be disagreements. even if we could agree on all the methodological issues. if you think originalism is going to lead to consensus, you are deluded).

when you think there is no right to ponies and i think there is one, i think what is happening is that we are both trying our best to discern a realm of facts. we disagree on what they look like. we place different weights and emphases on different sorts of evidence and arguments. nothing too surprising in all that--ethics is hard, and the applied ethics of rights is no easier.

but a certain kind of originalist construes the disagreement in radically different terms. this originalist thinks that the existence of rights amounts to no more than some facts about the text and some (i would say, incomplete and tendentious) facts about the opinions of the founders. and this kind of originalist will think that, when we disagree, we are each respectively doing fundamentally different things: he is simply seeing what is in front of his nose, where as i am trying to create things that are not there.

but that completely misconstrues what i am trying to do. i have no interest in creating things that are not there. i do not want any rights that aren't there; i want the rights that *are* there, the rights that *really* exist, the ones that we are trying to learn more about.

to paraphrase groucho, i wouldn't want any rights that were the result of my creating them. that is not it, at all.

the originalist that i think completely misunderstands the project is the one who sees a fundamental gulf between what i am doing when i say "there is a right to ponies", and what he is doing when he says "there is no right to ponies". i am happy to see it as an honest disagreement caused by our partial and imperfect views. he insists on taking me to be a dishonest charlatan who is inventing things out of nothing.

but that, i think, is because he is adopting an understanding of the *nature* of rights that is fundamentally non-platonistic. (and consequently, fundamentally non-original.)

but again, i'm way out of my depth in all of this, so feel free to ignore.

[Jesurgislac]

Jes, we can't unring the bell of the written constitution -- which is essentially what you're requesting.

Good Lord, no. You have a written constitution, and that has advantages and disadvantages, etc, etc.

What I am saying is that you don't have to assume that you can only interpret each clause of the written constitution according to your modern understanding of how it was meant to be interpreted at the time it was written.

Specifically, the notion that the Ninth Amendment, which is plainly written to allow for other rights than those specifically enumerated in the Constitution, must be interpreted to mean only those rights that the white men who drafted the Bill of Rights would have understood to be included at the time, is to elevate the Constitution/Bill of Rights to iconic status, above the principle of the rule of law, and to fix the US legal system to a specific year in the 18th century, just because that happens to be the year the US was founded.

That's what's nonsensical, not having a written constitution.

[ThatLeftTurnInABQ]

"but this kind of platonism about rights is not something i invented: it is exactly the view about rights that inspired and guided practically all of the founders' writings about rights, from the declaration, to the federalist papers, to the anti-federalists like brutus and webster. they practically all took rights to be natural features of the world, not artificial human constructs. things we learn about through a slow process of rational enlightenment, constantly approximated though never perfectly attained. not things we create by fiat, ruling, vote, or ratification."

And isn't this outlook very much in keeping with the Deism which was popular at the time the Constitution was written, which dictated that God exists yet is less knowable in detail (to our fallible minds) than we would like?

It seems to me that out of the many elements which made up the culture and mindset of the founders, one which is almost irretrievably lost to us today is the experience of profound, violent and seemingly irreconcilable religious conflict. The great religious wars of the 17th Cen. were as close in time to the founders, indeed almost within living memory, as is the US Civil War of the 1860s to us today.

We seem to have lost the ability to imagine what it must have been like to be drafting a new form of government in the wake of a series of catastrophic and Manichean upheavals which ultimately proved to be incapable of resolution. During the wars of the Counter-reformation both sides were supremely convinced that the other side was evil incarnate, and yet neither one of them was able to exterminate the other. The epistemological mindset that was formed by the experience of earnestly seeking after the Mind of God and yet also assimilating the historical experience of the 17th Cen. is I think profoundly different from our today, and we have to bridge that chasm in order to understand what was in the minds of the men who drafted the Constitution.

[Sebastian]

"but that completely misconstrues what i am trying to do. i have no interest in creating things that are not there. i do not want any rights that aren't there; i want the rights that *are* there, the rights that *really* exist, the ones that we are trying to learn more about."

Ok, but you still have provided not even the slightest hint as to how you discern which rights are there and which ones aren't.

[stonetools]

According to Wikipedia, both Laurence Tribe and Antonin Scalia agree that the Ninth Amendment is not a source of rights.

http://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution

That article is an interesting treatment of the issue in that it appears that courts reject the idea of some Platonic reservoir of unenumerated rights.

[Brett Bellmore]

The chasm we have to bridge, is one dug by the federal political establishment, some 80 years ago, in response to the realization that, while they couldn't live with the constitution we did have, the states wouldn't be willing to change it into one they could live with.

The solution they came up with was to get the courts, by a combination of bullying and replacement, to simply start saying that the Constitution meant what they so desperately wanted it to, despite the fact that it hadn't been amended so that the text would reasonably be so interpreted.

20th century jurisprudence, indeed our entire legal culture, has been seriously warped by that decision. I think we'd actually have been better off if the Constitution HAD been massively re-written to FDR's satifaction. The result would have been a crappy constitution, but we wouldn't have needed to staff the judiciary with the Emperor's courtiers, trained and willing to see brocade instead of buttocks. That systematic culture of legal dishonesty has its effects all through the legal system.

I anticipate we'll be having a constitutional convention some time in the next couple of decades, the gulf between text and practice is just getting to large to bridge by any feasible degree of mendacity. I don't imagine I'll like what comes out of it either.

But it might just restore the rule of law, even if it's a rule of lousy law.

[mds]

The chasm we have to bridge, is one dug by the federal political establishment, some 80 years ago[...]

The solution they came up with was to get the courts, by a combination of bullying and replacement, to simply start saying that the Constitution meant what they so desperately wanted it to, despite the fact that it hadn't been amended so that the text would reasonably be so interpreted.

"Reasonably" = "in a way conservatives approve of"

The 80-years canard is also interesting, given how people have grown blue in the fingers typing out how "judicial activism" is much older than Mr. Bellmore is resolutely dedicated to believing. It also reminds us that it wasn't "judicial activism" when courts were striking down New Deal or other "left-wing" legislation enacted by large legislative majorities with extensive popular support. So again we are left with "judicial activism" being "cases conservatives don't like the outcome of" and "originalism" being "cases conservatives like the outcome of."

I mean, seriously, it's as if none of this has been addressed in the comment thread more than once, for some reason:

but a certain kind of originalist construes the disagreement in radically different terms. this originalist thinks that the existence of rights amounts to no more than some facts about the text and some (i would say, incomplete and tendentious) facts about the opinions of the founders. and this kind of originalist will think that, when we disagree, we are each respectively doing fundamentally different things: he is simply seeing what is in front of his nose, where as i am trying to create things that are not there.

Indeed, "originalism" is the reasonable approach. As opposed to those desperate Constitution-wreckers who openly set out to create a bunch of airy-fairy rulings with no justification, in complete contravention of the absolutely objectively true judicial history... of Candyland.

[Brett Bellmore]

"It also reminds us that it wasn't "judicial activism" when courts were striking down New Deal or other "left-wing" legislation enacted by large legislative majorities with extensive popular support."

Well, it wasn't, not if they had a constitutional basis for doing so. Their job isn't to uphold popular opinion, it's to uphold the law. It the law is unpopular, the end result will be the law getting changed.

Large legislative majorities are perfectly capable of enacting unconstitutional legislation.

[Tony P.]

I know this is a dumb question, but I was stumped when I tried to answer it for my 10-year-old niece:

Where is THE Constitution of the United States? Is there an actual, official, master copy of the current text in some vault somewhere?

Sorry for the digression; I'm just curious -- and a bit embarassed not to know.

--TP

[Turbulence]

Where is THE Constitution of the United States? Is there an actual, official, master copy of the current text in some vault somewhere?

It is stored at the National Archives in Washington DC.

[von]

Hilzoy, I don't think that the drafters of the 9th Amendment believed that they, themselves were infallible. But many likely believed that Nature's God was infallible. Thus, the reference to rights already possessed by the people (a concept also present in the Declaration) is a reference to the natural rights of man (and it was "man" -- white, in particular -- at that time, as Jes rightly points out).

But stating that natural rights are protected by the 9th Amendment doesn't by itself provide a useful process for identifying what rights are protected by the 9th Amendment. You still need some way to identify what's a right protected by the 9th Amendment (natural or otherwise). Originalism provides such a process: in its most rigorous application, one looks at the texts at the time to identify the list of rights and their application. I'm still not seeing a developed alternative. What does the non-originalist look at to identify a list of rights?

Kid B, I still don't see a process for identifying rights in your most recent post.

What I am saying is that you don't have to assume that you can only interpret each clause of the written constitution according to your modern understanding of how it was meant to be interpreted at the time it was written.

I agree, Jes. But, whatever interpretive process one uses, there has to be a process.

I'm skeptical that any rights should be protected by the 9th. It strikes me that the 9th has a counterpart in English law -- the old saw that what is not prohibited is permitted. Under this view, 9th Amendment rights consists of the development of the common law by US judges, as informed by the legislature. The English constitution developed in much the same way.

[Brett Bellmore]

For my part, I'm skeptical that any part of the Constitution should be treated as totally lacking in any application. But I'll agree that the 9th amendment is highly unlikely to ever BE applied. Even judges who want to invent rights don't resort to it.

[russell]

"What does the non-originalist look at to identify a list of rights? "

My observation, I guess, is that somebody raises their hand and says some particular right exists, and should be recognized in their particular case.

Then we argue about it and somebody makes a decision.

Sometimes the legislature makes the decision by writing law. Sometimes the executive does so by implementing some policy or by carrying out the law in a particular context or situation. Sometimes the judiciary does so by making an authoratitive statement on what the law means and how it should be applied in a particular situation.

But what drives it is somebody putting their hand up and claiming that a right exists in the first place.

There isn't a box of rights up in heaven somewhere waiting for us to discover them. The rights anyone has are the rights we recognize them as having. And that is negotiated, over time, through the political and legal process.

And as far as I know it always begins with someone putting their hand up and insisting that some right, whether imagined in the minds of the founders or not, belongs to them.

What has proven to be durable in our case is the machinery we've put in place to provide a context for that negotiation.

[Anonymouse]

"What does the non-originalist look at to identify a list of rights?"

Themselves. Other people. The history of law. The history of humanity. Ones own sense of compassion and empathy. The Golden Rule. Religious texts. The Universal Declaration of Human Rights. What kinds of things have, in the past, led to gross injustice when they were denied to people.

Figuring out rights isn't like programming your VCR (note to self: update example). There's no instruction manual. And declaring that, despite what a lot of people think, there is an instruction manual - and you possess the unique correct interpretation of it - doesn't make it so and is guaranteed to annoy anyone who thinks it's a little bit more complicated than that.

[Sebastian]

"Sometimes the judiciary does so by making an authoratitive statement on what the law means and how it should be applied in a particular situation."

But why do they have that authority? Their excuse for having that authority and being able to overrule the other processes for negotiating rights is that this government-people pairing has agreed to a Constitution and you can't violate that Constitution without amending it.

That is fine, but only so long as they have a firm touchstone on the Constitution. Otherwise there really isn't any reason we should care what they say.

It is one thing for them to be wrong from time to time. Human beings in human institutions do that. In is another thing for them to spend decades arguing that it doesn't really matter--which is what I've pretty much seen argued here (and is really how I fear most judges look at it--as a might makes right thing.) [Actually my inital reading of Sotomayor decisions is that she has less of that than many judges--too much for my taste, but less than I'd expect from a Democratic nominee.]

So as to the "right for a government provided pony" is russell's answer "if 5 judges vote for it" and Anonymouse's answer is "no one can tell"?

[kid bitzer]

"There isn't a box of rights up in heaven somewhere waiting for us to discover them."

you see, that's where i'd probably disagree with russell, on behalf of the drafters--they seem to have thought there was one.

but aside from that disagreement, i would say that the procedure he outlines is the same procedure that i would advocate, too (and that the drafters advocated as well).

someone says "lo, i see a right, hull up on the ethical horizon!"
then other people dispute it.
lots of argument ensues. the introduction of evidence, testimony, and acrimony. eventually, someone, or a majority of someones, says, "having considered as much evidence and argument as we can, we have come to the conclusion that it was not a right after all, but a boojum."

von may respond by reiterating his claim that he doesn't see a process. but that, i think, is only because he is looking for the wrong sort of process.

it's not that this is a very tidy or orderly process. but it's a process nonetheless. and it is not unlike the many other mixed and messy processes that we use for discovering what the world is like, whether the natural world or the ethical world.

this, though, i do *not* think is a good process:

" And that is one of the benefits of textual analysis. It actually puts *some* things off the table."

i'm all in favor of textual analysis. but why should we think that it puts some things off the table? and why would we want it to, if we thought it would?

why should we close ourselves off, in principle, to any possible source of illumination? we have a hard job to do, trying to discern the world of rights. it seems like a gross mistake to decide from the outset that you are going to look at only a subset of the available data that might bear on the question.

textual analysis is a good and central method for investigating rights. but surely far from the only one.

[someotherdude]

But why do they have that authority?

The State will put you in prison or kill you.

In the end, it seems “Power” decides what is true.

[someotherdude]

Depending on your outlook, the “P” does not need to be capitalized.

(Well, if you’re an Orginalist, it should be.)

[kid bitzer]

so i suppose i'm pretty much agreeing with anonymouse's answer.

to characterize this answer as "no one can tell" seems to me either true but not worrisome, or simply false.

true: we will never be in a position to *know* that we have identified all and only the rights as rights--newsflash, humans are fallible.
false: we have no hope of making progress because we do not have an algorithmic decision procedure.

i mean, come on. originalism doesn't give us anything like an algorithmic decision procedure. medicine doesn't. lots of areas of human endeavour are pretty methodologically anarchic, and yet we get closer to the truth over time.

[russell]

"So as to the "right for a government provided pony" is russell's answer "if 5 judges vote for it" "

No, because that isn't how it actually works.

The question has to go through a pretty extensive set of hoops just to get in front of the 5 judges. That set of hoops necessarily includes lower courts, and far more often than not involves some law or set of laws that are being challenged or responded to in some way.

Things just don't magically appear in front of the SCOTUS. I know you know that, and that you weren't saying that they did, but I want to emphasize that when an issue appears before the SCOTUS, it's because that's where the public debate has ended.

It doesn't happen in a vacuum.

"you see, that's where i'd probably disagree with russell, on behalf of the drafters--they seem to have thought there was one."

Agreed, and speaking personally, I recognize one myself.

IMVHO, however, in matters of public policy it's best to not argue from that basis. It doesn't always lead to finding common ground.

[kid bitzer]

you need to use the capital 'p' if you mean powers, austin powers.

[Anonymouse]

I don't think "no one can tell". I can tell you immediately that I don't think there is a right to a pony. We could play the same game for any number of other potential rights and I could give you my opinion on them. What I can't do (and I don't think you can do it either) is produce a definitive and complete list of rights that must be respected, excluding any others from consideration. Because no such list can exist; for one thing, no two people would agree what should be on it or off it. Not only that, but even if we made such a list, new situations would arise, and new information about existing situations, and new sensibilities, and we'd have to revise the list.

NB: I do think there is a big box of rights, though I'm not a big believer in Heaven. But there exist a large number of things taken for granted that would have to be treated as rights if they were in danger of being taken away. For example, in the US, the right to have children is one of those rights not explicitly included in the Constitution (unless I am missing somewhere - always possible), and yet one I doubt many people here would say was subject to the whim of the state.

[kid bitzer]

"But I'll agree that the 9th amendment is highly unlikely to ever BE applied. "

yeah, something like this seems right to me, and not really a problem.

when you see how 9a emerged from the controversy over whether a bill of rights was even a good thing, or actually a dangerous thing, then i think it becomes clear that the 9a has a very different status from 1a or 2a or whatever. it is not simply listing another right, or even an indefinite collection of other rights ("no quartering troops--oh, and all the other stuff we haven't mentioned, too").

i think it has more of a meta-status, as a kind of commentary on how the other parts of the constitution and bill of rights (at least 1-8--10 is just like 9 in this regard) are to be read. (in particular: how not to read them).

so it seems okay to me if it is not invoked at the first-order level. the important work that it does is to clarify the drafters' attitude towards the metaphysical status of rights, and the question of their origin.

in that way, it's a bit more like preambulatory material, only put at the end for ease of expression.

[Tony P.]

But why do they have that authority?

I thought it's because courts can't declare ties. Somebody claims a right. Somebody else disputes the claim. Not in the abstract, but in an actual case involving specific facts. Is there anything a court can do that amounts to saying "We don't have the authority to decide whether that right exists or not"?

--TP

[someotherdude]

"you see, that's where i'd probably disagree with russell, on behalf of the drafters--they seem to have thought there was one."

I suspect Thomas Paine’s epistemological approach, concerning “the rights of man,” was radically different from the epistemological approaches employed by John Witherspoon and his merry band of Calvinists. And yet they managed to agree on some rights, whether one believed they are commanded by God, and can be known through a rational hermeneutics of scripture, or whether on can dig deep into the rational facilities of the mind and become one with universal truths of the universe.