The Bill of Rights & Amendment IX



Why Did We Add A Bill of Rights?



In spite of Federalist arguments that the new Constitution really didn't need a Bill of Rights, because the federal government lacked any written authority that could be used to abuse the rights of individuals, Federalists often found it expedient to agree to Antifederalist concerns. Several of the states made requests for a Bill of Rights. These were not conditions of ratification, in any legal sense, but they were a strongly worded request. In addition, during debates about ratification, letters and articles expressed some requests. Scattered throughout Elliot's Debates you can find examples of these requests. Here is a taste of Virginia's request (a little more strongly worded than some other of the others):

"That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:--



"1st. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.



"2d. That all power is naturally invested in, and consequently de, rived from, the people; that magistrates therefore are their trustees and agents, at all times amenable to them.



"3d. That government ought to be instituted for the common benefit, protection, and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.



"4th. That no man or set of men are entitled to separate or exclusive public emoluments or privileges from the community, but in consideration of public services, which not being descendible, neither ought the offices of magistrate, legislator, or judge, or any other public office, to be hereditary.



...



"8th. That, in all criminal and capital prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence, and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, (except in the government of the land and naval forces;) nor can he be compelled to give evidence against himself.



"9th. That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges, or franchises, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land.



"10th. That every freeman restrained of his liberty is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.



"11th. That, in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and to remain sacred and inviolable.



...



"15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the legislature for redress of grievances.



"16th, That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.



"17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

The first eight amendments that became the Bill of Rights contained a hodgepodge of specific guarantees, culled and refined by Madison and the Congress from the dozens of requests. If you spend much time digging through the legislative history of the Bill of Rights, you will be astonished at how little debate some parts of it received. The "right of the people to keep and bear arms" in Amendment II was barely mentioned, while debate about a clause concerning conscientious objectors was the subject of great discussion--and eventually deleted.



Amendment IX



The Bill of Rights was not considered a list of all the rights retained by the people--and indeed, this had been one of the Federalist criticisms of adding a Bill of Rights to the Constitution--what if we leave out an important one? Couldn't this be used later to argue that a right was not retained? Hence, Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Pretty clearly, there were some rights retained by the people, but not explicitly listed. But were these rights protected against the federal government alone, or against the states as well? I confess to being of two minds on this. Certainly, the Constitution contains protections for individual rights that restrain the states, in Art. I, sec. 10. You can find examples of state supreme courts, even after Barron v. Baltimore (1833), striking down state laws for being contrary to the Bill of Rights, such as Nunn v. State (Ga. 1846). Yet the arguments for a Bill of Rights were explicitly about the dangers of the new and more powerful federal government. The notion that Amendment IX also protected rights against the states would seem contrary to the argument Hamilton advanced in Federalist 84, which seems to indicate that a state government, unless explicitly reined in by a Bill of Rights in its own state constitution, "has the regulation of every species of personal and private concerns." This does not preclude Amendment IX limiting state authority, but it does require at least counterbalancing evidence to argue against it.



Regardless of whether the Ninth Amendment protects against the federal government alone, or both federal and state governments, the question then becomes: What rights were they? Judge Bork likened the Ninth Amendment to an inkblot, not because he was denigrating this amendment, but because in Bork's view, judges were imagining all sorts of wonderful rights under that inkblot. Liberal judges seem to have a pretty big list of rights that they can find under that inkblot--although, for some odd reason, they have trouble finding an individual right to keep and bear arms in the amendment that says, oddly enough, "the right of the people to keep and bear Arms, shall not be infringed."



Just because the Bill of Rights didn't explicitly list a right, doesn't mean that it isn't retained by the people. However: this doesn't mean that everything that some clever lawyer decides to call a right "retained by the people" is retained by Amendment IX. I would argue that to call a right protected by Amendment IX, one must demonstrate that it was recognized as a right in 1789, when Congress passed it, or 1791, when the states ratified it.



Part of why I am not impressed with liberal use of the Ninth Amendment is that they engage in armwaving rather than historical argument. A good example is Griswold v. Connecticut (1965), which struck down a state law prohibiting married couples from receiving contraceptives. (My, how Connecticut has changed in fifty years.) Justice Goldberg's concurring opinion spends several pages proving that the Ninth Amendment protects something (a point that no one would argue), but the extent of his historical evidence that it protects the right of married people to obtain contraceptives, regardless of state law, is this lame little statement:

The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family - a relation as old and as fundamental as our entire civilization - surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.

It might well be that there were no laws in 1791, when the Ninth Amendment was ratified, that prohibited married couples from having and using contraceptives. (Such laws seem to be nineteenth century in origin.) But Goldberg relies on "surely" rather than any evidence. More importantly, I can't seem to find any place where Goldberg explains why the Ninth Amendment is binding on the states. I certainly find such a claim plausible, but a bare claim without evidence, especially because the text provides less than perfect certainty about which governments it restrains, isn't persuasive.



I would argue that the correct method of determining what rights were protected by the inkblot amendment is to see what rights were actually retained in 1791. If you argue that the Ninth Amendment protects against the states as well as the federal government, then look at what laws the states had in 1791. If some action was universally a criminal act in 1791, it's a fair bet that Congress and the states who ratified the inkblot did not intend that action to be a "retained right." If there were no laws prohibiting that action in 1791, and there are no explicit statement denying that this was a right, I think it is a fair assumption that this was a "retained right."



What about the cases in the middle, where some states criminalized an action, but others did not? I think it is hard to claim that this is a "retained right" if some states criminalized it, and apparently saw no need to repeal their law.



Of course, if the Ninth Amendment protects only against the federal government, then the state laws provide us some hints as to what rights were retained against federal action. For example, that every state had sodomy laws would suggest that this was not a retained right against the federal government, and Congress would have authority to pass such laws in those places where it has exclusive jurisdiction (terrorities, military bases).



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