Does the Ninth Amendment carry any weight with textualists?

Great Debates
1

Textualism and originalism had great appeal to me, but I’m currently questioning it as a logically sound system, unto itself.

Certainly any powers granted or right enumerated are what they are, and I do take offense when the actual words are ignored or “interpreted” to mean something that is self-contradictory (e.g., “for public use” can be tortured to include outcomes “not for public use”).

But the Federalists, James Madison in particular, were reluctant to include a Bill of Rights at all, since it could somehow imply that the enumerated rights were exhaustive, or carried greater weight. Hence the Ninth.

To this Constitutional dunce, it now seems that textualists ignore their protocols with regard to the Ninth. Isn’t it within the purview of SCOTUS to determine, as difficult as it may be to do so, if there are unenumerated rights that are being infringed?—e.g., reproductive rights, the right to have some level of protection from guns, etc.

Textualism now seems a bit infantile to me if it’s the start and end of the analysis. It’s nice and tidy, but it greatly simplifies very complex issues. “History and tradition” once countenanced slavery. The fact that the Thirteenth remedied this evil doesn’t change the fact that our Founders got this dead wrong and ignored a basic human right. How can that be the only such violation? Doesn’t society advance to recognize rights that were once ignored? “This should be decided by the states” likewise seems way too tidy. What if it’s a right that should not be up to any legislature (except perhaps with the normal guardrails that render any right less than absolute)?

I understand the whole “legislating from the bench” objection, but is that what this is? Is there some middle ground?

Anyway, now that Trump has transformed me into a bleeding heart :slight_smile: I no longer seem to be as accepting that the “activist justices” have it wrong. Greatly interested in all thoughts, especially from our constitutional scholars.

tl;dr: Does the Ninth Amendment factor into the textualists’ judicial philosophy to any extent? If not, has anyone run this by James Madison? :smiley:

2

It is easy to do. Just list your culture war priorities and declare them rights.

With the Supreme Court as it is nowadays, what do you think a texualist would identify as the unenumerated rights threatened today?

Perhaps there is an unenumerated right to send your kids to school without vaccines, while insisting they misgender their teacher.

In my opinion, laws should be clearly written, and constitutions are laws. The ninth is a bad law.

3

But it’s there. What are textualists, whose avowed allegiance is to the actual words, to do with it?

4

Acknowledge it?

‘So, Guy A says he has the right to have Guy B bake a wedding cake for him, and Guy B says he has the right to refuse — and I see that the 9th Amendment says the enumeration of certain rights doesn’t mean there aren’t others, and, well, I acknowledge that. Also, Guy C says he has the right not to get fired from his job for what he does when he’s off the clock, and Guy D says he has the right to fire people for that, and — gosh, let me just stop for a moment to note that, in both cases, the 9th Amendment pretty much says, eh, could be.’

And so on; can they pause for a moment to make that observation, before just going on to do something that isn’t necessarily inconsistent with it?

5

But there are numerous SCOTUS decisions that look to balance rights, including unenumerated rights. The First Amendment is unambiguously worded to say certain rights shall not be infringed. But courts (including SCOTUS) have decided that these rights are not absolute, the wording notwithstanding, since they conflict in certain circumstances with other rights.

Yes, it’s difficult to resolve. But doesn’t the Ninth command them to do so when fundamental rights are under discussion? It can’t (or shouldn’t) just be ignored, right?

6

I didn’t say it should be ignored; I’m saying that, when someone claims that an unenumerated right may be in play, a textualist could legitimately pause for a moment to acknowledge that the 9th Amendment doesn’t rule that out — that it truly is an eh, could be situation — and then, and only then, move on to doing something that’s, y’know, not inconsistent with that observation.

7

Got it. Yes, acknowledging it and rendering a decision that does more than pay lip service seems reasonable. I don’t get the sense that textualists do more than pay lip service, if they even do that.

ISTM that the “activist” justices, them filthy libruls, are the ones who more often bear that burden. The guys I used to rail against. And I’m concluding that they’re right in their approach.

8

Ignore it.

In an ideal world never to be seen, I favor a constitutional law principle equivalent to the criminal law vagueness doctrine.

Suppose that I was a member of a state legislature voting on a public health bill. I would have no idea if I was violating an unenumerated right. If I was fulfilling a campaign promise, striking down the law I voted for would be unfair to those who voted for me.

9

Which one? Much though their adherents might pretend otherwise, textualism and originalism are two very different views. For instance, does anyone think that the Founding Fathers intended that anyone could demand a jury trial for a dispute over three hours’ unskilled wages? And yet, there it is in the plain text.

10

To me, it just seems like textualism (as defined in how it is practiced today) is incompatible with the Ninth Amendment. Textualism requires them to stick with the text. But the Ninth Amendment says that some rights are not written down. Thus the text itself refutes the concept of textualism.

I’m pretty sure that’s why originalism was added to the mix. That way the failure of textualism alone could be filled in with an appeal to original intent. They would just argue about what rights the writers of the Ninth amendment had in mind.

The problems are that (1)often there was no intent about a concept, because it hadn’t been thought of, and (2) intent is in some ways not knowable, allowing bias.

The main issue I have with the whole thing is that, by attempting to remove bias, they actually just bury that bias, because removing it is impossible. Instead, the bias needs to be out in the open, so even it can be debated.

11

Didn’t Scalia include both in his review process? Textualism as the foundation, then originalism if the text itself was open to interpretation.

12

Would a textualist in, say, 1840 have concluded there was no basis to conclude that black people had the inviolable right to be free (with the normal exceptions, “unless convicted of a crime,” etc.). Or that the courts had any business restricting a slave owner’s right to own black people?

Assume Alito, with his modern sensibilities, were to be transported to 1840. If he followed his philosophy strictly, wouldn’t he have to conclude that slavery was a “deeply rooted” institution and that the Constitution doesn’t mention the rights of black people? Wouldn’t he have to shrug and conclude, “Sorry, but there’s no Constitutional argument to overturn slavery”? And we’d all agree, with the benefit of our modern sensibilities that this ignored the Ninth utterly, right?

13

Cynically, I’d argue that textualism and originalism are purely and simply religions. Like any and all other religious beliefs they are to honored whenever they suit one’s interests and to be ignored, waved-away, or denounced whenever they don’t. History is very sound on this interpretation. If there are any exceptions at all, they must be presumed to be purely coincidental.

Even in theory or in a better world, asking whether any particular court should interpret law in their light is no more reasonable than asking whether the courts should interpret law according to what L. Ron Hubbard is thought to have said in secret meetings.

14

If the constitution is specific enough on a subject, the supremes can’t get away with violating that because some other, extremely vague, part could be seen to say the opposite. The fugitive slave clause, since overturned by the amendment process, was such specific language. It was impossible to rule that there was an inviolable right to be free, and have any expectation the court would have its rulings followed (although in a case involving an unusual situation, as with Dred Scott, there were plausible ways to rule in favor of freedom).

15

But the language covering slaves wasn’t quite specific enough, was it? It referred to free men, Indians, and “others,” right?

IOW, the founders didn’t want to befoul their sacred pens by ever enshrining the words “slave” or “slavery” or “hey, when we say ‘free men,’ we definitely don’t mean black folks.” So, those poor souls “held to service or labor” (i.e., black people) had no protection if they ran to a free state.

A textualist/originalist would obviously have no difficulty understanding what this meant. But ISTM, one who had true allegiance to the text, the Ninth included, shouldn’t stop there. So, Alito ought to conclude that that plain text might cover an escaped chain gang member, but the Ninth should preclude it as a basis for chattel slavery, since it’s violative of a basic human right; therefore an escaped slave would not belong in the cohort legally “held to service or labor,” since it would be a violation of a fundamental right.

But what I think would happen in my silly hypothetical is that he’d ignore the Ninth and conclude slavery ruled the day. My point being, obviously, that this would be wrong and an example (albeit a made-up one) of ignoring the Ninth.

What I’m obviously getting at is how textualists/originalists get around the Ninth when it’s right there in the text, and men like Madison believed there are countless rights no less fundamental than those in the BOR. That’s why it’s in there.

A first amendment case gets serious review. An unenumerated right, not so much, or so it seems to me. And there is either a meaningful element in the textualist’s philosophy dealing with the Ninth that escapes my scrutiny, or their philosophy is incoherent.

16

As Justice Kagan noted: “We’re all textualists now”. When interpreting the Constitution, everyone reads the text to determine what it means. What judges who self-identify as “textualists” actually mean is that they interpret the text only as it was meant by people at the time. It’s basically “originalism” dressed up in more pleasing clothes.

How those kinds of judges interpret the 9th Amendment is split (generally, because there is a ton of nuance to any discussion of constitutional interpretation) in two. Some (Kurt Lash is the major guy) focus on the “other retained by the people” phrase of the 9th Amendment and insist that that only means rights that were recognized by the State governments/constitutions at the time. To their reading, the 9th Amendment is simply a way to limit federal government’s power: The federal government cannot deny or disparage the rights granted or protected by the States. This reading does not allow the “creation of new rights”, it only protects those already recognized by the States in 1787, against federal action.

The other method (Randy Barnett) interprets that phrase “other rights retained by the people” more broadly to include individual, natural rights. This is the way you seem to interpret it: that there are natural rights that exist outside those enumerated in the Constitution. However, the fact that these rights “exist”, does not mean they are automatically protected against governmental intrusion by the judiciary. Judges have no role in trying to figure out what those rights are and how they are protected. The mere fact that those rights “cannot be denied or disparaged” does not mean they must be upheld by the judiciary. As Scalia said: “the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”

It’s very difficult to sum up the legal debate over the 9th Amendment in a message board post. There is a ton of intricate details, other theories (for example Akhil Amar insists the “rights retained by the people” means only collective rights, rather than individual rights), and evidence to support their views (again, for example, the fact that a much broader statement about individual rights was rejected by the Committee, which indicates to some that the 9th isn’t meant to protect unenumerated rights). But at least this is a jumping off point.

17

How does this work in your view? Because you find something in the constitution problematic you can just ignore it?

No one is suggesting that unenumerated rights are anything whatsoever. But, notions like a right to privacy are embedded in other parts of the constitution. That did not just poof into existence from nowhere.

Or anti-miscegenation laws being struck down. The constitution does not say black and white people can marry (or anyone can marry) but it certainly seems to follow that they can from what is explicit in the constitution.

Your road leads to an unholy mess where every possible circumstance needs to be explicitly accounted for in the law or it doesn’t exist.

18

Yes, I guess I’m more of a Barnett guy. Bu Scalia’s comments contribute to the incoherence, it seems to me. The right to free expression is a right in the BOR, and one that has been affirmed time and time again by SCOTUS. Why don’t unenumerated rights get the same treatment?

“Well, they’re not explicit in the Constitution.” That’s exactly the reaction Madison was expecting to counter with the Ninth! How can a textualist / originalist not be aware of that?

And Dobbs certainly seems to “deny or disparage” a right solely because that right isn’t mentioned in the Constitution and abortion rights aren’t deeply rooted in our history, period. If that’s an oversimplification, it’s not much of one.

19

Because that’s not the judiciary’s role. If we allow the judiciary to define/protect unenumerated rights, then the will of the majority (as enacted through legislation) will be negated by 9 unelected elitists who will decide the fate of important issues (like abortion) that are best left to the democratic process. Why do you hate democracy? If you want a right, enact it by legislation or amend the constitution to do it, rather than have 9 elites undo the work of the majority. That’s how democracy should work.

Or so the argument goes.

We know what Madison wanted; which was “The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.” But the Committee rejected such an expansive natural rights proposed amendment and instead enacted the much less expansive Ninth Amendment. Which indicates a the Ninth does not protect unenumerated rights.

Or so the argument goes.

Dobbs didn’t deny or disparage the right to an abortion because it wasn’t enumerated. It denied and disparaged the right because was unprotected in the first place. There was no right to abortion in 1787, nor in 1868, so the right, while it may exist in the abstract, is not entitled to Constitutional protection. We are bound by the sacred duty to give force to the legislation as it was enacted when written. If you dislike that result, change the law the democratic way, not by having 9 unelected officials decide for everyone. Why do you hate democracy?

20

So, in your view, it seems you think black people marrying white people is not protected because it doesn’t say so in the constitution (or, indeed, any marriage of any sort). Is that correct?