How do Textualists deal with the 9th Amendment?

Great Debates
41

Also, to clearly reply to something Shodan often brings up: nobody is successful going into court and saying “here is a new right–Give it to me.” (as he seems to think happens).

That is for two reasons: first, because courts look to facts, text, precedent, policy, and history when interpreting any written law, constitution, or case. If you just make up a right, you don’t have those on your side. You should lose–but not because the court doesn’t have the power to define what the ninth amendment means. Instead, you lose because the court does have that power, and defines it to mean something other than what you argue it means.

If, on the other hand, you come into court and say “this provision has been misinterpreted, and when properly understood in the light of text, precedent, policy and history applied to the facts of my case, it gives me a protectable right”, you may well succeed. Even if that "right’ has not been recognized previously.

Why wouldn’t courts have recognized your right previously? Well, that is my second point. Courts can only decide cases, and until one is faced with a lawsuit demanding that the constitution be interpreted to protect a specific right in a specific context, they have no power to judge if it is one that is protected by the constitution.

This doesn’t mean that the right doesn’t exist–or that a court shouldn’t enforce it when it comes before the court–just that they can’t decide how to interpret the constitution outside of the context of a case.

To put it another way: I posit (and think everyone reasonable should agree) that there are three kinds of thing a claimed right that has not been previously recognized can be:
(1) Not a right. See, for example, my right to a jelly donut from the president. I may argue I have a right to that, but I will lose.

I can get that right through the process of amending the constitution.

(2) An interpretation of an enumerated right that has not previously been addressed by the courts. For example, the concept that posting on the internet is free speech protected by the First Amendment. This couldn’t have been decided before the internet existed–because it can only be decided when someone claims that the first amendment protects his speech on the internet from some kind of restriction or lawsuit.

Another good example would be the confrontation clause: for decades, the supreme court held it to test reliability. Then, in 2004, they reversed those decisions, realizing that the proper interpretation was procedural–guaranteeing confrontation regardless of whether the prosecution’s witneess was reliable or not (as the text, and history suggest). The fact that the court got it wrong, and for many years, defendants did not have a right to confront an unavailable but reliable witness’ statement does not change the fact that they should, when the sixth amendment is properly interpreted, and the court was correct to recognize that “new” right even though it did not exist under their pre-2004 decisions.

(3) An unenumerated right that has support from history, policy, precedent, intent, and so on. For example, the right to marry someone of the opposite gender, to control one’s own medical treatment, so on and so forth. I argue the ninth amendment is designed to allow the courts to recognize these, if appropriate.

I’m trying to make two points: First, the fact that the supreme court “recognizes” a previously unrecognized right doesn’t mean it’s “new”–it could mean it never came to court, or courts got it wrong, or so on. That is different from “recognizing” a new right out of thin air.

Second, that the power to recognize a right does not equal deciding to recognize it. Shodan is arguing the supreme court should not have the power to recognize rights under the ninth amendment. Instead, he argues that power is reserved “to the states, or to the people”

I argue the courts are emphatically in the business of deciding what the ninth amendment means. That doesn’t necessarily mean deciding it gives us rights out of thin air. It may mean recognizing unenumerated rights in proper cases. I don’t take a view on what should be recognized–I, just like the framers, leave that up to the Supreme Court to determine when a case comes before the Court.

42

I have to admit I am not entirely sure what you are arguing here, but…

Maybe you didn’t understand me.

The Supreme Court has two (legitimate) options when confronted with a case wherein someone is asserting that an unenumerated right should be protected or established by the federal government. They can [list=a][li]Hear the case and rule against the person making the assertion, or [*]issue a summary ruling that rejects the assertion.[/list]Either way is fine, because either way respects the Tenth Amendment (and the Ninth, which does not enumerate any rights). [/li]
It is perfectly legitimate for the Court to do whatever is necessary to defend the Constitution.

In the phrase “arising under this Constitution”. Some rights are enumerated in the Constitution; the rest are not. Cases involving enumerated rights are legitimately under the purview of the Supreme Court. Cases involving unenumerated rights are not.

So, as I mentioned, either the Court can reject cases involving unenumerated rights out of hand, or they can hear the case and then reject the claim.

Again, at least one of us is not clear what exactly the above means.

If you mean “the Ninth Amendment” where you said “Article 9”, then it makes slightly more sense, but only to the point of being wrong instead of meaningless.

The power to enumerate rights belongs, as has been established, to the states or the people. So, by your rather tortured logic above, I suppose the Court could hear a case with a claim that there was some unenumerated right being violated under the Ninth Amendment. But the only legitimate ruling would be that the Court had no power to enumerate rights or to bring them under the protection of the federal government. That’s why I would recommend that the Court not waste its time hearing cases attempting to establish rights outside the actions of the states or the people. Just reject them - it saves time. The Court and the federal government have no power to enumerate rights. That’s what the Tenth Amendment states. Ergo, all cases in accordance with the Constitution have to rule that way.

You don’t need it in the case of the Second Amendment, because the Second Amendment enumerates a specific right. The Ninth doesn’t.

You don’t need the clause to allow the Supreme Court to rule on a case. You would need it to allow them to enumerate a right. No such clause exists. Therefore, the Tenth Amendment assigns that power to the states or the people.

You mean, apart from the Thirteenth, Fourteenth, Fifteenth, Eighteenth, Nineteenth, Twenty-Third, Twenty-Fourth, and Twenty-Sixth.

See the distinction between enumerated and unenumerated rights, above.

Argument by capitalization. Gosh, how compelling.

Nope, that is not interpretation; it is enumeration.

Well, yes - I would like the Court to abide by the Constitution. That is their duty, after all.

I think I have stated a couple of times that they can waste their time re-explaining that the Supreme Court does not have the power to enumerate rights if they want to.

As a guide to the intention of those who wrote the Constitution. As opposed to what some liberal nag in a funny dress pulled out of his bony ass.

Why not? Then if you read Madison (the guy who wrote the Ninth Amendment), you would be hard-pressed to find any indication that he intended the Ninth Amendment to give the power of enumerating rights to the Supreme Court.

If you can find such an indication, by all means post it, and we can discuss it.

I agree with this. Except the “maybe”.

Regards,
Shodan

43

An argument for SCOTUS based solely on the ninth is a non-starter. It is not a source of substantive rights. Anyone who can read English can see this must be so, in that it provides absolutely zero guidance as to what renders something one of those unenumerated rights or not. None. The only thing it can do, and the only thing it was intended to do, was to ensure that cases would not be dismissed by SCOTUS because they dealt with a right not enumerated.

Seriously, offer a hypothetical ninth amendment argument for any case you’d like that shows why the ninth supports this right, but not another. There’s only one way to do so, a successful strategy employed by many a Justice: ignore the actual text of the Constitution and usurp the role of the legislature.

44

Stratocaster. Given your response to whorfin, I’m wondering if you had read or had any thoughts, about my post addressed to you earlier or if you just missed it. It seems to me that you are still bogged down in the rhetoric of a boundless judiciary. You also seem to expect the Constitution to delve into a case by case analysis of anything that could possibly arise, when it is, and was intended to be, a much more general document. You might as well dismiss the other parts of the Constitution, such as “due process” or “liberty”, “general welfare”, “equal protection”, and etc. as too vague and thus a “usurpation of the legislature”. As I said earlier, “Every single person of repute that I’ve ever read has agreed that the recognition and protection of unenumerated rights should (and does) have serious limits. Hell, just use the tests the Supreme Court has used to determine whether an asserted right is fundamental or not to determine it if you like. But this constant use of the hyperbole of a runaway judiciary is getting really annoying.”

45

Apologies for opening up a thread from last year but I just found this while searching for another thread.

A question for Shodan. If this is the case then isn’t the Defense of Marriage Act unconstitutional? By your argument, if the state of Vermont determines that same-sex marriage is a right, Congress and the federal government do not have the power to overrule that decision. But DOMA overrules the states’ determiniations be declaring that “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife”.

46

Not to speak for Shodan, but giving his opinion internal consistency, surely one state’s definition of a “right” cannot be imposed on another state or to all of the states.

47

For perspective, please remember that terms such as “textualist” and “originalist” are philosophically identical to “make shit up to get to the result I want.” That is, so-called textualists and originalists and other conservative talking points were created as buzzword counterbalances to overextentions in relativism and airy-fairy Constitution-as-a-living-document interpretations. Though generally at opposite ends of a political spectrum, they are both massively incomplete approaches to determining outcomes. Someone who tells you that such-and-such a judge or decision is better than another because they are using a “textualist” approach is making an empty argument.

There is an exception, of course, for someone who lives in a perverse fantasy world that would be wholly unrecognizable as a modern or historic United States–one that never existed and bears no resemblance to any time period under the Constitution.

48

Just to point out, because it needs to be said, and the 9th amendment does touch on this, that not all rights are Constitutional rights. Rights, for example, can be contractual. I have a lease with my apartment complex, for instance, which gives me certain rights, like the right to live in the apartment. It isn’t a Constitutional right, but it’s still a right.

49

But DOMA goes beyond that. It not only says that states don’t have to recognize marriages that are legal in other states (which is itself a constitutional issue) but it also creates a federal definition of what a legal marriage is (which I quoted). If Congress rules that marriage can only be between a man and a woman, then there’s no room left for a state to recognize a right for two people of the same sex to get married in that state. This is the federal government prohibiting all the states from recognizing a right within their state - which Shodan appears to have said is a violation of the Ninth and Tenth Amendments.

That said his argument that the Ninth Amendment grants the power of recognizing rights to the states seems weakened by the fact that there’s no mention of the states within that amendment. It says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth, on the other hand, mentions the states as well: “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.”

So there’s the argument that the exception proves the rule (in the original Roman sense). The fact that the framers explicitly said that powers were reserved to the states and people but only said that rights were retained by the people would seem to indicate that they did not envision a state role in granting rights.

50

I fail to see how your statement is true. We have DOMA now, and several states have recognized a right to same sex marriage. But those rules are only valid within the state’s borders. Iowa, for example, can define a right to same sex marriage while Mississippi is free to find a right of people to be free from unnatural unions, or however they would like to word it.

All DOMA does is define how SSM will be treated in relation to the recognition that each state gives acts of the others full faith and credit. And it says: hetero marriage yes, same sex marriage no. That certainly is a point of debate, but it has not stopped states like Iowa from recognizing a right to same sex marriage.

51

jtgain has hit the highlights of my response. One further correction -

I have nowhere argued that the Ninth Amendment grants the power of recognizing rights to the states.

The Ninth says, in essence, that the Constitution is not an exhaustive list of rights. It is merely an exhaustive list of enumerated rights - i.e. those rights brought under the protection of the federal government.

Regards,
Shodan

52

But you did say the Constitution grants that.

You’ve mish-mashed two different amendments together to make a claim that can’t be substantiated. The Ninth Amendment says that rights are retained by the people. The Tenth Amendment says that powers are reserved to the states and the people.

But you claimed that the Tenth Amendment says rights belong to the states and the people. That’s not what either Amendment says.

I could just as readily use this method to make guns illegal. I’ll take the Second Amendment, “the right of the people to keep and bear Arms, shall not be infringed.” Add in a little Third Amendment, “but in a manner to be prescribed by law.” And voila, I can now claim that the Constitution says “the right of the people to keep and bear Arms, shall not be infringed…but in a manner to be prescribed by law.” and gun control laws are now legal.

53

Yes, in the Tenth Amendment.

If you mean this -

It was a misstatement on my part. The Tenth Amendment gives the power to enumerate rights to the states, or the people.

It’s as I explained three or four times - the Ninth says that there can be other, un-enumerated rights. The Tenth says how those rights come to be enumerated, and who gets to enumerate them.

Regards,
Shodan

54

I’m a proponant of SSM mostly because I have trouble with government banning an act between 2 consenting adults based only on Christian morality code. One argument I’ve heard was that the government should be out of the marriage business completely and leave it up to the religions, however marriage between a man and a woman has always been considered a right in the US and as such, that particular form of marriage is protected under the Ninth Amendment.

so back to the OP. This is the argument made. As a textualist, you would have to research and decide if marriage was thought of as a right at that time. The can of worms is what else was considered a marriage right? Marrying before 18? With or without parent consent? Polygamy? Consanguity? It may be that it opens a whole can of worms that the court simply does not want to deal with. So rather than deal with the tough issue of saying that under the Ninth Amendment you can marry your three prepubescent sisters, they look elsewhere for appropriate text or as some would argue, just mangle the Constitution to read how they want it to read.

55

I think you are confusing textualism with original intent. If you are working on an analysis of SSM, it is pretty hard to argue that anyone thought of gay marriage as a right when the Constitution was ratified.

Regards,
Shodan

56

Why do you assume the Ninth and Tenth Amendments are related? And why do you assume powers and rights are the same thing? In an early draft of the Bill of Rights, the two amendments weren’t even listed consecutively.

If the framers had intended for rights to be granted by the state they would have said so in the Ninth Amendment, where they were talking about where rights come from.

If the framers had intended for the granting of rights to be a power, then they wouldn’t have written one amendment on rights and a different amendment on powers (and given them seperate origins). Clearly they thought rights and powers were two different subjects.

57

Quite right. Further, the framers did intend for the granting of the kind of rights that Shodan is discussing to be a power, and did specifically allocate that power. See Article V.

Shodan is discussing enumerated constitutional rights. Those are, as he puts it, the rights listed in the constitution, and according to him, created by a power allocated by the Tenth.

Except, of course, we know how enumerated rights are created–and the tenth amendment has nothing to do with it.

So, to be clear, enumerated rights are those listed in the constitution.

Trivially wrong. Article V allocates the authority to enumerate constitutional rights. (for those without a constitution to hand, it’s the amendment power).

How you change the constitution so that it lists a right is through amendment, not through some ill-defined tenth amendment mechanism.

Creation of enumerated rights isn’t “reserved” to the states or to the people–congress has an explicit role in creating enumerated rights under article V (either by proposing amendments and then, if they pass, sending them to the states, or by calling a constitutional convention when the states so demand). Again, no tenth involved.

(I’m purposefully not getting into Shodan’s contention that unenumerated rights are only protected once they’re enumerated. I think that’s contrary to the plain text of the Ninth–but that’s a point for another post).

58

That’s certainly not the way Madison viewed it:

The clear implication is that the government is as powerless to violate the unenumerated rights as enumerated rights. And therefore, those unenumerated rights have the same level of protection as enumerated ones.

59

The 9th is obviously a CYA amendment:

“Here is a list of the rights we can think of, but there may be some that we forgot. Those are protected too.”

And in fact they did forget some rights which might have been obvious if they had only occurred to the founders: the right to travel and the right of privacy for example.

60

Not by the federal government they don’t. Madison says so explicitly -

The Ninth Amendment is there explicitly to prevent people from thinking that un-enumerated rights are “assigned into the hands of the General Government”.

Madison says, very clearly and specifically, that “rights that were not singled out”, that is, un-enumerated rights, are not intended to be assigned to the federal government for protection. Un-enumerated rights are not - repeat, not - assigned into the hands of the government. That’s the whole purpose of the Ninth Amendment - Madison says so.

Un-enumerated rights are not the business of the federal government. Madison in his genius saw that people would think like you’re thinking. He put the Ninth into place to make it clear that you are mistaken.

Regards,
Shodan