How do Textualists deal with the 9th Amendment?

[Stratocaster]

@Hamlet

It’s not a “important protection”, it’s completely worthless. In your world, the Court can’t protect unenumerated rights, so the plaintiff will always, always lose the case if it is based on an unenumerated right. With that, getting past summary dismissal is completely worthless. Somehow I’m guessing the writers of the Ninth Amendment didn’t intend to make a worthless Amendment.

They intended it to be exactly what it reads to be, which is what I’m asserting–they may not obliterate a right because it’s not enumerated. I strongly disagree with you that this is worthless. It is extremely important–someone looking to have a right declared unconstitutional because it’s not enumerated will be sent on his way. That’s exactly the point Madison was making, exactly the safeguard he was intending. We’re two peas in a pod.

What you describe above is worthless and without support from the text. I’m guessing here, but I think you read the language and know it has to mean what it says, but you’re uncomfortable with the judiciary having the power to protect unenumerated rights, so you create a completely toothless reading that offers no actual protection.

It means exactly what it says! But nothing more. You needn’t guess anything, because I don’t know how much more explicit I can be. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That’s it! It does not compel SCOTUS (or any other government agent) to do ANYTHING with regard to unenumerated rights, except that they may not deny them them based on the fact that they are not enumerated. That’s it! Why? Because that’s all the amendment demands! Another pea in the pod shares this sentiment:

Likewise, Justice Antonin Scalia has expressed the same view, in the dissenting opinion of Troxel v. Granville 530 U.S. 57 (2000):

The Declaration of Independence…is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.

Clearly you disagree, but your reactions to the effect that I’m seeing something and refusing to acknowledge it are curious. These thoughts certainly did not originate with me, and I share them with current Justices on SCOTUS, for Pete’s sake. The self-evident meaning you detect in the Ninth ain’t so self-evident to some of us. And you have not shown me anything in the words that lead me to think it compels SCOTUS to do anything with unenumerated rights except what I have described–i.e., they may not, on that basis alone, assume that an unenumerated right is therefore unconstitutional. In other words, exactly what the Ninth says, and nothing more.

[Stratocaster]

@Alan_Smithee

Well Stratocaster looks like he’s bowed out for the time being, but I don’t mind taking up the mantle. He pretty clearly said that the Court can and should protect unenumerated rights, provided that those rights can be shown to exist.

No, I wouldn’t say that. Hopefully my prior post clarifies.

[Alan_Smithee]

@Stratocaster

No, I wouldn’t say that. Hopefully my prior post clarifies.

Not really. I can’t tell if we disagree or if we’re just talking past one another.

I’m certain we agree that the Ninth Amendment doesn’t give the court any power to protect unenumerated rights and doesn’t establish or recognize any unenumerated rights. If any such rights exist, both they and the court’s power to protect them must come from some other source.

Earlier you seemed open to the idea that such rights might be found in the text of the Constitution itself. Maybe that counts as “enumeration,” but I think one implication of the Ninth is that the rest of the Bill of Rights, in amending the Constitution, doesn’t eliminate any rights implied by the original text.

Now, maybe you don’t think there are any rights to be found in the Constitution outside of the amendments, but that’s not the point. If there are any, the court can (and ought to) protect them just like it would any other Constitutional provision. Don’t you agree?

What about the example of a statutory right I gave earlier, the right to earn a minimum wage? Maybe that’s not what the framers had in mind, intending the Ninth to apply only to natural rights, but I don’t think that’s clear. Now obviously (or not) I don’t think a statutory right can or should be given the same type of protection as a constitutional right. What the legislature giveth, the legislature taketh away. What if the legislature describes a right in the preamble to a law, e.g., “Because all persons have a right to earn a living wage, the following wage standards are enacted:…” That’s a bit more complicated, but the court still wouldn’t have the power to give it constitutional-level protection. It might be justified in using that alleged right to interpret other statutes, but that’s getting pretty far afield of the central issue, and I’m not about to hang my hat on that suggestion. Nevertheless, to the same extent that the court can protect and enforce any statutory provision, it surely (as I’m sure you agree) can protect and enforce any statutory right currently in effect.

We could go even further and look at what sorts of rights might actually be derived from the Constitution. (I would say that the guarantee of “a Republican Form of Government” implies certain rights that can’t be abridged, including a right to widespread–if not universal–suffrage.) We could also look at my (woefully uninformed) opinion that common law has at least the potential to ground certain rights, and that those rights might even rise to the level of deserving fundamental protection from the courts. That would be an interesting conversation, and I’d like to know if my position would hold water, but it’s a bit beyond the scope of the current issue.

[Stratocaster]

@Alan_Smithee

Not really. I can’t tell if we disagree or if we’re just talking past one another.

I’m certain we agree that the Ninth Amendment doesn’t give the court any power to protect unenumerated rights and doesn’t establish or recognize any unenumerated rights. If any such rights exist, both they and the court’s power to protect them must come from some other source.

Agreed.

Earlier you seemed open to the idea that such rights might be found in the text of the Constitution itself. Maybe that counts as “enumeration,” but I think one implication of the Ninth is that the rest of the Bill of Rights, in amending the Constitution, doesn’t eliminate any rights implied by the original text.

Now, maybe you don’t think there are any rights to be found in the Constitution outside of the amendments, but that’s not the point. If there are any, the court can (and ought to) protect them just like it would any other Constitutional provision. Don’t you agree?

No. Well, the only protection they provide an unenumerated right is to not strike it down if that request is made, so long as the right doesn’t conflict with some constitutional provision. I agree with the Scalia quote I last provided. The court is not there to identify such rights, or to choose which unenumerated right prevails when such a balance is required.

What about the example of a statutory right I gave earlier, the right to earn a minimum wage? Maybe that’s not what the framers had in mind, intending the Ninth to apply only to natural rights, but I don’t think that’s clear. Now obviously (or not) I don’t think a statutory right can or should be given the same type of protection as a constitutional right. What the legislature giveth, the legislature taketh away. What if the legislature describes a right in the preamble to a law, e.g., “Because all persons have a right to earn a living wage, the following wage standards are enacted:…” That’s a bit more complicated, but the court still wouldn’t have the power to give it constitutional-level protection. It might be justified in using that alleged right to interpret other statutes, but that’s getting pretty far afield of the central issue, and I’m not about to hang my hat on that suggestion. Nevertheless, to the same extent that the court can protect and enforce any statutory provision, it surely (as I’m sure you agree) can protect and enforce any statutory right currently in effect.

I’d go further. Every law implies a right; it needn’t be explicitly identified. So long as the right the law protects, and the method of protecting it, doesn’t conflict with the Constitution, SCOTUS ought to have no opinion on it. When they do, they ignore the tenth and usurp the legislature’s authority.