Scalia and the 9th Amendment

This is the second in a series of posts examining some of Justice Scalia’s statements in a long interview with Jennifer Senior in New York magazine. This one looks at Scalia’s approach to the 9th Amendment, which is very much like Robert Bork’s in that it would read the amendment right out of the Constitution.

So are there things in the Constitution you find stupid? I remember Judge Bork saying that there were few people who understood what the Ninth Amendment meant, as if it was ­partially covered by an inkblot.

You know, in the early years, the Bill of Rights referred to the first eight amendments. They didn’t even count the ninth. The Court didn’t use it for 200 years. If I’d been required to identify the Ninth Amendment when I was in law school or in the early years of my practice, and if my life depended on it, I couldn’t tell you what the Ninth Amendment was.

That’s quite an admission, don’t you think? And his claim here is completely irrelevant, especially to an originalist. So what if the courts didn’t pay attention to the 9th Amendment for 200 years (not true, by the way, though it was mostly ignored for over a century)? An originalist should only care about what the 9th Amendment actually meant to those who wrote it. And about that, there is little doubt. James Madison made it absolutely clear in his address to Congress in 1789 when he proposed the Bill of Rights that the clause that eventually became the 9th Amendment was intended to avoid having future governments think that any right not specifically enumerated was open for regulation or prohibition.

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

That clause is what became the 9th Amendment. The position taken by Scalia, Bork and others is absolutely untenable. Their position is that while the 9th Amendment clearly says that the enumeration of certain specific rights should not be viewed as meaning the government has free reign to violate any unenumerated right, that doesn’t mean the courts have the power to prevent the government from violating those unenumerated rights. But this is clearly nonsensical. It would make the 9th Amendment mean, in essence, that there are unenumerated rights that are of equal importance as the ones we’ve enumerated and the government cannot violate them…unless it chooses to do so. It would make the 9th Amendment absolutely meaningless, as Bork did when he declared it nothing more than an “ink blot” on the Constitution. Their position is the very position that the 9th Amendment was intended — yes, originally — to eliminate forever. Their position is strongly anti-originalist.

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  • robnyny

    Rein.

  • anachronistes

    Reign in this case is correct also, as in “reigning over”.

  • http://en.gravatar.com/mrupright Mr. Upright

    Every time somebody says “you can read the constitution all day and never find a right to XXXX,” I always reply, “check the 9th amendment.”

    If nothing else, maybe it will encourage people to read it, and realize that the very statement quoted above is anti-constitutional.

  • eric

    I agree with Ed, but as a practical matter I can see how Scalia and Bork reach their conclusion. Whenever you write a government policy that is so vague that it becomes extremely difficult to enforce/act on it a consistent manner, bureaucrats tend to not enforce/act on it. They may even actively avoid making decisions that involve it, which is a sort of ‘invalidation by default.’ Scalia and Bork are supporting this approach: its very hard to operationalize it, so lets ignore it.

    The 9th is a great principle, but it lacks language that tells the judicial branch what to do with it. It should not be a surprise to anyone that, faced with that situation, the judicial branch mostly does nothing with it.

  • http://motherwell.livejournal.com/ Raging Bee

    IANAL, but my best guess is that the 9th Amendment meant that states and people could have certain rights under common law, and that those rights would remain even if the Constitution didn’t mention them. In other words, the 9th made rights in common law as sacrosanct as rights in the Constitution. Not sure if the legal scholarship backs me up on this — it’s just the guess that made mose sense to me.

  • djk1

    anachronistes —

    No, actually, the term as Ed used it is historically “free rein”, a metaphorical extension of a phrase used in handling horses. But because most people nowadays don’t have any experience with reins or horses, a lot of them misinterpret the word as “reign”, which is more familiar to them and can kind of make sense in many contexts where the phrase is used. This is what’s known as a folk etymology, where an unfamiliar phrase is reinterpreted according to a mistaken understanding of its meaning and/or origin. “Free reign” is actually slightly more common now than “free rein” — it gets 1,210,000 Google hits, vs. 1,040,000 for “free rein” — so one could argue that it’s technically also “correct” in the sense that it’s now widely used. But it’s still a historically recent change, and it still grates on my nerves a bit.

  • http://motherwell.livejournal.com/ Raging Bee

    djk1: As a technical writer, it is my duty to rail bitterly against such popular misuse of words, and to point out that we compromise our ability to communicate honestly when we allow words to be misused (especially when we’er talking about legal matters as we are here). “Reign” vs “rein” is a relatively minor slip, but we gotta take a stand SOMEWHERE, otherwise we’ll be confusing “subjective” with “objective” and no one will question it ’cause we’ve already set a bad precedent and allowed things to start slipping.

    So “reign” means to rule over a country, and “rein” is the strap you use to control a horse, and don’t you fergit it, punk.

  • Chiroptera

    Maybe Scalia is talking about “ceremonial originalism”?

  • Scott Hanley

    If I’d been required to identify the Ninth Amendment when I was in law school or in the early years of my practice, and if my life depended on it, I couldn’t tell you what the Ninth Amendment was.

    What a pity no one ever asked ….

  • eric

    @5 – that is a good point. Given the english common law approach the colonies began with, it would make sense for the framers to make the point that the new constitution does not suddenly invalidate all of those rulings. The new constitution probably did invalidate many of them on a case-by-case basis, but the 9th could be seen as giving judges a sort of “if it ain’t broken, don’t fix it” order regarding pre-constitutional judicial rulings.

  • http://motherwell.livejournal.com/ Raging Bee

    eric: The Founders also had to contend with the fear that any major new law would cause, where everyone suddenly wonders how much of what they grew up with would suddenly be overthrown when the new law passes. That fear alone could have scuttled the whole project. I think the Founders added the 9th to reassure everyone that they weren’t Bolsheviks — they wanted to build on and improve the current system, not flush it all down the drain and start over.

    Like I said before, IANAL. I’m sticking to my interpretation because I don’t see any other that works. Less than what I said means the 9th is meaningless; and more could mean the US government can’t do anything new if a few people say it violates an unenumerated right they just made up.

  • Michael Heath

    Mr. Upright writes:

    Every time somebody says “you can read the constitution all day and never find a right to XXXX,” I always reply, “check the 9th amendment.”

    If nothing else, maybe it will encourage people to read it, and realize that the very statement quoted above is anti-constitutional.

    True, but to more than double the 9th’s impact if properly administrated, also point out the equal protection clause of the 14th Amendment. We not only reserve our rights unless we’ve specifically delegated authority to the government which infringes on those rights, or the government is protecting a superior right of another, we also specifically denied powers to the states to infringe on people’s rights unequally – like gay marriage rights.

  • Michael Heath

    Raging Bee writes:

    I’m sticking to my interpretation because I don’t see any other that works. Less than what I said means the 9th is meaningless; and more could mean the US government can’t do anything new if a few people say it violates an unenumerated right they just made up.

    People have long asserted rights the courts hadn’t yet considered. The biggest one being carried forth now is gay people’s individual right to marry someone who happens to be the same sex.

    A proper approach to the Constitution isn’t to discover, assign, or create rights; our rights are both countless and inalienable, i.e., government doesn’t create those rights. Instead credible jurisprudence is to understand whether government has the delegated power to infringe upon the right that’s being exercised, needs to infringe upon the right in order to protect the superior right(s) of another, or whether there’s precedence the government needs to step in to protect the exercise of a particular right.

    Controversies in reference to competing rights had retired Justice David Souter claiming these presented him with his most difficult conundrums. A topic Ed also blogged about when Souter first asserted this.

    So yes, contra your claim, other methods work. I’ve yet to confront one realistic challenge where it doesn’t work.

  • http://motherwell.livejournal.com/ Raging Bee

    Heath: okay, I’ll admit that’s an equally good interpretation — that the 9th at least tries to make it the government’s job to show a valid cause to infringe on a right, rather than force others to prove they have that right.