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Monday, September 12, 2005

Some interesting questions

Today marks the onset of the Senate hearings for John Roberts.  The NYT op-ed page asked five people familiar with the Court or its work to play senator and provide five questions they would ask if they were going to bust JGR's chops.  Here you can access the list of 25 (mostly insipid) questions.  To my mind, the most interesting questions are from Ron Klain (a friendly acquintance from my O'Melveny summer associate days) and Glenn Reynolds, of Instapundit fame.  (Kathleen Sullivan from Stanford, Dick Thornburgh, and Jean Edwards Smith, a biographer of Chief Justice Marshall, were the other para-senators.)

Ron asks: Chief Justice William Rehnquist held an annual Christmas celebration in the Great Hall of the Supreme Court, complete with avowedly religious carols, despite periodic objections from some of his colleagues and non-Christian law clerks. As chief justice, will you continue with this practice, and do you find it at odds with the spirit of the court's edicts regarding church and state?

Glenn Reynolds asks: The Ninth Amendment provides that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Do you believe that this language binds federal courts, or do you believe - as Robert Bork does - that it is an indecipherable "inkblot?" If the former, how are federal courts to determine what rights are retained by the people? On the other hand, if the Ninth Amendment does not create enforceable rights, what is it doing taking up one-tenth of the Bill of Rights?

I'd be curious to hear reactions from our readers on what Roberts would and should say to these questions.  I wonder, for instance, whether it would bother Ron Klain,  that a minyan of Jews conducted prayer services at the Court when Nat Lewin argued a case.  In any event, my sense is that Rehnquist's practice was, if not illegal, at least insensitive (though not surprising if Dershowitz's account is correct).  He should have just hosted a holiday party at his house or somewhere else.  As to the 9th Amendment question, which answer would be sound?  I know Randy Barnett has theories about the meaning of the 9th.  What do (other) leading accounts of the 9A's meaning suggest?  Is there an alternative? a counter-meaning?

Posted by Administrators on September 12, 2005 at 09:35 AM in Current Affairs, Dan Markel, Law and Politics | Permalink


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I actualy think that Glenn asks the most interesting question:Does a declaration of war by Congress have the effect of suddenly making proper actions by the executive and Congress that would otherwise have been beyond their constitutional powers?This is a very, very good question, and a timely one given the 4th Circuit's decision Friday in Padilla, with which I disagree (see comments at Volokh). Like where this is going, I do not; dangerously Orwellian, this sounds.

Regarding the ninth amendment. While I hugely respect Randy Barnett's work, I find myself unable to agree with his recent essay (Barnett, The Ninth Amendment: It Means What It Says), because while I agree that it does indeed mean what it says, I would concur with Thomas McAffee's The Original Meaning of the Ninth Amendment (90 Colum. L. Rev. 1215) that it does not say what it might now appear to say if one reads it looking for a hook on which to peg a right one wishes to find in the constituion.

At the risk of getting into another lengthy spat with Paul Gowder (that having been said, the last one was fun, so why not), I do not think that it is a natural, originalist reading of the ninth amendment to say that it creates justiciable unenumerated rights. There has been some originalist scholarship which has sought to suggest that it does (see, e.g., Barnett, supra; J.D. Droddy, Originalist Justification and the Methodology of Unenumerated Rights, 1999 L. Rev. M.S.U.-D.C.L. 809), at least to some extent, but I'm not convinced. Read the text. Look at the context of the time. Look at what the framers were concerned about. The Federalist argument against the bill of rights during the ratification debates was basically that enumerating some rights might lead to a construction that said that all that wasn't reserved is given, which is the opposite of the constitution's design, being all that is not given is reserved. The ninth amendment thus says, in effect, "the following list is not an exhaustive list of all the rights of the people, but rather, those rights which are deemed so fundamental to the concept of ordered liberty that they must be protected here". Within this paradigm, "disparaging" the other rights does not mean denying that those rights are justiciable, as those who contend that the ninth provides a handy well of unenumerated rights for Judges to invent (uh...I mean "discover"...Uh...I mean, enforce) would argue, but rather, disparaging them would mean claiming that the bill of rights was an exhaustive list of the rights of the people. Which sounds absurd to our modern ears, but when you look at the context of the time, when you look at the ratification debates that surrounded the overall schema of the Constituion, the purpose of the ninth and tenth amendment snap into sharp focus. They are federalism provisions. And not, as is commonly written, "mere federalism provisions"; I detest that phrase, because it suggests that somehow federalism provisions are incidental to the constitution; they are not, the federal structure and how the federal government related to the states and to the people was THE issue surrounding the constitution at the time of ratification, as I read the history.

For the well of unenumerated powers interpretation to hold true, the State legislatures would have had to sign off on a text that allowed their actions to be reviewed and nullified by federal courts on the basis of no actual text in the constitution, relying solely on the discretion of the Judges. These folks were already concerned that the federal power went too far in terms of what it DID enumerate - are we really to believe that they either blithely said "okay, the Federal judiciary can abrogate our actions to comport with the evolving standards of decency", or alternatively, that every single state legislature just completely misunderstood what the ninth amendment would do? This seems a little hard to believe. I've not seen ANY evidence that even the most devout anti-federalist raised such an objection against the ninth amendment, which is pretty good evidence that the original understanding of the ninth amendment was pretty similar to what I've outlined above. It's a federalism provision. That doesn't strip it of any meaning, it doesn't render it meaningless, it just means that it won't support an interpretation that people who want to find unenumerated rights now seek to graft to it.

Posted by: Simon | Sep 12, 2005 12:02:27 PM

I'm a bit confused Simon. At the time of the founding, the federal courts couldn't overrule state decisions. If anything, it would have been viewed as a further limit on FEDERAL power if the federal government tried to abrogate the rights of citizens. There's nothing in the text of the Ninth, or the understanding of the proper role of the federal judiciary, that would indicate the Ninth would be used to overrule state laws. Heck, the enumerated rights in the Constitution weren't applied to the states until the middle of the last century.

Posted by: Alan | Sep 12, 2005 5:29:07 PM

I watched some of the hearings. The baseball analogy is rather tired but the game, G-d love it, brings out the best or worst in a bunch of white males (see the Curt Flood decision). However, I find it interesting that everyone seems to agree that umpires don't make the rules. There is an old paper in Penn L R (forgot the cite) that traces the history of the "Infield Fly Rule." In fact, this rule was created, on the spot, in the middle of a game, by an umpire in the 1890's and was only later codified in the rules (statutes) of the game.

Posted by: Mark Weinstein | Sep 12, 2005 9:20:09 PM

I'm not sure if I'm replying to the point you're actually making, so please let me know if either a) I'm answering the wrong point, or b) I'm answering the right point, but unconvincingly. From the time that the Constitution was ratified, the federal courts could hear suits involving Federal questions, even if it involved action by the States. Chisholm v. Georgia, 2 U.S. 419; Fletcher v. Peck, 10 U.S. 87; etc. What those courts could not do was hold that the liberties in the bill of rights could be enforced against the states. Barron v. Baltimore, 32 U.S. 243. In other words, what constituted (no pun intended) a "Federal question" was vastly more circumscribed. I agree entirely that "[t]here's nothing in the text of the Ninth, or the understanding of the proper role of the federal judiciary, that would indicate the Ninth would be used to overrule state laws", and would add to the text and original understanding as indicia that there is nothing of which I'm aware in the subsequent practise and precedents available that suggests that there was.

The issue, then, turns on incorporation. While I recognize that there is some debate as to whether some or more parts of the first amemdment are not unincorporatable by that amendment's own terms, I am not yet pursuaded by Justice Thomas' argument in Newdow. In general, I am compelled by my view of what constitutional rights are to the view that the privileges or immunities clause of the 14th amendment renders the bill of rights enforcable against the states.

Madison wrote:If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended. If no such line can be drawn, a declaration in either form would amount to nothing.Letter from James Madison to George Washington (Dec. 5, 1789), in THE WRITINGS OF JAMES MADISON, 1787-1790, at 432 (Gaillard Hunt ed. 1904). In my view, and evidently (at one time, at least) Madison's also, the protection of a right in the constitution is a restraint on government. The Constitution creates no rights at all; rights, per the declaration of independence, are created by the Creator. This is not merely a semantic difference; if the Constitution creates rights, then the rights that can be found in it are the totality of all our rights. Therefore, because people are wont consider their rights to be expansive and near limitless, and if rights exist only by positive grant in the constitution, then no wonder people are afflicted with the mentality that anything that is wrong must be unconstitutional; no wonder they seek to rest ever more "liberties" on the due process clause! But, our rights do not come from the constitution, as noted above. This is an important difference, because it leads to completely the opposite result: if there are rights not mentioned in the constitution, there is no impetus to read new rights into the document which are not there. With this mindset, instead of being (or attempting to be) a complete shopping list of all the people's rights, the constitution becomes instead the guarantor of the most crucial and critical freedoms from government invasion, and leaves the people to manage their other rights in the manner in which they see fit.

Therefore, if you already have your rights, ex deo, the specification of certain rights in a legal document creating a framework for limited government must be directed at preventing the invasion of those rights by government. As a United States citizen, you have certain priveleges and immunities, which is to say, you have rights which may not be invaded by the United States government.

As mentioned above, per Marshall, C.J., Barron, supra, the Bill of Rights does not apply, by its own terms, to the states. However, the 14th amendment provides that:No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;If you believe, as I do, that the rights-bearing sections of the Constitution are restraints on government's ability to invade a person's rights, rather than positive grants OF those rights, then it follows naturally and logically that the bill of rights creates a series of privileges or immunities of citizens of the United States. If a state may not "make or enforce any law which shall abridge" the said "privileges or immunities of citizens of the United States", then a state may not "make or enforce any law which shall" contract a privelege or immunity granted in the bill of rights.

Like Mr. Justice Black, "I cannot consider the Bill of Rights to be an outworn 18th Century 'strait jacket'", and I agree with his judgement that:"Its provisions may be thought outdated abstractions by some. And it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century wherever excessive power is sought by the few at the expense of the many. In my judgment the people of no nation can lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are conscientiously interpreted, enforced and respected so as to afford continuous protection against old, as well as new, devices and practices which might thwart those purposes. I fear to see the consequences of the Court's practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights as its point of departure in interpreting and enforcing that Bill of Rights."(Adamson, 332 U.S. 46 , 88)I simply can't agree that the ninth amendment creates a resevoir of justiciable rights, to be determined as and when five Justices see fit. The ninth and tenth amendments jointly explicate the federal structure, confirming that those rights and powers which have not been surrendered remained unchanged. Specifically, the ninth amendment declares that the bill of rights is not a complete list of the rights of the people, but rather, a list of the rights protected from the federal government's actions (per the 14th amemdment, states also). All other rights are reserved to the people, save those which they might at various times choose to surrender to their state governments via state constitutions. Those who want to find new rights in the constitution all the time like to disparage this interpretation, to say that such an interpretation renders the amendment meaningless (as, indeed, was the clear inference in Darby, 312 U.S. 100, 124), or even more circularly, that such an interpretation specifically violates the amendments terms by disparaging rights retained by the people, but this is absurd. The ninth amendment is perfectly meaningfull and important, even if it doesn't support the weight of a resevoir of unenumerated rights. I do not much like this mindset which makes the constitution the swiss-army knife of a Juduciary recast as a legion of fixer-uppers, out to right every wrong, make just every injustice just; in Dahlia Lithwick's phrase, "a secret, super-textual constitutional role as the nation's caped crusaders—its members authorized to leap into phone booths around the world and fly back to Washington in a single bound". There seems to be a general feeling among such people that if the bill of rights does not protect everything, it is worthless and useless. The rights that it protects, as Mr. Justice Black noted, are important rights. Those which it does not are matters for each state to decide.

Hopefully, that was at least semi-coherent, and addressed the point that you were making, Alan.


Posted by: Simon | Sep 13, 2005 3:44:21 PM

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