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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Tuesday, July 23, 2002

INSTAPUNDIT notes an ongoing discussion about the Ninth Amendment, and adds his own two cents. I've been trying, but I can't quite figure out what his contribution actually means. Arguments over the Ninth Amendment have a problem: It is impossible to be concise, accurate, reasonable, and clear, all at the same time. "Reasonable" is in my list, here, because there is one view of the Ninth Amendment which can be stated concisely, accurately, and clearly: "The Supreme Court can strike down whatever law it wants for whatever reason it wants." I hope we can agree this is not reasonable.

My own view is, the Ninth Amendment does no more than to refer to an ordinary rule of construction (concerning the enumeration of exceptions in a grant), and to forbid that it be applied to the Bill of Rights. There it is, concise, accurate, and reasonable. Clear? I thought not. See what I mean? Let's try again.

My own view is, the Ninth Amendment forbids Congress from saying, it can legislate on any topic it wants unless the Bill of Rights forbids it. Now we have concise, reasonable, and clear, but accurate is out the window. So, once more, in all the words necessary.

(Begin prolixity)

"Enumeration" is a term of art in the law; it means a list in one of two forms. The first form is, "including A, B, and C"; the second is, "excluding A, B, and C." In both cases, the law assumes the list was chosen carefully, both for what it contains and what it does not. So the rule in the first case is, anything not mentioned in the list is meant to be excluded, and the rule in the second case is, anything not mentioned in the list is meant to be included. This second rule is where the Ninth Amendment comes in.

The original Constitution set out the powers of the Federal government, chiefly in Article I, Section 8, as an enumeration in the first form: "Congress shall have powers 1 through 18." The Bill of Rights takes a different tack; it says, "Congress shall not have A through H," which is an enumeration in the second form, and thus, to anyone familiar with the language of grants, it immediately raises the question, "What about I, J, K, and all the other rights? Are they now in the hands of Congress, to do what it wants with them?" This is the concern Hamilton rather disingenuously raised in Federalist #84, as he tried to explain why we were all safer if the Constitution did not contain a Bill of Rights. I say "disingenuously," because, if the original Constitution had contained a Bill of Rights, other rules of construction (chiefly, "an act shall be construed so that, if possible, all its parts have meaning") would have made short work of the concern Hamilton raised.

The situation changed, though, when the First Congress proposed to add on a Bill of Rights after the original Constitution was ratified. Being a separate and subsequent enactment, it could be construed as repealing whatever in the original Constitution was incompatible, and, if the "enumeration-of-exceptions" rule, above, could be applied to the Bill of Rights, then the government of the carefully selected limited powers in Article I, Section 8 was now a government of general powers restrained only by the Bill of Rights. It would take a lot of stretching to do it, of course, but a Court capable of, say, Wickard v. Filburn, could easily hunt up the necessary elasticity. With this in mind, Madison drew up the proposal which became the Ninth Amendment; it says, in effect, "The 'enumeration-of-exceptions' rule shall not be applied to the Bill of Rights; Congress must still find its powers by positive grant."

This answers the peculiar choice of words in the Ninth Amendment; it answers also every part of the explanation Madison gave when he placed his proposal before the First Congress, as well as the concerns Hamilton had raised in Federalist #84 which prompted the whole mess.

(End prolixity.)

Now we have accurate, reasonable, and clear (at least, I hope so), at the cost of conciseness. Whether you agree with it is a different matter. The unenumerated rights are protected, not because the Supreme Court can tuck whatever it pleases into the Ninth Amendment, but because Congress doesn't have a hunting license. It is a view of the Ninth Amendment a strict constructionist (such as myself) can embrace: it states a definite and meaningful point; it covers all the parts of the enactment in question, as well as the discussion which surrounded its enactment; it accomplishes something not already accomplished elsewhere; it addresses a real concern of the Framers (that the Federal government shall be limited in its powers); and it does all this without handing the Federal courts an enormous undefined power to make whatever policy pleases them. Also, it has the advantage that it was the generally accepted view of the Ninth Amendment from 1791 right up until 1964, when Griswold v. Connecticut dangled in front of the academy a reason to pretend otherwise.

Myself, I think it an obvious point, clear to anyone who understands the centuries-old rules about interpreting grants, but this group ought to include all lawyers, and the lawyers, Reynolds included, are generally off in different directions. I've read the paper Reynolds mentioned; while it did an excellent job of shredding Bork's ludicrous construction, it does not say -- at least, not clearly -- what his interpretation is. I'm not sure what Reynolds intends, but I have a sneaking suspicion, much as I would prefer to believe otherwise, that, whatever else he is doing, he is choosing his result first: He wants to save the result in Griswold v. Connecticut, which means, he needs a Ninth Amendment which is capable of reaching and striking down state laws (which the interpretation above cannot accomplish), which means, strict construction must necessarily be out the window, at least what he is pleased to call "honest" strict construction. And if Reynolds is heading where I think he is, it is only fair to point out, Bork did an excellent job of shredding that view.

-- posted by Clayton 7/23/2002 11:22:00 PM

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