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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.
 

Monday, August 04, 2003

Steven Den Beste on Constitutional amendments and marriage, which brings me to a painful necessity, because, on the whole, I am very much impressed with his output. He does not understand law, though, and, at least so far as this entry goes, makes no attempt even to consider the possibility that his lack of knowledge in the area is a serious detraction from his argument. Take my word for it, Steven: You really don't understand the Ninth Amendment.

I get into these Ninth-Amendment arguments every once in a while, and each time it's the same damn problem: One already has to understand some basic things about how the law works in order to understand what the Ninth Amendment means, but at the same time it is possible for someone who doesn't understand those legalisms -- who doesn't even know they exist -- to erect a textually plausible -- and ideologically congenial -- misreading, turning what was originally a very technical concern over the powers of Congress into a vast, unbounded authority for the judiciary to operate as a perpetual censor upon all legislation whatsoever. And it takes a lot of effort -- a lot of effort -- to change someone's mind on this one, especially if he thinks he already understands it. You explain yourself, and explain yourself, and explain yourself, and all the while your opponent just sits there, absolutely certain you don't know what you're talking about, that you're just playing semantic games with even less justification than usual (since it still winds up with the exact same result, as far as he can see), until all of a sudden -- assuming you get that far -- there's an "Aha!" moment, and what you've been smacking your head against a brick wall about is suddenly clear, as that dreary semantic quibble takes on an important meaning.

OK, so, let's try this again. We have it, from the records of the debates in the conventions ratifying the Constitution itself, that:

  • The Anti-Federalists objected, that the Constitution ought to have a Bill of Rights;
  • The Federalists countered, to include a Bill of Rights in the Constitution would itself be a positive danger (Federalist #84, e.g.);
  • The Federalists eventually promised to draft and submit amendments to provide a Bill of Rights;
  • The Constitution was eventually ratified, and the new government opened for business;
  • The First Congress set about the task of fulfilling those promises.
The question my opponent is asking himself right now is, "What do those first two points have to do with anything?"
  • Madison was asked, on the floor of Congress, to explain the proposal which eventually became the Ninth Amendment;
  • His explanation went as follows: "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 against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."
So we have it, whatever the Ninth Amendment means, it has something to do with a danger to be apprehended from the mere existence of a Bill of Rights. And my opponent is asking himself, "What possible danger could arise from a Bill of Rights?" He is so accustomed to thinking of it as a blessing, that the thought it might be a danger as well gets rejected as an obviously erroneous datum before he even begins to consider it.

Well, it's right there in Madison's explanation. Hamilton also set it out in Federalist #84. And their explanations aren't really any better than mine. It takes a lot of work, and a lot of repetition as well, finally to get across the whole idea of Constitution-as-conveyance (transferring powers from the States to the Federal government), and the ancient rules for interpreting grants, and the tricks an unscrupulous Congress might have tried were the Ninth Amendment not standing in its way. Madison's (and Hamilton's) worry was the Congress that would say, "We can do whatever we want, as long as the Bill of Rights doesn't forbid it."

And now my opponent is asking himself, "And this differs from the Congress we have -- how?" The difference is, Congress must make at least a pretense that it has an affirmative grant of power, arising in Article I, Section 8 (and a few other places), justifying the laws it enacts. Its usual pretense is that the thing, whatever it is, is somehow related to "interstate commerce," and thus regulable under Clause 3, and the Supreme Court usually swallows this justification, whether or not it passes the belly-laugh test (which is why U.S. v. Lopez was such a shock to so many persons, though the proposition, "The possession of a gun on school grounds is not interstate commerce," is otherwise a no-brainer). And, granted, if the Supreme Court is willing to call anything "interstate commerce," there isn't a whole lot remaining that the Ninth Amendment can prevent. What the Ninth Amendment prohibits, though, is not a particular law, nor even a class of laws. It prohibits a mode of argument, the one that would otherwise say:

  • Congress wants to do A
  • The Bill of Rights doesn't forbid Congress doing A
  • Therefore Congress can do A
Here's how the argument would have gone, in more detail:
CONGRESS: We want to do A, and, in fact, here is a brand new law accomplishing just that very thing. Let it be proclaimed unto the farthest corners of our dominions...
CITIZEN: Hey, wait a minute. A is not within the enumerated powers of Article I, Section 8.
CONGRESS: You poor simpleton. The Constitution is a grant of power, is it not?
CITIZEN: Yes...
CONGRESS: And, being a grant, it is to be construed most strongly against the grantor, is it not?
CITIZEN: Well, there were exceptions to that one...
CONGRESS: Yes, yes, yes, "except in case of the King." Are you the King?
CITIZEN: No...
CONGRESS: So you have no exception to claim upon that score, do you?
CITIZEN: No...
CONGRESS: We should hope not. We should very well hope not. If there's any king here, it's certainly not you, is it? Glad we got that one out of the way; we were almost upon the point of worrying. Now: This document is your grant of powers to us?
CITIZEN: Well, yeah, but...
CONGRESS: Very well, it is to be taken most strongly against the grantor, which is to say, you. Now here we have this Bill of Rights thingy, and it is an enumeration of exceptions, is it not?
CITIZEN: I beg your pardon?
CONGRESS: It says to us, "You can't have this, and you can't have this, and you can't have this," does it not?
CITIZEN: Yes, yes it does.
CONGRESS: So it is an enumeration of exceptions, is it not?
CITIZEN: If that's what you call it.
CONGRESS: We do call it that. And the rule for an enumeration of exceptions is, those things not excepted were meant to be granted, is it not?
CITIZEN: Well, yeah, but you've also got this positive grant, here in Article I, Section 8...
CONGRESS: Let's not get above ourselves, shall we?
CITIZEN: I beg your pardon.
CONGRESS: Very well, we shall condescend just this once. We have another enumeration, here in Article I, Section 8, do we not?
CITIZEN: Precisely.
CONGRESS: And the rule for an inclusive enumeration such as this is, those things not included were not meant to be granted, is it not?
CITIZEN: Assuredly.
CONGRESS: So that the Bill of Rights is clearly drawn into conflict with the enumerated powers of Article I, Section 8, is it not?
CITIZEN: Well...
CONGRESS: How clear can it be? One says, that which is not explicitly granted is withheld; the other says, that which is not explicitly withheld is granted.
CITIZEN: It doesn't say that.
CONGRESS: No, it doesn't say that, but the inferences to be drawn upon the two enumerations are, nevertheless, clear, are they not?
CITIZEN: Well, OK...
CONGRESS: So the two are clearly in conflict.
CITIZEN: If you put it that way...
CONGRESS: We do put it that way.
CITIZEN: Still, though, you'd have to decide which to follow in particular cases.
CONGRESS: Oh, that's easy. The Constitution was ratified in 1788, was it not?
CITIZEN: Yes...
CONGRESS: And the Bill of Rights was ratified in 1791, was it not?
CITIZEN: Yes...
CONGRESS: And the Bill of Rights amends the Constitution, does it not? I mean, we didn't call those things "Amendments" just for the hell of it, did we? And the Article V process is not to be used for trivial things, is it?
CITIZEN: OK...
CONGRESS: And, where two enactments are drawn into conflict, the later enactment takes precedence, does it not?
CITIZEN: Yes...
CONGRESS: So that, whatever might have been our original limited powers under the Constitution itself, the Bill of Rights is now the only limitation upon us?
CITIZEN: Well, yeah, except, that result is not required, is it? There are other ways of reading those sections, so that they are not brought into conflict.
CONGRESS: We already went over that one. The Constitution is a grant, is it not?
CITIZEN: Yes...
CONGRESS: So it is to be taken most strongly against the grantor?
CITIZEN: Err, ummm, OK...
CONGRESS: So the Bill of Rights is now the only limitation upon us?
CITIZEN: Oh, all right, have it your way.
CONGRESS: Music to our ears, sir, we assure you. And the Bill of Rights does not forbid A?
CITIZEN: Well, no...
CONGRESS: Thank you. You are excused.
With the Ninth Amendment, though, the argument ends a lot earlier, and with a different result:
...CONGRESS: And the rule for an enumeration of exceptions is, those things not excepted were meant to be granted, is it not?
CITIZEN: That would usually be the case, but the Ninth Amendment forbids your invoking that rule of construction in this instance.
CONGRESS: We must not have heard you correctly. It does what?
CITIZEN: Forbids you.
CONGRESS: We thought that's what you said. We are unaccustomed to hearing such words.
CITIZEN: They are true, nonetheless.
CONGRESS: Why you insignificant, insubordinate little... I oughta... We oughta... [whispers] Damn you! Damn you!

So there you have it: The Ninth Amendment. Again. Not the substantive guarantee Den Beste thinks it (along with a lot of other persons), but a very important limitation upon Congress, just the same. If experience is any guide, this explanation won't do the trick, which means I'll have to try again later.

-- posted by Clayton 8/04/2003 11:42:00 PM


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