If we are committed to anything, it is the idea of “liberty.” If that commitment doesn’t really refer to anything except a good inner feeling, we ought to shut up about it.1
—CHARLES L. BLACK, JR.
THERE ARE at least four distinguishable approaches that judges may take toward legislation restricting the retained liberties of the people. First is the laissez-faire approach of complete judicial deference: Adopt a general presumption of constitutionality toward all legislation affecting any liberties of the people. To adopt the laissez-faire approach would be to make Congress the sole judge of its own powers in every dispute between it and a citizen concerning the necessity and propriety of a legislative interference with the citizen’s rightful exercise of freedom.2 Essentially, this approach would eliminate judicial nullification of legislation infringing on constitutional liberties, including those enumerated in the Bill of Rights. Consequently, few advocate this position and it has never been accepted as the correct approach to judicial review at any time in our history.
Second is the original Footnote Four approach: Reverse the presumption of constitutionality when legislation infringes upon those liberties—and only those liberties—that are specified in the Bill of Rights. Although some judicial conservatives, such as Robert Bork, advocate this approach, it, too, is problematic. To begin with, it flies in the face of the many unenumerated rights that have received protection from the Supreme Court for well over a hundred years—such as the right to travel within the United States (which had been enumerated in the Articles of Confederation),3 the right to provide one’s children with religious education,4 the right to educate one’s children in one’s native language,5 the right to associate with others,6 the right to choose and follow a profession,7 the right to marry or not to marry,8 the right to decide whether or not to have children,9 the right to decide how to rear one’s children,10 and the unenumerated right to privacy that has been explicitly protected for over thirty-five years.11 Perhaps some of these cases were wrongly decided. Certainly some were decided on the wrong basis. But the pure Footnote Four approach would deem them all wrongly decided.12
Far more importantly, the pure Footnote Four approach is undercut by the original meaning of both the Ninth and Fourteenth Amendments. The Ninth Amendment mandates that unenumerated natural rights be treated the same as those that were enumerated. The Privileges or Immunities Clause mandates that no state shall abridge the unenumerated retained natural rights of citizens. Yet Footnote Four calls for protecting only those rights that happened to be enumerated in the Constitution. Also inconsistent with the Ninth Amendment is the third and current Footnote Four-Plus approach that elevates some unenumerated rights to the exalted status of “fundamental” while disparaging the other liberties of the people as mere “liberty interests.”
A fourth approach—the one I advocate—would be to protect all the rights retained by the people equally whether enumerated or unenumerated. But how would one identify the unenumerated rights retained by the people? How does one define, in the words of the Court in Casey, the “substantive sphere of liberty” that is protected by the Privileges or Immunities clause of the Fourteenth Amendment? The uncertainty of specifying unenumerated rights is the crucial issue that prevents some from taking the Ninth Amendment and Privileges or Immunities Clause as seriously as the text would seem to require. As Robert Bork observed about using the Ninth Amendment: “Senator, if anybody shows me historical evidence about what they meant, I would be delighted to do it. I just do not know.”13
Most would agree with Bork that, if the uncertainty surrounding their content can be resolved, unenumerated rights should be enforceable. Otherwise, although the Congress and the executive branch could be prevented from violating enumerated rights, both could violate the unenumerated rights with impunity. Surely this would disparage, if not entirely deny, the unenumerated rights. But many also fear that opening the door to protecting unenumerated rights will empower courts to protect spurious along with valid rights claims. Rather than risk this, they would prefer judges to protect no unenumerated rights at all.
Because ignoring all unenumerated rights violates the mandate of the Ninth Amendment, it must be an option of last resort. Before it is adopted, two alternatives deserve serious consideration, the originalist and presumptive methods.
One way to identify unenumerated rights that merit legal protection is suggested by Robert Bork’s call for historical evidence. Originalists no more need to discern the content of actual or real rights than they need to discern activity that is “really” commerce. Instead, they can seek either the original intent of the framers or the original meaning of the text. However difficult it may be, interpreting the Ninth Amendment in this way is no different from the task of interpreting other provisions of the Constitution.
We have already seen how the “rights … retained by the people” referred, not to any conceivable claim of right, but to liberties. This is an important constraint imposed by the original meaning of the Ninth Amendment. To discover the exact contours of these liberties, we could protect only those unenumerated rights, privileges, or immunities that are revealed by an originalist inquiry. Even if moral skeptics are correct and unenumerated rights are nonexistent, determining the content of the rights that the founders believed to be natural would not be impossible and would give meaning to the text they ratified.
Just as those concerned with original meaning and/or intent consult such materials as Madison’s notes on the Constitutional Convention, we may also consult the lengthy lists of proposed amendments sent to Congress by several state ratification conventions. Virginia, for example, proposed twenty provisions for “a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people.”14 Only a handful of the many proposed rights were incorporated into the Bill of Rights.15 In addition, the rights expressly stipulated by state constitutions at the time of the Constitution’s ratification are potentially significant.16 Some of these rights were conceived of as retained by the people against state government. Certainly natural rights retained against state governments were not surrendered to the general government.
These various lists cannot be definitive. Many of these rights were left out of the Bill of Rights and it is nearly impossible to know the motivation behind every decision to include or exclude a particular right. Moreover, as we have already seen, the Ninth Amendment was intended to remove the need to enumerate every right retained by the people. Thus, the mere fact that a right was excluded from the enumeration does not support a strong negative implication.
Further, just as those concerned with original intent consult such theoretical writings as The Federalist to interpret passages of the text, they may also consult the framers’ theoretical writings on natural rights that were contemporaneous with the Ninth Amendment. Some of these writings are comprehensive and specific. In his lectures on jurisprudence, James Wilson, for example, summarized his analysis of natural rights as follows:
In his unrelated state, man has a natural right to his property, to his character, to liberty, and to safety. From his peculiar relations, as a husband, as a father, as a son, he is entitled to the enjoyment of peculiar rights, and obliged to the performance of peculiar duties. These will be specified in their due course. From his general relations, he is entitled to other rights, simple in their principle, but, in their operation, fruitful and extensive.… In these general relations, his rights are, to be free from injury, and to receive the fulfilment of the engagements, which are made to him; his duties are, to do no injury, and to fulfil the engagements, which he has made. On these two pillars principally and respectively rest the criminal and the civil codes of the municipal law. These are the pillars of justice.17
Of course, some may contend that any discussion of natural rights based on this sort of historical inquiry would be too open-ended to provide judges with adequate guidance. Originalists such as Robert Bork and Raoul Berger, however, cannot make such an argument. Their position requires that we engage in just such an enterprise to interpret the rest of the Constitution—such as the open-ended Necessary and Proper Clause, Due Process Clauses, and the Eighth Amendment’s prohibition of “cruel and unusual” punishments. Abandoning the originalist method only when considering the Ninth Amendment may eliminate spurious rights claims but only at the price of a consistent originalist methodology.
There is, then, no shortage of historical materials contemporaneous with ratification of the Ninth Amendment that would permit us to elaborate the original understanding of the rights retained by the people. These materials are comparable in every respect to those traditionally used to interpret the original meaning (or intent) of other provisions and no ink blot prevents us from reading them.
One scholar who has attempted this is Jeffrey Rosen, who concludes that “[t]he documentary sources of the Bill of Rights reveal that conceptions of natural rights were much more determinate two hundred years ago than both commentators and courts suppose today.”18 They are “so determinate, in fact, that only three groups of rights are repeatedly called natural or unalienable in the Revolutionary declarations and state ratifying conventions.”19 Rosen identifies these as the individual right to “worship God according to the dictates of conscience”;20 the individual right of “defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety”;21 and the right of a majority of the people to “alter and abolish” their government.22 Three other rights are also called natural in the documentary sources: the right to emigrate or to form a new state,23 the rights of assembly,24 and the freedom of speech.25 No originalist of any stripe should accept less than the protection of all these liberties. Nor should those whose interpretive methodology takes original meaning as its starting point.
While it may improve upon current approaches, there is a telling objection to relying solely upon originalist sources to identify specific fundamental rights. As was discussed in chapter 4, we are bound to interpret the text at its original level of generality. The Ninth Amendment was written at a higher level of abstraction or generality—that of natural liberty rights—than any specific list of liberties and deliberately so. The Ninth Amendment and Privileges or Immunities Clause referred to natural rights because it was impossible to specify them all in advance. Any approach that overlooks this in favor of particular historically situated liberties runs afoul of original meaning.
As we have seen, natural liberty rights define a sphere of moral jurisdiction that persons have over certain resources in the world—including their bodies. This jurisdiction establishes boundaries within which persons are free to do as they wish. So long as persons are acting within their respective jurisdictional spheres, their acts are deemed to be “rightful” (as distinguished from “good”) and others may not use force to interfere.
At this level of generality, while the concept of liberty rights excludes other types of rights claims, the specific liberty rights it includes are as numerous as the various acts we may perform within our respective jurisdictions. Our actions must remain within proper jurisdictional bounds but, within those bounds, our rights are as varied as our imaginations. Given this conception of rights, it is impossible to specify in advance all the rights we have. Recall James Wilson’s statement (from chapter 3) that
there are very few who understand the whole of these rights. All the political writers, from Grotious and Puffendorf down to Vattel, have treated on this subject; but in no one of those books, nor in the aggregate of them all, can you find a complete enumeration of rights appertaining to the people as men and as citizens.
… Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.26
Therefore, and somewhat paradoxically, the original meaning of the rights retained by the people cannot be confined to the specific liberties identified by originalist materials. The Ninth Amendment was added to the Constitution precisely because it was impossible to enumerate all the liberties we have and undesirable even to try. Any effort to do so using originalist methods would give rise to the very danger the Ninth Amendment is there to prevent.
The effort to identify specific liberties in the historical record is not only dangerous; it is also unnecessary. We can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever legislation restricts the liberties of the people. We can adopt a Presumption of Liberty.
To respect the original meaning of the Ninth and Fourteenth Amendments from national or state abridgment, we need a way to protect the rights retained by the people without having to list them. Both Madison and Tucker intimated such a method in their arguments for a strict construction of government powers when such powers are used to restrict individual liberty. Instead of authorizing a search for particular rights, the Ninth Amendment and the Privileges or Immunities Clause can be viewed as establishing a general Presumption of Liberty, which places the burden on the government to establish the necessity and propriety of any infringement on individual freedom.
A Presumption of Liberty would place the burden on the government to show why its interference with liberty is both necessary and proper rather than, as now under Footnote Four-Plus, imposing a burden on the citizen to show why the exercise of a particular liberty is a “fundamental right.” The Constitution makes no distinction between fundamental rights and mere liberty interests. This is a pure construction that conflicts with the mandate of the Ninth Amendment that no right be denied or disparaged just because it was not enumerated. But the Constitution does say that all laws shall be both necessary and proper.
A general Presumption of Liberty can be justified, not only on the grounds that it gets the courts out of the business of picking and choosing among the liberties of the people to decide which is fundamental, and not only on the grounds that it is more harmonious with the text (and original meaning) of the Ninth and Fourteenth Amendments. It can also be justified as a more realistic presumption in light of what we know of legislative behavior.
The original justification of the presumption of constitutionality rested, in part, on a belief that legislatures would consider carefully, accurately, and in good faith the constitutional protections of liberty before infringing it. This belief assumed that legislatures really do assess the necessity and propriety of laws before enacting them. In recent decades, however, we have remembered the problem of faction that (at least some of) the framers never forgot. We now understand much better (or are more willing to admit) than our post–New Deal predecessors on the left and on the right that both minorities and majorities can successfully assert their interests in the legislative process to gain enactments that serve their own interests rather than being necessary and proper.
In short, our understanding of the facts on which the presumption of constitutionality rests have changed. And, with this change in its factual underpinnings, the presumption—which appears nowhere in the constitutional text—must fall. Statutes that emerge from the legislative process are not entitled to the deference they now receive unless there is some reason to think that they are a product of necessity, rather than mere interest. And a statutory restriction of liberty should not blindly be presumed to be a “proper” regulation.
A Presumption of Liberty would place unenumerated rights on a par with enumerated rights—no more, no less. For example, courts have not construed the First Amendment as literally barring any restriction of “the freedom of speech.” Ancient common law torts, such as fraud and defamation, provide boundaries beyond which the rightful exercise of free speech may not go. If speech is fraudulent—which I hasten to add is not the same as false—it is wrongful and may be prohibited, not merely regulated. Nevertheless, the First Amendment establishes a constitutional presumption in favor of any rightful speech that is within these common law boundaries.
When legislation operates to restrict speech, such legislation is now subjected to meaningful judicial scrutiny. The executive branch of government must justify to the judiciary any legislative or executive interference with free speech. The fact that such legislation reflects a majority preference is insufficient to overcome the presumption established by the First Amendment. Moreover, the bare assertion that legislation abridging freedom of speech serves a legitimate legislative end is also insufficient. When the First Amendment is implicated we maintain a healthy skepticism of legislative motivations.
Given its original meaning, the Ninth Amendment is best construed as establishing the same constitutional presumption in favor of other rightful activities. This presumption requires the executive branch of the government to justify to the judiciary any legislative or executive interference. The fact that such legislation reflects a majority preference is insufficient to overcome the presumption established by the Ninth Amendment. Moreover, the bare assertion that such legislation serves a legitimate legislative end would also be insufficient. As with restrictions on speech, skepticism of legislative motivations is warranted when unenumerated rights are abridged.
Statutes do not create a duty of obedience in the citizenry simply because they are enacted. The only way that statutes may create a prima facie duty of obedience in the citizenry is if some agency not as affected by interest (or affected by different interests) will scrutinize them to ensure that they are both necessary and proper. However imperfect they may be, only courts are presently available to perform this function. Without some meaningful assurance of necessity and propriety, statutes are to be obeyed merely because the consequences of disobedience are onerous. Without judicial review, statutes are mere exercises of will, and are not entitled to the same presumption of respect that attaches to statutes surviving meaningful scrutiny.
In the absence of actual consent, a law must be shown to be necessary and proper for it to bind in conscience. To be proper it must, among other things, not violate the rights retained by the people. There are two ways a law can restrict freedom of action without violating the background natural rights that define one’s liberty.
First, if a particular action violates the rights of others, then it is not a rightful exercise of freedom. It is not liberty but license. Prohibiting such actions, though it restricts a person’s freedom to do as he wills, does not violate the rights retained by the people. To the contrary, such prohibitions protect the liberty rights of others. Second, when the rightful exercise of freedom involves more than one person, it can be “regulated” or made regular to facilitate its exercise and, if necessary, to protect the rights of others. A regulation of liberty is not an improper infringement of liberty if a legal system merely says that, to obtain its protection, contracts or other transactions must take a certain form (if such a regulation is also found to be necessary).
In short, laws that are necessary to prohibit wrongful or regulate rightful activity would satisfy the Presumption of Liberty. Laws that prohibit or unnecessarily regulate rightful behavior would not. In part IV, I examine how the Presumption of Liberty may be rebutted. First, however, a threshold question needs to be addressed: To apply the presumption requires a distinction be made between rightful and wrongful conduct. What exactly is a “rightful” exercise of freedom and by whom is this decision to be made? Does not the need to distinguish rightful from wrongful behavior require unelected federal judges with lifetime tenure to speculate about the Rights of Man? What qualifies them to determine what learned philosophers cannot agree upon? Where in their legal education or experience did they gain expertise in distinguishing rightful from wrongful conduct? A moment’s reflection should dissipate such concerns.
A “rightful” exercise of freedom roughly corresponds to what courts today refer to as a “liberty interest.” No court today would find an action that violated the rights of others to be a “liberty interest.” As Chief Justice Earl Warren explained: “Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.”27 Of course, at present, liberty interests are not protected unless they are also deemed to be fundamental rights, but at this juncture what is important is that, by identifying liberty interests, courts have in practice routinely distinguished rightful from wrongful exercises of freedom.
Nor does it require philosophical speculation to do so. In our legal order, distinguishing rightful from wrongful conduct is generally done every working day at the state level. Indeed, at least a quarter of a law student’s legal education is devoted to this subject in courses such as contracts, torts, property, agency and partnership, secured transactions, commercial paper, and portions of criminal law. In contrast with constitutional law, which provides rules for the conduct of government agents, these private law subjects provide principles to regulate the conduct of persons toward each other. Ever since the forms of action were abolished, concepts within these subject areas have been used to assess the merits of claims that one person has violated the rights of another and therefore acted wrongfully. For example, when one person injures another and this injury is considered to be “tortious,” then it is deemed to be wrongful and a duty to compensate is held to exist. It is also wrongful to breach a valid contract without a valid defense.
At the time of the founding, this body of rules and principles was judgemade, and largely remains so today. Moreover, in the United States’s federal system it was (and still is) primarily made by state court judges. When federal judges today decide civil actions between two parties pursuant to their powers in diversity cases, they distinguish rightful from wrongful behavior by discerning state law. When federal judges make these decisions on state law, their rulings may even be “overruled” by subsequent state court decisions.
Thus, today there is a healthy functioning division of labor between state law assessments of the rights the people have against each other, and federal constitutional adjudication that protects these rights of the people from infringement by government. It is only when federal judges are asked to distinguish protected fundamental rights from unprotected “liberty interests,” as they currently do under the Footnote Four-Plus approach, that they arguably exceed the boundaries of their competence.
Distinguishing rightful from wrongful behavior is exactly what common law courts have been doing for centuries (with occasional assistance from legislatures). The freedom to act within the boundaries provided by one’s common law or “civil” rights may be viewed as a central background presumption of the Constitution—a presumption reflected in both the Ninth Amendment and the Privileges or Immunities Clause. There is no constitutional privilege to commit a tort or breach of contract; but so long as one is acting rightfully, one should presumptively be immune from government interference.
This does not mean that all legislative alterations of common law rights are constitutionally prohibited. Common law processes assumed that legislation can occasionally be used to correct doctrinal errors perpetuated by a strong doctrine of precedent, to establish needed conventions, and to achieve uniformity among diverse legal systems. Judges make mistakes and act out of interest. Legislatures can provide a popular “check” against such abuses. Under a Presumption of Liberty, legislative alteration of common law rights is permissible, but such legislation must be scrutinized by independent tribunals of justice to see whether, in the guise of performing these permissible functions, the legislature is seeking instead to invade individual rights.
Legislation that is necessary to achieve ends deemed by the Constitution to be appropriate—and defined at the federal level by the enumerated powers provisions—may rebut the presumption in favor of rightful activity when such legislation passes the sort of meaningful scrutiny we associate with the infringement of other constitutional rights. Further, state legislation and popular referenda expanding the sphere of liberty and protecting it from judicial encroachment are to be treated far differently from legislation restricting the exercise of otherwise rightful conduct.
Still, though legislative alterations of common law rights complicate the story a bit, it is important to bear in mind that such legislative interventions were originally supposed to be, and in fact were, comparatively rare. Determination of private rights was traditionally, and still remains, overwhelmingly the province of state court judges. Even with sweeping statutory innovations such as the Uniform Commercial Code,28 legislative alterations of private law rights are relatively rare. Common law has been far more frequently affected by the opinions of the nonprofit American Law Institute through their authoritative series, Restatements of the Law. As legislative activity becomes less extraordinary, however, increased skepticism of the purported justifications of legislation is warranted. Legislative inflation results in a general diminution of legislative value.
I am not suggesting that I agree with all the rules and principles that currently define a person’s “civil” or common law rights—that is why I teach and write about contract law. Moreover, I can think of entirely new causes of action that have been devised by judges in recent years that are manifestly unjust violations of liberty. Nor do I necessarily endorse the exact process by which all such matters are currently decided by judges. Rather, I am answering the question of how, as a practical matter, we distinguish between rightful and wrongful conduct when protecting unenumerated liberties from legislative infringement. My answer: Such decisions should be made, for better or worse, the way these distinctions are made at present.
So emerges the great outline of an institutional allocation of responsibility in discerning and protecting the background natural rights of all persons: State common law processes determine the rights that each citizen enjoys against others, whereas state and federal judges are authorized to protect citizens from having their “civil” rights infringed by state and federal governments. When assessing the practicality of this traditional allocation of institutional responsibility, one must keep two facts in mind.
First, courts will rarely need to determine the rightfulness of an exercise of liberty because little legislation at the federal or state level even purports to define and/or prohibit wrongful behavior—that is, behavior by one person that supposedly violates the rights of another. Rather, legislation restricting “liberty interests” is typically defended, not on the ground that such liberty is wrongful, but because the restrictions achieve some desirable social policy or “legitimate state interest.” Nor is it the case that every claim of government power can plausibly be recast in terms of vindicating some individual person’s rights.
Second, and equally important, not all legislation restricts the liberties of the people in any way. The many laws that regulate the internal operation of government agencies or the dispensation of government funds, for example, would be unaffected by a Presumption of Liberty. When the post office sets its hours of operation or the price of its postage stamps, it is not restricting the rightful freedoms of the citizenry any more than a private organization that does the same. If heightened scrutiny of the necessity and propriety of such laws is warranted, as it may very well be,29 it would for some other reason than that the laws in question may infringe upon the rights retained by the people.30
On the other hand, when Congress asserts that to effectuate its power “[t]o establish Post Offices,”31 it is necessary and proper to grant a legal monopoly to its post office, those companies that wish to carry first-class mail are entitled to demand that Congress or the executive branch demonstrate the necessity and propriety of such a restriction on liberty. As Madison argued with respect to the national bank: “It involves a monopoly, which affects the equal rights of every citizen.”32 Similarly when Congress asserts that to effectuate its power “to raise and support Armies,”33 it is necessary and proper to draft young men or women to serve in the military, those who are subject to this form of involuntary servitude are entitled to demand that Congress or the executive branch demonstrate to the satisfaction of an independent tribunal of justice that armies cannot be raised through the use of volunteers.
Perhaps there are times when post offices cannot be provided without a grant of a monopoly, or when an all-volunteer army is insufficient for the defense of the United States. However, when Congress seeks to put postal competitors out of business or to draft young men or women, a Presumption of Liberty would put the onus on Congress to demonstrate that this is one of those times. There is every reason to expect that, when pressed with cases of genuine necessity, courts would not hesitate to uphold legislation that is truly necessary and proper. Indeed, even were a Presumption of Liberty to be adopted, I have little doubt that government-employed judges would more likely uphold unnecessary restrictions on liberty than strike down a law that is truly necessary. To counteract this tendency, it is important to restore another lost provision of the Constitution: the original meaning of the term “trial by jury,” which includes the right of juries to refuse to enforce criminal laws they deem unjust or unjustly applied a particular defendant.34
Some may object that a Presumption of Liberty would place altogether too much power in judges. A reliance on judges, however, is unavoidable in a constitutional system in which only courts are available to stand between individual citizens and majority and minority factions operating through representative government. As Madison observed in Federalist 10:
No man is allowed to be the judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? … Justice ought to hold the balance between them.35
When legislation encroaches upon the liberties of the people, only review by an impartial judiciary can ensure that the rights of citizens are protected and that justice holds the balance between the legislature or executive branch and the people. Without judicial review to see that Congress stays within its powers and refrains from violating the rights retained by the people, there is little reason to believe that legislation is binding in conscience on the people.
From the standpoint of constitutional legitimacy, it is woefully inadequate to insist that legislatures or executive branch officials may be the judge in their own cases when their actions are alleged to infringe upon the rightful freedom—or Liberty—of a citizen. The whole purpose of natural rights in this context is to protect persons from legislative or executive abuses. Unless these rights are protected by what Madison called “independent tribunals of justice,”36 they are virtually worthless. As Jeffrey Reiman has observed, “the Court’s decisions must be legally binding [on the other branches] precisely because they are decisions about the conditions of legitimate governance by the other branches, conditions whose determination cannot be left up to those branches.”37 Without judicial review, “a necessary condition of legitimacy, namely, a built-in mechanism for not only monitoring but effectively correcting the conditions of legitimacy, is lacking.”38
Of course, if legislatures do take pains to regulate the rights of citizens only when it is necessary and proper to do so, we can expect them to be able to justify their actions. Regrettably, our actual experience with legislatures has not been so utopian. For this reason, meaningful scrutiny of legislative and executive branch actions by an impartial magistrate is required if the laws imposed on the citizens are to bind in conscience.
Moreover, the problem of judicial power, although real, is usually overstated. Most instances of “judicial activism” cited by judicial conservatives involve latitudinarian interpretation of sweeping and indefinite statutory language. Congress is free to correct such judicial interpretations if it wishes. That it often does not evidences Congress’s all-too-common strategy of passing vaguely worded statutes so that administrative agencies or courts provide the rules of law that Congress would not.
In the event that Congress disagrees with an assessment by the Supreme Court that a particular enactment is either unnecessary or improper, and there is strong popular support for the statute, Congress has the power to propose a constitutional amendment. A majority of the Supreme Court may well protect rights at variance from the opinion of the overwhelming majority of the people for a time, but life is, alas, all too short. As Barry Friedman has noted, this fact plus our method of judicial selection assures that, for better or worse, in the not-so-long run any Supreme Court opinion about the rights of the people that is opposed by an overwhelming majority of the people will be reversed.39 The president may take any disagreement (or agreement) with past Supreme Court rulings into account in selecting judicial nominees, and the Senate may express its views during the confirmation process.
These various mechanisms by which Supreme Court rulings protective of liberty can be challenged mean that sooner or later a sustained majoritarian preference will eventually overcome any judicial resistance. That this takes some time and effort to happen is, in most instances, salutary. In any event, such delay is absolutely essential if legislatures are not to be judges in their own cases when they restrict the liberty of citizens. The more likely practical deficiency of a Presumption of Liberty is that government judges are not sufficiently independent of government or of a majority faction to provide “an impenetrable bulwark against every assumption of power in the legislative or executive.”40 For this reason prior Supreme Court rulings upholding the exercise of such powers should always be subject to reconsideration when circumstances have changed.
As a practical matter, we must choose between two fundamentally different constructions of the Constitution, each resting on a different presumption. We either accept the presumption that in pursuing happiness persons may do whatever is not justly prohibited or we are left with a presumption that the government may do whatever is not expressly prohibited.41 The presence of the Ninth Amendment in the Constitution strongly supports the first of these two presumptions. The Constitution established what Steven Macedo has called islands of governmental powers “surrounded by a sea of individual rights.” It did not establish “islands [of rights] surrounded by a sea of governmental powers.”42 The Ninth Amendment is sometimes dismissed as a mere “rule of construction,” but this in no way undermines its supreme importance. For it directly refutes the second of these presumptions and affirms the first: the Presumption of Liberty.
1 Charles L. Black, Jr., “On Reading and Using the Ninth Amendment,” in Barnett, Rights Retained, 1:345.
2 Note on terminology: By my usage, the term “liberty” refers to rightful exercises of freedom whereas “license” refers to wrongful exercises of freedom. Hence liberty is a bounded concept that includes some freedoms and excludes others. When I refer here to “rightful exercises of freedom,” I mean liberty as opposed to license. See Barnett, Structure of Liberty, 1–26.
3 Shapiro v. Thompson, 394 U.S. 618 (1969); Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868).
4 Pierce v. Society of Sisters, 268 U.S. 510 (1925).
5 Meyer v. Nebraska, 262 U.S. 390 (1923).
6 National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958); De Jonge v. Oregon, 299 U.S. 353 (1937).
7 Gibson v. Berryhill, 411 U.S. 564 (1973); Allgeyer v. Lousiville, 165 U.S. 578 (1897).
8 Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967).
9 Carey v. Population Services, 431 U.S. 678 (1977); Eisenstadt v. Baird, 405 U.S. 438 (1972).
10 Troxel v. Granville, 530 U.S. 57 (2000).
11 Griswold v. Connecticut, 381 U.S. 479 (1965).
12 To avoid confusion, let me emphasize that my argument against the approach of Footnote Four is based on the mandate of the Ninth Amendment as well as the meaning of the Privileges or Immunities Clause—not on the existence of Supreme Court cases that protected various unenumerated rights. That the Supreme Court has recognized these rights should, however, give pause to anyone who would accept an unqualified Footnote Four approach.
13 Nomination Hearings, 249.
14 Elliot, Debates, 3:657.
15 For a complete list, see Barnett, Rights Retained, 1:353–85.
16 For a comprehensive tabulation and analysis of the proposals to Congress that compares them with rights then protected in state constitutions, see Donald S. Lutz, “The States and the U.S. Bill of Rights,” Southern University Law Review 16 (1992): 251–62.
17 Wilson, “Of the Natural Rights of Individuals,” 308.
18 Jeff Rosen, “Was the Flag Burning Amendment Unconstitutional?” Yale Law Journal 100 (1991): 1078. The citations presented in the next six footnotes are taken from this article.
19 Ibid.
20 The Virginia, New York, North Carolina, and Rhode Island ratifying conventions proposed amendments to the Constitution declaring that the people have an “equal, natural, and unalienable right” to the free exercise of religion, according to the dictates of conscience. Elliot, Debates, 3:659 (Virginia); ibid., 4:244 (North Carolina); Schwartz, The Bill of Rights, 2:912 (New York); H.R. Doc. No. 398, 69th Cong., 1st sess., 1052 (1927) (Rhode Island). Five Revolutionary declarations of rights call the right to worship God according to the dictates of conscience “unalienable.” Pa. Const. (1776), § 2, reprinted in Benjamin Poore, Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States, vol. 2 (Washington, D.C.: Government Printing Office, 1878), 1541; Del. Declaration of Rights (1776), § 2, reprinted in Schwartz, The Bill of Rights, 1:277; N.C. Const. (1776), § XIX, reprinted in Poore, Federal and State Constitutions 2: 1410; Vt. Const. (1777), Ch. I, § III, reprinted in ibid., 1859; N.H. Const. (1784), Art. I, § IV, reprinted in ibid., 1280–81.
21 Pa. Const (1776), Art. I, reprinted in ibid., 1541; Va. Bill of Rights (1776), § 1, reprinted in ibid., 1908; Mass. Const. (1780), Pt. I, Art. I, reprinted in ibid., 1:957; N.H. Const. (1784), Art. I, § II, reprinted in ibid., 2:1280. Two state ratifying conventions proposed amendments declaring the rights of life, liberty, property, and happiness to be “natural.” See Elliot, Debates, 3:657 (Virginia); ibid., 4:243 (North Carolina).
22 Madison’s proposed amendment, calling the right to “reform or change” government “unalienable,” Annals, 1:452, relied on the language of four Revolutionary constitutions. See Va. Bill of Rights (1776), § 3, reprinted in Poore, Federal and State Constitutions, 2:1908–9; Pa. Const. (1776), Art. V, reprinted in ibid., 1541; Vt. Const. (1777), Ch. I, Art. VI, reprinted in ibid., 2:1859; Mass. Const. (1780), Pt. I, Art. VII, reprinted in ibid., 1:958.
23 Pa. Const. (1776), Art. XV, reprinted in ibid., 2:1542; Vt. Const. (1777), Ch. I, Art. XVII, reprinted in ibid., 1860.
24 “If people freely converse together,” said Mr. Sedgwick, “they must assemble for that purpose; it is a self-evident, unalienable right which the people possess.…” Annals, 1:759 (August 15, 1789).
25 In addition to Madison’s and Sherman’s references to speech as a “retained” natural right, the rights of speech were called “inherent” during the debate in the First Congress. “The committee who framed this report,” said Mr. Benson, “proceeded on the principle that these rights [of free expression, speech, press, assembly, and of redress of grievances] belonged to the people; they conceived them to be inherent; and all that they meant to provide against was their being infringed by the Government.” Annals, 1:759 (August 15, 1789); see also St. George Tucker’s notes on the American edition of Blackstone’s Commentaries: “Thought and speech are equally the immediate gifts of the Creator, the one being intended as the vehicle of the other: they ought, therefore, to have been wholly exempt from the coercion of human laws in all speculative and doctrinal points whatsoever: liberty of speech in political matters, has been equally proscribed in almost all the governments of the world, as liberty of conscience in those of religion” (in appendix of Blackstone’s Commentaries, vol. 1, pt. 1, 11).
26 Elliot, Debates, 2:454 (remarks of Justice Wilson).
27 Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954).
28 The broad principles of the Uniform Commercial Code require much judicial interpretation and construction. In many cases where they are not merely determining useful conventions, they can be considered as providing only general principles that require additional judicial doctrine to apply to specific cases.
29 I do not address here when, if ever, conditioning the receipt of government benefits or employment on the waiver of one’s background rights should be protected by a presumption of unconstitutionality. See, generally, Richard A. Epstein, Bargaining with the State (Princeton: Princeton University Press, 1993) (discussing the appropriate limits on the power of government to bargain with its citizens). Whether or not such so-called unconstitutional conditions violate the rights retained by the people, they may be insidious or “improper” enough in their own right to justify shifting the presumption of constitutionality and thereby placing the burden on the government to show that such conditions are both necessary and proper.
30 For example, heightened scrutiny of the necessity of laws that tell state governments how they are to behave might be justified as infringing the powers reserved to the states or to the people mentioned by the Tenth Amendment. Heightened scrutiny of laws might also be warranted when laws appear to violate the Equal Protection Clause of the Fourteenth Amendment. Neither doctrine would follow from the Ninth Amendment, or the Privileges or Immunities Clause, and the Presumption of Liberty that effectuates them.
31 U.S. Const., Art. I, § 8, Cl. 7.
32 Annals, 2:1900 (1791); see also Lysander Spooner, “The Unconstitutionality of Laws of Congress, Prohibiting Private Mails” (New York: Tribune Printing Establishment, 1844), reprinted in vol. 1 of Spooner, The Collected Works.
33 U.S. Const., Art. I, § 8, Cl. 12.
34 For an examination of the historical origins and practical application of the right of “jury nullification,” see Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine (Durham, N.C.: Carolina Academic Press, 1998).
35 Federalist 10, 79–80 (Madison).
36 The phrase is taken from Madison’s speech to the first House of Representatives in defense of his proposed amendments to the Constitution: “If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights.…” Annals, 1:457 (statement of James Madison).
37 Reiman, “The Constitution, Rights, and the Conditions of Legitimacy,” 144.
38 Ibid.
39 See Barry Friedman, “Dialogue and Judicial Review,” Michigan Law Review 91 (1993): 577 (arguing that courts are not systematically less majoritarian than the political branches of government).
40 The phrase is, once again, Madison’s. See Annals, 1:457 (statement of James Madison), See, e.g., Korematsu v. United States, 323 U.S. 214 (1944) (upholding the constitutionality of confining citizens of Japanese ancestry in detention camps).
41 See, e.g., Lino Graglia, “Judicial Review on the Basis of ‘Regime Principles’: A Prescription for Government by Judges,” Southern Texas Law Journal 26 (1985): 436 (“Very few occasions for … [judicial review] would arise, because the Constitution contains few limitations on self-government, and those limitations are almost never violated”).
42 Stephen Macedo, The New Right v. the Constitution (Washington, D.C.: Cato Institute, 1987), 97.