Randy E. Barnett The Rights Retained by the People: The History and Meaning of the Ninth Amendment Volume 2; Edited by Randy E. Barnett, George Mason University Press (1993)
I. The Origins of The Ninth Amendment
II. Why the Rights Retained by the People Are Unenumerable
III. Implementing the Ninth Amendment
IV. Replying to the Ninth Amendment Skeptics
V. Conclusion: The Equal Protection of Liberties and the Future of the Ninth Amendment
On the first day of his Supreme Court confirmation testimony, Robert Bork described teaching a constitutional theory seminar at Yale Law School in which he tried to justify what he called “a general right of freedom”1 from the various provisions of the Constitution. He recalled .hat Alexander Bickel, with whom he taught the course, “fought me every step of the way; said it was not possible. At the end of six or seven years, I decided he was right.” 2 The next day, Bork testified:
I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says “Congress shall make no” and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.3
In taking these two positions, former Judge Bork was, unfortunately, well within the mainstream of constitutional thought. For two hundred years the Supreme Court of the United States has never seriously considered a general constitutional right to liberty; at the same time he has, with few exceptions, treated the ninth amendment as though it were an inkblot. I suggest the failure to find a “general right of freedom” in the Constitution is connected to a general inability to understand the ninth amendment’s declaration that: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”4
In this Introduction, I explain how the ninth amendment’s protection of unenumerated rights “retained by the people” can be implemented in a practical fashion that is consistent with the views of its author, James Madison. Although additional work needs to be done on this proposal, enough support for it currently exists to render it attractive to those who value constitutionally limited government. I then respond to a number of ninth amendment skeptics who have sharply criticized the idea of implementing the ninth amendment. Any understanding of how the ninth amendment can work harmoniously with the rest of the Constitution, however, requires a brief examination of the origins of this intriguing and pregnant passage.
I. The Origins of the Ninth Amendment5
The origins of the ninth amendment can be traced to the debate surrounding the ratification of the Constitution. The Antifederalists, who opposed ratification, concentrated much of their attack on the absence of a bill of rights. Although many Antifederalists were probably more concerned with defeating the Constitution than with obtaining a bill of rights, they repeatedly pressed this charge because it struck a responsive cord with the people. The Federalists who supported ratification, such as Alexander Hamilton and James Wilson, gave two answers to this complaint.
First, they said that a bill of rights was unnecessary. Because the federal government was one of enumerated and limited powers, it would have no power to violate the rights of the people. “Why, for instance,” asked Hamilton, “should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?”6 Second, they argued that a bill of rights would be dangerous. Enumerating any rights might suggest to later interpreters of the Constitution that the rights not specified had been surrendered. An enumeration of rights could thereby lead to an unwarranted expansion of federal power and a corresponding erosion of individual rights.
Neither argument against a bill of rights carried the day. Anti-federalists responded tellingly by turning these Federalist arguments against the Constitution itself. They noted that the Constitution already enumerated some of the rights of the people—such as the protections against ex post facto laws and bills of attainder in Article I, Section 9, and the right to a jury trial in criminal cases in Article III, Section 2. If an incomplete enumeration was dangerous, as the Federalists had so strenuously argued, then the severely incomplete list of rights already in the Constitution was dangerous indeed. No further harm could be done by expanding the list.
When it became clear that the Constitution was headed for defeat, the Federalists turned the political tide by promising to support a bill of rights after ratification. Several state conventions accompanied their ratification of the Constitution with lengthy lists of rights and other provisions they wanted added at the first opportunity. By this maneuver, the proponents of the Constitution deprived the Antifederalists of their principal argument against ratification.
Getting Congress actually to consider a bill of rights, however, turned out to be no easy feat. The congressional record shows Representative James Madison repeatedly urging the House to take up the matter only to be told by various congressmen that enacting the first tax bill was far more important than enacting a bill of rights. Eventually, in a lengthy and revealing speech, Madison proposed a series of amendments to the Constitution. He explained that a bill of rights was needed, not only to quiet the fears and suspicions of those who still doubted the new Constitution and to induce those states who had not ratified the Constitution to do so, but also to better protect the liberties of the people. As Madison observed:
If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will naturally be led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.7
In his speech, Madison took up the Federalist argument he himself had made during the ratification debates that any effort to enumerate rights would be dangerous:
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 the 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 it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.8
The passage Madison referred to was the precursor of the ninth amendment which read as follows:
“The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”
Madison’s proposals were referred to a Select Committee of the House which was created to consider what amendments to the Constitution might be appropriate.
Although there is much that is controversial about the ninth amendment, the story of its enactment that I have just summarized is not. In light of this history, the original meaning of the ninth amendment is clear: When forming a government the people retained rights in addition to those listed in the Bill of Rights. But while the meaning of the ninth amendment may be clear, its implications for constitutional adjudication are not. Are the unenumerated rights judicially enforceable as the enumerated rights have come to be? If so, what exactly are these rights?
For most, the answer to the first of these questions hinges on our ability to answer the second. As Robert Bork observed: “Senator, if anybody shows me historical evidence about what they meant, I would be delighted to do it. I just do not know.”10 Most would agree with Bork that, “the uncertainty surrounding their content can be resolved, unenumerated rights should be enforceable. Otherwise, although the Congress and the Executive 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.
There is little, if any, question that the rights retained by the people refer, at least in part, to what are called “natural rights” 11—that is, the rights people have independent of those they are granted by a government and by which the justice of governmental action is to be judged. Despite their many differences, the framers of the Constitution shared a common belief that although the people may delegate certain powers to their agents in a government, they still retain their natural rights. When explaining to the House the nature of the various rights in his proposal, Madison stated that, “[i]n some instances they specify rights which are retained when particular powers are given up to be exercised by the Legislature.”12 Madison’s notes for this part of his speech read: “Contents of Bill of Rights…. 3. natural rights retained as speach [sic].”13
That the term “retained” rights referred to natural rights is further reinforced by one provision of a recently discovered draft of a bill of rights written by Representative Roger Sherman, who served with Madison on the House Select Committee that drafted the Bill of Rights:
The people have certain natural rights which are retained by them when they enter into Society, Such are the rights of Conscience in matters of religion; of acquiring property, and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress ofgrievances. Of these rights therefore they Shall not be deprived by the Government of the united States.14
This list, which was not intended to be exhaustive, includes some rights that were eventually enumerated in the Bill of Rights. Others, such as the rights to acquire property and pursue happiness and safety, were left unenumerated. The ninth amendment establishes that because some powers had been delegated to government and some rights had been singled out, no one should conclude that the other unenumerated retained rights were, in Madison’s words, “assigned into the hands of the General Government, and were consequently insecure.”15
The problem with putting the ninth amendment into effect today is that many no longer appreciate the natural rights that the Constitution’s framers took for granted. Yet if the framers had anticipated the modern philosophical skepticism about natural rights, they would never have settled for the few rights that were enumerated. Fortunately, there is a practical method of interpreting unenumerated rights that does not require us to agree on a comprehensive list of unenumerated rights. To appreciate this method, however, we must first consider why it is impossible to enumerate all the rights retained by the people.
II. Why the Rights Retained by the People Are Unenumerable
To discern those unenumerated rights the framers had in mind, we might adopt what I have elsewhere called the “originalist method” of identifying unenumerated rights.16 As Robert Bork suggested, we might examine the written records of the period, including the numerous rights proposed by the ratification conventions, 17and the theoretical writing of the framers.18 No ink blot prevents us from reading these materials. I have already mentioned the right to acquire property as one that the framers unquestionably believed to be a natural and inalienable right which was retained by the people when forming a government. Freedom of conscience is another. Although a list of rights developed by using an originalist method of interpretation may be viewed as truncated—even from the framers’ perspective—a truncated list is better than none.
The originalist method will hardly suffice, however. The framers believed it was dangerous to enumerate any rights because the rights of the people are boundless. As James Wilson, a natural-rights theorist, explained, “there are very few who understand the whole of these rights.”19 None of the classic political writers claim to provide “a complete enumeration of rights appertaining to the people as men and as citizens. . . . Enumerate all the rights of men! I am sure, sirs, that no gentleman in the late Convention would have attempted such a thing.” 20This is one reason why Wilson and others thought any attempt to enumerate rights would be dangerous. As Justice James Iredell argued in the North Carolina constitutional ratifying convention:
[I]t would not only be useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.21
It is important that we understand exactly why rights cannot exhaustively be enumerated if we are to devise a way of protecting these retained rights without specifically enumerating each and every one.
Rights are unenumerable because rights define a private domain within which persons have a right to do as they wish, provided their conduct does not encroach upon the rightful domains of others. As long as their actions remain within this rightful domain, other persons— including the government—should not interfere. Because people have a right to do whatever they please within the boundaries defined by natural rights, this means that the rights retained by the people are limited only by their imagination and could never be completely specified or enumerated. In sum, as Madison stated, “the pre-existent rights of nature” are “essential to secure the liberty of the people.”22 And because liberty is open-ended, so are our rights.
This conception of rights is illustrated by a fascinating exchange that occurred during the debate in the House over the wording of what eventually became the first amendment. At one juncture in the debate, Representative Theodore Sedgwick criticized the House Select Committee’s inclusion of the right of assembly on the grounds that “it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called into question; it is derogatory to the dignity of the House to descend to such minutiae… ,”23 Representative Egbert Benson replied to Sedgwick that: “The committee who framed this report proceeded on the principle that these rights 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.” 24 Sedgwick then responded that:
if the committee were governed by that general principle, they might have gone into very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper… .25
Notice that Sedgwick was not denying that one had a right to wear one’s hat or go to bed when one pleased. To the contrary, he equated these inherent rights with the right of assembly which he characterized as “self-evident” and “unalienable.”26 Indeed, Representative John Page’s reply to Sedgwick made this explicit. “[L]et me observe to him,” said Page:
that such rights have been opposed, and a man has been obliged to pull off his hat when he appeared before the face of authority; people have also been prevented from assembling together on their lawful occasions, therefore it is well to guard against such stretches of authority, by inserting the privilege in the declaration of rights.27
Sedgwick’s point was that the Constitution should not be cluttered with a potentially endless list of trifling rights that “would never be called infto] question”28 and were not “intended to be infringed.”29 Sedgwick’s argument implicitly assumes that the “self-evident, unalienable,” and inherent liberty rights retained by the people are unenumerable because the human imagination is limitless. It includes the right to wear a hat, to get up when one pleases and go to bed when one pleases, to scratch one’s nose when it itches (and even when it doesn’t), and to take a sip of Diet Coke when one is thirsty.
But this returns us to the most controversial aspect of the ninth amendment: How can such unenumerable rights find legal protection without empowering judges simply to make up whatever rights may appeal to them? Raoul Berger, for one, has charged that any effort to protect the unenumerated rights referred to in the ninth amendment would provide “a bottomless well in which the judiciary can dip for the formation of undreamed of ‘rights’ in their limitless discretion… .” 30 In response to my suggestion that the rights retained by the people are limited only by their imagination, he asks caustically, “[h]ow does one effectuate an imaginary right?”31 The answer to this concern lies in something like the “general right to liberty” that Robert Bork once searched for—only it is more accurate to call it a presumption of liberty.
III. Implementing the Ninth Amendment
A. The Presumption of Liberty
Implementing the ninth amendment challenges us to protect unen-umerated rights without determining a final list of such rights and without lending credence to illegitimate claims of right. This challenge has proved too much for most judges and constitutional scholars. Even for those who have the will to implement the ninth amendment, there seems to be no practical way. But there is.
As long as they do not violate the rights of others (as defined by the common law of property, contract and tort), persons can be presumed to be “immune” from interference by government.32 Such a presumption means that citizens may challenge any government action that restricts their otherwise rightful conduct, and the burden is on the government to show that its action is within its proper powers or scope. At the national level, the government would bear the burden of showing that its acts were both “necessary and proper” to accomplish an enumerated function, rather than, as now, forcing the citizen to prove why it is he or she should be left alone. At the state level, the burden would fall upon state government to show that legislation infringing the liberty of its citizens was a necessary exercise of its “police power”—that is, the state’s power to protect the rights of its citizens. 33
Any society such as ours that purports to be based on a theory of limited government already assumes that legislation must be a proper exercise of government power. The presumption of liberty simply requires that when legislation or executive actions encroach upon the liberties of the people, they may be challenged on the grounds that they lack the requisite justification. And a neutral magistrate must decide the dispute. As Madison observed in The Federalist No. 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 great 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 them34 .
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 and the people.
Lest anyone think this point is obvious let me hasten to note that today the presumption used by the Supreme Court is precisely the reverse. According to what the Court calls the “presumption of constitutionality,” legislation will be upheld if any “rational basis” for its passage can be imagined, unless it violates a “fundamental” right—and liberty has not been deemed by the Court to be a fundamental right. As the Court stated in United States v. Carolene Products Co:35 “There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced with the Fourteenth . . ,. 36” In other words, the enumerated rights may narrow the presumption of constitutionality, but one of the unenumerated rights retained by the people will have no such power-limiting effect.
While the presumption of liberty is not the only way to implement the ninth amendment37, it provides a practical and powerful method of protecting unenumerated rights. As lawyers well know, the outcome of legal disputes is often determined by the burden of proof. For example, the first amendment has been held to impose a serious burden on the government to justify any of its actions that restrict the natural right of free speech. In countless cases, this “presumption of free speech” has effectively protected this retained, but enumerated, natural right. The ninth amendment simply extends the same protective presumption to all other rightful exercises of liberty.
Although originally the ninth amendment, like the rest of the Bill of Rights, was most likely intended by the framers to be enforced only against the federal government, this was not because it was thought that the people had surrendered all their rights to state governments—a suggestion belied by the swift incorporation into most state constitutions of provisions identical to the ninth amendment. Indeed, many rights—such as the right of conscience or the right to acquire property—were thought to be unalienable, which means that the people could not surrender them to any government even if they wanted to. Rather, the Congress and the federal courts originally lacked jurisdiction to protect the retained “privileges or immunities” of citizens from abuses by their states. As we all know, this arrangement was fundamentally changed by the enactment of the fourteenth amendment after the civil war. Today, if a state government infringes upon a right the people retained against their respective states, there is no jurisdictional barrier preventing federal protection of this right.
B. Applying the Presumption of Liberty Today
To see how a presumption of liberty might operate today, it is best to begin with an example that avoids current divisive controversies. In this spirit, consider Congress’ power under Article I, Section 8 to “establish post offices.” Having exercised this establishment power, Congress is free under the necessary and proper clause to regulate the operation ofits post offices in any manner it sees fit. The presumption of liberty would not ordinarily apply to the internal regulation of governmental offices. What happens, however, when Congress, allegedly pursuant to its postal powers, goes beyond its power to administer its own offices and claims the further power to establish a postal monopoly, as it has? The Constitution is silent on the issue of a postal monopoly38. Is this a proper exercise of the power to make all laws that shall be necessary and proper to effectuate the postal power?
According to the now prevailing presumption of constitutionality, Congress would be free to establish a monopoly unless either potential competitors or consumers of postal services could prove that this claimed government power violates a fundamental right. For example, competitors might assert a fundamental “right to carry first class mail,” while recipients of mail could claim they had a fundamental “right to send first class mail” by any means they chose. Because these claims of right sound trivial rather than fundamental they are easy to disparage—almost as easy to disparage as the trifling right to wear a hat or go to bed when one pleases. Consequently, courts have neither barred the Congress from establishing its monopoly nor inquired very seriously as to whether such laws are truly necessary or proper. With judges lacking a proper view of the ninth amendment, today the outcome of such a lawsuit would be virtually pre-determined: the government wins and the citizen loses.
A presumption of liberty, however, would shift the burden of proof from the citizen to the government. Instead of imposing the burden on the citizen to establish the violation of a “fundamental” right, a burden would be imposed on the government, in this case upon Congress, to show a compelling reason why it is both necessary and proper to grant its own post office a legal monopoly, thereby infringing the liberties of the people. In enacting a Constitution of limited and enumerated powers, the people retained their unenumerated right to establish their own private post offices if they so chose. They neither expressly nor impliedly assigned this power to the general government. The ninth amendment is an ever-present reminder that the mere fact that such a right is left out of the Bill of Rights ought not to suggest otherwise.
In a speech before the second House of Representatives, the ninth amendment’s author, James Madison himself, used it in a strikingly similar fashion to obj ect to the pending bill to establish a single national bank on the grounds that the bill was unconstitutional. Though widely overlooked39, Madison’s usage also helps clarify the relationship between the ninth amendment’s protection of the rights retained by the people and the tenth amendment’s injunction that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.40”
Madison examined the Constitution at length to see if the power to create such a bank could be found among any of those delegated to the government and he concluded that “It is not possible to discover in [the Constitution] the power to incorporate a Bank.41” He then considered whether the proposed bank might be justified under the necessary and proper clause42 as a means of executing the borrowing power43. “Whatever meaning this clause may have,” Madison began, “none can be admitted, that would give unlimited discretion to Congress. Its meaning must, according to the natural and obvious force of the terms and the context, be limited to means necessary to the end, and incident to the nature of the specified powers.44 ”
In evaluating whether the necessary and proper clause justified the claimed power to create a national bank, Madison contrasted the requirement of necessity with that of mere convenience or expediency. “But the proposed bank,” he said:
could not even be called necessary to the Government; at most it could be but convenient. Its uses to the Government could be supplied by keeping the taxes a little in advance; by loans from individuals; by the other Banks, over which the Government would have equal command; nay greater, as it might grant or refuse to these the privilege (a free and irrevocable gift to the proposed Bank) of using their notes in the Federal revenues46
Notice that Madison was not simply making what would now be called a “policy” choice. Earlier in his address to the House, Madison did address the policy issues raised by the proposal when he “began with a general review of the advantages and disadvantages of Banks.46” However, “[i]n making these remarks on the merits of the bill, he had reserved to himself the right to deny the authority of Congress to pass it.47” Rather, in the passage I quoted, Madison is making the constitutional argument that these other means of accomplishing an enumerated object or end are superior precisely because they do not entail the violation of the rights retained by the people and are therefore to be preferred in principle. In particular, these measure do not involve the grant of a monopoly, “which,” in Madison’s words, “affects the equal rights of every citizen.48”
In other words, there is a difference in principle between these alternative means; just as there is a difference in principle, not merely policy, between drafting citizens and paying volunteers as the means of exercising the congressional power to “raise and support Armies. . . .” 49 Although Article I, Section 8 delegates this power to Congress, when it chooses a means of accomplishing this end that intrudes upon the liberties of the people, as a military draft does, then it must justify this rights infringement by showing that its acts are genuinely necessary and proper. This burden of justification requires the government to show that it cannot accomplish its constitutionally delegated end by means that do not trespass upon the rights retained by the people.
Finally, in his bank speech Madison also questioned the proposed exercise of the necessary and proper clause on the grounds that the power claimed was highly remote from any enumerated power. “Mark the reasoning on which the validity of the bill depends,” he observes:
To borrow money is made the end, and the accumulation of capitals implied as the means. The accumulation of capitals is then the end, and a Bank implied as the means. The Bank is then the end, and a charter of incorporation, a monopoly, capital punishments, &c., implied as the means.
If implications, thus remote and thus multiplied, can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of political economy.The latitude of interpretation required by the bill is condemned by the rule furnished by the Constitution itself50.As one authority for this “rule” of interpretation, Madison cited the ninth amendment:
The explanatory amendments proposed by Congress themselves, at least, would be good authority with them; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended for…. He read several of the articles proposed, remarking particularly on the 11th [the ninth amendment] and 12th [the tenth amendment], the former, as guarding against a latitude of interpretation; the latter, as excluding every source or power not within the Constitution itself51.
Thus, Madison viewed the ninth and tenth amendments as playing distinct roles. Madison viewed the tenth amendment as authority for the rule that the congress could only exercise a delegated power. For example, in the illustrations I have used, Congress could not establish a post office or raise and support armies without a delegation of power to pursue these ends. In contrast, Madison viewed the ninth amendment as providing authority for a rule against the loose construction of these powers—especially the necessary and proper clause—when legislation affects the rights retained by the people. As Madison concluded in his bank speech: “In fine, if the power were in the Constitution, the immediate exercise of it cannot be essential; if not there, the exercise of it involves the guilt of usurpation. . . ,5 2”
In my examples, because a postal monopoly and a military draft infringe upon the rightful liberties of the people, these are suspect means for pursuing delegated ends. Those claiming that legislation restricting the rightful liberties of the people falls under a delegated power have the burden of showing that it is a genuinely necessary and proper exercise of such a power. As I have argued elsewhere, constitutional rights-including unenumerated rights-operate both as “means-constraints” and as “end-constraints.53”
Once the ninth amendment is viewed as establishing a presumption of liberty, thereby placing a burden of justification on the government, every action of government that infringes upon the rightful liberties of the people can be called into question. Is it really necessary that persons-particularly poor persons-obtain licenses requiring extensive testing in such subjects as chemistry before they may work as beauticians? Is it really necessary that government limit the number of taxicabs it licenses so that the price of taxicab medallions in some cities reaches $100,000 or even higher? Or are all these and other similar measures really ways by which a privileged few seek to eliminate lower-priced competition? Is it really necessary to criminalize the sale and use of intoxicating substances, or is a “drug-free” society better achieved in ways that do not infringe upon the liberties of the people-perhaps by the sort of education and social pressure that is currently being used so effectively to combat the use of nicotine in cigarettes and the abuse of alcohol. Even the current government restrictions that limit the practice of law to those who have attended three years of law school would not be beyond challenge and scrutiny.
By offering these examples, I am not claiming that the ninth amendment dictates any particular constitutional results. I am not claiming that the ninth amendment necessarily renders the postal monopoly, the military draft, occupational licensing, or drug prohibition unconstitutional simply because each infringes the retained rights that secure the liberties of the people. Neither these nor any other ninth amendment claim can bedecided in the abstract—by which I mean without taking into account the specifics of particular legislation and the factual context in which it is applied. What the ninth amendment requires, however, is that when liberty-restricting legislation is challenged by a citizen, such claims be evaluated by a neutral magistrate. Adopting the presumption of liberty would make this requirement effective.
Moreover, this is not to say that the government would never be able to meet its burden. I fully expect that if a presumption of liberty is established, the courts would find that government has met its burden far more often that they should. We must never forget that the Supreme Court once upheld the government’s power to imprison American citizens of Japanese descent in prison camps because of the threat to national security these citizens allegedly posed.54 Judicial review is not a panacea for protecting liberty.
Nor does the presumption of liberty establish a license to do whatever one wishes. Liberal political theorist John Locke put the matter asfollows:
But though this be a State of Liberty, yet it is not a State of Licence …. The State of Nature has a Law of Nature to govern it, which obliges everyone: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions.55As I mentioned earlier, justice, which is to say rights, defines the boundaries within which one may do as one wishes. According to this conception of liberty, one cannot permissibly infringe upon the rightful domains of others. According to Locke, in the state of nature, “all Men may be restrained from invading other Rights, and from doing hurt to one another.” 56 The common law of property, contracts, and torts has traditionally defined the extent and nature of these boundaries. Tortious conduct is not a “rightful” exercise of one’s liberty; one has no constitutional right to commit trespass upon the land of another. Provided that one is acting rightfully in this sense, however, a presumption of liberty would require government to justify any interference with such conduct.
Finally, a presumption of liberty does not authorize judges to usurp either legislative or executive functions. Protecting the rights of individuals and associations to act or refrain from acting in ways that do not violate the common-law rights of others, neither empowers judges to create new “positive rights” nor authorizes them to enact taxes to pay for such rights. Judges may only strike down offending legislation—&n& judicial negation is not legislation. Assuming they have the political will, the other branches of government have more than enough power to defend themselves from judicial encroachment.
IV. Replying to the Ninth Amendment Skeptics
How does the presumption of liberty described here effect the various criticisms advanced against implementing the ninth amendment? In this part, I consider the arguments of three prominent ninth amendment skeptics: Robert Bork, Thomas McAffee and Raoul Berger. I label these writers ninth amendment skeptics because, despite their differences, all agree that the ninth amendment has no place in constitutional adjudication.
A. Robert Bark’s Concern for the Rule of Law
The liberal conception of the rule of law dictates that the requirements of justice take an articulate and understandable form.57 The very concept of an unenumerated right presents rule of law problems. Quite obviously, the unenumerated rights referred to by the ninth and fourteenth amendments have no form at all—they are unwritten. Without some authoritative way to give them a sufficiently determinate content, judicial enforcement of these rights would seem to violate the rule of law.
This becomes especially important when the separation of powers is considered. According to the theory of separation of powers, courts are only authorized to enforce the Constitution and the rights it protects, not to legislate. When faced with textual provisions as completely open-ended as these, any judicial interpretation of unenumerated rights hardly seems an interpretation at all, for there is simply nothing to interpret. Enforcing unenumerated rights in the absence of a text would seem instead to be a purely legislative act.
To put the problem in H.L. A. Hart’s terms, every case or controversy arising under the ninth amendment58 lies in the “open texture59 ” of this provision; therefore, the ninth amendment renders rule-bound decisions impossible. When confronted with a case lying within the open texture of language, the only option is to exercise judicial discretion, and this sort of discretion conflicts with the rule of law.
The apparent conflict between the ninth amendment and the rule of law has most likely been one reason for its judicial neglect ever since its enactment. Recently, however, this rule of law difficulty with unenumerated rights has received special attention in the writings of RobertBork 60.
As Bork has explained:
In a constitutional democracy the moral content of law must be given by the morality of the framer or the legislator, never by the morality of the judge. The sole task of the latter-and it is a task quite large enough for anyone’s wisdom, skill, and virtue-is to translate the framer’s or the legislator’s morality into a rule to govern unforseen circumstances. That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power, that is the morality of the jurist.61
Adhering to this philosophy, says Bork, is “essential if courts are to govern according to the rule of law rather than whims of politics and personal preference.”62 To illustrate this, Bork offers an analogy: [S]uppose that the United States, like the United Kingdom, had no written constitution, and, therefore, no law to apply to strike down acts of the legislature. The U.S. judge, like the U.K. judge, could never properly invalidate a statute or an official action as unconstitutional. The very concept of unconstitutionally would be meaningless. The absence of a constitutional provision means the absence of a power of judicial review. But when a U.S. judge is given a set of constitutional provisions, then, as to anything not covered by those provisions, he is in the same position as the U.K. judge. He has no law to apply and is, quite properly, powerless. In the absence of law, a judge is a functionary without a function.63
As Bork repeatedly argues, “[democratic choice must be accepted by the judge where the Constitution is silent.” 64
For one who takes this view of the judiciary and the rule of law, the ninth amendment poses a dilemma. On the one hand, the Constitution is not exactly silent; its text certainly includes this provision. On the other hand, because the ninth amendment is so open-textured, its framers failed to provide judges with “their” morality; thus it appears to provide “no law” to the judge. In the absence of such authoritative guidance, judges would be free to allow their own desires free rein. Consequently, unless we can somehow discover the framers’ original intent—that is, what specific rights they had in mind when drafting the ninth amendment—the rule of law seems to require that judges ignore this enacted passage of the Constitution.
This is precisely Bork’s conclusion. In his Senate confirmation hearings, Bork analogized the ninth amendment to an “ink blot” that you “cannot read.” 65 In this manner, Bork uses the rule of law to justify ignoring the unenumerated rights that are the subject of the ninth amendment. Notice that Bork equates interpreting a passage with no clear meaning with a judge having no constitution (like the U.K. judge described above). Where the text of the Constitution is insufficiently rule-like, Bork concludes that there is simply no law to apply, and consequently the Constitution is deemed to be “silent,” notwithstanding what it expressly says. As Bork concludes: “If the meaning of the Constitutionis unknowable, if so far as we can tell, it is written in undecipherable hieroglyphics … judges must stand aside and let democratic majorities rule, because there is no law superior to theirs.”66
But a better understanding of the rule of law provides a way to escape the conundrum of ignoring those parts of the Constitution that fail to meet the criterion of ruleness. For the rule of law is not a commitment to rules simpliciter; it is not the law of rules, though some talk as though it is.67 It is a commitment to a particular set of values—in particular, the value of enabling persons to discern the requirements of justice in advance of action (and in advance of subsequent litigation). Individuals and associations must know what justice requires before acting, if they are to coordinate their actions with those of others. Moreover, only by somehow discerning the requirements of justice apart from the outcome of a lawsuit can we detect the existence of partiality in judicial decision-making that contributes to the problem of enforcement abuse.
Given the communicative function of the rule of law, we can see that its informational requirements can be satisfied by means other than general rules—for instance, by general principles. Fred Schauer’s emphasis on the use of “justificatory presumptions” in legal reasoning is particularly valuable in this regard:
[A] justificatory presumption … in constitutional law, operates in a decisionmaking framework in which reasons vary in strength. Even absent epistemic uncertainty, there may be reasons for taking some action that are simply stronger or more pressing than others. This loose observation, strong enough for present purposes, explains the difference between a reason that is compelling and one that is simply rational, between a justification that is reasonable and one that is important. The constitutional import of all these distinctions is that, time and again, reasons that are sufficient for some purposes are insufficient for others. For instance, the existence of a quite good reason for restricting speech or taking race into account may still turn out to be insufficient because of the overwhelming justificatory burden that such a reason must meet.68
Let us now return to the basic problem posed by unenumeratcd rights to see how the device of justificatory presumptions can be of assistance. Because unenumerated rights are not listed, the Constitutional text does not provide judges with specific guidance to inform their decisions so that they are both predictable and impartial. Bork presumes the power of legislatures to act unless rightfully restrained by the Constitution, but by ignoring the ninth amendment and the privileges or immunities clause of the fourteenth amendment, he picks up in the middle of a story that begins with the rights of the people. This is not surprising in light of his view that the “the ratifiers” creation of one set of rights is simultaneously a failure or refusal to create more. There is no basis for extrapolating from the rights they did create to produce rights they did not69.”
Yet, although the framers undoubtedly thought bills of rights consisted of an amalgam of different sorts of rights, they certainly did not believe that they were “creating” the rights “retained by the people.” As was explained above70 , the Constitution presupposes natural rights that preexisted its enactment71. These natural or inherent rights protect the people’s liberty to act as they see fit unless justly restrained by the government.
We have already examined how these rights can be protected without specifying every instance of protected liberty in advance by adopting a justificatory presumption of liberty that puts the burden on government to show that any interference with the exercise of the rights retained by the people is justified. Bork himself once flirted with the idea that the Constitution supports a “general principle of individual autonomy underlying the particular guarantees of the Bill Rights.72 ” Ultimately, he came to reject the idea of an “independent right of freedom, which is to say a general constitutional right to be free of legal coercion,”73 on the grounds that such a right is “a manifest impossibility in any imaginable society.”74As he explained in his confirmation hearing:
Well, the difficulty, I think, Senator, is that if I decide that I am going to protect liberty, just in general, not without any specific provision of the Constitution, then I have no—obviously, I cannot say everybody is free to do whatever they want to do, and no statute may exist because it interferes with liberty; we cannot have anarchy. So then I have to define what liberties—I have to define it without guidance from the Constitution—what liberties people ought to have and what liberties they ought not to have.75
If, however, this general right to liberty is considered not as absolute but rather as a justificatory presumption that shifts the burden to the government to show that interference with liberty is “necessary” and its motives “proper,” then one need not specify “what liberties people ought to have and what liberties they ought not to have.” Instead, any rightful exercise of liberty would be protected by placing the burden on the government to establish the necessity and propriety of its conduct. This is just what government must establish when its actions infringe upon the liberty of speech.
There is, then, nothing remotely impossible about protecting such a right. Indeed, the allocation of such burdens of proof is a traditional function of the rule of law. Nonetheless, in The Tempting of America, Bork considers and rejects a similar proposal advance by Bernard Siegan76 . His first objection is the familiar one that the many liberties protected by such a presumption are “not mentioned in constitutional materials.77” As he puts it: “There being nothing in the Constitution about maximum hours laws, minimum wage laws, contraception, or abortion, the Court should have said simply that and left the legislative decision where it was.78” We have already seen, however, that Bork’s argument for ignoring unenumerated rights depends upon the claim that the framers’ failure to enumerate specific rights makes the judicial enforcement of rights not enumerated violative of the rule of law. If, however, there is a way of giving these provisions content that is consistent with the rule of law, then this objection must fail.
Second, and more interestingly, Bork considers the presumptive nature of the right to liberty. Although he again rejects the concept on the grounds of feasibility, he no longer argues, as he once did, that such a right is an “impossibility in any imaginable society.79” Siegan cites Aaron Director’s claim that “[IJaissez faire has never been more than a slogan in defense of the proposition that every extension of state activity should be examined under a presumption of error.80” Bork replies that the “next question, however, is who is to apply the presumption of error, players in the political process or judges. My answer is the former; Siegan’s is the latter.”81
Bork defends his preference on the ground that the task facing a judiciary seeking to evaluate the necessity and propriety of governmental conduct would be “stupendous82”:
The court could not carry out the task assigned unless it had worked out a complete and coherent philosophy of the proper and improper ends of government with respect to all human activities and relationships. This philosophy must give answers to all questions social, economic, sexual, familial, political, moral, etc. It must be so detailed and well articulated, with all major and minor premises constructed and put in place, that it enables judges to decide infinite numbers of concrete disputes…. No theory of the legitimate and important objectives of government that possesses all of these characteristics is even conceivable. No single philosopher has accomplished it, and nine Justices could not work it out and agree on it. Yet, upon the premise that a judge may not override democratic choice without an authority other than his own will, each of these qualities is essential83.
The problem with Bork’s reply is revealed in his last sentence, in which he assumes what a presumption of liberty calls into question—namely, that the legitimacy of democratic choice places the burden on the court to justify any interference with legislative will when protecting unenumerated rights. He repeatedly asks how the court is “to demonstrate 84” or “to prove 85” that it is right and the legislature is wrong. However, we are speaking now of adjudication with parties on both sides of a case or controversy. In this context, placing the burden on “the court” is no different than placing the burden on the citizen to justify his or her exercise of liberty.
Although this position is entirely consistent with Bork’s view that the “elected legislator or executive may act where not forbidden,” it does no more than reassert the presumption of constitutionality, rather than defend it. The presumption of liberty places the burden on the government to justify its interference with the liberties of the people. Therefore, the burden falls to the legislature or executive, not the court, to develop the theories required to justify its actions. One need not be too cynical to suspect that, when the justificatory shoe is placed on the other foot, this burden will no longer remain as insurmountable as Bork asserts.
In his response to Siegan, Bork not only misses the basic thrust of the presumption of liberty, he also misses the point of the theory of delegated powers that underlies the entire Constitution and that is explicitly acknowledged in the tenth amendment. If the government cannot articulate a coherent and legitimate justification for its actions, if it cannot show how its actions are substantially related to these objectives and that it cannot achieve its objectives by means that do not infringe upon liberty86, then it deserves to lose, and the citizen deserves to win. According to the presumption of liberty, it is the legislator’s burden to justify it’s conduct, not the citizen’s or the court’s87 .
Moreover, what Bork claims is an impossible function for judges is precisely how the First amendment protection of speech is interpreted. Indeed, it is how Bork himself protected the freedom of speech as a federal appeals court judge88. Courts have not interpreted the first amendment to mean that government actions may never in any manner ailed speech, but that when they do, the government is under a heavy Inn den to justify its conduct. This is a burden that the executive and legislative branches have sometimes met and sometimes failed to meet. The presumption of liberty simply extends the protection afforded to the enumerated right of free speech, and other enumerated rights, to the unenumerated freedoms retained by the people.
One source of Bork’s difficulty here is his acceptance of Herbert Wechsler’s view of legislation: “No legislature or executive is obligated by I he nature of its function to support its choice of values by the type of i reasoned explanation that. . . is intrinsic to judicial action. . . ,”89 In Bork’s words “no legislation rests on a principle that is capable of being applied generally.90 ” But a presumption of liberty contests this interpretive assumption— an assumption that is, by the way, both extra-textual and questionable on originalist grounds. While the legislature may be under no general obligation to state a principled basis for its legislative acts, when these acts infringe upon the rightful liberties of the people and are challenged, they must be defended in a principled manner or be nullified as u nlawf ul. It is not enough for a legislature to say, “We just wanted to dothis.” Mork Tails to appreciate that the rule of law requires a legislature, no less than a court, to act lawfully as opposed to willfully.
By putting on those who infringe upon the liberties of the people the onus of explaining why their enactments are lawful-in the sense that they are justified on general principles-the presumption of liberty serves the rule of law far better than the presumption of constitutionality. For we must never forget that the rule of law is meant to protect the people from the government, not to protect the government from the people.
Beneath this debate about unenumerated rights and the rule of law lies another that concerns the source of constitutional legitimacy. Is the Constitution binding solely because it is the product of the exercise of will-in this case, the will of the people who ratified it-as Robert Bork insists, or is it legitimate in whole or in part because it establishes a system of government that is substantively justified? The question of legitimacy is hardly a new one. As Edward Corwin observed:
The attribution of supremacy to the Constitution on the ground solely of its rootage in popular will represents… a comparatively late outgrowth of American constitutional theory. Earlier the supremacy accorded to constitutions was ascribed less to their putative source than to their supposed content, to their embodiment of essential and unchanging justice…. The Ninth Amendment of the Constitution of the United States .. . illustrates this theory perfectly, except that the principles of transcendental justice have been here translated into terms of personal and private rights…. [These rights] owe nothing to their recognition in the Constitution-such recognition was necessary if the Constitution was to be regarded as complete.
Thus the legality of the Constitution, its supremacy, and its claim to be worshipped, alike find common standing ground on the belief in a law superior to the will of human governors91.
Actually, it is the legitimacy of governmental action, rather than of the Constitution itself, that is directly at issue. The Constitution is binding, if at all, on the government and its officials. The question is whether actions of the government established by the Constitution are binding “in conscience” on individuals and associations. Unless we have reason to think that legislative or executive actions are consistent with the rights retained by the people, there is no prima facie moral duty to obey their dictates92.
When legislation is produced by constitutional processes that lack any impartial review to determine whether the legislation has this rights respecting quality, then the people have no assurance of legitimacy. In the absence of such assurance, nothing but force or power exists to enlist bedience . As Bork acknowledges: “Power alone is not sufficient to produce legitimate authority.93” What he fails to see is that, without the scrutiny provided by a presumption of liberty, the fact that legislation is enacted suggests little, if anything, about its substantive legitimacy. Citizens have no reason to think it represents anything other than an exercise of naked legislative power -whether in service of a majority or a minority faction94.
With the protection of the background rights retained by the people- both enumerated and unenumerated- providing the basis of constitutional legitimacy, the Borkian picture of the Constitution as “islands [of rights] surrounded by a sea of government powers”95 is reversed. In its place is the original picture of the Constitution, “wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights.”96 Ultimately, it is for us to decide which picture is correct.
B. Thomas McAffee’s “Residual Rights” Theory of the Ninth Amendment
Thomas McAffee denies that the rights retained by the people “are to be defined independently of, and may serve to limit the scope of, powers granted to the national government by the Constitution.97” Instead, he maintains that “the other rights retained by the people are defined residually from the powers granted to the national government.98 ” In his view, the ninth amendment was originally intended solely to prevent later interpreters of the Constitution from exploiting the incompleteness of the enumeration of rights to expand federal powers beyond those delegated by the constitution.99 He specifically denies that it was intended to protect individual rights by justifying a more strict construction of the enumerated powers than might be warranted under the delegated-powers provisions standing alone. In McAffee’s words: The Ninth Amendment reads entirely as a “hold harmless” provision: it thus says nothing about how to construe the powers of Congress or how broadly to read the doctrine of implied powers; it indicates only that no inference about those powers should be drawn from the mere fact that rights are enumerated in the Bill of Rights.100
In defense of this thesis, McAffee presents a detailed and closely-reasoned analysis of evidence concerning the original meaning of the framers. Yet although McAffee’s sources show beyond peradventure that the framers of the Constitution intended the structure of separate and enumerated powers to be the primary means of protecting the rights retained by the people101, his evidence falls far short of demonstrating that these were the exclusive means to this end. Despite heroic efforts, he fails to show, in particular, that the framers specifically excluded the possibility that unenumerated rights could be identified and protected independently of structural protections provided by the separation and enumeration of powers.
Perhaps the most telling evidence to the contrary is James Madison’s own use of the ninth amendment in his speech concerning the national bank that I discussed above102 —the only known attempt by Madison to apply the amendment he devised to a real constitutional controversy. In his speech to Congress, made while the ninth amendmentwas still pending ratification by the states, Madison was in no manner responding an argument for expanded federal powers based on the incomplete enumeration of rights. Rather, Madison used the ninth amendment entirely outside the only context in which, according to McAffee, the ninth amendment was meant to be relevant103. If McAffee’s theory about original understanding was correct, Madison simply would never have thought to make the constitutional argument he did.
Although Madison stressed the fact that an enumerated power to charter a national bank could be found nowhere in the Constitution, in contrast to McAffee’s thesis, Madison also used the ninth amendment precisely and explicitly as authority for more strictly construing enumerated powers. In particular, he used the ninth amendment to attempt to cabin the necessary and proper clause—that is, to restrict the means by which delegated powers can be exercised.104
Whatever meaning this clause may have, none can be admitted, that would give an unlimited discretion to Congress.
Its meaning must, according to the natural and obvious force of the terms and the context, be limited to means necessary to the end, and incident to the nature of the specified powers.105
He specifically argued that the bank bill required a “latitude of interpretation” of the enumerated powers that was belied by the ninth amendment. According to the official reports quoted above,106 Madison”particularly” cited the ninth amendment “as guarding against a latitude of interpretation,” whereas he cited the tenth amendment as protecting the scheme of enumerated powers by “excluding every source of power not within the Constitution itself.”
Moreover, contrary to what McAffee’s theory would predict, Madison rested his argument against the claimed power to grant a monopoly charter in part on the fact that such a power violates the “equal rights of every citizen.” In other words, these “equal rights” restrict the scope of the necessary and proper clause. If all this were not enough, Madison’s concluding observation definitively refutes McAffee’s thesis: “In fine, if the power were in the Constitution, the immediate exercise of it cannot be essential; if not there, the exercise of it involves the guilt of usurpation” 107 Here Madison is arguing that the ninth amendment is authority for limiting the exercise of enumerated powers that “were in the Constitution” to those which are “essential.” According to McAffee’s “residual rights” thesis, if a power were in the Constitution, its exercise could not violate a residual right. 108 In sum, rather than looking exclusively to the delegation of powers to define as well as to protect the rights of the people, as McAffee would have it, Madison looked as well to the rights retained by the people in his effort to interpret and define the dele-gated-powers provisions.
This use by Madison of the ninth amendment is entirely consistent with the power-constraining conception of constitutional rights he articulated in his speech to the House proposing amendments to the Constitution:
It is true, the powers of the General Government are circumscribed, they are directed to particular objects; but even if Government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent,… because in the constitution of the united States, there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution the powers vested in the Government of the United States, or in any department thereof.109
Madison contended that the Bill of Rightswas one way to police abuses of tins lawmaking discretion.110
In his most recent contribution to the debate, McAffee argues that the ninth amendment refers, not to a repository of inalienable natural rights (which would support a presumption of liberty), but solely to whatever rights are “reserved” after powers are enumerated.111 He renews his earlier criticism of my connecting the “other” rights “retained by the people” mentioned in the ninth amendment to Roger Sherman’s proposed second amendment which stated that “the people have certain natural rights which are retained by them when they enter into society….” McAffee argues that:
Madison’s proposed draft of the ninth amendment, referring to the other rights retained by the people, had been presented to Congress during the previous month; so it is not likely that Madison’s draft or the committee’s work owed anything to Sherman’s particular choice of language. 112
McAffee concludes that “the provision in question was based on Madison’s draft of a proposal for language to be inserted into the preamble of the Constitution. . .”—a proposal that was rejected by the Congress.113
While we can never know with certainty how exactly Sherman’s “natural rights . .. retained” by the people was connected to Madison’s rights “retained by the people,” 114 this attempt by McAffee to deny any connection clearly fails. For as he acknowledges in a different context, 115both North Carolina and Virginia proposed to Congress language virtually identical to Sherman’s and these proposals preceded Madison’s speech.116 It is obvious that Sherman’s draft includes verbatim portions of these proposals. Thus, the fact that Sherman’s draft was written after Madison’s initial proposal concerning the rights retained by the people in no way diminishes the likelihood of their common ancestry in these state proposals. 117
The recent discovery of Sherman’s draft is significant, and I have focused on it rather than on the North Carolina and Virginia proposals, because Sherman explicitly used the word “retained” when referring to these natural rights, thus depriving ninth amendment skeptics of the argument that “retained” was a term of art that referred only to state-law rights (Russell Caplan’s thesis118) or to those which were reserved by the enumeration (McAffee’s thesis), and not to natural rights. Sherman’s (proposal demonstrates that the term “retained” was used to refer to natural rights by a member of the very committee that drafted the ninth amendment. Better historical evidence of original meaning than this is hard to come by. Just as Sherman used the word “retained” when speaking of natural rights, there is no reason to think that Madison used the term in some different and highly idiosyncratic manner.119 Indeed, as Steven Hyman notes in his reply to McAllee,120 Madison’s notes I’m his amendments speech refer to “natural rights retained as speech.”121
McAffee’s positivist reading of the ninth amendment is also undermined by the debate between representatives Sedgwick and Page discussed above. Sedgwick argued that the right of peaceable assembly was “a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called into question; it is derogatory to the dignity of the House to descend to such minutiae.. . .”122 According to the positivist reading of the Constitution, in making this argument Sedgwick would have known that the government was free to infringe this right unless and until the Constitution was amended. Page replied to Sedgwick that “that such rights have been opposed, and . . . people have . .. been prevented from assembling together on their lawful occasions, therefore it is well to guard against such stretches of authority, by inserting the privilege in the declaration of rights.” 123 A positivist reading of this reply is that “such stretches of authority” would be perfectly permissible in the absence of such insertions in the declaration of rights.
To the contrary, Madison described the amendments serving “either as actual limitations of such powers, or as inserted merely for greater caution.” 124 Ninth amendment skeptics fail to acknowledge these two alternative functions of constitutional rights. Some rights such asthe natural right of a right to a jury trial in civil cases—serve to limit government power more than otherwise would be the case. Others- such as the natural rights specified in the first amendment would be enforceable in any event and were inserted for greater caution. Page’s response to Sedgwick that, notwithstanding that the right of assembly is “self-evident” and “inalienable” it ought to be “inserted” into the declaration of rights is in this spirit of caution. But this means i hat these rights would have been equally enforceable had they not been “inserted for greater caution. 125 So the omission of a man’s inherent, inalienable “right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he though proper.. ,”126 from the text, does not mean that these rights are assigned into the hands of the general government and thus are rendered unenforceable. Ninth amendment skeptics have always seemed to think that when a provision is “inserted merely for greater caution,” this means it has no function apart from serving as a warning, rather than it serving as a redundant or secondary line of defense when other primary constraints on government power fail.127
With this analysis in mind we can fruitfully revisit the only other rerence that Madison is known to have made to the ninth amendment. In a letter to George Washington, Madison responded to a criticism of i he ninth amendment that had been made by Edmund Randolph, Governor of Virginia. Madison related Randolph’s objection (which he had learned of from Hardin Burnley128) to Washington as follows:
[Randolph’s] principal objection was pointed against the word retained in the eleventh proposed amendment, and his argument if I understood it was applied in this manner, that as the rights declared in the first ten of the proposed amendments were not all that a free people would require the exercise of, and that as there was no criterion by which it could he determined whether any other particular right was retained or not, it would be more safe, & more consistent with the spirit of the 1st. & 17th. amendments proposed by Virginia, that this reservation against constructive power, should operate rather as a provision against extending the powers of Congress by their own authority, than as a protection to rights reducable [sic] to no definitive certainty.129Madison’s now much-noted response was as follows:
The difficulty stated agst. the amendments is really unlucky, and the more to be regretted as it springs from [Randolph,] a friend to the Constitution. It is a still greater cause of regret, if the distinction be, as it appears to me, altogether fanciful. 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 [“whether” stricken out] by declaring that they shall [“be not be abridged violated” stricken out], or that the former shall be not be extended. If no line can be drawn, a declaration in either form would amount to nothing.130 Ninth amendment skeptics have read this passage to mean that the rights retained by the people are the logical obverse of the delegated powers—what I call the “rights-powers conception” of unenumerated rights—so that if a delegated power is found to exist, this automatically means that no right remains by which such power could be challenged. 131I have argued that Madison was identifying two complementary strategies for accomplishing the single objective of protecting the retained rights of the people: enumerate powers and protect rights.132That is, rights can be protected from improper extensions of government power by enumerating those powers, by protecting rights, or both. This interpretation of Madison’s argument is bolstered by Burnley’s response lo Randolph’s objection.
But others among whom I am one see not the force of the distinction, for by preventing an extension of power in that body from which danger is apprehended safety will be insured if its powers are not too extensive already, & so by protecting the rights of the people & of the States, an improper extension of power will be prevented & safety made equally certain.133
Burnley even more clearly than Madison is assessing competing strategies. According to Burnley, “byprotecting the rights of the people & of the States, an improper extension of power will be prevented & safety made equally certain.” That is, Burnley advocates protecting rights as a means of preventing an improper extension of power—exactly how Madison used the ninth amendment in his bank speech. The other method of insuring safety is “by preventing an extension of power.” Moreover, in his letter advocating the strategy of “protecting the rights of the people,” Burnley was not referring to the enumerated rights, but was defending the ninth amendment from Randolph’s criticism. The ninth amendment provides no such protection if the unenumerated retained rights have a constitutional status inferior to those which were enumerated.
McAffee rejects this analysis. He argues that, if there were two distinguishable strategies and Madison preferred one to the other, how could Madison dismiss Randolph’s distinction as “altogether fanciful”? Why would he not instead defend the superiority of his chosen method rather than assert there was no difference between the two?134 But I never suggested that Madison favored only one method of protecting the rights retained by the people, nor would such a suggestion be likely given Madison’s commitment to the structural constraints imposed on government by the original Constitution. Indeed, in his bank speech delivered within fourteen months of his letter to Washington, Madison argues both that the power to incorporate the bank is not in the enumeration and al so that, if there, the exercise of the power is not essential. 135
Madison specifically argues that the hill “involves a monopoly, which affects the equal rights of every citizen.” 136 Several ratification conventions had proposed to Congress amendments barring the granting of a monopoly.137 That these restrictions were omitted from the Bill of Rights does not prevent Madison from arguing that monopolies violate “equal rights of every citizen.” What can these rights that are violated by monopolies be but natural rights that are retained by them? There were no such positive law rights in the Constitution or the pending Bill of Rights.
In sum, Madison’s actual use of the ninth amendment in his bank speech resolves the ambiguity in his letter to Washington that has been exploited by ninth amendment skeptics. And it flatly contradicts McAffee’s elaborately defended “residual rights” thesis that the ninth amendment “says nothing about how to construe the powers of Congress or how broadly to read the doctrine of implied powers… ,”138 We are left to choose whom to believe about the ninth amendment, McAffee or Madison.
C. The Indefatigable Raoul Berger
A third fervid ninth amendment skeptic is Raoul Berger.139Berger’s writings largely combine the rule of law concerns about judicial review of enumerated rights articulated by Robert Bork with a residual rights interpretation of the original meaning of the ninth amendment much like that of Thomas McAffee. Thus my replies to Bork and McAffee respond to many of Merger’s arguments as well. But Berger advances a few additional criticisms of my writings involving the interpretation of framers’ intent that merit a separate reply.140
The first involves the explanation of the ninth amendment given by Madison in his speech to Congress proposing amendments to the Constitution:
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 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.141
Berger is adamant that the phrase “assigned into the hands of the general Government” means that courts have no power to protect unenumerated rights. “[T]he protection the framers sought,” says Berger, “was against the ‘General Government,’ including the judiciary.”142
To the extent that Berger means that the federal judiciary was not originally empowered to protect both the enumerated and unenumerated rights retained by the people from infringements by state government accorded the enumerated rights until the ratification of the fourteenth amendment. ‘If the extent, however, that Bcrgcr means that the judiciary originally lacked power to protect the unenumcrated rights from encroachment by Congress, I strongly disagree. 143 The framers clearly saw the problem of legislative power as distinct from that of the judicial “power” to adjudicate cases and controversies arising between citizens and government. Elsewhere in the same speech, Madison refers to “rights which are retained when particular powers are given up to be exercised by the Legislature.”144
Berger refuses to acknowledge that to deny judicial review of congressional or executive infringements of enumerated or unenumerated rights is to assign these rights into the hands of the general government. The judicial “power” to strike down federal legislation is not on a par with a delegated power to enact legislation, a view that Berger says he shares. “Judicial enforcement, in my judgment,” says Berger, “is limited to its traditional ‘negative’ role of policing constitutional boundaries, i.e. halting legislative or executive invasion of the ‘retained’ rights area.”145 Whereas, the enumerated powers of Article I operate against the states and the people, the judicial power of negation operates against the other branches.
As David Mayer has observed,146 the evidence as to the original conception of judicial review is exceedingly slim. But what evidence there is provides saint support for the view that unenumerated rights were to be treated differently than enumerated rights, with one possible exception that Berger (and McAffee) has stressed. As I noted in Part II, in his House speech proposing amendments, Madison defended the bill of rights from the charge that it would provide an ineffective “paper barrier” against abuses of power, in part, by pointing to “independent tribunals of justice [that] will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will naturally be led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”147
Berger has contended that the phrase “rights expressly stipulated” means that only rights expressly stipulated could be protected by judges. 148 Berger’s theory amounts to a claim that the Bill of Rights carved out exceptions to the delegated powers and that by this means did the judiciary gain jurisdiction to adjudicate violations of the rights retained by the people. But suppose that Berger is correct. This would mean that—contrary to the universal opinion of Federalist and Antifederalist alike—the Bill of Rights significantly expanded the protection of rights. 149 So, for instance, until the ratification of the first amendment carving out an “exception” to enumerated powers, Congress was perfectly free to infringe upon the retained rights of free speech or of assembly or the exercise of religion. Even Berger himself has rejected such an implication when he asserts that “the Bill of Rights added nothing, but was merely declarative.150 If the Hill of Rights added nothing, 151 however, then the retained rights left unenumerated are as fully enforceable as those retained rights that were enumerated. Berger cannot have it both ways.
V. Conclusion: The Equal Protection of Liberties and the Future of the Ninth Amendment
What is the future of the ninth amendment? In law, as in most areas of life, betting that the future is going to be pretty much like the past is usually the safest wager. If this turns out to be true, then the ninth amendment, which has been so tragically neglected by the Supreme Court over the past two centuries, is doomed to remain in a state of desuetude. But while betting against change may be the most conservative gamble, it is often a losing one. The past twenty years has witnessed a trend in the direction of a revived ninth amendment.
In particular, a renewed interest in the views of the framers of the Constitution and of the Civil War amendments has caused those who favor an expansive judicial protection of fundamental rights to focus attention on the original intent of the ninth amendment. Moreover, the framers’ concept of natural rights is no longer in complete disrepute. If the Senate confirmation hearings of Judge Robert Bork to the Supreme Court of the United States was a watershed development in the legitimation of the ninth amendment, the confirmation hearings of Justice Clarence Thomas may prove to have a similar effect on the legitimacy of natural rights. History may well mark the turning point for popular acceptance of natural rights theory in the United States to be Senate Judiciary Committee Chairman Joseph Biden’s opening statement during the Thomas confirmation hearings in which he openly embraced natural rights and stated that the issue for him was which version of natural rights the nominee favored.152
With the addition of Justice Scalia, Kennedy, Souter, and Thomas to the Supreme Court and the elevation of William Rehnquist to ChiefJustice, “conservatives” appear now to be in firm control of the Court. The type of “judicial conservatism” that will eventually emerge in the third century of the Bill of Rights, however, is still very much in doubt. Will it be a majoritarian conservatism of judicial deference to majority will as expressed in legislation? Or will it be a more libertarian conservatism that views the courts as neutral magistrates empowered to protect the individual from the government?153 Which of these conservatisms comes eventually to prevail will depend, perhaps in principal part, upon whether a majority of the Court can be persuaded to take James Madison’s ninth amendment and its pivotal role in constitutional interpretation to heart. At the moment, it appears that a justices with a more libertarian brand of conservatism 154 —and a respect for the ninth amendment155—have the upper hand.
Which judicial philosophy prevails will also depend upon whether proponents of the ninth amendment will take a more principled stance towards so-called fundamental liberties. The liberties each person holds fundamental are imperiled when advocates of some liberties they hold dear are more than willing to deny or disparage the liberties thought fundamental by others. For example, many of those favoring a fundamental right of privacy that includes a woman’s right to chose to terminate a pregnancy offer no support to and indeed would actively oppose those who favor a fundamental “right to choose” to engage in a lawful occupation—such as driving a taxi cab—free from protectionist economic regulations. And few seem at all concerned with the fundamental “right to choose” whether or not to own a gun or to alter one’s mental state by means of substances as alcohol, nicotine, peyote, or heroin. According to this discriminatory methodology, if some choices are deemed fundamental, other rights-respecting choices are vilified and ridiculed.
I am not suggesting that some exercises of liberty are not in fact more important than others. However, by picking and choosing among all the unenumerable liberties of the people to determine which choices are fundamental and which are not, those who would limit judicial protection to liberties deemed fundamental are putting courts in the difficult position of establishing a hierarchy of liberties. This contributes to the longstanding fear that any revival of the ninth amendment would place courts in the role of a “super-legislature” usurping the functions of other branches. When interpreted as justifying a presumption of liberty, however, I think this fear of the ninth amendment is unfounded precisely because such a presumption provides a principled defense of all liberties of the people and removes the courts from having to decide which liberty is truly fundamental and which is not.
Adopting the presumption of liberty would enable us to acknowledge the ninth amendment’s unique constitutional function by resisting legislative or executive usurpation of the unenumerated rights “retained by the people” while, at the same time, avoiding unfettered judicial discretion. The presumption of liberty would permit us finally to remove the ink blot from the ninth amendment.
* Portions of this Introduction are adopted with revisions from Randy E. Barnett, foreword: Unenumerated Constitutional Rights and the Rule of Law, 14Harv. J. L. &Pub. Pol’y 615 (1991); Randy E. Barnett, A Ninth Amendment for Today’s Constitution, 26 Valparaiso L. Rev. 419 (1991).
1 Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearing Before the Senate Comm. on the Judiciary 117 (1989) (testimony of Robert Bork) [hereinafter Nomination Hearings] (reprinted in appendix B of this volume).
3Id. at 249.
4U.S. Const, amend. IX.
5Writings dealing extensively with the origins of the ninth amendment are included in Volume 1.
6The Federalist No. 84, at 631 (Alexander Hamilton) (John Hamilton ed., 1873).
7 1 Annals of Cong. 457 (Joseph Gales & William Seaton eds., 1834) (statement of Rep. Madison). (Madison’s speech and his notes are reprinted in volume 1).
8ld. at 456.
9Id. at 452
10Nomination Hearings, supra note 1, at 249.
11See Heyman, Natural Rights, Positivism and the Ninth Amendment: A Response to McAffee, 16 S. III. U. L.J. 327 (1992) (reprinted as chapter 17 of this volume); Mayer, The Natural Rights Basis of the Ninth Amendment: A Reply to Professor McAffee, 16 S. 111. U. L.J. 313 (1992) (reprinted as chapter 16 of this volume). See also Hamburger, Natural Rights and Positive Law: A Comment on Professor McAffee’s Paper, 16 S. 111. U. L. J. 307, 308 (1992) (“[T]he framers and ratifiers frequently said that natural rights were among the rights retained.”).
121 Annals of Cong., supra note 7, at 454 (emphasis added).
13Madison’s Notes for Amendments Speech, 1789 in The Rights Retained by the People: The History and Meaning of the Ninth Amendment 64 (Randy E. Barnett ed., 1989) [hereinafter R. Barnett). The next type of rights mentioned both in his speech as delivered and in his notes are positive rights, which may result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. 1 Annals of Cong., supra note 7, at 454 (emphasis added).
14Roger Sherman’s Draft of the Bill of Rights [hereinafter Sherman’s Draft], in R. Barnett, supra note 13, at 351, app. A (emphasis added). Along the same lines, Madison had proposed to Congress that the followingbe added as a prefix to the Constitution, “The Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally pursuing and obtaining happiness and safety.” 1 Annals of Cong., supra note 7, at 451.
15ld. at 456.
16See Barnett, James Madison’s Ninth Amendment, in R. Barnett, supra note 13, at 35-37 [hereinafter Barnett, Madison’s Ninth]. This article is a revised version of Barnelt, Reconceiving the Ninth Amendment, 74 Cornell L. Rev. 1 (1988) [hereinafter Barnett, Reconceiving].
17Eight of the state ratification conventions officially accompanied their ratification with scores of amendments or revisions to the Constitution. Some of these were eventually included in the Bill of Rights. Others were not. For these proposals see The Debates in Several State Conventions on the Adoption of the Federal Constitution 338 (Jonathan
Elliot ed., 2d ed. 1836) [hereinafter J. Elliot] (reprinted as appendix B in volume 1). See also iMlz, The States and the U.S. Bill of Rights, 16S. 111. U.L.J. 251,254-256 (1992)(com-paring amendments proposed by state ratifying conventions with Madison’s original proposed amendemnts).
18See e.g. Wilson, Of the Natural Rights of Individuals, in 2 The Works of James Wilson 307 (J.D. Andrews ed., 1896). For a recent effort to enumerate the rights that the framers believed to be natural and inalienable, see Rosen, Was the Flag Burning Amendment Unconstitutional?, 100 Yale L.J. 1073, 1074-81 (1991).
192 J. Elliot, supra note 17, at 454 (remarks of James Wilson).
214 J. Elliot, supra note 17, at 436 (James Iredell, North Carolina Ratifying Convention, October 28, 1787). Wilson echoed the sentiment at the Pennsylvania Ratifying Convention:
In all societies there are many powers and rights, which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of government; and the rights of the people would be rendered incomplete. 2 The Documentary History of the Ratification of the Constitution 388 (M. Jensened.,1976)(statement of James Wilson to the Pennsylvania Ratifying Convention, Nov. 28,1787).
221 Annals of Cong., supra note 7, at 454.
23 W. at 759 (statement of Rep. Sedgwick).
24W. at 759 (statement of Rep. Benson).
25Id. at 759-60 (statement of Rep. Sedgwick).
26 1 Annals of Cong., supra note 7, at 759 (statement of Rep. Sedgwick).
27 Id. at 760 (statement of Rep. Page).
28Id. at 759 (statement of Rep. Sedgwick).
29Id. at 760 (statement of Rep. Sedgwick).
30 Berger, The Ninth Amendment, 66 Cornell L. Rev. 1, 2 (1980) (reprinted in volume 1)
31Berger, The Ninth Amendment: The Beckoning Mirage, 42 Rutgers L, Rev. 951 (1990) (reprinted as chapter 13 of this volume). Of course, I do not concede that, because our rights protect liberties that are limited only by our imagination, this makes these rights “imaginary.” Berger seems to think this play on words is a genuine argument.
32In response to this suggestion, Raoul Berger charges that, “Barnett would embark the courts on a calculus of morals; before arriving at ‘rights’ against the government, the courts would first have to settle the ‘respective jurisdictional spheres.'” Berger, supra note 31, at 977. But courts have been performing precisely this function, however imperfectly, for centuries in developing the common law of property, contract, tort and other bodies of doctrine which distinguish rightful from wrongful conduct. That which exists is surely possible. As Berger concedes, because the defamation limitation on free speech “was an ‘ancient common law principle,’… therefore it was not an unidentified right.” Id. at 978.
A more serious difficulty arises when legislatures participate in the evolution of these common law rights as they have, for example, in the law of contract with the promulgation of the Uniform Commercial Code. Courts acting in their constitutional capacity must be able to distinguish somehow between legitimate codification and systemization on the one hand and unjust infringements of liberty on the other. This problem, however, though difficult and deserving of further attention, is pervasive in any system which both limits the powers of legislative bodies and permits legislative “regulation” of liberties. What is needed is a theory that distinguishes between genuine regulation of liberty and unjust infringements of liberties under the guise of so-called “regulation.”
33Providing a workable definition of the unenumerated “police powers” of states is akin to the problem of defining legitimate regulation of liberty. Both distinctions are needed to fully understand how a presumption of liberty would operate. Neither effort, however, is as intractable as ninth amendment skeptics would have us believe.
34 The Federalist No. 10, at 107 (James Madison) (John Hamilton ed., 1873) (emphasis added). At the time he wrote this passage, Madison did not contemplate judicial review to establish this “justice,” but by the time he proposed his amendments to the House, he had become more enamored with the idea.
35304 U.S. 144 (1938).
36Id. at 152 n.4. In this case, the Court also suggested that the presumption may be rebutted by showing that discrete and insular minorities are adversely affected or that the political process is being impeded.
37The “originalist” and “constructivist” methods are two others. See Barnett, Madison’s Ninth, supra note 16, at 35-39. Chief Justice Burger, speaking for a plurality of the Supreme Court, employed a combination of these two approaches to protect unenumerated rights and justified this effort by citing the ninth amendment in Richmond Newspaper, Inc. v. Virginia, 448 U.S. 555 (1980) (reprinted as appendix C of this volume)
38The Articles of Confederation did expressly confer such a power on Congress. See Articles of Confederation, art. IX.
39The only reference to this speech I have found in the entire corpus of ninth amendment scholarship appears in Van Loan, Natural Rights and the Ninth Amendment, 2 B.U. L. Rev. 1 (1968) (reprinted in volume 1). There, Van Loan responds to the suggestion that “Madison, as a member of the Select Committee, altered his original form of the ninth amendment because he had no intention of limiting the powers of the federal government and wanted to avoid the possibility that the ninth would be given such a construction,” as follows:
But Madison’s arguments against the constitutionality of Hamilton’s national bank bill apparently refute this suggestion. Madison argued in Congress that passage of the bank bill would be the exercise of a power not delegated to the federal government. As evidence that the federal government was restricted to delegated powers and that even the necessary and proper clause was not unlimited, he pointed to, among other things, the ninth amendment.
Id. at 15. To my knowledge, no ninth amendment skeptic has ever replied to this argument. But see McAffee, The Bill of Rights, Social Contract Theory, and the Rights “Retained” by the People, 16 S. 111. U. L.J. 267, 295 (1992) (reprinted as chapter 15 of this volume) (“I will develop a more complete analysis of the significance of the argument over the first national bank to understanding the constitutional philosophy of the founders, and the original meaning of the Ninth Amendment, in a subsequent treatment.”).
40U.S. Const, amend. X.
411 Annals of Cong., supra note 7, at 1896 (statement of Rep. Madison). Because this much-neglected speech by Madison is the only known instance of the ninth amendment’s author employing it in a constitutional argument, it is reprinted in its entirety in appendix A of this volume.
42See U.S. Const, art. I, § 8 (“The Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers … .”).
43See U.S. Const, art. I, § 8 (“The Congress shall have Power… To borrow Money on the credit of the United Stales”).
441 Annals of Cong., supra note 7, at 1898.
45Id. at 1901 (remarks of Rep. Madison).
46Id. at 1894.
47Id. at 1896.
48Id. at 1900 (emphasis added).
49U.S. Const, art. I, § 8.
501 Annals of Cong., supra note 7, at 1899 (statement of Rep. Madison) (emphasis added).
51ld. at 1901. The numbering of the amendments changed because the first two amendments proposed by Congress were not ratified by the states. So what came to be called the first amendment was originally proposed to be the third amendment. At the time Madison spoke, however, this outcome was not yet known. One of these two moribund proposals—which regulated congressional pay increases—recently became the twenty-seventh amendment.
52Id. at 1901.
53See Barnett, Madison’s Ninth, supra note 16, at 14-19, 25-29.
54See Korematsu v. U.S., 323 U.S. 214 (1944).
55J. Locke, Two Treatises of Government 288-89 (P. Laslett ed., 1967) (2d ed. 1970).
56Id. at 289.
57To examine the essential social functions performed by the liberal conception of the rule of law would take us far afield. I began this endeavor in Barnett, Foreword: Can Justice and the Rule of Law be Reconciled?, 11 Harv. J. L, & Pub. Pol’y 597 (1988). Suffice it to say that the rule of law performs the function of communicating the requirements of justice in an understandable form both to those who are subject to these requirements and to those charged with enforcing them. The knowledge made possible by adhering to the rule of law enables persons to avoid committing injustices against each other. It also addresses both the problems of enforcement error and enforcement abuse by those administering a legal system.
58Or under the privileges or immunities clause of the fourteenth amendment.
59See H.L.A. Hart, The Concept of Law 120-32 (1961).
60 Another ninth amendment skeptic who strongly shares this concern is Raoul Berger. See e.g. Berger, supra note 30, at 2 (“Who is to protect undescribed rights? Justice Goldberg would transform the ninth amendment into a bottomless well in which the judiciary can dip for the formation of undreamed of ‘rights’ in their limitless discretion. . . .”).
61R. Bork, The Tempting of America: The Political Seduction of the Law 318 (1990).
63Id. at 147 (emphasis added).
64 Id. at 150.
65Nomination Hearings, supra note 1, at 249 (testimony of Robert Bork). In the book, The Tempting of American, Bork shifts this analogy to the privileges or immunities clause of the fourteenth amendment:
The judge who cannot make out the meaning of a provision is in exactly the same circumstance as judge who has no Constitution to work with. There being nothing to work with, the judge should refrain from working. A provision whose meaning cannot be ascertained is precisely like a provision that is written in Sanskrit or is obliterated past deciphering by an ink blot, No judge is entitled to interpret an ink blot on the grounds that there must be something under it. So it has been with the clause of the fourteenth amendment prohibiting any state from denying citizens the privileges and immunities of citizens of the United States. The clause has been a mystery since its adoption and in consequence has, quite properly, remained a dead letter. R. Bork, supra note 56, at 166 (emphasis added).
66 Id. at 167.
67See, e.g., Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989). While Justice Scalia’s choice of titles reflects this view of the rule of law, throughout his article he repeatedly refers not only to rules, but also to “general” principles, “governing” principles, “firm, clear” principles, or “precise, principled content,” as opposed to rules.
68Schauer, Rules and the Rule of Law, 14 Harv. J. L. & Pub. Pol’y 675 (1991).
69 R. Bork, supra note 61, at 198.
70See supra notes 19-29, and accompanying text.
71 See Corwin, The “Higher Law” Background of American Constitutional Law, 42 Harv. L. Rev. 149,152-53 (1928) (excerpted in volume 1); Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843 (1978): Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1166, 1177 (1987). See also, Grey, The Uses of an Unwritten Constitution, 64 Chi.-Kent L. Rev. 211 (1988) (reprinted as chapter 8 of this volume); Sherry, The Ninth Amendment: Rights and the Unwritten Constitution, 64 Chi.-Kent L. Rev. 1001 (1989) (reprinted as chapter 11 of this volume).
72Bork, Neutral Principles and Some First Amendment Problems 47 Ind. L.J. 1, 8 (1971) [hereinafter Bork, Neutral Principles]. See also, Bork, The Supreme Court Needs a New Philosophy, Fortune, Dec. 1968, at 138,174 (“I recommend great lateral expansion of the area of individual rights. The new concept of rights becomes, indeed, something roughly describable as a presumption in favor of human autonomy.”) (emphasis added).
73Bork, Neutral Principles, supra note 72, at 9.
75 Nomination Hearings, supra note 1, at 715. Bork then continued: Now that is exactly the effort I engaged in for about 6 or 7 years in that course on constitutional theory that I taught with Alex Bickel. And I became convinced that it was an utterly subjective enterprise and that I was running my values into what I was coming up with. I do not know—each of us may have a different idea about what liberty requires. Id. at 715-16.
76See B. Siegan, Economic Liberties and the Constitution (1980). Siegan proposes the following standard of review:
[T]he government would have the burden of persuading a court utilizing an intermediate standard of scrutiny, first, that the legislation serves important governmental objectives; second, that the restraint imposed by government is substantially related to achievement of these objectives, that is, … the fit between means and ends must be close; and third, that a similar result cannot be obtained by less drastic means.
77R. Bork, supra note 61, at 225.
79 Bork, Neutral Principles, supra note 72, at 9.
80B. Siegan, supra note 76, at 154 (citing Director, The Parity of the Economic Market Place, 7 J. L. & Econ. 1, 2 (1964)).
81R. Bork, supra note 61, at 225.
82 Id. at 226.
84Id. at 227.
86The text paraphrases the type of scrutiny recommended by Bernard Siegan. See supra note 76, at 324. By offering this formulation, I do not mean to endorse it, though I think it is promising.
87Although the delegated powers provisions of the Constitution do not define the limits of state governmental powers, neither do state governments have plenary powers to do anything they will. Rather, when their actions infringe upon the unenumerated rights protected by the fourteenth amendment, state government officials must show that they , are properly exercising their so-called police powers. Any such justification requires a I hcory of this extra-textual doctrine of state powers that is not inconsistent with the textual protections afforded by the ninth and fourteenth amendments. For one such theory, see K. lipstein, Takings: Private Property and the Power of Eminent Domain (1985).
88See Lebron v. Washington Metro. Area Transit Auth., 749 F.2d 893 (D.C. Cir. 1984). As Bork himself has argued: “We are . . . forced to construct our own theory of I he constitutional protection of speech. We cannot solve our problems simply by reference lo the text or to its history. But we are not without materials for building.” Bork, Neutral Principles, supra note 72, at 22-23.
89 Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 15-16(1959).
90R. Bork, supra note 61, at 80.
91Convin, supra note 71, at 152-53 (emphasis in original).
92See Barnett, The Ninth Amendment and Constitutional Legitimacy, 64 Chi.-Kent L. Rev. 37 (1988) (reprinted as chapter 18 of this volume).
93R. Bork, supra note 61, at 176.
94 See The Federalist No. 10, supra note 6, at 78 (emphasis added):
By a faction I understand a number of citizens, whether amounting to a majority of minority of the whole, who are united and actuated by some common impulse of passion , or of interest , adverse to the rights of other citizens , or to the permanent and aggregate interests of the community.
95 S. Macedo, The New Right v. the Constitution 32 (rev. ed. 1987).
97McAffee, The Original Meaning of the Ninth Amendment, 90 Colum. L. Rev. 1215, 1222 (1990).
98Id. at 1221 (emphasis added).
99As McAffee explains: “On the residual rights reading, the ninth amendment serves the unique function of safeguarding the system of enumerated powers against a particular threat arguably presented by the enumeration of limitations on national power.” Id. at 1306-07.
100 Id. at 1300 n.325 (emphasis added).
101Before McAffee wrote, I analogized the framer’s efforts to those of ship designers who devote virtually all their time to the structure that will keep the ship afloat and give little if any thought to the lifeboats. The separation and enumeration of powers provided the structure that was to keep the government from violating rights, and the Bill of Rights was added as a backup system. Unenumerated rights protected by the ninth amendment are akin to life preservers on the lifeboats—a backup to the backup system. See Barnett, Madison’s Ninth, supra note 16, at 25-29 (judicial review of unenumerated rights is a “rights-preserver.”). It is little wonder, then, that the framers paid scant attention to the issue of protecting unenumerated rights. But the repeated assertions of Federalists that the enumeration of powers renders a bill of rights unnecessary should be as heavily discounted as those of ship designers claims to have produced an unsinkable ship. See Mayer, supra note 11, at 319.
l02See supra notes 39-52 and accompanying text.
103In response to my argument that ninth amendment skeptics leave not even a potential function for the ninth amendment, McAffee maintains that the ninth amendment applies solely to the following type of argument:
If the government contended in a particular case that it held a general power to regulate the press as an appropriate inference from the first amendment restriction on that power, or argued that it possessed a general police power by virtue of the existence of the bill of rights, the ninth amendment would provide a direct refutation. That such arguments have never been made is a testimony perhaps to the efficacy of the ninth amendment, or perhaps to the speciousness of the original concern. Plainly there are conceivable uses for the amendment. McAffee, supra note 97, at 1307. In using the ninth amendment in his bank speech, how-over, Madison is responding to no such arguments. This evidence refutes McAffee’s thesis .is clearly as evidence ever can.
104See Barnett, Madison’s Ninth, supra note 16, at 14-19. There I defend the “power-constraint” conception of constitutional rights in which rights constrain the exercise of constitutionally delegated powers. The alternative “rights-powers” conception views rights solely as what is left over after the powers have been delegated and thus “residual rights” (to employ McAffee’s terminology) can and must be defined exclusively by reference to the enumerated powers.
1051 Annals of Cong., supra note 7, at 1898 (statement of Rep. Madison).
106See supra note 51 and accompanying text.
1071 Annals of Cong. supra note 7, at 1902 (statement of Rep. Madison).
108This was also the approach once adopted by the Supreme Court in United Pub. Workers v. Mitchell, 330 U.S. 75,95-96 (1947) (“If granted power is found, necessarily the objection of invasion of those rights reserved by the Ninth and Tenth Amendments, must fail.”) McAffee cites this case with approval. See McAffee, supra note 97, at 1220 n.20 & 1245 n.121. Madison’s statement directly contradicts this theory.
1091 Annals of Cong., supra note 7, at 455 (statement of Rep. Madison).
110Although he does not discuss this use by Madison of the ninth amendment, McAffee is nothing if not resourceful in interpreting unfriendly evidence. I can imagine two responses that McAffee might make to my interpretation of Madison’s speech concerning a national bank. First, because Madison did not specify the rights of the people that would be violated, perhaps he was defining the infringement of these rights solely by the fact that the power claimed is beyond those delegated by the Constitution. According to this account, Madison was simply referring to the rights “reserved by” the delegation of powers and not to any “affirmative” rights retained by the people. But this response would have Madison engaged in a meaningless rhetorical flourish when making this part of his argument. Moreover, it does not explain Madison’s consideration of the alternative means of exercising the borrowing powers. This construction would have Madison at this juncture making a policy argument in the guise of a constitutional claim, rather than, as I contend, to be making a principled distinction between means that violate the equal rights of the people, and those that do not. Nor does it explain Madison’s use of the ninth amendment as authority for his conclusion that “if the power were in the Constitution, the immediate exercise of it cannot be essential.” 1 Annals of Cong.,supra note 7, at 1902 (statement of Rep. Madison). In my view, we need not specify the rights retained by the people for these rights to do independent work in constraining the exercise of government powers. We need only shift the burden of justification to those advocating the legitimacy of power. Madison’s argument comports with this proposal.
Second, McAffee may respond that Madison was not protecting “affirmative rights” al all but was simply using the ninth amendment to bolster the enumerated-powers scheme. Without question, the protection of the enumerated-powers structure of the Constitution was the main thrust of Madison’s constitutional objection and was repeatedly mentioned by him. However, this answer would not save McAffee’s thesis that a rights analysis is irrelevant to the construction of enumerated powers. For this thesis to survive, it is not enough to argue that when the retained rights are being used to limit delegated powers, this is merely an expression of the limited-powers scheme. While preserving the form of McAffee’s “residual rights” thesis, this would reverse the interpretive methodology he favors. Instead of using the concept of delegated powers to define the concept of reserved rights, as he would have it, reserved rights would be used to help define the delegated powers. Thus, this response would support my view of the ninth amendment—one McAffee explicitly rejects, see McAffee, supra note 97, at 1291-92—that the concept of constitutional rights, including unenumerated ones, provides a conceptual means in addition to the uncept of delegated powers by which the legitimacy of claimed government powers can be critically assessed. In his speech concerning a national bank, Madison appears to have used the ninth amendment in just this way.
111See McAffee, supra note 39. For thoughtful replies, see Hamburger, supra note 11; Heyman, supra note 11; Mayer.supra note 11.
112McAffee, supra note 39, at 300.
113A portion of Madison’s proposed prefix is indeed similar to part of Sherman’s second amendment: “That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.” 1 Annals of Cong., supra note 7, at 451. This similarity, which is hardly surprising given the widespread consensus about such rights, in no way suggests that Madison’s precursor to the ninth amendment is unrelated to the rights mentioned in this prefix. This is especially true if McAffee is correct that such prefatory language was considered not to be legally binding. McAffee is assuming what must be shown: that the rights mentioned in this prefix were not also included among the rights retained by the people that Madison sought to protect in his precursor to the ninth amendment.
McAffee speculates that “[i]t is thus in all likelihood no coincidence that Madison included this language of principle in a proposed prefix to the Constitution, given his probable awareness that preambles are not considered part of the binding law of the Constitution.” McAffee, supra note 39, at 303-04. In a footnote he emphasizes the frequency with which words like “ought”, “should”, and the like were commonly used. Yet, in contrast, Sherman’s second amendment also includes the language of binding law that was absent in Madison’s proposal: “Of these rights they shall not be deprived by the Government of the United states.” Sherman’s Draft, in R. Barnett, supra note 13, at 351 app. A (emphasis added). Madison used the same prohibitory word “shall” repeatedly throughout the rest of his proposals which McAffee agrees were meant to be and which in fact came to be legally binding.
114Given the ingenious lengths that ninth amendment skeptics have gone to deny or explain away the powerful evidence that has been uncovered to date, it is unclear just what evidence would satisfy them.
I15 McAffee, supra note 39, at 301 (“Several state ratifying conventions had proffered similar amendments. . . .”).
116The Virginia and North Carolina proposals read: “1st. That there are certain natural rights, of which men, when they form a social compact, cannot divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” See Amendments to the United States Constitution Proposed by State Ratification Conventions, in K. Barnett, supra note 13, at 364, 380.
117 This is not to concede, however, the validity of McAffee’s effort to limit the mean-mik “f the ninth amendment to various formulations in these state proposals.
118See Caplan, The History and Meaning of the Ninth Amendment, 73 Va. L. Rev. 223 (I’H3) (reprinted in volume 1).
119McAffee also repeats his argument that because Sherman’s draft contains another section that connects to the ninth amendment, his provision referring to natural rights connects only to Madison’s proposed revisions to the preamble or what McAffee calls, which language of first principle.” The passage from Sherman to which McAffee refers reads: And the powers not delegated to the Government of the United States by the Constitution, nor prohibited by it to the particular States, are retained by the States respectively, nor shall any [sic] the exercise of power by the Government of the United Stales particular instances here in enumerated byway of caution, be construed to imply the contrary; that this provision refers only to delegated powers, not the implications of enumerated rights. Therefore, McAffee’s claim that this provision of “Sherman’s draft thus follows the New York proposed amendments in combining what became the ninth and tenth amendments in a single provision…” is tenuous at best. McAffee sees the invisible word “rights” anywhere in this passage for he asserts that “Sherman’s draft appears to describe rights and visions as purely cautionary without even acknowledging that they might operate as options to granted powers.”In contrast, Madison’s precursor to the ninth amendment — which McAffee stresses, preceded Sherman’s formulation—referred to the implications of enumerated rights:
The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
If, as McAffee suggests, Sherman’s draft was merely his suggestion as to how Madison’s amendments could be appended at the end of the text, (see McAffee, supra note 39, at 300) why drop Madison’s reference to “particular rights” and substitute “delegated powers”?
Finally, compare Sherman’s proposal to the words of the tenth amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” (U.S. Const, amend X.), language that is virtually identical with Madison’s original proposal that, “[t]he powers not delegated by the constitution, nor prohibited by it to the States, are reserved to the states respectively.” 1 Annals of Cong., supra note 7, at 453 (statement of Rep. Madison). McAffee never denies that this proposal by Madison is the precursor to the tenth amendment. Indeed, he insists upon it. See McAffee,supra note 97, at 1300 n.326 (“The Virginia state proposal that became the ninth amendment goes no further than the precursors to the tenth amendment in Madison’s proposal fora bill of rights.”). Yet, despite the fact that Sherman’s proposal includes an almost verbatim rendition of both the actual tenth amendment and Madison’s precursor to it, we are nonetheless urged to conclude that this “powers not delegated” passage—and not the “natural rights… retained” passage—is the part of Sherman’s proposal that connects to the ninth amendment.
120See Heyman, supra note 11, at 333 n.20.
121Madison’s Notes for Amendments Speech, 1789, R. Barnett, supra note 13, at 64.
1221 Annals of Cong., supra note 7, at 759 (statement of Rep. Sedgwick).
123 Id. at 760 (statement of Rep. Page).
124 Id. at 452.
125 For an extended account of the dual function of constitutional rights, see Barnett, Malison’s Ninth, supra note 16, at 14-19.
1261 Annals of Cong., supra note 7, at 759-60 (statement of Rep. Sedgwick).
127Indeed, Madison viewed the tenth amendment of which some ninth amendment skeptics are more fond in a similar manner. “Perhaps words which may now define this more precisely precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary; but there can be no harm in making in a declaration. …” 1 Annals of Cong. supra note 7, at 458-59 (statement of Rep. M.nlison). Yet this did not prevent Madison from appealing to the tenth amendment as mtliority for his argument against the national bank.
128 See 2 B. Schwartz, The Bill of Rights: A Documentary History 1188-89 (1971).
129ld. at 1188 (letter from Madison lo President Washington, Dec. 5, 1789).
130ld. at 1189-90.
l31See e.g. Berger, supra note 31, at 966 (“Sell-evidently, a specific grant of power overrides an unenumerated right. How can an undescribed right present an obstacle to the exercise of a granted power?”). See also supra note 108.
132I analyzed this passage as follows:
Madison was distinguishing two conceptual strategies for accomplishing a single objective. An expressed declaration of “rights retained … that shall not be abridged” has the same object in view as an expression that “powers granted . . . shall not be extended.” The object of both strategies is that “the rights retained … be secured.” Given this object, if one provision has teeth, so must the other. In stark contrast, the rights-powers conception specifies that the rights retained by the people automatically diminish as the powers of government expand —a construction that contradicts both the stated purpose for declaring the existence of individual rights and the very point that Madison was making in his letter.
Barnett, Madison’s Ninth, supra note 16, at 19 (footnote omitted).
1332 B. Schwartz, supra note 128, at 1188.
134See McAffee, supra note 97, at 1292.
135 Mcaffee charges that I fail “to explain why the combination of the enumerated rights and the ninth amendment are not properly viewed as an attempt to have it both ways: ‘rights’ as specific limitations on the scope of government powers and as the fruit of structural protection.” McAffee, supra note 97, at 1297 n.310. To the contrary, I freely accept the notion that the Constitution included multiple bases for limiting federal powers and protecting rights. What McAffee fails to explain is why the unenumerated rights protected by the ninth amendment are confined merely to being “the fruit of structural protection,” and do not provide their own “limitations in the scope of power” as Madison argued in his speech.
1361 Annals of Cong., supra note 7, at 1900. Monopolies violate the “equal rights” of citizens by permitting some a type of liberty that others are denied.
l37See R. Barnett, supra note 13, at 353 app. B.
138McAffee, supra note 97, at 1300. n.325. McAffee has two other objections to my account. First, he argues that “Barnett’s interpretation does not explain why Madison argued that it did not matter which way rights were protected, while Barnett elsewhere claims that Madison had by this time rejected the Federalist residual conception of rights.” McAffee, supra note 97, at 1292. My original contention was not that Madison “rejected” what McAffee calls the residual conception of rights, but that he came to reject the view that the strategy of enumerating powers should be the exclusive method of protecting rights. If so, then Madison would be expected to defend the strategy of protecting retained rights as functionally “the same thing.”
Second, why did Madison assert that “a line can be drawn between the powers granted and the rights retained”? Id. But the principal issue dividing McAffee and me is, assuming a line exists between rights and powers, how in practice such a line is to be drawn. McAffee adamantly insists that it can only be drawn by looking to the enumerated powers provisions. I maintain that it can be drawn either by doing this, or alternatively by looking to the rights retained by the people. I leave it to the reader to conclude which of these two theories is closer to the spirit of Madison’s (and Burnley’s) letter.
139See Berger, supra note 30; (reprinted in volume 1); Berger, supra note 31 (reprinted as chapter 14 of this volume).
140 Some of Berger’s criticisms are misunderstandings of my thesis. For example, I reject the rights-powers conception of constitutional rights which Berger correctly acknowledges. See Berger, supra note 31, at 960 (Barnett “first frames the discussion in what he considers to be the erroneous ‘rights-powers’ conception of the amendment, whereunder ‘delegated powers and constitutional rights [are] logically complementary.'”). Yet Berger follows this acknowledgement with a lengthy criticism of the ! Right-powers conception (see id. at 960-966), apparently thinking either that I accept tins view or that I attribute it to the framers. See e.g., id. at 964 (“Barnett would recast i he ‘original debate,’ urging that ‘the idea that constitutional rights are simply what is left over after the people have delegated powers to the government flies in the face of the ammendments themselves.’ That is his ‘idea,’ not that of the framers.”); id. at 965 (“Anticipating that his theory is vulnerable, Barnett slates that ‘[o]ne might try to salvage the rights-power theory by claiming that there can be no clash between powers and rights because Congress has no power to violate a constitutional right.'” (emphasis added)). I would not have mentioned what appears to be a gross confusion by Berger were it not likely to confuse others.
1411 Annals of Cong., supra note 7, at 439.
l42 Berger, supra note 27, at 969
143Berger refers to “Barnett’s own testimony” in support of this view which he quotes twice as follows: “the courts have not been empowered to enforce the retained rights.” See Berger, supra note 31, at 969 & 970 (quoting from Barnett, Reconceiving, supra note 16, at 15 n. 54). In a footnote, Berger challenges me to “reconcile this statement with: An analysis that supports judicial review of legislative interference with enumerated rights while denying equal judicial protection of unenumerated rights is inherently suspect. The words of the Ninth Amendment argue strongly against such a construction.” ” Id. at 970 n. 129 (quoting from Barnett, Reconceiving, supra note 16, at 21).
Unfortunately for both of us, Berger was understandably misled by a printer’s error in the Cornell Law Review version of my article. The first passage in question from footnote 54 was originally part of a block quote to Berger himself. Sometime after I reviewed the page proofs, the indentation was eliminated thereby making the passage quoted from Berger appear to be my own words (which I then proceed to contradict in the next sentence). This error was corrected in the revised version of the article published as Barnett, James Madison’s Ninth Amendment in R. Barnett, supra note 13. See id. at 18 n.50.
144 1 Annals of Cong. supra note 7, at 454 (statement of Rep. Madison) (emphasis added). This statement was hardly exceptional. The leitmotif of the framing period was fear of legislative abuses. See e.g. id.:
In our Government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker. It therefore must be levelled against the legislative, for it is the most powerful and most likely to be abused, because it is under the least control.
Further testimony is provided by the first words of the first amendment, “Congress shall make no law. . . ” U.S. Const, amend I (emphasis added).
145Berger, supra note 31, at 964.
146Mayer, supra note 11, at 323-24.
1471 Annals of Cong., supra note 7, at 457 (statement of Rep. Madison).
148See Berger, supra note 31, at 972 (“Madison made plain that only the ‘particular,’ ‘stipulated’ rights had judicial protection.” (emphasis added)) Of course, Madison said no such thing. Although Madison unquestionably made plain that the stipulated rights had judicial protection, he did not make plain that judicial protection was limited to these rights—though I have conceded that, without taking the context into account, Berger’s interpretation is consistent with Madison’s statement. See Barnett, Madison’s Ninth,supra note 16, at 23 (“Although this passage is consistent with [Berger’s] account it hardly compels it.”).
149With respect to positive procedural rights, it may well have been that the Bill of Rights did serve to expand protections. With respect to those provisions that enumerated natural retained rights such as are found in the first amendment, federalists and antifeder-alists alike would have rejected the idea that such rights had been assigned into the hands of the general government unless and until the Bill of Rights was ratified.
150Berger, supra note 31, at 6 (footnote omitted).
151With respect to the rights retained by the people when forming government, Berger is essentially correct that the Bill of Rights added nothing. With respect to additional procedural protections, such as the right to a jury trial in civil cases, I disagree that the Bill of Rights added nothing. As Madison’s House speech explaining the proposed amendments exemplifies, such protections would probably not have been recognized as rights retained by the people, but were instead “positive rights.” See supra note 13.
152Senator Biden’s remarks are reprinted in appendix B of this volume.
153For the record, I emphatically refuse to equate libertarianism and conservatism. Nonetheless, it is true that both modern “conservatives” and “liberals” can be more or less “libertarian” and more or less “majoritarian.” I maintain that we cannot analyze the present or future course of the Court without taking into account these decidedly different strains of judicial philosophy.
154See Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992) (reprinted as appendix D of this volume) (“It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”).
155Id. at 2805 (“Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9.”).