Ninth Amendment (Part IV)

Other theories limiting the power of the Ninth Amendment include the “residual rights” theory. A good example of this is illustrated in United Public Workers v. Mitchell (1947) where Justice Stanley Reed wrote “If granted power is found, necessarily the objection of invasion of those rights reserved by the Ninth and Tenth Amendments, must fail.” In other words, individual freedom, rights, and liberty must take a back seat to enumerated federal powers. Let’s be clear, the Constitution does not support any hierarchy of clauses or Amendments (unless amendments are drafted specifically to repeal or correct previous clauses and amendments). In fact, the Ninth Amendment guarantees all rights be treated equally. This follows any natural law principle that there is “no arbitrary preferences among values” or among morals or rights. So, why have the Ninth and Tenth Amendments been treated differently than other amendments? That is the million-dollar question. Mitchell upheld the Hatch Act which denied citizens working a government job from practicing their fundamental right to “engage in a political activity”. Mitchell was the first case to deny the concurrent powers doctrine simply by labelling the Ninth and Tenth Amendments as truisms. The Constitution has been described as an island of government powers surrounded by a sea of rights and not the other way around. “Rights came first, then came the government, and then came the law.” The Constitution was written to protect individuals from government intrusion and restrictions. It would make no sense to protect the government at the expense of the people. This goes against any Federalist or anti-Federalist views during the Founding era. As Libertarian legal scholar Randy Barnett asserts “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 some sort of enforceable warning.” Moreover “They [Justices] consistently overlook how such cautionary rights can serve as a redundant or secondary line of defense when other primary constraints on government power fail.” Just as the Ninth Amendment provides redundancy to protect the rights of citizens, the freedom of contract can do the same. Both Barnett and Liberal Legal Scholar Daniel Farber have similar views about the Ninth Amendment. However, they differ on one key point. Farber sees the Ninth Amendment as protecting the “rights” of citizens whereas Barnett sees the Ninth Amendment protecting both the “rights” and “liberty” of citizens. They both see liberty as something different than rights. Liberty is to protect citizens from unnecessary government restrictions, regulations, and mandates that may not necessarily violate the rights of citizens. For that reason, Barnett pictures a small federal government whereas Farber is okay with a big convoluted government encroaching on people’s liberty. Farber contends that Madison’s purpose for the Ninth Amendment had nothing to do with limiting the size of government. He is wrong, the whole purpose of the Constitution and Bill of Rights was to limit the scope of the federal government. Madison may have been a Federalist (wanting a strong central government) at the Constitutional Convention but he said in Federalist Paper 45 that the Constitution provides for limited federal powers but State powers were infinite. In fact, what Madison is referring to is that the Constitution was designed to meet the subsidiarity natural law principle: “Subsidiarity is an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. Political decisions should be taken at a local level if possible, rather than by a central authority.” For the purpose of this book both liberty and rights will be seen as one of same thing since governments should not be in the business of violating either without some compelling reason to do so. Legal scholar, Kurt Lash, also views the Ninth Amendment’s purpose to curb federal government encroachment, but his originalism interpretation led him to come to that conclusion via different reasoning. However, Lash does not view the Ninth Amendment as protecting the individual rights of citizens from State encroachment – that is a big flaw. The 2010 case Troxel v. Granville is an interesting case regarding Justice Antonin Scalia’s misguided originalism view of the Ninth Amendment. The majority held that parents had the fundamental right to make decisions concerning the care of their children. That is not an overly surprising decision, but what was interesting was Justice Scalia’s dissent. Scalia holds that “a right of parents to direct the upbringing of their children is among the unalienable rights”. But Scalia uses restraint declining to use the Ninth Amendment to elevate this right. Scalia made the following remarks regarding the Ninth Amendment: “even farther removed from authorizing judges to identify what they may be (rights)” when discussing what fundamental rights to elevate. In other words, according to Scalia, if the right cannot be found in the text of the Constitution, then the right cannot be elevated. Therefore, the Ninth Amendment, the privileges and immunities clause, and substantive due process are not acceptable theories or law doctrines to elevate any fundamental right in Scalia’s view. In sum, there are strong originalism arguments to say the Ninth Amendment has been applied incorrectly by judges and justices because it is misunderstood. The Ninth Amendment should be used to elevate rights and to protect individuals from both State and federal encroachment which may violate individual rights and liberty – it is used for neither reason.