Covering the Front and Back Pages of the Newspaper
February 27, 2005
LAW: Lost Tribe?
Ramesh Ponnuru expends a great deal of energy in this NRO article suggesting that a 2003 essay by Prof. Laurence Tribe in the journal Green Bag is, essentially, fiction in its account of Tribe's use of the Ninth Amendment in the 1980 public-access-to-the-courts case Richmond Newspapers, Inc. v. Virginia. You should read the whole thing and judge for yourself - I think Ponnuru makes a compelling case for the inaccuracy of Tribe's account, and one that's perhaps less excusable since Tribe says in his essay that he was re-reading the briefs in the case as he wrote. But for the most part, Tribe seems more to be guilty of the kind of embellishment that's not uncommon in our memories of events decades past, particularly as they tie in to other, bigger things in our lives (in this case, the death of Prof. Tribe's father). In the end, Ponnuru's effort to place this particular slightly-tall tale into the framework of plaigarism and other serious academic sins seems like a stretch.
Anyway, while we're on the subject, I've been thinking about the Ninth Amendment, by the way, and have been having a thought but haven't done the research to back it up, so take this for what it is. The Ninth Amendment reads:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
As Ponnuru notes, there's a perennial debate between those, usually liberal judges and academics, who take the Ninth Amendment as something of a license for judicial "discovery" of "unenumerated rights," and those who, like Robert Bork's famous formulation, think that the lack of specificity in the Amendment leave it with no more legal effect than an "inkblot."
The Amendment's text comes after eight amendments preserving particular, enumerated rights against invasion by the new federal government, and before one amendment protecting the states as well. It clearly has a flavor of "I hope we didn't forget anything" about it, and given the legal maxim of expressio unius exlusio alterius (here, roughly, that making a list of things protected implies an intent not to protect what's not listed), it suggests perhaps that the Framers just wanted to avoid the argument that enacting the Bill of Rights somehow weakened rights that would exist in its absence, such as rights existing under state law.
Maybe. But here's a thought, and one that gives meaning to the amendment without turning it into a roving commission to overturn longstanding laws: one could also argue that the meaning of the amendment is to protect against new and unimagined federal invasions of rights so fundamental that nobody had thought to protect them because the law had not previously invaded them. Put another way: the Ninth Amendment wasn't intended to overturn anything existing at the time, but was intended to constitutionalize the existing sphere of rights enjoyed at the time as a floor below which new enactments could not fall. Anyone with more detailed knowledge of the history of the Ninth Amendment have thoughts on the issue?