Following up on this discussion between Ed Brayton and Randy Barnett, I’d like to expand slightly on a point I made previously here. You will recall the inherent tension in the Ninth and Tenth Amendments to the Constitution:
Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.
The puzzle is that the Ninth Amendment seems to permit rights to be protected by the Constitution without explicitly stating them, while the Tenth appears to do the opposite, reserving plenary power to the States. Of course, it should be recalled that when the Bill of Rights was written, it applied only to the federal government, not to the states, so there was at the time no tension between the two.
Brayton makes the case that the history of the Ninth Amendment shows that it was, in fact, intended to prevent the enumeration of some rights in the Bill of Rights from being read as excluding the existence of others. But that doesn’t answer the larger dilemma of how, if you believe in such unenumerated rights, you wind up with any standards at all for determining what such rights are, besides the whims of five judges.
It still seems to me that the only way to have a universe of unenumerated rights that is greater than zero but less than unlimited is to ground it in some coherent, extraconstitutional body of fact or law existing at some particular point in time. One way to read the Ninth Amendment – and I would be interested to see more on the historical support for this reading vs. a “natural law” reading (as Brayton and Barnett do), as well as an explanation of what sources one would look to to disclose the “natural law” – is simply to prevent new and novel invasions of liberty. As I wrote before, one could 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.
Thus, one would not read the Ninth Amendment as permitting the wide-scale overturning of laws that were unchallenged at the time of its adoption, but one could see it as a bulwark against new laws that would have been regarded as novel and shocking intrusions at the time. In short, the Ninth Amendment protects not any old liberties but traditional liberties. That, I think, is a reading consonant with Madison’s desire to avoid having liberty constricted by the enumeration of rights.