quasi in rem

Thursday, February 19, 2004

And Starting in Left Field and batting third for the Macon Federalists- Feddie!

There is a great debate at Southern Appeal and echoing around the blogosphere concerning the Ninth Amendment. And, while fascinating, the reading has turned Shakespearean for myself and I am beginning, to wonder if the sound and fury of the debate signifies anything. For myself, prior to the debate I tended to agree with the Borkian inkblot view of the Amendment, and after many mental travails to the far coasts of pre-, non- and inherit incorporation of the Ninth Amendment I have reluctantly returned to that view, with maybe a slight amendment(let's call it the quasi-sword inkblot view). But more on that later.

Feddie makes this point in one of his posts:Southern Appeal: "Thus, in my opinion, when the States signed off on the federal constitution they permanently enshrined and protected certain individual liberties. Maybe I'm out in left field on this one, but I am starting to believe that the incorporation doctrine may not have even been necessary."

Well welcome to left field, Feddie. Sit down, relax, have a home brew, there are lots of out there for a variety of reasons. Primarily, I would say you are in left field based simply on the text of the document itself. Reading certain amendments it is clear that these were the States who ceded the creation of powers on behalf of themselves and not the People. The First Amendment specifically addresses Congress, and not the inherent right of the people, in preventing the establishment of a religion. Remember at that time several states had their own official religions. The third amnedment, applying to Soldiers, also only applies t the Federal government. This language, referencing Congress, is not present in the Fourth, Fifth or Sixth. However, in the Seventh we are once agian presented with the language specifically limiting the language to a Federal cause of action in that it only applies to a Court of the United States.

But what about those amendments that do not mention a Federal instrument, including the Ninth. Couldn't we interpret the hidden hand of the Madisonian "people" securing their own rights against any intrusion, Federal or State, in the text of those clauses? Well that argument would carry some weight if there were actual representives of the "people" crafting the Constitution. Yes, yes the fantastic preamble does begin peotically "we the people.." but these were not the direct representatives of the "people" who were attending and drafting the Constitution. These were representatives of the States who brought back a drafted Constitution to the States for ratification by the state legislatures. Had this been an actual democratic process, with a direct vote by the people, then Feddie's pre-incorporated or inheritly incorporated doctrine might have a toe hold.

So when Feddie says:" I am also of the opinion that the Ninth Amendment, in and of itself, can be used to prohibit the States from infringing on the unenumerated rights falling with in the ambit of the amendment's protection." it simply does not hold water.

For, if true, this would resulted in the opposite effect of those attending the Constitutional Convention desired.

Those few and limited rights enumerated in the Constitution, and therefore specifically not under the auspices of the Ninth Amendment, could have been denied willy nilly by the States prior to incorporation.

However those more expansive and unlisted rights, described as unenumerated in the Ninth Amendment, would have been untouchable by the States and reserved to regulation by the Constitution through Amendment.

Ultimately, if you accept Feddie's analysis, then there are all these multiple uncountable rights inherent in the people that were present at the time of the framing that were in no way impacted by the Bill of Rights, that were preserved to them by the Ninth Amendment, and that may not be limited by any State, but may be limited by Federal law through Constitutional amendment.

This would have expanded the Federal Government's power immensely and practically uncontrollably prior to incorporation.


Of course Owen's position on the issue doesn't fill me with overwhelming confidence either. He states, "My position is and always has been that the Ninth Amendment was designed to limit the federal government to its enumerated powers. That's what Madison meant when he spoke of "unenumerated rights." "

But this statement avoids the question of the impact and application, as opposed to the pure meaning, of the Ninth Amendment completely. For example, at the time of the amendment no one would have thought that the Federal government could have dictated to a farmer what he could and could not grow in his back yard. The freedom to farm would have undeniably fallen within the Ninth Amendment. And yet the commerce power was an enumerated power in the Constitution and that has since been used to prevent farmers from growing all sorts of things. (Wickard sucks.) Could the Ninth Amendment be seriously claimed to prevent that action? As an amendment to the Articles of the Constitution it should be read to limit the Constitution by excepting those things which may not be restricted.

And, with respect, Owen's powers = rights conflation does render the Ninth and Tenth amendments equivalents. It is the Tenth Amendment which specifically limits the powers of the United States as those delegated, by the States' delegates, to the Federal government. Every power not listed, is not granted. The Ninth Amendment, if it means anything, must mean something different than the Tenth Amendment. But it does not mean everything Feddie says it means.

As Plainsman notes, essentially the text of the amendment says this:

Hey everybody! We just listed alot of rights and exclusions. But don't worry. If there is something you like to do and its not listed here, and it's not already illegal, then keep on truckin my friend, its still ok, for now.

Which doesn't really mean anything in practice. It does not say that that those rights cannot be taken away at a later time by the Federal government. It does not say the States can't take those rights away. It doesn't even really say what those rights are limited to if they are limited at all. Is it the right to grow tobacco? The right to smoke that tobacco in a public place? The right to walk around naked inside your house while smoking that tobacco? How about the right to surf the internet? Or blog? It really only says that the Bill of Rights cannot be used as a sword by the Government to disparage those rights not listed in the Bill of Rights. (hence the quasi-sword)

And Feddie's originalist limitation may not be a limitation at all. In the broadest sense, drawing from the Declaration of Independence, those rights could be just about anything. The promise of the Declaration was an oft stated goal of those who attended the Constitutional convention, and those natural rights mentioned in that founding document are generically categorized as "Life, Liberty and the pursuit of Happiness."

Ahhh the darned pursuit of Happiness! With a poetic flourish and a desire not to plagiarize Locke, Jefferson may have rendered the Ninth Amendment meaningless. Had he only stuck with property, might we not know exactly what was meant by those unenumerated rights? After all people pursue happiness in all sorts of strange, perverted and wonderful ways. And it is this broadness that clouds the meaning of the Ninth Amendment.(hence the inkblot)

Essentially what this means is that if I were a judge, I would have an extremely hard time relying on the Ninth Amendment to strike down a statute that limits any activity, unless it was in the extremely rare case where the statute read, "Because the Constitution does not specifically protect the right to do XXXXXX, doing XXXXXX is now illegal."

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