BULLETIN
#35 Spring 2002
l RIGHTS AND
THE CONSTITUTION: THE NINTH AMENDMENT
Part
3: Bork's Blot
l SOME CASES ARE DECIDED QUICKLY . . .
. . . SOME DRAG ON FOREVER
#35 Spring
2002 Page 1
RIGHTS AND THE CONSTITUTION
The Ninth Amendment
Part 3: Bork's Blot
By Stephen Plafker
In the first part of this article, I summarized the history of
the Constitution and the Bill of rights with emphasis on the Ninth
Amendment which reads as follows:
The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people.
I concluded: "Thus,
it is clear that the Constitution was designed to advance the
sole purpose of government: 'to secure
. . . rights.' And that no rights should be omitted."
In the second part, I summarized the way the Supreme Court has
discussed natural rights. This discussion showed a general deterioration
in the treatment of natural rights culminating in a denial of their
existence.
At the end
of the first part, I asked: "Given this history,
why do American governments today think their main function is
to violate rights?" In this part, I answer this question.
__________________________________
Before the Civil War, there was no significant federal litigation
on the Bill of Rights. The basic reason was that the Bill of Rights
originally restricted the federal government, not the states,1
and almost all violations of rights were done by the states. Almost
all the important cases involved attacks on state laws under the
Contract Clause of the Constitution.2
There were only two antebellum Supreme Court cases holding federal
laws unconstitutional. The first involved a minor technical rule
of jurisdiction.3 The second, decided 54 years later, was the infamous
Dred Scott4 case in which the Supreme Court stated
a conclusion clearly wrong and disastrous.
The Ninth Amendment has never been the basis of any case decided
by the Supreme Court. A constitutional expert, Knowlton H. Kelsey,
assigns five possible reasons:
(1) All essential human rights may have been covered by the express
declarations
of right in the original Constitution or in the other
amendments. (2) All essential
human rights, not enumerated may
be covered by the limits of or limitations upon
the express and
grant of powers. (3) Any additional rights thought to have been
protected thereby may have been covered by judicial construction
and extension
of expressly enumerated rights, especially those
under the Fifth Amendment, to
cover not only the general classifications
of rights catalogued by the great
commentators, but also all proper
subdivisions and refinements thereof.
(4) Other rights may exist
which have not heretofore been invaded, or which
have not heretofore
been vindicated by the ingenuity of the legal profession or
#35 Spring
2002 Page 2
the discernment
of the courts. (5) Rights not expressly enumerated may have
been
extinguished by long acquiesce of the people in
legislative extension of
Federal power or by judicial decisions
on the extent
of power.5
The biggest reason is an extension of (5): The legal profession
today does not believe in, or understand, rights. This fact interferes
with the ability of courts to decide cases involving the more particular
rights, but it makes enforcement of the Ninth Amendment impossible.
Consider, for example, a free speech case. A court can determine
whether a particular law reduces a person's ability to express
or publicize his opinion. Doing so may require judgment, but it
can be done. Free speech cases are therefore capable of being decided
by the application of manageable judicial criteria.
But how is one to apply the Ninth Amendment? One commentator,
Norman Redlich, describes his method as follows:
Let us consider a few examples. The right of employees to contract
with
employers concerning hours of work, which was the right upheld
in Lochner v.
New York, hardly fits into the scheme of rights set
forth in our Constitution.
But the right of a married couple to
maintain the intimacy of their marital relationship
free from the
criminal sanction of the state does fit into the pattern of a society
which set forth in its national charter that men should be free
from unreasonable
searches and seizures. Similarly,
the state might sterilize an individual upon clear
and convincing
proof that this particular individual possesses inheritable
characteristics likely to produce criminal conduct or
insanity. But if the Government
were to enforce a policy of selective
breeding, designed to produce a genetically
superior race, the
individual could claim that among the rights reserved to the
people
is the right freely to choose a spouse and to produce children.
Only
through the most obnoxious invasion
of personal privacy could such a program
be enforced. Moreover,
a Constitution which specifically provides that a person
guilty
of treason could not be deprived
of the right to transmit property would
hardly countenance taking
from law-abiding citizens the right to transmit life.6
Why include some rights but not others? No answer.
This is the
consequence of the absence of a theory of rights. Professor Redlich
wants, but is unable, to provide any judicially
manageable rules to decide cases under the Ninth Amendment. He
is only able to provide a list of results he likes and compare
them with those he doesn't.
#35 Spring
2002 Page 3
Robert Jackson,
a distinguished former Justice of the Supreme Court tells this
story.
A lawyer friend asked me in a friendly way what I thought the
Ninth Amendment
to the Constitution meant. I vainly tried to recall
what it was . . . . What are those
other rights retained by the
people? To what law shall we look for their source
and definition?
. . . [T]he Ninth Amendment rights which are not to be disturbed
by the Federal Government are still a mystery to me.7
As a result
There is an
understandable reluctance to open the Pandora's box of judicial
review
of such
an open-ended provision as the Ninth
Amendment. Some fear that giving
any real effect to 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" and would permit judges to impose their purely
subjective
preferences on the people, and that judicial review
would quickly become judicial
supremacy and tyranny.8
Former Justice Hugo Black, an honest (non-power lusting) judge,
concluded that enforcement of non-enumerated rights must be based
on
the premise that this Court is vested with power to invalidate
all state laws
that it considers to be arbitrary,
capricious, unreasonable, or oppressive, or on
this Court's
belief that a particular state law under scrutiny has no "rational
or
justifying" purpose, or is offensive to a "sense of
fairness and justice." If these
formulas based on "natural
justice," or others which mean the same thing, are
to prevail,
they require judges to determine what is or is not constitutional
on
the basis of their own appraisal of what laws are unwise or
unnecessary.9
In the present
philosophical climate, Justice Black is right. The most likely "rights" for modern judges to find are
the "right" to a minimum income, the "right" to
an education, the "right" to live where one chooses,
. . . 10 Until the courts begin to use something like Objectivist
principles, having judges determine rights is dangerous.
Robert Bork, a nominee to the Supreme Court 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.11
This statement
is correct. To interpret, one needs to understand. The American
system needs Ayn Rand.
#35 pring
2002 Page 4
First, to
understand the concept of rights:
A "right" is
a moral principle defining and sanctioning a man's freedom of
action
in a social context. There is only one
fundamental right (all the others are its
consequences or corollaries):
a man's right to his own life. Life is a process of
self-sustaining
and self-generated action; the right to life means the right to
engage in self-sustaining and self-generated action---which means:
the freedom
to take all the actions required by the nature of a
rational being for the support,
the furtherance, the fulfillment
and the enjoyment of his own life. (Such is the
meaning of the
right to life, liberty, and the pursuit of happiness.)
The concept
of a "right" pertains
only to action---specifically, to freedom of action.
It means
freedom from physical compulsion,
coercion or interference by other men.
Thus, for
every individual, a right is the moral sanction of a positive---of
his
freedom to act on his own judgment, for
his own goals, by his own voluntary,
uncoerced choice.
As to his neighbors, his rights impose no obligations on
them except of a negative kind: to abstain from violating
his rights.12
Second, to understand how they can be violated:
Man's rights can be violated only by the use of physical force.13
Finally, to understand the proper function of government.
If physical force is to be barred from social relationships, men
need an
institution charged with the task of protecting their rights
under an objective
code of rules.
This is the task of a government---of a proper government---its
basic task,
its only moral justification and the reason why men
do need a government.14
To say the government is violating a right is to say it is initiating
force rather than protecting its citizens from the initiation of
force. This is a judicially manageable criterion. Only when the
legal system is based on these principles can the Ninth Amendment
properly be implemented.
__________________________________
References:
1. Barron v. Baltimore, 7 Peters 243, 8 L.Ed. 672 (1833)
2. "No
State shall . . . pass any . . . law impairing the obligation
of contracts
. . . Article 1, Section 10
3. Marbury
v. Madison, 1 Cranch 137 (1803)
4. Scott
v. Sandford, 19 How. 393 (1857)
5. Knowlton
H. Kelsey, The Ninth Amendment of the Federal Constitution, 11
Ind. L.J. 309 (1936), reprinted in
Barnett (Ed.), The Rights Retained by the People, The History
and Meaning of the Ninth Amendment, George Mason University Press (1989)
(hereinafter "Barnett") at 103-4
6. Norman
Redlich, Are There "Certain Rights . . . Retained
by the People"?, 37 N.Y.U.L.Rev. 787 (1962), reprinted in
Barnett, supra n. 5 at 145 (footnotes omitted)
7. Eugene M. Van Loan III, Natural Rights and the Ninth Amendment,
B.U.L.Rev. (1968), quoting from Robert Jackson, The Supreme
Court and the American System of Government 74-75 (1955)
8. Randy E.
Barnett, "Introduction:
James Madison's Ninth
Amendment" from Barnett, supra, n. 5, at 25-26 (footnotes
omitted)
9. Black, J., dissenting in Griswold
v. Connecticut, 381 U.S.
479, 511 (1965) (footnotes omitted)
10. Anyone who thinks these examples are fanciful might consider
Shapiro v. Thompson, 394 U.S. 618 (1969)
11. Barnett
supra note 5, quoting from Wall St. J., Oct. 5, 1987, §A,
at 22
12. Ayn Rand, "Man's Rights" in
Capitalism: The Unknown Ideal (hardcover edition) at 288
13. Ayn Rand, "The Nature of Government" in
Capitalism: The Unknown Ideal (hardcover edition) at 296
14. Id.
at 297
#35 Spring
2002 Page 5
SOME CASES ARE DECIDED QUICKLY . . .
On September 30, 2002, Robert G. Torricelli, Democratic candidate
for the United States Senate from New Jersey, realizing he was
about to be trounced (and probably under pressure from the Party),
withdrew his candidacy. The Party, seeking to replace him with
a candidate more palatable to the voters, brought suit to require
that its substitute be placed on the ballot.
The case was considered and decided at breakneck speed. The suit
was filed on September 30 in the Superior Court, The New Jersey
Supreme Court certified1 the case on October 1, and heard argument
and decided the case on October 2.
The statute covering the case reads:
In the event of a vacancy, howsoever caused, among candidates
nominated
at primaries, which vacancy shall occur not later than
the 51st day before
the general election . . . a candidate shall
be selected in the following manner:
a. (1) In the case of an office to be filled by the voters of
the entire State, the
candidate shall be selected by the State
committee of the political party wherein
such vacancy has occurred.
. . .
d.
A selection made pursuant to this section shall be made not later
than the
48th day preceding the date of the general
election, and a statement of such
selection shall be filed with
the Secretary of State. . . .
The general
election was scheduled for November 5, 36 days after Mr. Torricelli
withdrew.
From a simple reading of this statute,
no substitution of candidate is possible. Despite this obvious
conclusion, the New Jersey Supreme Court ordered that Mr. Torricelli "be
replaced [on all state ballots] by the name of the candidate selected
by the State Committee."
The Court
reasoned as follows. From the importance of right to vote ("the keystone of a truly democratic society") which "would
be empty indeed if it did not include the right of choice for whom
to vote”, “It is in the public interest and the general
intent of the election laws to preserve the two-party system and
to submit to the electorate a ballot bearing the names of candidates
of both major political parties as well as of all other qualifying
parties and groups." But how does one avoid the mathematics
of the statute? No problem: "A statute is not to be given
an arbitrary[!!!] construction, according to the strict letter,
but rather one that will advance the sense and meaning fairly deducible
from the context. The reason of the statute prevails over the literal
sense of terms; the manifest policy is an implied limitation on
the sense of the general terms, and a touchstone for the expansion
of narrower terms."2
Rule of law? Separation of powers? No mention.3
__________________________________
Notes:
1. Certification is a process by which the Supreme Court takes
a case directly rather than waiting for the lower court
to consider it.
2. This kind
of reasoning is actually common in court opinions. The New Jersey
court was able to cite numerous
prior cases in which the exact same conclusion was reached.
3. This method of deciding cases was criticized in an article
in the January 31, 1989 edition of The Wall Street Journal by
Judge Alex Kozinski of the Ninth Circuit Court of Appeals. His
criticism
was summarized in the Spring 1989 issue of this Bulletin.
#35 Spring
2002 Page 6
. . . SOME DRAG ON FOREVER
The IOLTA
case, described in numerous issues of this Bulletin, is back
in the Supreme Court. It involves a program by which
various states require that lawyers' trust funds be held in
interest-bearing accounts and that the interest be given to the
state for the benefit of indigents.
Originally filed on February 7, 1994, a federal trial court in
Texas upheld the program in 1995, the Fifth Circuit Court of Appeals
reversed in 1996, and, in 1998, the Supreme Court affirmed the
Fifth Circuit decision but returned the case to the trial court
for further proceedings. The trial court again upheld the program,
and the Fifth Circuit again reversed.
As reported in the Summer 2001 issue of this Bulletin, the Ninth
Circuit Court of Appeals came to the opposite conclusion in a case
from the state of Washington. And, as we predicted, the issue is
again in the Supreme Court. Argument was heard on December 9, 2002.
__________________________________
Copyright © 2002
The Association for Objective Law. All rights reserved. The Association
for Objective Law is a Missouri non-profit
corporation whose purpose is to advance Objectivism, the philosophy
of Ayn Rand, as the basis of a proper legal system. |