#35 Spring 2002

     Part 3: Bork's Blot

#35 Spring 2002 Page 1

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

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     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.

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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.

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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,
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.

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

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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

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.

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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.