Eleventh in a 12-part series on the 10 amendments of the Bill of Rights, running through Thursday. Today: The Ninth Amendment.
President-elect Donald Trump's pick for the Supreme Court is sure to be a conservative. But how he or she interprets the Ninth Amendment will say a lot about the kind of conservative justice he or she will be.
The Ninth Amendment is just a single sentence that reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
When President Ronald Reagan's nominee Robert Bork was asked during his 1987 confirmation hearings to say what it meant, he replied: "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 if you cannot read it." For someone claiming to adhere to the original meaning of the text, this was a disappointing response.
The Ninth Amendment was devised by James Madison to respond to an objection that he and his fellow-Federalists had made to adding a bill of rights to the Constitution: It was dangerous, they contended, because the rights of the people were impossible to "enumerate" or list, and any effort to enumerate them would imply that other rights of the people either did not exist or were surrendered to the national government. As future Supreme Court Justice James Iredell said to the North Carolina ratification convention: "No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution. ... Let any one make what collection or enumeration of rights he pleases, I will immediately mention 20 or 30 more rights not contained in it."
This statement and others like it show that the founders thought that the "rights ... retained by the people" were individual liberty rights - that is the right to do as you wish with what is rightfully yours. For example, when debating what became the first amendment, Massachusetts Congressman Theodore Sedgwick equated the right to peaceably assemble - which came to be included in the First Amendment - with the "inherent" right of a person "to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper."
Or as James Wilson, the first law professor at the University of Pennsylvania and future Supreme Court justice, exclaimed in the Pennsylvania ratification convention: "Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing."
The Ninth Amendment, like the rest of the Bill of Rights, originally applied only to the federal government. But the 14th Amendment embraced these same rights when it declared that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
Those who seek to avoid the original meaning of the Ninth Amendment (and the Privileges or Immunities Clause) fear that it would empower judges to thwart the will of the people by invalidating any law that restricts liberty. But this does not follow. All liberties - even the liberties of speech, press, and assembly expressly protected by the First Amendment - may be "reasonably" regulated to serve the public interest by protecting the like liberties of others.
To protect the rights retained by the people, judges need not second guess the wisdom of regulations. Rather they need to assess whether the regulations were enacted in good faith. So judges must seek to smoke out restrictions that are enacted on the "pretext" of protecting, for example, the health and safety of the public, but which are really passed for other and forbidden motives, such as helping out favored "interest groups" at the expense of others or to suppressing a liberty simply because others disapprove of its exercise.
This is exactly what judges do (or should do) with enumerated rights. For example, was a ban on all gun ranges in Chicago enacted as a good faith public safety measure or was it intended to make it more difficult to receive the training that Chicago also required all gun owners to have? Or was it enacted to make gun ownership more difficult and costly? A lack of fit between the end claimed and the means adopted is a sign of pretext or bad faith.
When hearings are held for our next Supreme Court justice, the nominee should be asked his or her views of the meaning of the Ninth Amendment and how that meaning affects their duties as a justice to vet legislative restrictions on the liberties of the people. For it is the people as individuals who are sovereign in a republic, and legislators merely our agents.
Judges too are servants of the people, whose responsibility it is to keep legislatures within the proper scope of their powers, and thereby protect all the "rights ... retained by the people" from being denied or disparaged.
Randy E. Barnett teaches at Georgetown Law, where he directs the Georgetown Center for the Constitution. His new book is "Our Republican Constitution: Securing the Liberty and Sovereignty of We the People" (HarperCollins, 2016). www.randybarnett.com