Reverence

By Crispin Sartwell

 

Nominating John Roberts to be chief justice, President Bush praised Roberts's "reverence for the Constitution."

    I would like to know whether Roberts's reverence extends to the ninth amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The wording is James Madison's.

   The Bill of Rights - consisting of the first ten amendments to the Constitution  - was added to the document in order to answer the objections of many eminent Americans, who insisted that an enumeration of the rights of citizens be provided, in order to put limits on the expanded authority of the federal government under the newly constituted government.

   Madison, at first lukewarm about a Bill of Rights, came to be its greatest advocate. But there was, he knew, one compelling objection, made by James Wilson of Pennsylvania with particular eloquence: any enumeration of rights might be construed as exhaustive, so that if a right was not explicitly included in the Constitution, the courts and legislatures might take that to mean that the government was not bound to observe it.

     Wilson and others of his persuasion took the rights of citizens or indeed human beings to be almost infinite in number. You have, they believed, the right to behave in any manner that did not compromise the rights of others and did not violate your explicit commitments and contracts. As the primary contemporary scholar of the ninth amendment, Randy Barnett, points out in his book "Restoring the Lost Constitution," you have the right to wear a hat or to scratch your nose when it itches or to have steak for dinner.

    Such rights seem trivial or ridiculous, but if such unenumerated rights are not defended, Barnett argues, the result is subjection.

   The intended effect of the ninth amendment is to carve out a zone of autonomy around each individual, and to protect that zone from incursion by the national or by state governments. One might call this, among other things, the right of privacy.

   When asked about the ninth amendment in his confirmation hearings in 1987, Robert Bork notoriously said this: "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, I don't think the court can make up what might be under the inkblot."

    This hints at the widely held view that the ninth amendment is uselessly vague. But it shows something important about the variety of conservative jurisprudence still championed by Bork: it indicates a contempt for the autonomy of persons. It is worth saying that liberal legal scholars have been at least as contemptuous of it as the conservatives.

    The result of this agreement by the right and the left has been a steady erosion of the rights of individuals.

    Some recent examples. In Gonzales v. Raich, the court held that the federal power to regulate interstate commerce allowed it to prevent a California woman from growing marijuana for her own medical use, though California law permitted it. The woman's case was argued before the court by Randy Barnett. In Kelo v. New London, the court permitted the city to seize private homes and sell them to developers on the grounds that it increased the city's tax revenue. In both cases it was the conservatives on the court who disagreed.

    To take one example from the recent right - which has an extraordinary enthusiasm for executive power - prospective Supreme Court nominee Alberto Gonzales has declared his legal opinion that it is compatible with the Constitution for executive branch to hold any person designated as an "enemy combatant" without charge or representation, indefinitely.

    In other words, both left and right hold in contempt the freedoms Madison enshrined the Bill of Rights. Bush might make constitutional government more than a quaint matter of nostalgia by nominating someone like Barnett rather than Gonzales or his ilk.

     If Roberts has a Bork-like approach to the ninth amendment, he should be well and truly borked, because his tenancy in the chief justiceship will be marked by a continuing erosion of basic liberties that our system of government was constituted to uphold.

    If one has reverence for the Constitution and for its framers then one must take the Ninth Amendment as seriously as Madison did. Reverence for the Constitution must be reverence for the fundamental ideal that governed its making: liberty.