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
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
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
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,
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.