Berger 1980 Ninth Amendment

Argument is that Madison understanding of the Bill of Rights remains in force; incorporation is unwarranted; only enumerated ("constitutional") rights are enforceable; rights are enforeable against the federal gov't only.

Note: Incorporation applied the Bill of Rights as limitations on the states, as well as the federal government, as determined by the federal judiciary.
Berger dismisses incorporation by citing Charles Fairman and Morrison ... contra numerous opinions of the Supreme Court.
Berger slides Madison's understanding of the Bill of Rights as limitations on the federal government alone, past the 14th Amendment which empower/requires the federal government to enforce incorporated rights against the states.
If rights are "area of no-power" then the federal government cannot adjudicate or enforce. Federal judicial had no jurisdiction in Chicago, Burlington and Quincy R. Co. v. City of Chicago, (takings), Masterpiece Cakeshop and 303 Creative.
Repeatedly asserts "that the Bill of Rights issued out of state distrust of the powers of the general government." [pre-Incorporation]
Reiterates that "constitute an area of no-power." ... if "no-power" how are any rights, including the Takings Clause, to be enforced against the federal gov't.
Selective quotation and omission ... see section on John Hart Ely.

2023-09-18: Berger Ninth Amendment 1980

• Justice Goldberg would transform the ninth amendment into a bottomless well in which the judiciary can dip for the formation of undreamed of "rights" in their limitless discretion, a possibility the Founders would have rejected out of hand. (2)
• Whatever the meaning of the ninth amendment, one thing it clearly did not contemplate--encroachment on state control of local matters except as the constitution otherwise authorized. (2)
• Others, however, were deeply concerned by the effect of the maxim expressio unius est exclusio alterius: what is expressed excludes what is not. They feared that an enumeration of some rights might deliver those not enumerated into the hands of the federal government. (7)
• Madison, in short, meant to bar the implication that unenumerated rights were "assigned" to the federal government, for enforcement or otherwise, .... (7) [1st thru 8th are limitations on the federal government; which of the enumerated rights were assigned to the federal government for enforcement prior to ratification of the 14th? lack of parallelism suggests the claim is in error.]]
• Then too, because the federal government may not "deny" unenumerated rights, it does not follow that it may enforce them against the states. (8) [prior to incorporation none of the rights could be enforced against the states. Those incorporated are a duty of the federal government to enforce via the courts.]
• Hence, Madison explained, if the Bill of Rights were "incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; .... they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights" (9) [via Art 3 "all Cases and Controversies"]
• With Leslie Dunbar, I would hold that the ninth amendment "is an affirmation that rights exist independently of government, that they constitute an area of no-power." (9) [no-power includes no adjudication or enforcement against any level of gov't (takings clause). prior to incorporation; post incorporation the federal government is empowered to defend/enforce those rights against the states.]
• ... during the fourteenth amendment debates, indicated that the due process clause furnished a "remedy" to secure the "fundamental rights" enumerated in the Civil Rights Act of 1866 .... (11) [states that a statute enumerates rights ... rights are constitutional, not subject to statute.]
• ... the argument that the Bill of Rights was incorporated in the fourteenth amendment is without historical warrant as Charles Fairman demonstrated, and as is widely acknowledged.
• Since it [incorporation] must draw upon the due process clause, and since "due process" in the fifth and fourteenth amendments is identical, the argument makes nonsense of the Bill of Rights. (13) [fifth applies to federal gov't; fourteenth applies to state gov'ts. different subjects in the two clauses.]
• Bennett Patterson author of The Forgotten Ninth Amendment
• Professor Norman Redlich
• ... "the sketchy legislative history would seem to support the holding in Barron v. Baltimore that it was intended to restrict only the federal government." (17)
• The starting point for Redlich is a "strong historical argument" that the ninth and tenth amendments "were intended to apply in a situation where the asserted right appears to the Court as fundamental to a free society but is, nevertheless, not specified in the Bill of Rights." Apparently Redlich assumes that the Court is to be the enforcer of these "not specified" rights. (18)
• But it is incompatible with his statement that "because the people possessed such [retained] rights, there were powers which neither the federal government nor the States possessed." Among such "no-powers" is the "protection" of those retained rights. (18) [repeated assertion of "no-power". see above.]
• Anticipating Justice Goldberg, Redlich attempts to bridge this chasm by invoking the fourteenth amendment to provide "the framework for applying these restrictions against the states, even though they may have been originally intended to apply only against the United States." (18) [Incorporation]
• This collides with his conclusion that the retention of rights was accompanied by the withholding of correlative power. (19)
• John Hart Ely
• ... he considers that "the conclusion that the Ninth Amendment was intended to signal the existence of federal constitutional rights beyond those specifically enumerated in the Constitution is the only conclusion its language seems comfortably able to support." (19)
• It therefore bears emphasis that Ely's "federal constitutional rights" can be asserted only against the federal government and not the states, for he does not here call on incorporation into the fourteenth amendment. (20)
• Both the rights expressed in the Bill of Rights and the unspecified rights retained by the people "exist," but only the former are "constitutional rights." (20) [dispargement of other rights contra Ninth Amendment]
• This means, in my judgment, that the courts have not been empowered to enforce the retained rights against either the federal government or the states. (20) [therefore, retained rights are unenforceable ... rights without remedies. Only "constitutional rights" (enumerated) are enforceable.]
• As Ely observes, "[w]hat is important" is that Madison "wished to forestall both the implication of unexpressed powers and the disparagement of unenumerated rights," employing the tenth amendment for the one and the ninth for the other. (22)
• Finally Ely concludes, "[i]f a principled approach to judicial enforcement of ... open ended provisions cannot be developed, one that is not hopelessly inconsistent with our nation's commitment to representative democracy, responsible commentators must consider seriously the possibility that courts simply should stay away from them." (22) [Ely continues 'Given the transparent failure of the dominant mode of "noninterpretivist" review, Justice Black's instinct to decline the delegation was healthy. But the dominant mode can be improved upon, or at least that is the burden of the rest of this book. Democracy and Distrust 1980 on page 41.
• Conclusion
• The ninth amendment demonstrably was not custom-made to enlarge federal enforcement of "fundamental rights" in spite of state law; .... (23)