Williams 2011 The Ninth Amendment as a Rule of Construction

Williams cites examples of single individuals or small groups expressing opposition and extrapolates to the whole...Congress and the state legislatures that ratified the amendments. [Exmaple: Smith, Livermore, Benson 558]

Williams:

Retained rights of the Ninth Amendment "could thus plausibly have been seen by many Americans as a right[s] to which they were entitled as English subjects and which they "retained" to themselves both in forming their own respective state governments and in adopting the Federal Constitution." (559) [referent and emphasis added]

This Article contests that assumption by demonstrating that regardless of the original meaning of the Amendment's reference to rights "retained by the people," the Amendment itself does not compel treating such rights as if they were constitutional rights. Rather, the original meaning of the Ninth Amendment does nothing more than state a narrow and precise rule of construction targeted at a specific form of constitutional argument. Based upon inserting into the text a cancellable presupposition if any and then maintaining that its uncontestable that the conditional is satisfied. (see page 548)

See Barnett: The Misconceived Assumption About Constitutional Assumptions

2023-09-18: Williams The Ninth Amendment as a Rule of Construction 2011

• The plain language of the Ninth Amendment prohibits one, and only one, particular form of constitutional argument--that because some particular right or set of rights is mentioned in the Constitution, some other claimed right or set of rights should either be "denied" (i.e., assumed either not to exist or to have been delegated to the federal government) or "disparaged" (i.e., accorded a diminished level of protection or respect). (501)
• ... Ninth Amendment's literal command has nothing to say about either the existence or enforceability of claimed rights or the proper scope of federal power; in fact, it has nothing to say at all. (501) [denies the previous statement ... wiggle out via "literal command"?]
• Part I provides a brief history of modern scholarship on the Ninth Amendment
• Part II examines the relevant historical background leading up to the Amendment's enactment and specific language used in the Amendment,
• Part III considers the possibility that ... it may nonetheless carry an implied secondary meaning that might be used to authorize (or require) judicial enforcement of the "retained" rights to which it refers.
• Part IV considers the contemporary significance of the Ninth Amendment's limited rule of construction.
• I. The Ninth Amendment and Unenumerated Rights: The Debate Thus Far
• For most of its history, courts interpreted the Ninth Amendment reltively uniformly as a guarantee of state autonomy. In this connection, the Ninth Amendment was frequently invoked alongside the Tenth Amendment as twin guarantees playing the complementary roles of protecting the reserved rights of the states and ensuring a limited construction of enumerated federal powers. (504)
• In 1965, the Ninth Amendment reemerged as a focal point of constitutional debate as a result of Justice Goldberg's invocation of the Amendment in his concurring opinion in Griswold v. Connecticut. (504)
• Recognizing the deficiencies of this [Bork's] "inkblot" response, originalist constitutional scholars began the process of researching the Amendment's historical background in an effort to arrive at a defensible interpretation consistent with the Amendment's original linguistic meaning and the intentions of its framers and ratifiers. (505)
• ... these [originalist] theories can generally be classified into two broad families of interpretations: (1) individual natural rights interpretations [Barnett, and others] and (2) federalism interpretations. [Lash, Seidman] (506)
• The individual natural rights interpretations understand the Ninth Amendment's reference to "other[ ] retained" rights to refer to individual natural rights that existed before the creation of the state and national governments and that were "retained" by individuals upon entering into those governments. ... in order to ensure that such rights would be "as enforceable after the enactment of the Bill of Rights as the retained [natural] rights of freedom of speech, press, assembly, and free exercise of religion," that were specifically enumerated in the Constitution. Barnett thus argues that any legal rule that would accord greater legal effect to enumerated natural rights, such as freedom of speech, press or religion, than is given to "unenumerated" retained rights violates the Ninth Amendment's interpretive command. [Barnett] (506)
• The narrow federalism interpretation views the Ninth Amendment as a targeted response to the danger that the fact of enumeration might be used to infer the existence of federal powers beyond those expressly enumerated in the Constitution. ... to use the enumeration of a right to a free press to argue that it possessed a general power to regulate the press, ... (507)
• ... broader federalism interpretation that would allow the Ninth Amendment to serve "as a judicially enforceable rule of construction limiting the power of the federal government to interfere with the retained right of the people to local self-government. [Lash] (507)
• ... both Professor Barnett and Professor Lash agree that the Ninth Amendment can be plausibly understood as protecting both federalism and individual rights. Professor Barnett believes that the Amendment warrants broad protection for individual natural rights even when such rights are placed in conflict with the majoritarian right to local self government; Professor Lash, on the other hand, believes that the Amendment leaves the protection of such individual rights to the control of the states and precludes federal interference with state governance even where the expressed purpose of such interference is to protect individual rights. (508)
• II Refocusing the Debate: The Historical and Textual Support for Interpreting the Ninth Amendment as a Limited Rule of Construction
• the limited rule of construction model does not view the Ninth Amendment as a generalized source of judicial authority to protect rights that are not specifically enumerated in the Constitution. (509)
• Ninth Amendment's sole function as providing a response to a very specific form of argument--namely, that the enumeration of rights in the Constitution might be used as a basis for limiting or denying other claimed rights. (509)
• A. The Ninth Amendment's Background Historical Context
• Federalists: argued that inclusion of a bill of rights could be affirmatively dangerous because it might provide a basis for inferring the existence of additional federal powers beyond those specifically enumerated in the Constitution. (511)
• Federalist supporters of the Constitution never mustered a cogent response that would reconcile their "danger" argument with the limited enumeration that already appeared in the original Constitution. (512)
• B. The Ninth Amendment's Text
• Somewhat more controversially, this Article argues in Part III that a provision's apparent background purpose should not be used to imply a broader scope for the provision than is fairly inferable from the explicit semantic meaning of its text and the obvious and noncontroversial implications that would have been generally recognized and accepted as following from that text at the time of its enactment. (521)
• 1. The enumeration in the Constitution, of certain rights
• seems reasonable to interpret the Amendment's reference to the "enumeration ... of certain rights" as encompassing not only the rights set forth in the immediately preceding Bill of Rights provisions but to all rights listed "in the Constitution," regardless of placement. (521)
• 2. "[S]hall [N]ot [B]e [CJonstrued
• These four words, which contain the Ninth Amendment's operative command, clearly and unambiguously identify the provision as a rule of construction. (522)
• 3. "[T]o [D]eny or [D]isparage."
• In Professor Barnett's memorable phrase, by prohibiting the "denial" or "disparagement" of retained rights, the Ninth Amendment sought "to ensure the equal protection of unenumerated ... rights on a par with those" rights that were enumerated. (524)
• The Ninth Amendment's interpretive command thus clearly prohibits using the fact that certain rights have been enumerated to claim that other "retained" rights do not exist. (524)
• 4. "[O]thers [R]etained by the [P]eople.
• For purposes of this Article, I would like to refrain from taking a position on the meaning of this important phrase, which has been extensively examined by other scholars. (527)
• ... if courts were to determine that "strict scrutiny" is the appropriate standard for reviewing claimed infringements of enumerated rights, such as the freedom of speech, the "equal protection" interpretation demands that strict scrutiny apply to infringements of analogous unenumerated "retained" rights as well. (528)
• The "hold harmless" interpretation, on the other hand, makes the legal status of enumerated rights irrelevant to determining the proper legal status of "other [ ]" rights, demanding only that the fact that certain rights have been enumerated not be used to the detriment of such status. (528)
• [either way, there are unenumerated rights referenced by the Ninth Amendment]
• C. Conclusion
• The historical and textual evidence bearing on the Ninth Amendment's original meaning strongly suggests that the Amendment was targeted at addressing a very specific form of interpretive argument--i.e., the danger that enumerating particular rights in the Constitution might give rise to an inference that the rights omitted from the enumeration had been either repealed by implication or surrendered to the federal government's control. (530)
• First, ... my reading of the Amendment's "deny or disparage" language does not compel equal treatment of enumerated rights and "other [ ] retained" rights but rather merely requires that enumeration not be used to diminish the preexisting legal status of such "other [ ]" rights, whatever that status might be. (530)
• Second, ... the reading proposed in this Article allows for the possibility that at least some "enumerated" rights might also be "retained" rights within the scope of the Amendment's protection. (530)
• To take an example suggested by Professor Claus, the First Amendment right to freedom of speech may be brought into conflict with arguably "retained" state law rights, such as the right of public figures to the protection of their reputations, raising questions regarding which right should be privileged and which should yield in particular contexts. (531)
• ... two conclusions to be stated with a reasonable degree of confidence. (531)
• First, nothing in the express semantic meaning of the Amendment either requires courts to treat unenumerated "retained" rights as if they were constitutional rights or precludes them from according enumerated constituional rights more favorable treatment than is accorded unenumerated rights. (531)
• [Second,] ... the mere fact that a particular right has been enumerated in the Constitution cannot be used as an argument for according some other "retained" right a narrower scope or lesser protection than it would have received if the enumerated right in question had not been included in the Constitution. (532)
• [reconcile the two statements by declaring unenumerated rights may be disregarded by the courts whether or not other rights are enumerated.]
• The significance of these two propositions will be explored further in Part IV. (532)
• III. The Ninth Amendment and the Limits of Constitutional Implicature
• In recent writings, both Professor Barnett and Professor Lash have helpfully clarified their respective positions by arguing that the judicial obligation to recognize and enforce "unenumerated" rights they identify in the Amendment does not arise from the Amendment's express semantic meaning but rather from a putatively implied secondary meaning they associate with the Amendment. (532) [distinction without meaning. enumerated vs others not listed -> there are others not listed. not denied -> there are others not listed. not disparaged -> others not listed must be taken seriously.]
• ... what, if any, implications can and should be drawn from the Amendment's prohibition of denying or disparaging "other[ ] retained" rights. (533)
• A. Implied Meaning and Legal Communication: An Overview
• 1. The Relationship Between Express Meaning and Implied Meaning in Ordinary Conversation
• "Mary regretted breaking the vase" -> possible that "someone else broke the vase"; "Mary mistakenly believed that it was her fault"; "the vase was not actually broken" but Mary believe otherwise; (538) [original intent and hearer/reader understanding unaffected by these possibilities that are contra the assumed facts.]
• The only condition truly necessary for the statement to make sense is that Mary believed she broke the vase, and this meaning is thus the only truly noncancellable presupposition the statement can be fairly understood to convey. (539)
• implicature: depend[s] upon a process of inductive reasoning that draws upon evidence of the speaker's most probable intended meaning in order to form hypotheses regarding what the speaker must have intended by his or her use of particular language in a particular context. (539)
• 2. Implied Meaning and Legal Communication.
• As has been well documented in the statutory interpretation literature, legislation is often the result of a highly complex and nontransparent process featuring carefully negotiated, and often unrecorded, bargains among competing interests. (540) [implications regarding assumptions upon which originalism may be based]
• ... proponents of New Textualist theories of statutory interpretation have argued "that the only safe course for a faithful agent" seeking to interpret the resulting legislation is "to enforce the clear terms of the statutes that have emerged from that process" rather than attempting "to get inside Congress's 'mind.'" (541) [Eskridge New Textualism]
• As Professor John Manning has persuasively argued, there is little ground for believing that these well-documented problems with reconstructing legislative "intent" and "purpose" are less significant in the context of constitutional amendments. (542)
• ... Article V place an inordinate amount of political power in the hands of legislative minorities who may "insist upon compromise as the price of [their] assent." (542)
• ... propose ... two-part test for recognizing constitutional implicatures:
• First, interpreters should question whether the putatively implied content arises as a matter of logical necessity due to a noncancellable, semantically encoded formulation (e.g., a conventional implicature or noncancellable presupposition). If so, there appears to be little difficulty with recognizing the implied content as part of the law itself, just as if it had been expressly set forth in the provision's text. (544) [emphasis added]
• Second, if the implied content is not semantically encoded in the text, interpreters should inquire whether a reasonable member of the ratifying public at the time of enactment would have recognized the implied content as following obviously and noncontroversially from the choice of the particular language used in the provision and the relevant background context. (544)
• B. Does the Ninth Amendment Imply the Existence of fudicially Enforceable "Other" Rights?
• First, is the judicial enforceability of such "other [ ]" rights semantically encoded in the Amendment's text, either as a result of a conventional implicature or a noncancellable presupposition? (546)
• [If not, then] ... the more difficult second inquiry into whether the Amendment would have nonetheless been understood by a reasonable member of the ratifying public as carrying with it a clear and obvious implied meaning that either required or allowed for judicial enforcement of unenumerated right. (546)
• ... I believe that both of these questions must be answered in the negative. (546)
• 1. Was Judicial Enforceability of Unenumerated Rights Semantically Encoded in the Language of the Ninth Amendment? [Contra-Barnett]
• Though one might contest Barnett's argument by challenging his interpretation of the Amendment's "retained" rights language [see narrow and broad federalism page 508 above], move is not critical.... I will therefore accept Professor Barnett's contention that Amendment's reference to "retained" rights would have been generally understood at the time of enactment as if it referred to individual natural rights. (547)
• But consider a second strategy someone seeking to "opt out" of the apparent presupposition of the existence of unenumerated natural rights might choose to pursue: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage the natural rights, which are retained by the people when they enter into Society, if any." (547) li> Rather, as in the "broken vase" example discussed in Part III.A.1, all that would be required for the Amendment to make logical sense would be that certain people believed in the existence of such rights at the time of the Amendment's enactment. (548)
• But this presupposition, unlike the presupposition Professor Barnett suggests, would be perfectly consistent with a current refusal to recognize and enforce such rights. (548) [without basis change the text to include a conditional, and assert the conditional in true.]
• 2. Was Judicial Enforceability of Unenumerated Rights an Obvious Implication of the Ninth Amendment? [Contra-Lash]
• ... the more difficult second question of whether, in view of the Amendment's text and background context, it would have been obvious to an observer in 1791 that the Amendment implicated the existence of such rights. (548)
• Any attempt to impute concrete, legally enforceable "principles" to the Amendment must therefore depend upon a substantial degree of inference and conjecture regarding what the drafters "must have intended" by their choice of the particular language included in the Amendment. (551)
• Professor Lash argues that "[t]he historical evidence" suggests two principal purposes for the Ninth Amendment: "(1) preventing the disparagement of unenumerated rights and (2) limiting the construction of federal power. (551)
• In view of this drafting history, there is substantial reason to doubt that the final version of the Amendment would have been generally understood as effectively equivalent to the explicit "natural rights" provisions proposed on multiple occasions but that the Amendment's framers expressly chose not to adopt. (552)
• While there is less direct evidence of congressional opposition to a provision explicitly addressing the constructive "enlargement" of federal powers, there also appears to have been relatively little obvious support for such a provision, .... (554)
• In view of the Ninth Amendment's murky drafting history and evidence of interpretive disagreement as to its significance among at least some contemporary interpreters, it seems unreasonable to attribute a putative implicature to the Amendment that would expand its legal effect beyond its literal terms. (559)
• IV. The Contemporary Significance of the Ninth Amendment's Rule of Construction
• The discussion in Parts II and III above was addressed primarily to demonstrating that the original meaning of the Ninth Amendment does not support a reading as broad as the two leading modern accounts--Professor Barnett's individual natural rights model and Professor Lash's broad federalism model--would suggest. (556)
• ... the Amendment might still play a significant role in modern constitutional decisionmaking in at least two ways. (557)
• First, the rule of construction prescribed by the Amendment may play a significant role in preventing the denial or disparagement of "retained" rights as a result of the enumeration of some other constitutional right (or rights). (557)
• Second, even if the Ninth Amendment is not itself a source of judicially enforceable unenumerated rights, it may be the case that some other constitutional provision or provisions might support judicial recognition and enforcement of such rights. (557)
• A. Interpretive Arguments Potentially Foreclosed by the Ninth Amendment's Rule of Construction
• 1. The Fifth Amendment and Capital Punishment
• The origins of the phrase [cruel or unusual punishments] can be traced to the 1689 English Bill of Rights, and prohibitions of cruel or unusual punishments appeared in the constitutions or statutes of at least seven of the original thirteen states. (559)
• The principle expressed in the Eighth Amendment could thus plausibly have been seen by many Americans as a right[s] to which they were entitled as English subjects and which they "retained" to themselves both in forming their own respective state governments and in adopting the Federal Constitution. (559) [emphasis added]
• ... the better interpretation of the [Ninth] Amendment would instead allow for certain "enumerated" rights to also be "retained" rights, allowing for the possibility that the Eighth Amendment ban on cruel and unusual punishment should receive the same presumption against implied denial or disparagement that would be given to any other "retained" right. (559)
• ... Scalia's Callins [v. Collins] opinion appears to present a paradigmatic exampie of the "denial" and/or "disparagement" that should be ruled out of bounds under a proper understanding of the Amendment's rule of construction. According to Justice Scalia, the fact that "certain rights"--specifically, the Fifth Amendment's Grand Jury, Double Jeopardy, and Due Process Clauses, all of which refer in some way to capital punishment--were enumerated in the Constitution warrants an inference that another claimed right (i.e., the right to be free from cruel and unusual punishments) should be narrowly construed so as to allow for the continued use of capital punishment. This form of negative inference from the enumeration of particular rights was the specific focus of the Federalists' "argument of danger," to which the Ninth Amendment responded. (560)
• 2. The Fourteenth Amendment and Hate Speech
• ... the First Amendment's protection of the freedom of speech and efforts to prohibit abusive "hate speech" targeted at racial, ethnic, or other historically disadvantaged minority groups. (560)
• Both the freedom of speech and the freedom of the press were frequently identified in the ratification debates as paradigmatic examples of individual natural rights, and both Madison's private notes for his initial Bill of Rights speech in the House and Sherman's draft bill of rights specifically mentioned "speech" as being among the "retained" rights of citizens. (561)
• ... it is clear that the scope of the First Amendment's protection cannot be diminished (i.e., "disparaged") by a broad construction of some other enumerated right (e.g., the Fourteenth Amendment's Equal Protection Clause). (561)
• ... the Fourteenth Amendment's Equal Protection Clause prohibits only discriminatory conduct by state actors, and a refusal to prohibit private discriminatory speech, no matter how hateful or abusive, does not constitute state action sufficient to give rise to a Fourteenth Amendment violation. (562)
• Because the Equal Protection Clause neither requires nor expressly allows governmental limitations of private speech, "construing" that provision to limit the scope of the First Amendment's protection of free speech would be impermissible under the Ninth Amendment's express command. (562)
• All the Ninth Amendment tells us is to presume that the people did not intend to surrender to the federal government greater control over private speech by virtue of their having adopted a separate provision protecting a different right (i.e., the right to be free from state discrimination) that did not, by its express terms, limit or alter the scope of the First Amendment's protections. (562)
• 3. The Eleventh Amendment and State Sovereign Immunity.
• Although the Eleventh Amendment itself is phrased quite narrowly to prohibit only "suit[s] in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State," the Supreme Court has extrapolated from this Amendment a general rule prohibiting almost all suits against states in federal courts, including suits brought by the state's own citizens and suits authorized by federal law. (562)
• B. The Ninth Amendment and the Legal Status of Unenumerated Rights
• 1. Possible Alternative Textual Bases for Judicial Protection of Unenumerated Rights
• The fact that the Ninth Amendment itself does not provide a sufficient textual basis for judicial recognition or enforcement of rights not explicitly set forth in the constitutional text does not necessarily preclude judicial enforcement of such rights. (565)
• A final possible textual basis for the existence of judicially enforceable unenumerated rights might be found, not in the text of any particular constitutional provision, but rather in a combination of multiple provisions or in the overall structure of the Constitution as a whole. (567)
• Though Douglas's Griswold opinion has been widely criticized, the general methodology through which he derived the existence of judicially enforceable unenumerated rights--i.e., inferring a larger constitutional principle from the combined force of more limited constitutional provisions--is a familiar form of constitutional argument. (567)
• For example, reading the Vesting Clauses of Articles I, II, and III, which assign the "legislative Power," the "executive Power," and the "judicial Power" of the United States to the Congress, the President, and the federal courts, respectively, together with one another and in light of the document as a whole gives rise to a reasonable implication that any power exercised by the federal government must fall within one of the three categories described in those provisions--an implication that would not be readily apparent from reading any of the provisions in isolation. (569)
• 2. Unenumerated Rights and the Ninth Amendment
• The Ninth Amendment's rule of construction, however, instructs interpreters not to draw any such negative inference from the fact of enumeration, leaving unenumerated rights with the same legal status they would have had if no textually specified rights had been included in the Constitution (570)
• The distinction between viewing the Ninth Amendment as evidence of a preexisting underlying principle and viewing the Amendment as a directly enforceable legal source for the principle itself is subtle and may be difficult to grasp. (571)
• It may well be the case, after careful consideration of all relevant historical and textual evidence, that none of the conceivable alternative textual sources for judicial enforcement of unenumerated rights will bear a construction capable of supporting such enforcement. If so, the only plausible originalist conclusion that can be drawn would be that the federal courts are without constitutional authority to enforce those rights notwithstanding the Ninth Amendment's oblique suggestion of the possible existence of "other[ ] retained" (572) rights.
• Conclusion
• Contrary to the leading modern accounts of the Amendment's original meaning, the plain language of the Amendment neither compels judicial enforcement of unenumerated rights nor prohibits courts from according such rights a lower level of protection than enumerated rights. (572)
• All that the express language of the Ninth Amendment commands is that the fact that certain rights have been enumerated in the Constitution not be used as a basis for either denying the existence of other "retained" rights or according such rights a lower level of protection or respect than they would have received if the Constitution lacked an enumeration of rights. (572)
• ... the existing evidence of the Amendment's drafting and ratification provides insufficient grounds for confidence that the putatively "implied" meanings attributed to the Amendment by modern interpreters would have been recognized as either obvious or uncontroversial by reasonable members of the ratifying public at the time of its enactment. (572)
• Nor does it follow that federal courts lack the authority to recognize and enforce the types of unenumerated rights that modern interpreters have sought to ground in the Ninth Amendment. It might well be the case that the judicial authority to protect such rights may be located in some other constitutional provision (or provisions). (573)