George Will and the Ninth Amendment
Andrew Hyman
I agree with Mark Pulliam that George Will has adopted an erroneous interpretation of the Ninth Amendment "hook, line, and sinker," in Will’s new book The Conservative Sensibility. As I understand Mr. Will, he thinks the Ninth Amendment means this:
The Constitution shall not be construed to deny or disparage natural rights of the people, including but not limited to natural rights that it enumerates.
If that’s what the Ninth Amendment really said, then I agree it would authorize the judiciary to identify and protect any and all unenumerated natural rights, as enforceable limitations upon the powers of Congress. In reality, though, the Ninth Amendment is not a rule about how to construe the whole Constitution, and instead is only a rule about how to construe the rights (not the powers) listed in the Constitution:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
The whole point of enumerating powers is to deny and disparage certain legal rights, and it would have been silly to prevent that, though very easy for the framers to do. As the Supreme Court has said, “If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail." This is not to say that the Ninth Amendment recognizes and protects no unenumerated rights at all; it certainly does, but only unenumerated rights that Congress has no power to infringe. In other words, the intention of the Ninth Amendment is to counteract the notion that listing a series of legal rights means no other legal rights are likewise beyond the reach of a Congress that dislikes them.
The best way to legitimately protect the unenumerated rights recognized by the Ninth Amendment is to make sure Congress stays within its enumerated powers. Even then, there will inevitably be abuse by Congress, but, as Madison once said, "No Constitution could be lasting without a habitual distinction between an abuse of legitimate power and the exercise of a usurped one." A big part of legislating is distinguishing between right and wrong, and if a method of selecting legislators is not conducive to that goal, then it can be improved, rather than surrendering to a judicial usurpation of all fundamental issues.
Mr. Will warns at page 209 against the notion that "the framers were slapdash draftsmen...." Fair enough. However, Mr. Will’s description of Robert Bork is inaccurate; Bork did not rule out that the Ninth Amendment may have been well-drafted to accomplish a clear purpose (it was). Here is what the Ninth Amendment is very clear about: if some prosecutor alleges that a defendant has no right to drive a car because that right is not listed in the Constitution, or if another crazy prosecutor alleges that Congress may bar everyone nationwide from wearing hats because there is no such right listed in the Constitution, then clearly the Ninth Amendment rebuts those prosecutors. The framers easily could have —- but did not —- establish in the Ninth Amendment a rule for construing the original enumeration of powers in the Constitution, either by expanding or narrowing those original powers.
Mr. Will discusses the right to wear hats at page 209 of his new book, and it looks to me like he favors federal judicial control of governmental power over that issue, and many other issues that the framers actually left to local governments and their citizens. I agree with Mr. Will to a certain extent: judges ought to restrain Congress from forbidding the wearing of hats that were manufactured inside the state or lawfully brought into the state. But no hat-right is generally enforceable in the District of Columbia if Congress has endorsed a hat-wearing prohibition, because Congress has plenary power in the District. Likewise, a hat-right is not generally enforceable by federal courts against state governments, given that such a right is neither enforceable against Congress nationwide, nor enumerated in the Federal Constitution. Of course, a hat-right is sometimes enforceable against both the states and Congress as an exercise of religion or of free speech, but Congress and the states still have legal power to ban hat-wearing under some circumstances; it’s laudable that they have never tried to make the most of that power, which goes to show that majority-rule often reinforces liberty (and other natural rights). Mr. Will contends at page 266 that liberals wrongly seek to "give majority rule priority over liberty," but actually liberals love doing the opposite with regard to social issues, so that liberal judges can deploy "substantive due process" as a way of defeating pesky majorities. Giving priority to neither one seems like the best way to protect both.
Mr. Will’s book circumnavigates the real meaning of the Ninth Amendment, probably because he has given up on the idea of a Congress having limited and enumerated powers, which he calls (at page 27) "dead as a doornail...." It’s true that the economy of the United States has become interwoven across state boundaries in stark contrast to the economy of 1787, and so congressional power to regulate interstate commerce has unavoidably grown. But a reasonable jurisprudence would still put much state legislation off limits to congressional interference, whereas Mr. Will’s ahistorical and atextual theory of the Ninth Amendment would allow federal judges to legislate natural rights without any textual limits on the judges, or any input by Congress or citizens. Over the long run, such judicial coercion might win popular majorities, perhaps because the judges were wiser than the majority, or instead because socialization and conformity are more pleasant for citizens than futile anger and despair.