Not Your Judges' Amendment

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

            --Our Ninth Amendment

Several weeks ago, I read a two-part article by Cornell Professor Michael Dorf on Justia.com’s constitutional law blog.  Professor Dorf wrote about Roe v. Wade because of its upcoming (at the time) fortieth anniversary, addressing common criticisms of the decision.  I address here his contention that it is no problem that Roe rested on rights nowhere explicitly granted in the Constitution.  The document, Dorf admits, contains no mention of either privacy or abortion. 

I argue instead that the 9^th Amendment should not be left in the judges’ hands because of the bottomless grant of power that that would represent to fashion new rights deemed “fundamental” with little to no yea or nay from the people.  Rather, the 9^th Amendment is better conceived as a reminder for the people, as a tool for civic education.  Better than a source of judicial power, We the People should take it as a reminder, passed down from one generation to the next, that we must protect our rights against overweening federal power.  We are better suited than judges to decide which rights we consider fundamental, anyway.

Dorf writes:

“So, what general language encompasses the right to abortion? The best textual answer would point to the Ninth Amendment…Under the most straightforward reading, that language says that there are unenumerated rights that limit the federal government.”

I don’t see any mention of the federal government in the text (but assuming it does, wouldn’t it also limit judicial power as part of the federal government?).  But that aside, we move on:

“Moreover, a provision of the Fourteenth Amendment tells state governments that they may not ‘make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ which, under a similarly straightforward reading, binds the state governments to respect the same rights, including the unenumerated rights, that limit the federal government.”

Dorf surely knows that the Privileges and Immunities Clause of the 14^th Amendment, though historically probably intended to impose the restrictions of the Bill of Rights against the states, failed to accomplish that end after The Slaughterhouse Cases, in which the Court read this clause very narrowly.  Although I don’t have any problem with advocating a forgotten clause’s renaissance, I think we should be clear that that’s what’s happening when Dorf makes that claim.

He goes on:

“Sticklers have long objected to the doctrine of ‘substantive due process’ that was used in Roe, but their real quarrel is with the Court, rather than the Constitution. The actual text—in the Ninth Amendment and the Privileges or Immunities Clause— provides a sound basis for the recognition of rights that are not expressly mentioned.”

Here is Dorf’s key problem, set up by the previous paragraphs.  He fails to connect the 9^th Amendment and judicial power; he fails to prove that judges ought to be the ones who give shape to those unenumerated rights.  That this amendment recognizes that the people retain rights nowhere explicitly granted in the Constitution is obvious.  That the judiciary is uniquely and exclusively empowered to define and elaborate these rights is not expressed in the Constitution nor argued by Dorf.

And that’s a huge gap, one that an academic should not be excused for neglecting.  In Marbury v. Madison, Justice Marshall committed a similar error: despite his solid reasoning for the proposition that a written Constitution, enacted as supreme law, must be preferred and override any subordinate law enacted pursuant to it, he fails to even address the question as to why judges are uniquely and exclusively suited to pass judgment on such matters.

Still, as Richard Posner noted: “Judges Are Not Law Professors”.  Where a judge has less opportunity and need to structure his or her opinions for optimal logical consistency, a law professor has both the incentive and the requirement to build his or her arguments thus.  Perhaps we can forgive Marshall for this oversight as We the People have had endless opportunities to remove this power from the Court’s hands.  In some sense, perhaps we have collectively consented to add this power into our unwritten Constitution. 

He continues: “Thus, critics of Roe who invoke the Constitution’s supposed silence on abortion must be prepared to jettison much more than abortion rights. The Court found an unenumerated right of married couples to use contraception in 1965 in Griswold v. Connecticut. Must that right also go?”

Yes.

Two points: the law in question in Griswold had not been enforced in ages when it went to the Court.  A few enterprising folks deliberately broke the law to test the law in court, even calling the police beforehand to ensure that they would be on hand to detain the violators.  As such, it’s hardly even a case or controversy in the Article III sense.  Second, married couples are hardly in need of the Court’s protection.  The use of contraceptives is so widespread and common in American culture that it’s hard to imagine any state, city, county, etc. passing a law banning their use, and having anyone take that law seriously at all.  This case and its rule could easily be forgotten and no one would be affected.

“And if the failure of the Constitution to use the word “abortion” means that Roe is wrong, then there would also be no constitutional basis for resisting a law that required a woman to have an abortion. The pro-lifers who denounce Roe cannot be happy with that consequence.”

Another two points: why would such a crazy policy need a constitutional basis for resistance?  Why is the normal political process not defense enough against such a law?  Why must it redound to the federal courts to protect us against all manner of the evils of state legislatures?  Second, it’s hard to imagine any state passing such a law.  I suppose we are less removed from the days of eugenics than any of us would like to admit, but I am willing to gamble that public support for any such law would be so low as to deter any state legislature or legislator who got a wild hair to improve society through genetic manipulation.

And again, even if that were to happen, I don’t see why it’s important or necessary to call the Constitution or the federal judiciary in to the rescue (not that it would necessarily help; famed justice Oliver Wendell Holmes, for example, favored eugenics policies).

I think Dorf and probably other legal academics fall into a familiar trap: to try to make the Constitution into a panacea for all of our social problems.  Many do this by making every good thing under the sun into a fundamental right.  Much as I hate to agree with such as Scalia and Rehnquist, I do believe that they were right when they counseled that the Constitution cannot be all goods to all people; that the Court must not and cannot become a roving social crusader; that judicial duty is not to do all good things to all good people.

Further, to avoid embroiling the Constitution in our mundane political battles, above which it must stand to maintain its broad, deep legitimacy, it is best to restrict our definition of fundamental rights to those on which we, as a nation, can widely agree.  A fractured public, one which cannot seem to agree on the status of abortion as a fundamental right, or even derivative of any fundamental right, shows that such a right is not fundamental in our cultural or legal understanding.  I have argued in a previous entry that substantive due process, or fundamental rights jurisprudence, should not extend to those rights on which there is not a deep and broad consensus in our culture, without which it is nearly impossible to argue that such a right is indeed fundamental.  If not on consensus, it seems to me that there is little remaining place on which to ground that adjective.

But to return to my own view on the 9^th Amendment: I think it’s better to entrust its care to the people rather than the judges, who are in no special position to define a fundamental right, certainly no more than the nation as a whole.  When the Bill of Rights was ratified, it was not understood to be a set of judicial weapons, but rather tools by which the people ensured that they could keep a very close eye on their delegates.

Perhaps the earliest exercise of constitutional review in our history came from the people themselves, not from the judges.  After the Alien and Sedition Acts passed, no court ever ruled on the law despite its clear violation of the 1^st Amendment.  Instead, the people passed their judgment by acquitting accused violators through jury review, and tossing out the Federalists at the next congressional election.

While I’m not exactly an advocate of popular constitutionalism in most cases (because I think it would be a rare thing for the people to speak out with a such a clear, unitary voice in most such matters), I support its use here.  The 9^th Amendment gives the courts a blank check of constitutional power to deem any right they like as fundamental.  In the absence of a principled limit on the exercise of such power, I cannot support its use by the courts.

Post-Script:

            Dorf is at it again in a short book he co-wrote in the early ‘90s with Laurence Tribe, On Reading the Constitution.  They argue in chapters 2 and 3 that the Ninth Amendment is the only interpretive rule in the Constitution, that it forecloses the argument that a right may not be claimed or applied through the Constitution because it isn’t in the text.  Therefore it may serve as a general repository for other “fundamental rights” which the text does not specifically mention.

            Not to mention the many other areas for creation of fundamental rights which Dorf allows.  The Due Process Clause and the Privileges and Immunities Clause, of course, come readily to mind.  It should be clear by now that Dorf (and Tribe?) read ample space for judicial creativity into the Constitution.  What they neglect to include is a method, some principled way to cabin that creativity.

            Dorf here commits the same slipshod reasoning, failing to explain why judges are or should be empowered to fashion new, supposedly fundamental rights from the Constitution’s text.  Especially strange is that this prescription comes immediately after multiple admonitions that no one may legitimately interpret the Constitution by imposing into it his or her own views.  After analyzing some hypotheticals in which Dorf and Tribe argue that a law which intrudes into family life by regulating mealtime behavior would violate a fundamental right to autonomous family conduct, they proceed not to argue for the notion that judges should have power to nullify those laws on theoretical grounds, but only refer to Supreme Court precedent, substantive due process cases from the 1920’s.

            In a book on how to read the Constitution, I did not expect to find the implicit argument: precedent is always legitimate.  I expected these two Ivy League professors to explain to me why a 9^th-Amendment based fundamental-rights reading of the document would be permissible for judges to do and enforce, to explain why dreaming up fundamental rights that we’d like to have in the constitution in a perfect world.

            Family autonomy may well be a fundamental right; it may well be a cornerstone of someone’s natural-law theory of justice and governmental power.  I would be happy to accept such a theory.  But Dorf and Tribe, surprisingly, make no effort to explain why it’s a constitutional right.

            We commit a grave error, in my estimation, when we equate a fundamental right with a constitutional right.

            We commit an even graver error when we hand the power and the duty to discover and enforce those rights to an unelected judiciary whose views need not reflect the people’s own.