A Textual-Historical Theory of the Ninth Amendment

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The standard use of the Ninth, in other words, has nothing to do with the text of the Ninth Amendment. The standard theory of the Ninth also places the text in considerable tension with that of the Tenth Amendment. Although both the Ninth and Tenth Amendments close with the same reference to “the people,” most contemporary scholars and courts treat the same term in the two amendments as having opposite meanings, with the Ninth referring to a single national people and Tenth referring to the people in the several states. Finally, the text of the Ninth Amendment appears to be in considerable tension with its historical application. Newly uncovered historical evidence reveals that for more than one hundred years after its enactment, courts applied the Ninth Amendment in a manner that preserved the autonomous rights of the states. The text of the Ninth, however, speaks only of the retained rights of the people, not the states. This article addresses these and other textual mysteries of the Ninth Amendment. The over-all effort is to construct a text-based theory of the Ninth that both explains its historical application and reconciles the Amendment with other texts in the Constitution, particularly the Tenth and Fourteenth Amendments

Power and the Subject of Religion

Under the First Amendment, Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof. Nevertheless, congressional actors have on occasion enacted laws that expressly make religion the subject of legislation. Many scholars justify these laws on the grounds that Congress at the time of the Founding had an implied power to legislate on religion if necessary and proper to an enumerated end. Professor Lash argues that the implied power theory cannot withstand historical scrutiny. Whatever implied power arguments may have emanated from the original Constitution, those arguments were foreclosed by the adoption of the First Amendment. However, the enactment of section 5 of the Fourteenth Amendment does enable Congress to legislate- in a limited scope- on religious matters

Separating Church and State: Roger Williams and Religious Liberty

Roger Williams was a religious bigot. He never met a church pure enough for his brand of Puritanism, and he never found a congregation worthy enough to have him as its pastor. After alienating every potential ally and provoking every critic, Williams was forced to flee to the wilds of Narragansett Bay in present-day Rhode Island. There, he preached to his remaining congregation- his family- and supported laws prohibiting men from wearing long hair. In Timothy Hall\u27s illuminating book, the reader is confronted with a flesh and blood Roger Williams who is rather different from the modern myth. Although Williams is often portrayed as the patron American saint of religious toleration and church-state separation, it turns out that Williams himself could not tolerate any Christian church of his day and preached schism wherever he went. The beauty of Hall\u27s book is his explanation of how a man enthralled by such religious dogmatism could articulate such a robust theory of religious freedom. Hall\u27s account is an eye-opener for anyone who presumes that religious intolerance necessarily flows from religious sectarianism

Three Myths of the Ninth Amendment

The breathtakingly broad language of the Ninth Amendment is both a blessing and a curse. It is a blessing for those seeking support for expansive theories of individual rights. Indeed, it is hard to conceive of a theory of individual liberty that cannot find at least rhetorical support in the Ninth Amendment\u27s declaration of retained rights. It is not surprising, therefore, to find the Ninth Amendment invoked in support of everything from Dial-a-Porn to prostitution to organ selling. Once one decides that the Ninth Amendment refers to other unnamed individual liberties, there is literally no textual reason to exclude any unenumerated right. This, of course, is also the curse of the Ninth Amendment. The very fact that it seems to support even the most implausible claims makes courts reluctant to rely on the Ninth Amendment at all. In fact, the modern Supreme Court has studiously avoided the Ninth Amendment despite being prodded by parties before the court to rely on it. This has not prevented scholars from developing a number of theories related to the Ninth Amendment. Most recently, Daniel Farber has invoked the Ninth Amendment in support of judicial reliance on international human rights. Randy Barnett has relied on the Amendment in support of a general presumption of liberty, which places the burden on the government to justify intrusions on any individual activity that does not injure third parties. Although their individual rights theories of the Ninth Amendment differ in their details, both Farber and Barnett embrace a number of common assumptions about the Ninth Amendment: first, that the other rights of the Ninth Amendment are limited to individual rights; second, that the Ninth Amendment has nothing to do with the Tenth Amendment-in fact, the two clauses are generally interpreted in a manner placing them at odds with one another; third, like almost all scholars in the modern period, these individual rights theorists assume the Ninth Amendment was forgotten soon after its enactment, thus obviating the need to deal with any of its counter-interpretations or uses. These assumptions are not unique to Farber and Barnett. They are repeated in one form or another in almost all modern Ninth Amendment scholarship. Recently, however, a great deal of historical evidence has come to light that calls into question all three of these myths about the Ninth Amendment. In this short essay, I will briefly discuss the critical aspects of this evidence in the hope that readers will be encouraged to explore a growing corpus of original sources that challenge many of the modern scholarly assumptions about this mysterious Amendment. I present a more in-depth look at the history and theory of the Ninth Amendment in recent volumes of the Stanford Law Review and the Iowa Law Review

Of Inkblots and Originalism: Historical Ambiguity and the Case of the Ninth Amendment

Ever since Justice Goldberg\u27s concurring opinion in Griswold v. Connecticut, the Ninth Amendment has been a flashpoint in debates over the merits of originalism as an interpretive theory. Judge Bork\u27s comparison of interpreting the Ninth Amendment to reading a text obscured by an inkblot has been particularly subjected to intense criticism. The metaphor has been attacked as erasing the Ninth Amendment from the Constitution, and as representing the inevitably selective and inconsistent use of text and history by so-called originalists. It turns out, however, that not only was Judge Bork right to reject Justice Goldberg\u27s reading of the Ninth Amendment, his inkblot metaphor illustrates precisely the approach that a principled originalist must take in the face of historical silence or ambiguity. The more historical evidence that comes to light regarding the Ninth Amendment, the more Judge Bork\u27s original instincts have been vindicated

The Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernick

In prior scholarship, I have argued that the historical evidence suggests that the public originally understood the Privileges or Immunities Clause as protecting enumerated constitutional rights, including (though not limited to) those rights listed in the first eight amendments, but not as protecting absolute enumerated rights such as the unenumerated right to contract protected in cases like Lochner v. New York. In a recent article, Randy Barnett and Evan Bernick canvass more than two decades of my historical work on the Fourteenth Amendment and claim that I have failed to present a persuasive argument in favor of what they call the “Enumerated Rights Only” reading of the Privileges or Immunities Clause. In particular, they argue that (1) antebellum evidence suggests that the term “privileges and immunities of citizens of the United States” was understood to include unenumerated rights, (2) the man who drafted the Privileges or Immunities Clause, John Bingham, described the clause as protecting unenumerated absolute rights, (3) the debates of the Thirty-Ninth Congress suggest that most members would have understood the Privileges or Immunities Clause as transforming the relative rights of Article IV, Section 2 (the Comity Clause) into absolute unenumerated rights, (4) Reconstruction-era references to the “Bill of Rights” as representing the rights of national citizenship are unreliable due to that fact that there was no fixed meaning to the term at that time and (5) because my account fails to explain how the Privileges or Immunities Clause authorized the 1866 Civil Rights Act, it cannot stand as a persuasive reading of the Clause. In this article, I respond to all of these arguments and synthesize the evidence I have gathered over the years which I believe supports the Enumerated Rights reading of the Privileges or Immunities Clause. In brief: The only antebellum voices describing the rights of national citizenship as including unenumerated absolute rights were proponents of slavery who insisted they had an unenumerated “right” to own slaves. The abolitionist voices most likely to influence Reconstruction Republicans uniformly described the rights of national citizenship as enumerated constitutional rights. The most significant of these Republicans, John Bingham, always described the privileges or immunities of citizens of the United States as involving constitutionally enumerated rights, and never as unenumerated absolute rights. Bingham’s colleagues in the Thirty-Ninth Congress were well-informed about, and shared a consensus view of, Article IV, Section 2 and cases like Corfield v. Coryell as protecting nothing more than the relative rights of equal treatment in regard to a limited set of “fundamental” rights. Thus, when Jacob Howard named Corfield and the enumerated rights of Article IV as “privileges or immunities of citizens of the United States,” he and his audience understood the limited relative nature of those rights. On the other hand, when members like Bingham and Howard referred to the federal Bill of Rights as privileges and immunities of citizens of the United States, listeners in and outside of Congress would have understood this to be a reference to enumerated constitutional rights. In particular, this is how the public would have understood Bingham’s insistence that he sought to enforce the Bill of Rights against the states and nothing more. Finally, there is no need to force a reading onto the Privileges or Immunities Clause that authorizes the Civil Rights Act. As John Bingham explained, the Civil Rights Act represented an effort to enforce the equal right not to be deprived of life, liberty or property without due process of law—rights covered by the final two clauses of Section One

Rejecting Conventional Wisdom: Federalist Ambivalence in the Framing and Implementation of Article V

In 1787, the idea of placing an amending provision in a constitution was uncontroversial. Popular sovereignty was an assumed doctrine in the colonies; the people retained the unalienable right to alter or abolish their system of government whenever they so pleased. How this unquestionable right was to be incorporated into the new federal Constitution, however, was another matter. The delegates who faced each other at Philadelphia had very different views about which body should be entrusted with the power to propose amendments, when that power should be used, and how that power should be defined. Article V, like the rest of the Constitution, reflects a mixture of compromise and ingenuity. The delegates sought a national government strong enough to overcome the problems of the Articles of Confederation, yet with enough of a federal structure to placate Antifederalist fears of de facto consolidation of the states. By creating a dual triggering mechanism, one that could be pulled by either the states or the federal government, Article V satisfied both nationalist and statist that amendments of the proper kind would be put before the people. The polarities in the convention, however, were more than nationalist versus statist, or large state versus small. The debates that swirled within and around Philadelphia reveal competing conceptions of government: Classical Republicanism which presumed a virtuous citizenry who could be expected to sacrifice parochial concerns in the pursuit of a common good, versus the emerging Liberal assumption that society was composed of factions whose competitions could be, and must be, structured so as to achieve a stable form of government. This clash between Liberal and Republican assumptions became especially acute in the debates surrounding the first attempted use of Article V: the Antifederalist call to a second convention. Seeing only discord and ferment coming from a second convention, the Federalists articulated a new and darker view of conventions: Is there any guaranty that a national convention will result in the considered judgment of the people? How can the assembly avoid being dominated by faction and demagoguery? The shadow thus cast over the convention clause of Article V has extended far beyond the Founding. It has obscured from view what was to Eighteenth Century Americans the fundamental expression of the language of democracy, the people\u27s right to assemble apart from established institutions and determine their own form of government

Civilizing Religion

Is it appropriate to restrict abortion at any stage in pregnancy on the ground that human life is sacred? Should the public square be open to biblical arguments against homosexuality? Or, to frame the issue in a more scholarly fashion: What role may religious arguments play, if any, either in public debate about what political choices to make or as the private basis of a political choice? In his recent book, Religion in Politics: Constitutional and Moral Perspectives, Michael Perry addresses these questions as a matter of constitutional law and political morality. Perry has been down this road before, most notably in his 1991 book, Love and Power. This new effort represents both a response to scholarly criticism of Love and Power and a reflection of Perry\u27s rethinking the problem of religion in politics. Ultimately, Perry concludes that religious-based political advocacy is always constitutional, and usually moral as well. This distinguishes Perry from the more exclusionary theories of scholars like Robert Audi and Richard Rorty who would severely restrict the religious voice in political debate, or remove it altogether. Perry draws the line, however, when it comes to relying on religious arguments regarding human well-being (what must-or must not-be done in order for humans to flourish): these religious arguments (for example, arguments against homosexual sexual conduct) are not an appropriate basis for making a political choice unless that choice is also supported by a persuasive secular rationale. Thus, Perry stakes out a position somewhere between unfettered inclusion and complete exclusion of religious arguments from political debate and decision making. In the process, Perry provides the reader with a nuanced and reasonable approach to a rather complicated set of issues. In fact, Perry\u27s approach may be too nuanced and too reasonable: his constitutional and moral theories contain important caveats that are difficult to reconcile with his overarching principles. Also, Perry\u27s vision of reasonable religious dialogue seems but a shadow of the impassioned rhetoric that characterized the historic speeches of the religious abolitionists and currently pervades the debates over abortion and homosexuality-Perry\u27s paradigmatic instances of moral debates. In his attempt to civilize religion, Perry may have excised those arguments that are distinctively religious on subjects of critical concern to many religious believers. These, however, are but minor criticisms. Religion in Politics is a thoughtful and important addition to Perry\u27s previous work on the religious voice in the public square and it deserves a careful reading by anyone interested in the subject

The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment

This Article explores the proposition that the Free Exercise Clause was adopted a second time through its incorporation into the Privileges or Immunities Clause of the Fourteenth Amendment and that the scope of the new Free Exercise Clause was intended to include protections un-anticipated at the Founding. Contrary to Jeffersonian notions of separate spheres, the nation by the time of Reconstruction had experienced decades of clashes resulting from the overlapping concerns of religion and government. In particular, the suppression of slave religion called into question the government\u27s power to interfere, even indirectly, with legitimate religious exercise. Accordingly, the Privileges or Immunities Clause incorporated a conception of religious liberty vastly different from that intended in 1791 and constitutes a constitutional modification of the original rights of conscience. Religious exemptions from generally applicable laws, considered unnecessary and improbable at the Founding, now became necessary and proper

Power and the Subject of Religion

Under the First Amendment, Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof. Nevertheless, congressional actors have on occasion enacted laws that expressly make religion the subject of legislation. Many scholars justify these laws on the grounds that Congress at the time of the Founding had an implied power to legislate on religion if necessary and proper to an enumerated end. Professor Lash argues that the implied power theory cannot withstand historical scrutiny. Whatever implied power arguments may have emanated from the original Constitution, those arguments were foreclosed by the adoption of the First Amendment. However, the enactment of section 5 of the Fourteenth Amendment does enable Congress to legislate- in a limited scope- on religious matters