July 24, 2009

In Defense of Freedom, Part IX

The framers of our Constitution enumerated ten amendments. These wise and learned men would be the first to tell you that the Bill of Rights did not grant these rights; and neither does it limit natural rights to just those enumerated. 9A acknowledges that the liberties recognized by the Bill of Rights are just those few rights no government could suppress or deny, and it asserts that government may not disparage other, unenumerated, natural rights of man.

9A is the silent amendment. It has gone over two centuries with very little mention by SCOTUS and pitiful few arguments at any level of the legal system. Even though it stems from the same intellectual roots as the Privileges and Immunities clause of 14A (or vice versa perhaps). SCOTUS has treated 9A as little more than a “truism,” and seemingly unimportant. It has rarely been cited in case law.

However, some expansion has occurred. An example of an unenumerated right recognized by SCOTUS in the years since our Constitution was ratified would be a right to privacy. Roe v. Wade was decided in part based upon a woman’s right to privacy, with argument rooted in the 9A, and few would regard the opinion rendered in that case as unimportant. Although there is scant mention of 9A in the opinions of the Court, and no decision has relied on it exclusively, its influence may be seen in many arguments and decisions.

Unlike amendments 1 through 8, the history of 9A is difficult to trace. It is not entirely missing from the history records, but there is no single source offering justification for such language in the Bill of Rights. References to the roots of 9A are scattered within many texts and records. Once the records are compiled, it becomes apparent that the original drafters considered 9A and 10A to be a balancing act of sorts, intended to unite the feuding federalists and anti-federalists.

Some roots of 9A may be found in the writings of James Madison and the 18th century Virginia Assembly. According to Madison, the purpose of the Ninth Amendment was to “[guard] against a latitude of interpretation” while the Tenth Amendment “exclud[ed] every source of power not within the constitution itself.”

The majority of scholarly research into 9A deals with the question of whether it can be read to deal with certain rights claimed, but not enumerated. It is curious that most of this research and the sketchy few court cases have occurred only over the past half-century, and it seems that most interest grew from circumstances originating in the Reagan years and the Edwin Meese Justice Department, although the earliest case to which I can find reference was the 1964 Warren Court decision in New York Times v. Sullivan, which was decided concurrently with Abernathy v. Sullivan. 9A was not used in argument, but has been raised in analysis of the Court’s decision several times since.

Per Oyez, the Sullivan case concerned “a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment.”

So where might there be a 9A component in Sullivan? Freedom of speech was recognized as an enumerated right in 1A, but nowhere in the Constitution can we find the right to reputation mentioned. Prior to the adoption of the Constitution though, reputation was protected under state laws, which also allowed citizens to “speak freely.” The tension between the two was as obvious then as it is now. So the question is; did enumeration in the Constitution of the freedom of speech imply that protection for free speech trumped the right to reputation? Couching that question in 9A terms, did “[t]he enumeration in the Constitution of certain rights,” including the freedom of speech, diminish the protection afforded “others retained by the people,” such as the right to reputation?

In the Sullivan case, the Warren Court answered in the affirmative, but 9A seems to say no. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” So did the Warren Court ignore 9A?

In the Sullivan case, the right to reputation is not relevantly denied at the expense of free speech. 9A preserves the status of the right to reputation, but it does not elevate that status. It does not turn other rights “retained by the people” into “federal constitutional” rights, it only requires that those other rights not be diminished.

Given the founders’ obvious concern about overreaching exercises of federal legislative power, there is reason to believe that 9A was framed as a general declaration. They wanted it to be clear that enumerating federal constitutional rights should not negatively affect the status of other existing rights, and not intended to usurp rights recognized by state laws.