[I am told, per the morning comment, that Body of Proof episodes were run out of order, so the first two episodes of the second season are "after" the last one. That explains a bit about the dynamics between Megan and her boss and I hope the superior first two episodes will be the true augur of how the season will go. More polished and everything.]
I noted my re-reading of a book on the Ninth Amendment; it led me to skim another (more academic) book, Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights by Calvin Massey. A promising aspect of this book is that it provides some more history and some technical discussion on application. The latter is more controversial -- I'm not really supportive of its mechanism (the reader can decide) -- but it's worth thinking about. The book was written in the mid-1990s, so putting aside my summary here is quite brief, perhaps his views developed somewhat. To toss that out.
It is curious that early on we are told that we cannot "disparage" the rights involved by (see Justice Scalia or Judge Bork) assuming judges cannot enforce them, but can in effect treat them as second class citizens by making precedents involving them somewhat weaker and more open to review if the legislature suggests the courts were wrong. Is this something like how the liberals on the Supreme Court think gun rights are weaker? The argument is that the rights are either found in state constitutions or "moral rights" that are never set in stone. [The other book also cited international law and a broader sense of "international natural law" is discussed here.] But, the same can be said about various other rights (such as equality) for which our understanding develops over time. Still, in practice, the Supreme Court has been somewhat wary about unenumerated rights, including attempts (see, e.g., Griswold) to connect some to enumerated ones.
It also offers an interesting concept of "cy pres" where the amendment is respected even though the original understanding of its reach can arguably no longer realistically be applied. The original understanding focused on powers, it argues -- if the federal government did not have the power to do something, rights would be retained. See, e.g., how the First Amendment focuses on the power of Congress. This might help explain how the Tenth Amendment ("powers") continued to be cited while the Ninth Amendment seemed to be almost forgotten. We focus more on rights these days. And, I think "right" adds something more, including some governmental obligation to protect (something "right" or somehow a moral good) that merely having the power to do something might not. But, either way, we still can respect the core meaning of the Ninth Amendment, even in an age of expansive governmental powers. I think the "cy pres" concept can be applied overall, "original understanding" a matter of broad principles with varying specific application. As Justice Stewart cited:
As I said in the past, "fundamental" rights is a term expressed for quite some time in various legal rulings. Case by case, throughout "this Nation's history and tradition," helped by constitutional text (e.g., the Fourth Amendment references an aspect of privacy, the warrant requirement not the only way it is now protected) and structure (e.g., separation of powers or republican government assumes certain things), references like "intrinsic human rights" pop up. Hundreds of years of judging continues, even if some don't like the inexactitude. Different ways, down to use of equal protection to protect certain "fundamental rights" (one contraceptive case was explicitly a matter of treating unmarried and married couples unequally) are used. And, yes, judges will have discretion, who and when (1900 v. 2000) affecting the result.
The books referenced and others who point to the Ninth Amendment or the Privileges or Immunities Clause etc. raise the concern at times too. They don't find "substantive due process" satisfying. As seen by a footnote in Douglas' opinion, the problem is partially its taint, the fear it will be "a vessel to be filled with one's personal choices of values" and the fact that some other "cleaner" way to protect substantive fundamental rights is present. People still think the former all the same when other techniques are used and even a causal study of the law suggests the latter is a misguided quest best left to Don Quixote. No one panacea is available, though each provision can help toward the ultimate end.
The opening quote is intriguing. Douglas doesn't press the point, but as with the also thin Griswold opinion, it has bite. Like the First Amendment, the Ninth does not "create" rights -- the idea is that the rights were there already. The connection to "blessings of liberty" provides a bridge, even if he matured in an age when the term was a dirty one since it was largely used to strike down (if not as much as assumed) economic regulations, to substantive due process. The "liberty" now deemed to be protected by that is given meaning in large part by tradition and custom, both which develop over time. As the article cited notes, "natural law" is akin to less controversial pure scientific laws such as quantum mechanics. Both are falsifiable, which means our understanding of them can change.
It would be interesting to know what part of the Ninth Amendment is not part of the "liberty" expressed in the Fourteenth Amendment. Does the "life" and "property" components or perhaps the "citizenship" provisions add other content? Anyway, the basic idea of the Ninth Amendment -- even if the specific way it is done changes and is open to debate -- remains the same. There are various rights that are not expressly found in the Constitution, rights that must be given protection to truly protect our freedom, even if passed by majority vote (which the book is correct to note can be misleading given the nature of the political process). These rights are expressed and protected in various ways, in no totally clean fashion. It is a fool's errand to think it is possible.
But, the bottom line is clear, and even the likes of Scalia and Black in practice show it via acceptance of precedent, broad understanding of text (cf. Justice Harlan's view on "one person, one vote," which Black thought crystal clear by text treated otherwise for quite some time) and so forth. A too limited view of this ethos will get you in trouble -- right Robert? -- even though an honest expression of the complexity and inexactitude involved will also often tend to do so. Life is messy.* But, as Douglas noted in another separate opinion:
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* Consider Lochner v. N.Y., used by both liberals and conservatives in various ways as a warning of the dangers of lack of proper judicial restraint and of substantive due process as a whole.
Justice Holmes' dissent is now deemed by many to be the correct path, but even he noted that when "a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law," the federal courts CAN "prevent the natural outcome of a dominant opinion" from being carried out pursuant to the "liberty" protected.
The test, shades of Coke, involves judges using "artificial reason" to determine what is against "common right and reason," even if a king or "the people" determines short term otherwise. Judicial review is a lot easier that way than the 1776 path.
The Ninth Amendment obviously does not create federally enforceable rights. It merely says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of "the Blessings of Liberty" mentioned in the preamble to the Constitution. Many of them, in my view, come within the meaning of the term "liberty" as used in the Fourteenth Amendment.This interesting concurrence to the companion case to Roe v. Wade, along with Justice Stewart's concurrence [Justice Stevens in his book finds it superior in expressing the core holding] to Roe, provides a bit more teeth to the "right to privacy" or "liberty" interest involved than Roe itself. Many are misled regarding what the main opinion said, which is better than many critics give it credit for, so it is not surprising less people are familiar with these concurrences. This is unfortunate.
-- Doe v. Bolton (Justice Douglas)
I noted my re-reading of a book on the Ninth Amendment; it led me to skim another (more academic) book, Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights by Calvin Massey. A promising aspect of this book is that it provides some more history and some technical discussion on application. The latter is more controversial -- I'm not really supportive of its mechanism (the reader can decide) -- but it's worth thinking about. The book was written in the mid-1990s, so putting aside my summary here is quite brief, perhaps his views developed somewhat. To toss that out.
It is curious that early on we are told that we cannot "disparage" the rights involved by (see Justice Scalia or Judge Bork) assuming judges cannot enforce them, but can in effect treat them as second class citizens by making precedents involving them somewhat weaker and more open to review if the legislature suggests the courts were wrong. Is this something like how the liberals on the Supreme Court think gun rights are weaker? The argument is that the rights are either found in state constitutions or "moral rights" that are never set in stone. [The other book also cited international law and a broader sense of "international natural law" is discussed here.] But, the same can be said about various other rights (such as equality) for which our understanding develops over time. Still, in practice, the Supreme Court has been somewhat wary about unenumerated rights, including attempts (see, e.g., Griswold) to connect some to enumerated ones.
It also offers an interesting concept of "cy pres" where the amendment is respected even though the original understanding of its reach can arguably no longer realistically be applied. The original understanding focused on powers, it argues -- if the federal government did not have the power to do something, rights would be retained. See, e.g., how the First Amendment focuses on the power of Congress. This might help explain how the Tenth Amendment ("powers") continued to be cited while the Ninth Amendment seemed to be almost forgotten. We focus more on rights these days. And, I think "right" adds something more, including some governmental obligation to protect (something "right" or somehow a moral good) that merely having the power to do something might not. But, either way, we still can respect the core meaning of the Ninth Amendment, even in an age of expansive governmental powers. I think the "cy pres" concept can be applied overall, "original understanding" a matter of broad principles with varying specific application. As Justice Stewart cited:
Great concepts like . . . "liberty" . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.There is a fear that this results in "judicial activism." Or, per Justice Black, "merely using different words to claim for this Court and the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable or offensive." But, open-ended provisions, including the Ninth Amendment, requires some sort of judgment that at some point boils down to such things. Take Massey. He would allow states some power to determine the reach of the "retained rights" (originally deemed protected by statutory and common law ... the former he argues largely translated to state constitutions), but not when certain fundamental rights and principles are violated. If we have judicial review, which has been deemed important since the end of the 18th Century, judges will have a lot to do with this, sometimes (see the 4A) being required to give meaning to things like "unreasonable."
As I said in the past, "fundamental" rights is a term expressed for quite some time in various legal rulings. Case by case, throughout "this Nation's history and tradition," helped by constitutional text (e.g., the Fourth Amendment references an aspect of privacy, the warrant requirement not the only way it is now protected) and structure (e.g., separation of powers or republican government assumes certain things), references like "intrinsic human rights" pop up. Hundreds of years of judging continues, even if some don't like the inexactitude. Different ways, down to use of equal protection to protect certain "fundamental rights" (one contraceptive case was explicitly a matter of treating unmarried and married couples unequally) are used. And, yes, judges will have discretion, who and when (1900 v. 2000) affecting the result.
The books referenced and others who point to the Ninth Amendment or the Privileges or Immunities Clause etc. raise the concern at times too. They don't find "substantive due process" satisfying. As seen by a footnote in Douglas' opinion, the problem is partially its taint, the fear it will be "a vessel to be filled with one's personal choices of values" and the fact that some other "cleaner" way to protect substantive fundamental rights is present. People still think the former all the same when other techniques are used and even a causal study of the law suggests the latter is a misguided quest best left to Don Quixote. No one panacea is available, though each provision can help toward the ultimate end.
The opening quote is intriguing. Douglas doesn't press the point, but as with the also thin Griswold opinion, it has bite. Like the First Amendment, the Ninth does not "create" rights -- the idea is that the rights were there already. The connection to "blessings of liberty" provides a bridge, even if he matured in an age when the term was a dirty one since it was largely used to strike down (if not as much as assumed) economic regulations, to substantive due process. The "liberty" now deemed to be protected by that is given meaning in large part by tradition and custom, both which develop over time. As the article cited notes, "natural law" is akin to less controversial pure scientific laws such as quantum mechanics. Both are falsifiable, which means our understanding of them can change.
It would be interesting to know what part of the Ninth Amendment is not part of the "liberty" expressed in the Fourteenth Amendment. Does the "life" and "property" components or perhaps the "citizenship" provisions add other content? Anyway, the basic idea of the Ninth Amendment -- even if the specific way it is done changes and is open to debate -- remains the same. There are various rights that are not expressly found in the Constitution, rights that must be given protection to truly protect our freedom, even if passed by majority vote (which the book is correct to note can be misleading given the nature of the political process). These rights are expressed and protected in various ways, in no totally clean fashion. It is a fool's errand to think it is possible.
But, the bottom line is clear, and even the likes of Scalia and Black in practice show it via acceptance of precedent, broad understanding of text (cf. Justice Harlan's view on "one person, one vote," which Black thought crystal clear by text treated otherwise for quite some time) and so forth. A too limited view of this ethos will get you in trouble -- right Robert? -- even though an honest expression of the complexity and inexactitude involved will also often tend to do so. Life is messy.* But, as Douglas noted in another separate opinion:
Rights, not explicitly mentioned in the Constitution, have at times been deemed so elementary to our way of life that they have been labeled as basic rights.And, will continue to be.
---
* Consider Lochner v. N.Y., used by both liberals and conservatives in various ways as a warning of the dangers of lack of proper judicial restraint and of substantive due process as a whole.
Justice Holmes' dissent is now deemed by many to be the correct path, but even he noted that when "a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law," the federal courts CAN "prevent the natural outcome of a dominant opinion" from being carried out pursuant to the "liberty" protected.
The test, shades of Coke, involves judges using "artificial reason" to determine what is against "common right and reason," even if a king or "the people" determines short term otherwise. Judicial review is a lot easier that way than the 1776 path.