Monday, March 10, 2008

It's Alive. It's Alive!

In my latest FindLaw column, I use a recent speech by Justice Scalia condemning "the living Constitution" as an occasion to defend the metaphor and the philosophy for which it stands. My core point in the column is that Scalia and other originalists mischaracterize the position of "living Constitutionalists" as seeking to displace the Constitution with their own values rather than being bound by the Constitution and the original understanding. You can read the column to see whether you think I make a persuasive case. Here I want to tackle a related objection that Justice Scalia has made to non-originalist methods of constitutional interpretation. He has set it out most forcefully in his 1989 article in the Cincinnati Law Review, Originalism: The Lesser Evil. Here is what Justice Scalia says:
Apart from the frailty of its theoretical underpinning, nonoriginalism confronts a practical difficulty reminiscent of the truism of elective politics that “You can't beat somebody with nobody.”' It is not enough to demonstrate that the other fellow's candidate (originalism) is no good; one must also agree upon another candidate to replace him. Just as it is not very meaningful for a voter to vote “non-Reagan,”' it is not very helpful to tell a judge to be a “non-originalist.”' If the law is to make any attempt at consistency and predictability, surely there must be general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be. Are the “fundamental values”' that replace original meaning to be derived from the philosophy of Plato, or of Locke, or Mills, or Rawls, or perhaps from the latest Gallup poll? This is not to say that originalists are in entire agreement as to what the nature of their methodology is; as I shall mention shortly, there are some significant differences. But as its name suggests, it by and large represents a coherent approach, or at least an agreed-upon point of departure. As the name “‘nonoriginalism”’ suggests (and I know no other, more precise term by which this school of exegesis can be described), it represents agreement on nothing except what is the wrong approach.
In the past
when I've taught a seminar in constitutional interpretation, I've lampooned part of this argument by the following parallel: I have the right approach to constitutional interpretation, I say, and it's "Dorfism." All the other approaches--including originalism, fundamental values, representation reinforcement, pragmatism, etc.--disagree about all sorts of things. All they can agree on is that they are all "non-Dorfists." As this example is meant to show, the fact that the people who disagree with you also disagree among themselves does not mean that you are right and they are all wrong. One of them could be right and you and the others wrong. But of course Justice Scalia doesn't just say that non-originalists disagree among themselves. He also says that their methods are arbitrary and lead to nothing fixed, while the differences among originalists are relatively minor. (That's one reason why he calls originalism the "lesser evil" rather than the "unadulterated good." The other reason is that it sometimes leads to dreadful results, but Justice Scalia says that we needn't worry about that much because democracy will come to our rescue or originalist judges will turn "faint-hearted.") Is Justice Scalia right that originalism is a reasonably well-fixed methodology? An interesting new paper by Professors Tom Colby and Peter Smith of George Washington Law School says no. In Originalism's Living Constitutionalism, Colby and Smith contend, as they say in the paper's abstract, that:
despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally are in agreement only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the writtenness of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists - the framers of originalism, if you will¿as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that they have articulated - and continue to articulate - a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, we argue, originalism is a jurisprudential theory with its own living constitutionalism.
Posted by Mike Dorf

51 comments:

heathu said...

In the FindLaw column referenced on the blog today, Prof. Dorf writes: And if our acceptance validates the Constitution, then, as Justice Powell said in the Rummel case, the way in which contemporary Americans understand the Constitution's language should play a substantial role in how the courts interpret that language.

Does that mean individual Americans have a right to own a gun, since most polls state a majority of Americans think we do? Or at least such a poll result should play a substantial role in how the Court decides its 2nd Amendment cases?

"Nearly two-thirds of Americans say they believe the Constitution guarantees each person the right to own a gun, according to a poll released Sunday...In all, 65 percent said they thought the Constitution ensures that right, and 31 percent said it did not. The question had a sampling error of plus-or-minus 3 points." -http://www.cnn.com/2007/US/12/16/guns.poll/

TGGP said...

The argument is that the Constitution was written a long time ago by dead, white, property owning males. The electorate today is alive, multicultural and includes women. So then isn't it the job of the electorate to act through their elected representatives in amending the Constitution? The Framers anticipated that things would arise they had not thought of in the future and that later generations would find their inheritance inadequate, which is why they included the provision for changing the Constitution. Declining to change the law but merely to act as if it had already changed of its own accord because a judge believes public opinion has shifted is a shirking of their duty.

Carl said...

And if our acceptance validates the Constitution, then, as Justice Powell said in the Rummel case, the way in which contemporary Americans understand the Constitution's language should play a substantial role in how the courts interpret that language

While I think there is much to be said in favor of the view that the Constitution possesses whatever normative force it has by virtue of our collective will to be governed by it, I don't think this in any way settles the issue of how best to interpret it. After all, we might think that accepting to be bound by it is accepting to be bound by a document whose meaning was laid down 230 years ago, despite the fact that some of its provisions seem ill-advised or obsolete, and precisely because it provides a clear, if cumbersome, mechanism for changing it, which we accept in large part because we think there is wisdom in preventing the passing whims and fancies of an undemocratic judiciary from changing its meaning at ever twist and turn.

Michael C. Dorf said...

1) Heathu. Yes, the fact that contemporary Americans think they have a right to own a gun counts in favor of construing the Second Amendment to protect such a right. That's not to say that their view is conclusive, but it counts for something, surely.

2) tggp. Why is the default rule that the Constitution means what the dead, white, property owners thought, rather than what the living multicultural society thinks? I could easily say to the originalists: If you think your view is the right one, let your elected representatives vote for policies that reflect the original understanding, such as the abolition of paper money. Moreover, your question incorrectly assumes that purportedly originalist interpretations of the Constitution never invalidate legislative action. That's plainly false. E.g., Justice Thomas would dramatically curtail the power of Congress under what he claims is the original understanding, and many self-styled originalist scholars would invalidate modern administrative agencies, which were put in place by elected representatives.

3)carl. You are correct that if the People today thought that what they were accepting when they accepted the Constitution were the original understanding, then contemporary acceptance would lead us back to original understanding. I am highly dubious, however, that this is what most people believe they are accepting---or if it is, that's because they tend to assume that the Founding generation held views very similar to their own.

Andrew Hyman said...

From Professor Dorf's Findlaw column:

"Originalists and living-Constitutionalists part ways over how to interpret ambiguous provisions of the constitutional text."

Ambiguous in whose eye? If the meaning of the text was unambiguous to the framers and their generation, but ambiguous to Mike Dorf and his, does Mike Dorf get to part ways with the originalists?

Justice Stevens once wrote that "ambiguity is apparently in the eye of the beholder." Is that the kind of subjective ambiguity that Professor Dorf is referring to, or is he referring to intentional ambiguity?

For example, the phrase "due process" may seem ambiguous to most people today. But Alexander Hamilton said it had a "precise technical import." The term "letters of marque" may seem ambiguous to people unfamiliar with the eighteenth century law of nations, but it was not ambiguous then.

Carl said...

I am highly dubious, however, that this is what most people believe they are accepting---or if it is, that's because they tend to assume that the Founding generation held views very similar to their own.


...Or they think the Founders had some special insight into how states should be governed and what kind of rights should be protected by them and they want to be guided by that insight, or they think that once they agree to be bound by some law they ought to be guided by the intent of its drafters.

I should add that I don't find either of these positions particularly persuasive, but they do seem to better reflect most people's attitudes toward the laws they follow than the rather fanciful notion that they endorse them only after exhaustive study and review. My point was simply that it is only by assuming the latter that we can draw the normative conclusion that we ought to interpret the constitution as ordinary people read would read it. I did not intend to suggest that ordinary people would read the constitution looking for its drafters' intent. On the contrary, I suspect most people don't read the constitution at all and that any attempt to make good on the insight that the normative force of law comes from some agreement to follow it cannot be grounded on any conception of what ordinary people in fact do.

Michael C. Dorf said...

Andrew Hyman raises a legitimate question to which I'll provide two brief responses:
1) On many of the most hotly contested questions, there was just as much ambiguity for the founders as there is today. The competing historical briefs in the Heller case re the 2nd Amendment illustrate this point nicely.
2) The point isn't that I, Michael Dorf, find a provision ambiguous. The question would be whether the People more broadly do.
Now I'll leave this thread alone as I try to think of something non-catty to say about Elliott Spitzer.

Andrew Hyman said...

The vast majority of "the People" of the United States currently find that the term "Letters of Marque" has an ambiguous and uncertain menaing. That fact obviously should not give SCOTUS a license to part ways with an originalist interpretation, and I'm surprised that Professor Dorf seems to be suggesting such a thing.

Regarding Spitzer, maybe you could tie that in with the recent news that our water supply is full of pharmaceutical drugs?

egarber said...

A few observations:

1. It can be argued that from the very beginning, the Supreme Court has often shunned originalism.

In Chisholm (the very first constitutional case, I think), where the issue was whether citizens could sue states, the majority essentially ignored the contemporary understanding that states were immune to such challenges as sovereigns. Hamilton and others had argued that states could act as plaintiffs, but they couldn't be sued.

In the aftermath, several newspapers reminded people that during the ratification debates, the federalists made assurances that states couldn’t be sued in such a matter – but the court ignored that “intent”. The Constitution was then amended of course, but that only more so stresses the point that the court, for whatever reason, saw no reason to rule on the basis of narrow intent. And these were justices who were living in the “original” age.


2. It is interesting to examine James Madison’s take on original intent. I’m convinced that Madison didn’t advocate Scalia’s dead constitution. For one, he specifically said the views of those who took part in the convention aren’t relevant in determining the meaning of the constitution.

Further, though he certainly had his opinions on constitutional issues – opposing the first national bank, etc. – he also accepted that general opinion would force the constitution to evolve in certain ways. That’s one reason he later supported the creation of the Second National Bank; he respected that a “national judgment” had been issued on commerce / general welfare power.

3. As for ambiguity, I see it more as a battle between broad vs. narrow -- as opposed to living vs. dead. General terms were intentionally placed throughout the constitution, an indication to me that the framers wanted it to remain relevant across time.

Michael C. Dorf said...

Okay, I know I said I was done with this, but just to be clear: Where the Constitution uses what is obviously a term of art that is simply unknown to most contemporary Americans---as with Letters of Marque---of course the original understanding is a highly relevant starting point, and almost certainly, the stopping point.

Carl said...

The point isn't that I, Michael Dorf, find a provision ambiguous. The question would be whether the People more broadly do.

If the people find some provision ambiguous, how does it help matters to advocate an interpretive strategy that requires looking to how the people use language? If ordinary language were able to settle the dispute, there wouldn't be an ambiguity to begin with. There, of course, may be a tension between how the framers used some term and how people use it today, but to call this an ambiguity and to settle things in favor of contemporary usage simply because some readers may not realize that the meanings of the words have changed seems like so much judicial sleight of hand. Surely we wouldn't want to ground the normative force of law on people's _mis_understandings of it. But this is a very real likelihood when you claim that the legitimacy of some law ultimately rests on how the majority of people happen to read it.

egarber said...

If the people find some provision ambiguous, how does it help matters to advocate an interpretive strategy that requires looking to how the people use language?

Let me try one, just for the mental exercise.

Consider the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and
*public* trial

Suppose in the not too distant future that some critical mass of people do most of their socializing and schooling in on-line forums. And let's say some municipality decides to run its courtroom as an on-line community -- no physical premises.

Wouldn't society's general morphing into on-line creatures offer at least some guidance in our effort to determine what "public" means under the sixth?

David said...

On the issue of the living constitution, I always like to refer to Jefferson's thinking on the subject which is excerpted on the 4th panel of the Jefferson memorial: I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.
Appears on the panel of the southeast interior wall. Redacted and excerpted from a letter to Samuel Kercheval, July 12, 1816. (Sorry, I previously posted this in the wrong place.)

Carl said...

Wouldn't society's general morphing into on-line creatures offer at least some guidance in our effort to determine what "public" means under the sixth?

This doesn't strike me as turning on an ambiguity in the word "public" so much as a natural consequence of the basic idea that something is public just in case it occurs in an open and accessible forum. If, on the other hand, "public" came to mean "private" as it apparently does among English pedagogues, there would be no argument at all for settling the ambiguity in favor of the contemporary usage. The word had a clear meaning when it was drafted and the mere fact language drift and the ravages of time may change it beyond recognition to the ordinary person is not, without more, a good reason for ignoring that meaning. If it were, then we could simply change the constitution by embarking on a public relations campaign to change the meanings of words in the public consciousness and bypass the amendment process altogether. We could, for example, overturn Roe v. Wade by simply getting enough people to use the term "people" or "citizens" to apply to fetuses. I, for one, favor a much more counter-majoritarian view of the Constitution.

egarber said...

here's an interesting Madison quote on language and altered meaning:

"it is evident that the shape and attributes of the Government must partake of the change to which the words and phrases of all living languages are constantly subject..."

Andrew Hyman said...

And here's the same quote, but in context:

"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken its modern sense!"

---James Madison (June 25, 1824)

And another:

"In the exposition of laws, and even of Constitutions, how many important errors, may be produced by mere innovations in the use of words and phrases if not controllable by a recurrence to the original, and authentic meaning attached to them."

---James Madison (March 10, 1826)

And yet another:

"It is but too common to read the expressions of a remote period thro' the modern meaning of them, & to omit guards agst misconstruction not anticipated. A few words with a prophetic gift, might have prevented much error in the glosses on those proceedings. The remark is equally applicable to the Constitution itself."

---James Madison (March 12, 1833)

egarber said...

Hey Andrew,

Thanks for the full quote. Just so you know, I wasn't clipping -- I got it from Levy's Original Intent and the Framers' Constitution.

Here's Levy in his book, page 21:

When an authoritative, uniform, and sustained course of decision or practice received "public sanction", Madison believed that the Constitution evolved in meaning, and the old must give way to the new. When the words that composed a text altered in their meaning, "it is evident that the shape and attributes of the Government must partake of the change to which the words and phrases of all living languages are constantly subject..."

Is this a case where Levy concluded the exact opposite of what Madison was saying? These two references come across very differently.

egarber said...

BTW, the rest of Levy's write-up relates to how Madison didn't like it when the constitution evolved, but he accepted it. That's why he went along with the second bank, etc. So the larger point is accurate, I think -- though I don't like quotes being mis-used.

Andrew Hyman said...

The late Professor Leonard Levy claimed that originalists do a disservice to the so-called grand, open-textured phrases in the Constitution. Levy claimed that those phrases required fresh interpretation by each new generation, and that the framers "had a genius for studied imprecision."

There is no doubt that some phrases in the Constitution were meant to give the judiciary considerable discretion to overrule the majority will. But not all of them do. The Constitution did not give judges carte blanche, and it's very unfortunate when scholars like Levy have tried to pretend otherwise.

For the framers and ratifiers of the Constitution, the term "due process" had a precise technical import. Likewsie, there was a technical distinction between "treaties" on the one hand and "agreements" on the other hand. These are two examples of original constitutional phrases that Levy and others have sought to revise, and they have employed considerable dishonesty in doing so, IMHO.

Levy claimed that his philosophy empowered "each new generation." To the extent that he urged greater invalidation of legislation by judges who invent their own reasons for doing so, Levy was actually removing power from each new generation to govern its own destiny. IMHO.

Andrew Hyman said...

P.S. If you look at Federalist 37, Madison acknowledged that constitutional provisions were sometimes not crystal clear, and that the judiciary would have to "liquidate" those ambiguities. But Madison always urged an originalist interpretation to the extent that the original meaning could be ascertained.

egarber said...

and that the judiciary would have to "liquidate" those ambiguities.

Right. I think that's the larger point -- that Madison could come to peace with judicial decisions that settled issues, even if he didn't agree with those rulings.

BTW, is this you?

http://writ.news.findlaw.com/commentary/20020613_hyman.html

egarber said...

Sorry:

http://writ.news.findlaw.com/
commentary/20020613_hyman.html

Andrew Hyman said...

Yeah, that's me. It's vastly over-generalizing to say that "Madison could come to peace with judicial decisions that settled issues." Madison only came to peace with judicial decisions that settled issues where there was good-faith disagreement about whether the constitutional text was ambiguous.

As Professor Dorf said in the Findlaw column thta started this discussion, "Originalists and living-Constitutionalists both agree that where the constitutional text is clear, it controls." There's obviously no way that Madison would have come to peace with a judicial decision saying that (in Dorf's words) "an especially precocious 32-year-old should be deemed Presidency-eligible."

egarber said...

Madison only came to peace with judicial decisions that settled issues where there was good-faith disagreement about whether the constitutional text was ambiguous.

In fairness to Levy, this is the general thrust of how he describes Madison (outside of the butchered quote, of course). He certainly had his opinions on meaning, but he was ok with the court settling tough questions. Even there, he was somewhat conflicted.

The big takeaway I get is that Madison wasn't a regular advocate of throwing out precedent in favor of his "original understanding." He by and large accepted the results.

egarber said...

I should also add that Madison was basically accepting of national judgments -- where consensus opinion among the people in general drives precedent.

Andrew Hyman said...

You are over-generalizing. Madison accepted national judgments and constitutional judgments that he personally disagreed with ONLY when the judgements "expounded" rather than "altered" the Constitution. Here's a full quote on this subject from a letter he wrote in 1831, responding to charges that he had abandoned his previous opposition with regard to the constitutionality of a national bank:

"On the subject of the Bank alone is there a color for the charge of mutability on a Constitutional question. But here the inconsistency is apparent, not real, since the change, was in conformity to an early & unchanged opinion, that in the case of a Constitution as of a law, a course of authoritative, deliberate, and continued decisions, such as the Bank could plead was an evidence of the Public Judgment, necessarily superseding individual opinions. There has been a fallacy in this case as indeed in others in confounding a question whether precedents could expound a Constitution, with a question whether they could alter a Const. This distinction is too obvious to need elucidation. None will deny that precedents of a certain description fix the interpretation of a law. Yet who will pretend that they can repeal or alter a law?"

Madison always opposed the latter variety, and so should we.

egarber said...

Andrew,

Given the rule that Madison favored judicial decision-making on tough questions where folks might have good-faith differences, do you think he would approve of using the Ninth Amendment to protect unenumerated liberties? There are some originalist-types who think it should basically remain dormant, because it's too vague to be enforceable -- and there's a certain logic in that reasoning.

However, we know the Ninth was intended to remind future generations that enumerated rights aren't the final exhaustive catalog.

So would Madison come to respect court decisions that tackled the tough question of what exactly constituted such an UNenumerated right? It seems to me there's plenty of room for that even within your more restrictive characterization.

Andrew Hyman said...

Egarber, I do believe that Madison would approve of using the Ninth Amendment to protect certain unenumerated liberties, but ONLY certain unenumerated liberties.

Professor Laurence Tribe has correctly stated the following: "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution." Tribe is correct.

SCOTUS was also 100% correct to say the following: "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."

The Sixth Circuit was also 100% correct to say the following: “[T]he ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution.”

Tribe and SCOTUS and the Sixth Circuit correctly interpreted the Ninth Amendment. The meaning of that amendment is clear in its text to anyone who carefully studies it.

When the Constitution conferred powers on the federal government, everything else was meant to be reserved to the states and the people, including a huge set of unenumerated rights. As Madison explained: “I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted.” Madison later reiterated this point when he introduced the draft Ninth Amendment in Congress; he agreed that “the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a bill of powers, the great residuum being the rights of the people.”

It was those residual rights that the Ninth Amendment protects. The Ninth Amendment does not carve out any exceptions from the enumerated powers, but rather prevented expansion of those enumerated powers. As the State of Virginia explained when that state ratified the Constitution, “clauses which declare that Congress shall not exercise certain powers [should] be not interpreted in any manner whatsoever to extend the powers of Congress.”

Here’s the text of the Ninth Amendment: “The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.” The framers were careful people who used words precisely. It is absolutely clear and unambiguous that this text bars denial of unenumerated rights if the denial is based on the enumeration of certain RIGHTS in the Constitution, but does not bar denial of unenumerated rights if the denial is based on the enumeration of certain POWERS in the Constitution. There is no true ambiguity, and I'm sure that Madison would have abhorred modern attemots to alter the meaning of this Amendments.

egarber said...

Andrew, thanks for the reply.

So if I understand it, your view is (basically) that:

1. The Ninth tells us there are pre-existing rights out there that aren't specifically listed.

2. But (1) doesn't mean that the Ninth is a generating source of *new* rights; the Ninth is really about keeping enumerated power at bay via the retention of residual liberty (i.e., what exists beyond power).

3. But (1) doesn't mean that the Ninth is an invitation to eliminate clearly allocated power -- i.e., if the commerce clause extends to pollution regulation, nobody can claim a "ninth amendment right to pollute as a businessman."

Is that close?

Of course, that becomes more difficult post-14th, since state powers aren't clearly enumerated. Still, assuming the BOR is incorporated, I think the court has to try to draw those lines with the states as well.

At the very least, I think privacy is a workable doctrine involving the Ninth -- though I realize it's rarely referenced as such.

Andrew Hyman said...

The Constitution granted to Congress power to "exercise exclusive legislation in all cases whatsoever" over the federal district (i.e. Washington D.C.). If you're arguing that the Ninth Amendment carved out a "privacy" exception to that power, I would disagree emphatically.

The Ninth Amendment protects only residual rights, and does not carve out exceptions to enumerated powers. That Amendment says the enumeration of rights may not be construed to deny other rights, and but does not bar the enumeration of powers from being construed so as to deny unenumerated rights.

The framers very obviously decided to generally entrust Congress with the task of protecting privacy rights in the federal district. The Constitution that they wrote does not entrust that task to unelected and unaccountable judges. I do not see any ambiguit in the Ninth Amendment on this point. The Constitution contains numerous ambiguities, but this is not one of them.

egarber said...

The framers very obviously decided to generally entrust Congress with the task of protecting privacy rights in the federal district. The Constitution that they wrote does not entrust that task to unelected and unaccountable judges.

Does this mean you think a proper reading of say, Griswold, EXCLUDES people living in DC? Or that the judges should have carved out DC in the ruling itself?

Doesn't "exclusive legislation in all cases whatsoever" merely mean that Congress "legislates" (whatever that constitutionally means), *not the states* in any way?

I find it difficult to believe the framers would say that whereas the rest of the country retains inherent rights, the folks in DC have to simply hope Congress is nice enough to grant them positively.

Forgive me if I misunderstand your argument.

Andrew Hyman said...

I was bringing up Washington D.C. as an example. The original Constitution gave Congress broad power to legislate for the District. You're apparently arguing that the Ninth Amendment carved out a "privacy" exception to that power. If that's really what you're arguing, then I believe you're not expounding the Ninth Amendment, but rather are altering the Ninth Amendment.

The framers decided to generally entrust Congress with the task of protecting privacy rights in the federal district. Emphasis on the word "generally." There are some provisions of the Constitution that protect particular aspects of privacy (e.g. the Third and Fourth Amendments). However, there is no general, judicially enforceable, constitutional right to privacy expressed or implied in the Constitution.

Regarding the Griswold case that you bring up, the Court's opinion authored by Justice Douglas relied primraily on provisions other than the Ninth Amendment, so I don't really understand why you're bringing up Griswold here. Douglas didn't mention the Ninth Amendment except to say this: "The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'" In contrast, Justices Goldberg (joined by Chief Justice Warren and Justice Brennan) did discuss the Ninth Amendment, and they acknowledged that the Ninth Amendment is not "an independent source of rights protected from infringement by either the States or the Federal Government." Justice Douglas agreed with that view, as he later explained in Doe v. Bolton: "The Ninth Amendment obviously does not create federally enforceable rights." So, I'm not sure how Griswold is very relevant to your argument that the Ninth Amendment carves out a privacy exception from the enumerated powers of Congress.

You write, "I find it difficult to believe the framers would say that whereas the rest of the country retains inherent rights, the folks in DC have to simply hope Congress is nice enough to grant them positively." Actually, what the framers said is that the people of DC have to rely on Congress to protect many of their individual rights, just as the people of the various states have to rely on their state legislatures to protect many of their individual rights. If anything, the framers of the original federal Constitution and Bill of Rights gave MORE protection to DC citizens, in the sense that the Bill of Rights fully applied to all levels of DC government, whereas the Bill of Rights did not apply against the state government. I don't see anything hard to believe about any of that, and hopefully this comments clarifies for you what I was trying to say.

egarber said...

Andrew,

I realize that the Ninth doesn't control Griswold -- I was asking whether you think "privacy" precedents in general are judicially enforceable in DC.

In your view, who enforces the BOR in DC -- the Supreme Court or Congress?

Andrew Hyman said...

The Bill of Rights fully applies in DC against both the federal government and the local DC government, and that has always been the case ever since DC was created.

Prior to the 14th Amendment, the Bill of Rights did not apply against the state governments.

egarber said...

The Bill of Rights fully applies in DC against both the federal government and the local DC government, and that has always been the case ever since DC was created.

So that means the Supreme Court enforces it, I assume. If the Court were to rule tomorrow that there's a ninth amendment right to rob lawyers (sorry :) ), binding on the states via the 14th, should that ruling apply to DC?

Since such a use of the Ninth improperly denies enumerated power (in your view), that ruling couldn't stand in DC, right? -- even if it applied to the rest of the country?

Andrew Hyman said...

If the Court were to rule tomorrow that there's a ninth amendment right to rob lawyers, binding on the states via the 14th, then it shouldn't apply anywhere, because it would be nonsense. It shouldn't stand anywhere.

Anyway, have a great weekend. I've got to be going now.

egarber said...

Andrew,

Ok. That was a stupid example. I'll throw this out there instead: suppose the SCOTUS made a ninth amendment- based ruling protecting the right to eat meat as a food source. Is it binding on DC?

See ya next week!

Andrew Hyman said...

If Congress passes a law requiring everyone in DC to be a vegetarian, then the Ninth Amendment is no grounds for SCOTUS to overturn the law. Maybe SCOTUS might be able to overturn the law on grounds that it deprives meat-owners and animal-owners of their property without just compensation; I'm not sure. But the point is that the Ninth Amendment, as Professor Tribe correctly stated, "is not a source of rights as such; it is simply a rule about how to read the Constitution."

egarber said...

Hey! I thought you were checking out for the weekend.

Here's my last question and then I'll shut up:

So your answer means it's possible such a ruling could apply everywhere else, but not in DC, right? because of the unique exclusive power over the federal district?

Andrew Hyman said...

If SCOTUS made a ninth amendment-based ruling protecting the right to eat meat as a food source, then that ruling could only legitimately apply against the federal government, and it could only apply in the fifty states (i.e. not in DC or other federal territories).

Everyone knows that Congress has very broad powers in DC, but has much more limited powers in the 50 states. So it makes sense that Congress would not be able to require vegetarianism in the 50 states. The Supreme Court would be on plausible ground to hold that the commerce clause does not give Congress such huge power in the 50 states.

Furthermore, if the Court struck down federal vegetarianism requirements throughout the United States, except in Washington DC and other federal territories, then I don't think that the right to eat meat would become a "privilege or immunity of a citizen of the United States" enforceable against the states. Something cannot be a "privilege or immunity of a citizen of the United States" if the federal government is allowed to trample that right in DC and other federal territories.

P.S. I wished you a great weekend, and said I had to go, but I didn't say that I had to go for the weekend.

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