Who's Afraid of Unenumerated Rights? (Lily)

Who's Afraid of Unenumerated Rights? (posted by Lily after conversations with Andrew)

"Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted and what protection they do receive is subject to intense criticism. . . . [A]ll liberty may be reasonably regulated (as opposed to prohibited), and that we need ascertain the scope of unenumerated rights only to identify wrongful behavior that may be prohibited altogether because it invariably violates the rights of others."

This is part of an abstract from a paper by Randy Barnett, ideas from which formed the basis for a talk he gave at U Penn Law School this past Friday. APO has a distaste for Barnett's originalism (he says it's "bunk"!)... Nonetheless, overall I think the concept of numerated versus unenumerated constitutional rights is a fascinating topic. The rough outlines of the controversy are these: the Federalists, who formed the majority of the original authors of the Constitution, wanted to found a government based on the premise that the people are sovereign, and any power that the government holds, it holds only by the consent of the people. Therefore they envisioned the Constitution as a document that listed the various things the people allow the government to do. Anything not on the list, the government can't do -- the residual power lies in the people. From this perspective, the Constitution was complete without the Bill of Rights: for example, the Constitution doesn't mention that the government has any power to make an establishment of religion, so we don't need to TELL the government it can't do so. Similarly, there's no point in telling the government that it can't restrict the freedom of the press, since the Constitution doesn't ever bestow that power upon it.

Immediately following the ratification of the Constitution, though, the Anti-Federalists proposed the first nine amendments of what we now call the Bill of Rights, a document that, under the Federalists' theoretical framework, was manifestly unnecessary at best. The Anti-Federalists conceived of government in diametrically opposing terms: the government has whatever power the people don't reserve for themselves. Naturally those of this persuasion were terrified by the original Constitution without the Bill of Rights attached -- it seemed like a carte blanche that placed virtually no restrictions on governmental power at all.

The main body of our Constitution thus stands as theoretically inconsistent with its first nine amendments. From a Federalist perspective, the first nine amendments were not only useless, but dangerous: if the federal government has free rein to do anything NOT listed in the Constitution, there's no telling what amount of tyranny it might come up with! The drafters can't be expected to think of everything ahead of time and enact zillions of provisions in an attempt to ward off future politicians' power grabs! Thus, we have the Tenth Amendment, enacted December 15, 1791, which was an attempt by the Federalists to recapture the upper ground in the battle between the competing intellectual frameworks:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Whether it was the Federalists or the Anti-Federalists who ultimately gained the upper hand, is hard to say. On the one hand, the US Supreme Court has used the Bill of Rights to construct an elaborate system of jurisprudence that touches all of our lives -- freedom of speech, freedom of religion, freedom of the press, due process. It might have seemed unnecessary to some in the early days of the Republic, but today it has become a cornerstone of our national identity. On the other hand, Americans have preserved throughout the centuries an inherent distrust of "big government." It's a topic that comes up in every Congressional and Presidential campaign to this day. Other countries, such as Canada and Great Britain, don't share the American distrust -- in those countries, sovereignty traditionally flowed from the Crown, and the people hold whatever rights they have by the grace of the government. (Obviously the modern world has mitigated the effects of this, but bear with me...) These nations were not founded on the concept of sovereignty residing in the people, and the public in those countries tends to be more comfortable with the concept of big government. Witness their national health care systems and other manifestations of socialist leanings.

Personally I kind of enjoy the tension inherent in our Constitution -- kind of for the same reason I think it's good to have the Executive and Legislative branches in Washington to be controlled by opposite parties. Keeps everyone on their toes, and gives the delicate balance of power the flexibility to make minor adjustments depending on the needs of the moment.