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Taking the Ninth Amendment Seriously
Review of Calvin R. Massey, Silent Rights: The Ninth Amendment and the Constitution’s
Unenumerated Rights (Philadelphia: Temple University Press, 1995)
By N. Stephan Kinsella
[Draft submitted–may differ slightly from version published in:
Hastings Constitutional Law Quarterly vol. 24, no. 3, 1997]
Abstract: In this review, Mr. Kinsella details and critiques Calvin R. Massey’s
recent book on the Ninth Amendment. Massey points out that many modern
constitutional theorists hold that the Ninth Amendment cannot be read as a source of
rights that can be used to strike down legislation, but only as a rule of construction
that prevents construing the Bill of Rights to imply the existence of federal powers
beyond those enumerated. However, Massey argues, because of the modern
expansion of federal powers and current constitutional jurisprudence, it is now
“impossible” to achieve the amendment’s original function of limiting the implied
powers of the federal government. Massey suggests that, under a theory of
“constitutional cy pres,” the original government-limiting purpose of the Ninth
Amendment can nevertheless be achieved if it is read as a source of unenumerated
rights that can be used to trump legislation. Massey goes on to argue that these
unenumerated rights include both natural rights and positive rights protected in state
constitutions.
Kinsella argues that Massey’s theory has little constitutional support, and that this
theory would undermine the principle of federalism, itself one of the original
purposes of the Constitution. Kinsella concludes by suggesting better approaches to
constitutional interpretation or reform, such as the approaches of Randy Barnett and
Marshall DeRosa.
❧
What we need is an amendment forbidding the circumvention of the Constitution. It
could read: “The Constitution shall not be circumvented.” I just got a big laugh
from any lawyers who may be reading this.
—Joe Sobran
❧
Introduction: The Instrumental Value of the American Constitution
We Americans are lucky indeed to have inherited our Constitution and our classical liberal tradition.
For suppose we had inherited a totalitarian form of government, a government that did not respect
property rights or other individual rights,
which arbitrarily discriminated against—even executed,
or exterminated—certain classes of its subjects from time to time. If such a government on occasion
failed to implement its totalitarian “constitution” to the letter—say, it was slow to adopt a fully
socialized agriculture policy, or temporarily retreated from such a policy after causing the starvation
of a few million people—it is unlikely that we would be complaining that the government was
shirking its duties under the totalitarian constitution. The totalitarian constitution itself—the basic
plan underlying the government—would be inherently illegitimate, and thus no purpose would be
served by advocating the stricter adherence to the totalitarian government’s ideals. No purpose in
service of liberty, at least.
Regrettably, under a totalitarian system, proponents of liberty and individual rights
would
be relegated to other tactics, such as being resigned to one’s doomed fate and trying to make the best
of things, fomenting revolution or civil disobedience, trying to persuade or educate one’s fellow man
or government officials to see the light of liberty, or even advocating outright dishonest interpretation
of the socialist constitution to achieve better results. A constitution, then, has only instrumental
value: it is worth supporting and interpreting honestly only if such an interpretation tends to lead
to desirable results. To a supporter of individual rights, for example, a constitution providing for an
explicitly totalitarian system does not have instrumental value, and he would not seek to have such
constitution put into effect, or put into effect more stringently.
Now imagine that there is a better Constitution in place, one that was originally designed to
undergird limited government and individual rights. But, unfortunately, over the decades, the
government has incrementally misconstrued the Constitution to seize more and more power not
authorized in the Constitution and to violate individual rights protected by the Constitution. Imagine
also that, for a variety of reasons, the population had acquiesced, and even grown somewhat
accustomed, to this state of affairs.
Advocates of limited government and individual rights in this
setting have an option available to them that those in our hypothetical socialist society do not: they
can insist that the government respect the Constitution’s original meaning. They can argue, for
example, that the Supreme Court has been misinterpreting the Constitution and should now interpret
the Constitution in accordance with its original understanding.
Given the country’s traditional
respect for the Constitution and at least some widespread sentiment that the government’s very
legitimacy depends on its acting within limits proscribed by the Constitution, this might be a
reasonable, even hopeful, course to take.
Since America is largely in this latter situation, it is for this reason that I say that we
Americans are lucky to have inherited our Constitution and our classical liberal tradition. We are
not limited to the unattractive options of revolution or despairing resignation as our only responses
to government tyranny. We can urge the Supreme Court, and Congress, to respect individual rights
and limit government powers, in accordance with the original design of the Constitution. Our
Constitutional has instrumental value—at least for those who support limited government and both
personal and economic individual freedom.
One problem with trying to persuade the Court to move towards a more originalist
interpretation of the Constitution is that, even if the Court wants to do this, it may be too late. Given
the entrenched and accumulated accretions of government power and court decisions that have
resulted from over a century of misinterpretation of the Constitution, the Supreme Court is unlikely
to simply undo its own jurisprudence and interpret the Constitution anew. Further, even if the Court
wanted to start reining in the federal government’s powers, it would not be able to get away with it,
at least not without a sufficiently sneaky or clever theory that allows some incremental movement
towards liberty in a manner not obvious enough to catch the Leviathan’s eye.
In his new book, Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated
Rights,
Professor Calvin R. Massey seeks to provide such a “stealth” theory (my words, not his) by
providing a new way to read the Ninth Amendment. As Massey points out, this amendment has been
largely ignored since it was added to the Constitution in 1791.
In this book, Massey proposes a
novel and somewhat radical theory to reincorporate the amendment and its original purposes into
the current constitutional landscape. At the heart of Massey’s theory is his proposed “constitutional
cy pres doctrine,” and his contention that the Ninth Amendment incorporates rights based in state
law. Before further exploring this theory, it is necessary to delve into, as Massey does, the history
and political context of the amendment.
The Dual Purposes of the Ninth Amendment
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.”
This follows, of course,
various rights “enumerated” in the first eight amendments in the Bill of Rights, and precedes the
Tenth Amendment.
In a discussion of the original debate concerning the Ninth Amendment,
Massey points out that there are many possible answers as to just what the Ninth Amendment means.
Some, like former Judge Robert Bork, contend that the amendment has no discernible
meaning whatever. Others . . . suggest that the amendment is merely hortatory and
duplicative of the axiomatic reminder in the Tenth Amendment that the states retain
all powers not surrendered under the Constitution. Still others . . . contend that the
amendment prohibits the federal government from exercising any power with respect
to the “rights retained by the people.” . . . Yet another view . . . asserts that the Ninth
Amendment was merely a cautionary device to check unwarranted extension of the
powers of the federal government. Some . . . suggest that the amendment is best
regarded as a . . . rule of interpretation [that] invalidates [the] argument that any
given right (such as the right to use contraceptives) is not to be included within some
enumerated right of the Constitution (such as due process) simply because the right
to use contraceptives is not expressly enumerated in the Constitution. . . . Finally,
[some] contend that the amendment ought to be treated as an independent source of
substantive and judicially enforceable individual rights, determined without reference
to any of the enumerated rights.
As Massey explains, one of the objectives of the Ninth Amendment was to preserve the
states’ sovereignty and independence, in part so that the states could serve as a check on expansions
of federal power.
To this end, the central government was vested only with few and defined
powers, reserving other powers to the states. Protection of the natural rights of citizens would be
largely a matter for the states to handle.
Because of the limited delegation of power to the federal
government, the Federalists did not believe an enumerated bill of rights to be necessary. Without
the granted power to invade rights, the federal government would simply be unable to do so.
The Antifederalists, nevertheless, demanded a bill of rights, out of fear that, without it, the
federal government would both encroach on the states’ sovereignty and violate the natural rights of
the people. History has proven the Antifederalists right: it would have been too dangerous to create
the federal government without also providing a bill of rights. Although the current federal
government has arrogated to itself vast powers not authorized by the Constitution,
it seems almost
certain that things would have been worse had the Bill of Rights not been added as a precautionary
measure.
On the other hand, as Federalists countered, even if having no bill of rights would be
dangerous, enumerating rights to limit a government of purportedly limited powers is also dangerous,
for two primary reasons. First, the very declaration of a particular right (e.g., to freedom of speech)
might be construed to imply that some power had been given to the federal government to invade
this right. This could lead to the implication that the federal government possessed unenumerated
powers, similar to the broad “police powers” exercised by states, rather than strictly limited,
enumerated powers. These unenumerated powers of the central government could be used to invade
any (unenumerated) rights of the citizenry as well as the sovereignty of the states.
Second, listing
certain rights in the “bill of rights might raise the implication that the only rights possessed by the
people were those enumerated,”
i.e., that the listing of rights in the Constitution was exhaustive.
Enter the Ninth Amendment, designed, as Massey shows, to combat both these dangers.
Some commentators acknowledge only that the amendment was meant to address the first
of these two dangers, by serving as a rule of construction as to federal powers. Under this “single-purpose” interpretation, it is held that “the amendment’s function was merely to restrain
constitutional interpreters from construing too broadly the powers delegated to the central
government. By doing so, it had the secondary effect of preserving individual liberties, because the
‘residual rights’ of the citizenry were protected by the sheer absence of governmental power to
curtail them.”
Thus, the amendment merely served as a rule of construction as to federal powers,
and “adherents to this view reject the idea that the Ninth Amendment is itself an independent source
of human rights capable of judicial cognizance.”
Massey disagrees with such a “single-purpose” interpretation of the Ninth Amendment. He
argues persuasively that the Ninth Amendment had dual, but complementary, purposes: to prevent
the listing of rights from being used to imply that the federal government had powers beyond those
enumerated, and to prevent the listing of rights from implying that the list is an exclusive and
exhaustive one.
(Hereinafter, I will sometimes refer to these as the limited-powers purpose or
function, and the unenumerated-rights purpose or function, respectively.) For example, as Massey
notes, many states admitted in the nineteenth century added a version of the Ninth Amendment to
their own constitutions. “It is hard to understand why any group of state constitution makers would
have done so if they had thought the Ninth Amendment was simply a device to confine federal
legislative power. . . . The presence of Ninth Amendment analogues in state constitutions is reason
to conclude that nineteenth-century legal actors continued to regard the federal Ninth Amendment
as instantiating dual paths to a single end of preserving human liberty.”
The distinction between the dual purposes of the Ninth Amendment was not completely clear
two hundred years ago. One reason for this, Massey claims, is that, in the Founding Fathers’
generation, “rights were thought of as the absence of governmental powers”
—that is, individual
rights were merely conceived of “as the complement of governmental powers.”
Thus, to the
Framers, the distinction between these two purposes was “blurry at best.”
Individual rights could
be secured simply by limiting government power, since “rights could not lawfully be invaded by a
government lacking power to do so.”
However, today’s conception of the relation between
individual rights and governmental power is different. “Today,” Massey claims,
we would be unlikely to converse in the same vernacular. We are likely to think of
rights as trumping governmental powers. Thus, pursuant to the commerce clause
Congress may have the power to enact a law forbidding the interstate shipment of
Bibles, but its effective ability to do so is trumped by at least two First Amendment
rights—freedom of speech and the right to free exercise of religion.
Massey provides a brief survey of Supreme Court jurisprudence to document the changing
conception of rights vis-a-vis powers.
Because of this “shift in perspective over the past two
centuries,” there is disagreement today over what the Framers originally meant by the amendment.
Modern observers tend to ascribe to the Ninth Amendment merely the first objective, that of
preventing the enumeration of rights from implying that the federal government must therefore
possess unenumerated powers to invade rights, since this seems to be synonymous with the purpose
of the Tenth Amendment, that is, to preserve a separate sphere of state powers. This view, however,
ignores the Ninth Amendment’s other purpose of ensuring “that the catalog of constitutional rights
did not stop with the enumerated rights. As rights no longer were thought of as the absence of
governmental powers, but rather as independent restraints upon governmental powers, it was
inevitable that the lost function of the Ninth Amendment would again be perceived.”
Massey also argues that the interrelationship between the Ninth and Tenth Amendments
can be better explained if one realizes that the founding generation viewed rights and powers as
complementary, merely two sides of the same coin. In order to secure individual rights against
infringement by the federal government, both amendments were necessary to constrain the
government’s powers.
The Ninth would do so by guarding against either the inference of nonexistent
unenumerated rights or the inference of constructive powers. The Tenth would do
so by an explicit statement that the central government possessed only its specified
powers. The Tenth Amendment may be seen as performing the principal function
of rebutting the Antifederalist concern that the new government might be presumed
to possess all powers not specifically retained, while the Ninth amendment may be
seen as primarily addressing the Federalist concern that any enumeration of rights
might be viewed as recognition of the existence of implied governmental powers.
But both amendments are more complex. The Ninth Amendment also addresses, in
part, the fear that rights enumeration would eliminate other rights, and the Tenth also
preserves to the people their discretionary authority to allocate (or not) powers to
their state governmental agents. The complex and dual nature of the two
amendments is deeply rooted in the founding generation’s perceptions of the
inextricable relationship between rights and powers. Thus, the lack of either
amendment would be inimical to the preservation of a zone of individual autonomy
where governments could not intrude.
As Massey points out, even if it is admitted that the Ninth Amendment “could be a proper
constitutional basis for unenumerated rights[, this] does nothing to solve the enormous problem of
selecting which unenumerated rights deserve designation as constitutional protected.”
Under
Massey’s theory of “constitutional cy pres doctrine,” elaborated in Part III of Silent Rights, he lets
the states do most of this work for us. It is to this doctrine that we now turn.
Constitutional Cy Pres
It is largely undisputed, even by the “single-purpose” theorists, that the Ninth Amendment
was intended to prevent the enumeration of rights from implying federal powers not explicitly
granted in the Constitution. However, “apart from a radical reconstruction of existing doctrine, that
intent can no longer be accomplished.”
As Massey puts it,
After two centuries of constitutional development, we no longer make any serious
attempt to control the extent of the implied powers of Congress. If the Ninth
Amendment’s original intent was only to provide a rule of construction by which
claims of implied congressional power would be rejected, that function has been
irretrievably eclipsed by the awesome breadth of contemporary federal power.
In other words, it is now, perhaps regrettably, “impossible” to achieve the Ninth Amendment’s
original function of limiting the implied powers of the federal government (the limited-powers
function). The genie is now, irrevocably, out of the bottle.
It is here that Massey borrows from the concept cy pres, to announce his “constitutional” cy
pres doctrine. Under the doctrine of cy pres, “When faced with the problem of an expressed
testamentary intent that is impossible to achieve, courts seek to effectuate as nearly as possible (cy
pres) the testator’s intent.”
Similarly, if we still wish to “preserve the supposed original function
of preventing implied federal powers,”
a new interpretation must be given to the Ninth Amendment
to attempt to limit governmental power.
In fact, “To effectuate the original intent as nearly as
possible it is necessary to constrain governmental power by reading the Ninth Amendment as a
source of judicially enforceable individual rights that operate to limit the exercise of governmental
power.”
Thus, in today’s context, even those who attribute only the limited-powers function to the
Ninth Amendment must be willing to accept use of the amendment to generate unenumerated rights
if the amendment is to be at all effective in limiting the exercise of government power.
If the original intention of the amendment was to confine governmental power, the
reason for doing so was entirely to preserve rights. We have failed to confine those
powers, partly because we now regard the affirmative assertion of rights as the
vehicle for controlling the unwarranted assumption of governmental power. Thus,
the only way the Ninth Amendment can be applied in our times to accomplish its
original purpose is to regard the amendment as an independent source of individual
rights.
Massey notes that the second (unenumerated-rights) purpose of the Ninth Amendment
(preventing the implication that enumerated rights were the only rights capable of blocking
governmental action), is not really impossible, as is the limited-powers purpose, “but the legitimacy
of this endeavor is badly eroded by our undue reliance upon an inappropriate and ill-suited
vehicle—the due process clause—for the task of providing constitutional recognition to
unenumerated rights.”
Therefore, “Straightforward recognition of the Ninth Amendment as the
vehicle for this project would be consistent with the founding intentions as well as provide a more
ready answer to those critics of unenumerated rights who loudly question the connection of those
rights to the constitutional text.”
Massey consoles those who are uncomfortable with using a cy pres-type doctrine to interpret
the Constitution by showing that this type of reasoning is not really without precedent, although
Massey’s jazzy term “constitutional cy pres” appears not to have been used before. For example,
the Court gave “an expansive reading to the due process and equal protection clauses of the
Fourteenth Amendment in order to accomplish the intended purposes of the privileges and
immunities clause”
when the Slaughter-House Cases decision,
and the lack of will to overturn
that decision, made it impossible to implement the original purposes of this clause. Other supposed
examples of constitutional cy pres include cases involving the Eleventh and Fourteenth
Amendments.
But the utility Massey’s appeal to constitutional cy pres is unclear. In a standard cy pres
situation where, for some external reason, it is actually impossible to achieve the testator’s will, the
court attempts to effectuate as nearly as possible the testator’s intent. However, if today it is
“impossible” to honestly interpret the Constitution and to give the Ninth Amendment its original
reading, this is not due to some impersonal, external cause that the Court is helpless to do anything
about. Instead, it is largely the Court’s own twisting of the Constitution over the last two centuries,
as well as its current unwillingness to return to a saner reading of the Constitution, that lies behind
the current “impossibility” of limiting the federal government’s powers.
The government will be
unable to implement a proposed law or regulation whether it is declared by the Court to be
unconstitutional because (a) it did not have the power (an “impossible” result nowadays), or (b)
unenumerated Ninth Amendment rights stand in the way (Massey’s cy pres method). Thus, one
wonders why the Court would overturn a law based on an unenumerated right, given an
unwillingness to do so by claiming lack of legitimate governmental power to implement the law. It
is not as if Congress or the President would be any less upset at being thwarted by the Court in the
second manner as opposed to the first.
Massey appears to believe that the reason for the current “impossibility” of using the Ninth
Amendment to directly limit the federal government’s powers is the aforementioned shift in how
rights and powers are viewed.
He claims that “We have failed to confine [the federal
government’s] powers, partly because we now regard the affirmative assertion of rights as the
vehicle for controlling the unwarranted assumption of governmental power.” This claim is
unconvincing, however, since Massey does not provide a clear case as to just how the alleged shift
in viewing powers and rights has led to a failure to confine the government’s usurpation of more and
more powers. Massey’s account makes decades of misinterpretation of the Constitution by the Court
seem downright innocent, an honest mistake caused by simple confusion over the conceptual relation
between rights and powers. More conventional, and less benign, explanations for the disgraceful
state of the Court’s jurisprudence seem adequate.
❧
There are other, less serious, problems with Massey’s approach. First, Massey’s theory
claims to work even if one adheres only to the limited-powers purpose. In this case, however, it is
inexplicable why so much attention is given earlier in the book to proving that the amendment had
a dual purpose, for after showing in Part II that the Ninth Amendment had dual purposes, Massey
largely omits the second purpose and assumes, for the sake of argument, only the limited-powers
purpose.
Second, in Part II, prior to his cy pres analysis in Part III, Massey argues, without appealing
to cy pres, that one function of the amendment was to generate enforceable, unenumerated rights.
It is, therefore, not clear why one needs to use cy pres to turn the limiting-powers function into the
unenumerated-rights function. The unenumerated-rights function should stand alone, and can
apparently be reasonably argued without the aid of constitutional cy pres. In fact, in an earlier
incarnation of his theory, the doctrine of constitutional cy pres is not invoked at all.
As best I can
tell, the primary purpose of constitutional cy pres is to convince those who favor the limited-powers
function but who shun the unenumerated-rights function that, in today’s constitutional landscape,
the only way to achieve the limited-powers function is to allow the Ninth Amendment to be
construed to protect unenumerated rights. Since Massey sets forth other, independent grounds for
the unenumerated-rights function of the Ninth Amendment, it is not clear why constitutional cy pres
is given such prominent attention in the book, nor why it is brought up again and again once this
point is made. For example, Massey’s application of constitutional cy pres to the unenumerated
powers purpose of the Ninth Amendment is confusing. If the unenumerated powers purpose is not
impossible to attain but has merely had its legitimacy “eroded,” why is cy pres applicable at all, since
the doctrine has to do with impossible or unattainable purposes?
Third, it appears to be quite an ordinary and reasonable interpretive method to try to interpret
difficult or ambiguous constitutional provisions in accordance with the provision’s original
objectives, just as was done in the cases cited by Massey as examples of “de facto” applications of
constitutional cy pres. But this technique is just one of dozens of standard canons of interpretation
of legislation or constitutional provisions,
and it is not clear why all of a sudden a new terminology
and doctrine is needed for this one particular technique.
Continuing with the development of his theory, Massey next argues that “there are three
major ways in which constitutional cy pres can be applied to the Ninth Amendment.”
First, the
amendment can be used to secure “against federal invasion individual rights having their origin in
state constitutions.”
Massey refers to this as the positive law component of the Ninth Amendment,
or “positive Ninth Amendment rights.” Second, it can be read as a rule of interpretation in favor of
generalizing explicitly enumerated Constitutional rights to protect unenumerated rights that are
“consistent” with enumerated rights. Third, the Ninth Amendment can be used “to locate and
enforce rights having their origin in natural law.”
Massey refers to this third approach as the
natural law component of the Ninth Amendment, or “natural Ninth Amendment rights.”
The listing of these three proposals reveals further problems with Massey’s theory. One is
that this list of three ways to apply constitutional cy pres seems arbitrarily pulled out of a hat.
Further, is this list exhaustive? Are there more ways to apply constitutional cy pres? Why, for
example, could not his cy pres theory be used to argue that the Fourteenth Amendment and the
incorporation doctrine should be reinterpreted to return more power to the states, to better
accomplish the original constitutional function of federalism? (More on this later.)
Another problem with Massey’s constitutional cy pres theory is that the second and third
proposals do not need constitutional cy pres to be recommended, and in fact have been advanced by
others, without requiring Massey’s innovative cy pres theory.
Massey himself has previously
argued for the first proposal, without even mentioning consitutional cy pres.
Massey seems to view
the second proposal as largely subsumed by and inferior to the first and third proposals,
and thus
devotes most of the remainder of the book—chapters 5 and 6—to elaborating positive and natural
Ninth Amendment rights.
Positive Ninth Amendment Rights
The most innovative and controversial aspect of Massey’s thesis is his view that the Ninth
Amendment ought to be read to include judicially enforceable rights having their origin in state
constitutions, as well as natural rights. Massey argues that the unenumerated rights contemplated
by the Ninth Amendment were of two types: “natural”, and “civil” or “positive” rights.
Natural
rights include, in the words of Madison, “those rights which are retained when particular powers are
given up to be exercised by the Legislature,” and positive rights are those that “result from the nature
of the compact.” For example, freedom of speech is a natural right; trial by jury is not a natural right,
but results “from the social compact which regulates the action of the community.”
However,
Massey cleverly reasons,
the founding generation did not use the distinction between natural and positive
rights as a basis for selection of the rights worthy of constitutional enumeration. The
package of rights expressly enumerated in the Constitution contains natural and
positive rights. It is a fair inference, then, that the unenumerated rights of the Ninth
Amendment were thought to consist of both varieties. Positive rights had their
source in state common, constitutional, and statutory law. Natural rights stemmed
from Lockean notions concerning the inalienable rights of the people.
Thus, the Ninth Amendment’s unenumerated rights contain both positive and natural rights.
As Massey notes, most of the Framers looked “to the states not only as the source of, but as
the vehicle for, protection of their cherished liberties.”
Therefore, “[t]he inclusion of the Ninth
Amendment was, in part, an attempt to be certain that rights protected by state law were not
supplanted by federal law simply because they were not enumerated.”
Since “the Ninth
Amendment was as much an enumerated right for purposes of judicial enforcement as any other
aspect of the Bill of Rights,”
both types of unenumerated rights—natural rights; and positive rights
having their source in state law—are subject to judicial protection. In other words, any federal law
that violates an unenumerated positive (i.e., state law-based) right is subject to being stricken down
by federal courts as violative of the Ninth Amendment.
In giving effect to the Ninth Amendment,
then, the courts are to recognize that one source of the unenumerated rights protected by the Ninth
Amendment is state constitutions.
One advantage that Massey sees in this understanding of the Ninth Amendment is that it
would give “citizens of the states . . . the power, through their state constitutions, to preserve areas
of individual life from invasion by the federal Congress in the exercise of its delegated powers.”
This, in turn, would “prevent Congress from using its delegated powers to contravene an
unenumerated federal right contained within a state constitution.”
Massey recognizes that his theory “is radical stuff,”
and also admits that the implementation
of his theory would give rise to “a number of difficulties,” none of which, however, “are indisputably
insuperable.”
The first difficulty is whether state-sourced positive rights contained protected by
the Ninth Amendment “are a set of rights antecedent to the federal Constitution and, thus, effectively
frozen in time and content, or whether such rights are a dynamic, evolving list that change as
sentiment shifts within the states.”
Massey admits that there is much to be said for the static view,
but ultimately concludes, based on what I found to be unsatisfying and confusing reasoning,
that
“a dynamic concept holds more promise.”
(Interestingly, in an earlier version of his theory, Massey
rejected the dynamic concept in favor of the static, on the grounds that the “more radical” dynamic
conception “poses enormous practical problems” that make it “hopelessly unworkable.”
)
The dynamic view leads to further difficulties. For example, can these federalized, state-sourced rights be applied uniformly across the nation? Can such rights, once created, be altered or
abolished by the states removing the rights from their constitutions?
Massey grapples mightily
with these and other thorny problems that his own theory has engendered. On the one hand, positive
Ninth Amendment rights could be uniformly applied across the entire nation, what Massey terms the
“national concept” of positive Ninth Amendment rights. Where state constitutional norms conflict,
however, the Court would have to decide which one to prefer, a job “of considerable difficulty and
uncertainty.”
As for whether these rights are permanent or not, Massey concludes, for reasons that
are not made entirely clear, that once such rights are recognized, “they would presumably be immune
from elimination as a constitutional right at the hands of the state polity that sowed the seed of the
federal right.”
On the other hand, it could be acknowledged that, because positive Ninth Amendment rights
have their origin in state constitutions, the substance of federal positive Ninth
Amendment rights varies with the differing state constitutions. On this view, Ninth
Amendment decisional law would develop a richly variegated pattern. A federal
Ninth Amendment right of privacy would be recognized with respect to Californians
and Alaskans, for example, because both states explicitly recognize such a right. In
contrast, Missouri does not recognize that right. As a results, the citizens of each
state would be uniquely and separately entitled to define the nature of their
relationship with all of their governmental agents. They would be able to do this
immediately (with the state via the state constitution) and . . . mediately (with the
national government via the Ninth Amendment’s incorporation of state constitutional
guarantees).
Although this “state-specific” concept of positive Ninth Amendment rights would effectively result
in a different federal constitutional law (with respect to the content of such rights) for each of the
fifty states, Massey quite correctly points out that such a scheme is similar to the current federal
practice, under Erie Railroad Co. v. Tompkins,
under which the federal courts in diversity cases
follow the state law of the appropriate state.
Further, under the state-specific concept of positive
Ninth Amendment rights, unlike under the uniform national concept, a state could eliminate a
positive Ninth Amendment right by eliminating it from its own constitution (although the reason for
this difference in treatment is unclear).
One of the most serious disadvantages of the national concept of positive Ninth Amendment
rights, Massey points out, is the Fourteenth Amendment and the incorporation doctrine. The Bill
of Rights, when enacted in 1791, was intended to bind only the federal government, not the states.
Under the incorporation doctrine, most of the guarantees of the Bill of Rights have been held to be
applicable to the states by reading them into the due process clause of the Fourteenth Amendment.
Although it is unclear whether unenumerated rights applicable against the federal government
through the Ninth Amendment would be applied against states via the incorporation doctrine, it is
possible, and even likely, at least under the national conception of positive Ninth Amendment
rights.
This would mean that positive Ninth Amendment rights would be applied against states by
the federal governments. In the state-specific conception of positive Ninth Amendment rights, this
would amount to the federal government forcing the state to abide by its own law. Massey sees little
problem with this, since “[s]urely, a requirement that a government abide by its own law is the
essence of due process.”
(So formulated, Massey’s conception of due process is bizarre, and the
“surely” here is surely misplaced. For I fail to see how abrogating federalism and transforming the
states from sovereign entities into mere administrative units of the federal government has anything
to do with due process.)
Under the national conception, Massey notes, incorporating positive Ninth Amendment rights
into the Fourteenth Amendment’s due process clause would be likely, and would result in the
constitutional rights of one state being used to override contrary rights in other states. For example,
suppose Louisiana provides for a constitutional right of the fetus to life; while most other states
provide for a constitutional right of a woman to have an abortion performed. Further suppose that
the Supreme Court decides that the right to abortion is to a positive Ninth Amendment right. In this
case, the local decision of some states with respect to the abortion issue would be used to trump the
decisions of other states. For this reason, “[t]he incorporation problem would be experienced most
acutely if a national concept of positive Ninth Amendment rights were adopted. The state-specific
concept . . . avoids these problems.”
In the end, after much vacillating and considering the myriad
and complicated pros and cons of each of the national and state-specific concepts of positive Ninth
Amendment rights, Massey tentatively comes down in favor of the state-specific conception.
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