fbpx

Protecting Traditional Rights with the Ninth and Fourteenth Amendments

In my last post, I explored in what way Hayek might be thought of as an originalist. I wrote that Hayek relied to a significant extent on the 9th Amendment and the Privileges and Immunities Clause for his claim that the Constitution was intended to protect traditional principles that were not textually listed. In this post, I want to explore what I regard as the meaning of these two clauses and whether they serve the purposes that Hayek imagines for them.

Hayek states the problem as such. Having dispensed with the 9th Amendment and Privileges and Immunities Clauses, judges found “themselves in a somewhat peculiar position when they encountered uses of legislative power which, they felt, it had been the intention of the Constitution to prevent but which the Constitution did not explicitly prohibit.” Hayek states that the Supreme Court used the Due Process Clause but that they should have been able to use the 9th Amendment and Privileges and Immunities Clauses.

The 9th Amendment provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Hayek sees this as a reference to unenumerated rights (which it seems to be) and as suggesting that those rights should be treated as constitutional rights enforceable by judges (which is far more questionable). After all, the text of the Amendment does not say that these unenumerated rights should be protected as constitutional rights, which it could have done far more clearly.

There are a couple of possible meanings of the 9th Amendment which I find plausible. Here let me mention one of them defended by Michael McConnell. As I stated in a previous blog post, under this view, the 9th Amendment

protects certain natural rights, but not by conferring constitutional status on those rights. Instead, it protects those rights as natural rights [in the way that natural rights] were protected prior to the Constitution’s enactment. Such rights were protected through equitable interpretation. That is, if a congressional statute were to appear to infringe on such a natural right, it should not be interpreted to have that effect unless the statute’s language was clear on the matter. Otherwise, it should be assumed that Congress did not intend to infringe on a natural right. This is both a natural interpretive rule and the way that natural rights were protected prior to the Constitution.

It also fits the 9th Amendment text quite well.

If this is the correct meaning of the 9th Amendment, would it operate to protect the rights that Hayek believes the Constitution was intended to protect? To a certain extent, yes. Certainly, some of the natural rights would protect the individual rights, including property rights, that Hayek is concerned about. Ultimately, how many of these rights are protected will turn on how extensive the natural rights were and whether Congress is willing to make the clear statement necessary to override those natural rights.

Now consider the Privileges and Immunities Clause, which provides that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Again, there are many interpretations of the Clause, but in my opinion the best view is the following. The privileges or immunities of citizens of the United States are the privileges that are enjoyed by citizens throughout the nation. What are those privileges or immunities? The ones that citizens have been provided by a very large proportion of the states (and which have been provided for a significant period of time). Under this view, this Clause has the effect of ensuring that no state can take away privileges that have been traditionally respected by the states of the country.

Thus, here is a provision that affords protection against “uses of legislative power which [judges] felt, it had been the intention of the Constitution to prevent but which the Constitution did not explicitly prohibit.” These traditional rights would be protected by the Privileges and Immunities Clause. While the Clause only applies against the states, it would protect many of the rights about which Hayek was concerned.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on September 19, 2018 at 10:39:34 am

Well, I strongly disagree with both of your proposed interpretations. Let’s start with the Ninth Amendment. The problem with the two interpretations you suggest (First, that such rights are not enforceable by judges, Second, that the rights are merely a tool of statutory construction), is that both of these two interpretations ignore a word in the text of the amendment. That is the word “disparage.” Not only can unenumerated rights not be denied due to the Ninth Amendment, they cannot be disparaged either. What does it mean to disparage a right? It means to give it a lower status. To acknowledge that the right exists, but deny that such a right can be enforced in the same way is to create a kind of second class of rights, or in other words to disparage those rights. Likewise to say that enumerated rights can be used to invalidate statutes, but that unenumerated rights can only be used to help interpret and cannot be used to invalidate statutes, makes those rights a second class rights in comparison to the enumerated rights. In doing so, both of these interpretations ignore the explicit text and original meaning of the amendment. Whatever those rights protected by the Ninth Amendment are (and I think they are the natural rights spoken of in the Declaration of Independence), they must be protected as much as any enumerated right.

As to the Privileges or Immunities Clause (which you mistakenly call the Privileges and Immunities Clause, that is the clause in Article IV, Section 2, Clause 1), what you describe is a one way ratchet of rights. Once a certain (undescribed) number of states adopt a right then it is your view that judges should prevent such rights. This creates a right ratchet effect where even if all the current states agree that such a right is improper, that none of them can take it away as judges should stop each of them. I find this interpretation highly improbable and contrary to the discussions that occurred when the amendment was proposed in Congress.

Instead, the Privileges or Immunities Clause has two parts, it protects the “privileges . . . of citizens of the United States” and the “immunities of citizens of the United States.” Each of these two parts has a different meaning.

The immunities of citizens of the United States are the natural rights of the citizens of the United States. Or as Sen Trumbell described it introducing the Fourteenth Amendment it is "the great fundamental rights belonging to free citizens. The introducers of the Fourteenth Amendment specifically used the rights described in Corfield as examples, including the right the right to “Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” It includes those natural rights protected by the Civil Rights Act of 1866 (which the Fourteenth Amendment was designed to constitutionalize) including the right "to inherit, purchase, lease, sell, hold, and convey real and personal property.” This gives to the Federal Government the power to enforce these natural rights against state interference (where previously it was up to the states to protect their own natural rights).

The privileges of citizens of the United States are those rights guaranteed against government interference by the government. In other words it is the positive rights in the federal Constitution of which citizens are protected against government. The right to freedom of speech is a natural right and protected by the “immunities of citizens of the United States” part (not the privileges part), as the First Amendment only prohibits Congress from abridging that natural right that already exists. But a right like the right to a jury trial in civil cases in the Seventh amendment is a positive rights granted by government, and it is these federal positive constitutional rights which had previously only existed against the Federal Government that were now applied to the states.

read full comment
Image of Devin Watkins
Devin Watkins
on September 19, 2018 at 16:34:04 pm

"Ultimately, how many of these rights are protected will turn on how extensive the natural rights were and whether Congress is willing to make the clear statement necessary to override those natural rights."

Gee whiz, kids, are we seeing a re-statement of Footnote Four dressed up in "originalist garb?

Earlier, we observed McGinnis (inadvertently advocating for a form of Living constitutionalism via "consequentialism"; now we have Rappaport advocating for Judges to embrace Footnote Four.

OK, I must be in a time warp or something! Excuse me.
(And yeah, Mike, I am exaggerating).

read full comment
Image of gabe
gabe
on September 19, 2018 at 16:43:50 pm

Devlin:

Nice *parsing* of difference between "privilges" (positive rights) and "immunities" - quite sensible.

I refer to Rappaports approach as a "restatement of Footnote four in "originalist garb" and preemptively lament the consequences of such an approach.

That being said however, Justice Washington, himself allows as to the propriety of government to *limit* these rights as appropriate.

1) where do you stand on that? do you agree that this phrase by Bushrod Washington implies support / recognition of (extensive) State Police Powers?

2) Kurt Lash takes Justice Washington to task for this "extensive "listing of unenumerated rights notwithstanding his sop to State Police Powers. What say you?

read full comment
Image of gabe
gabe
on September 19, 2018 at 18:08:34 pm

The state cannot “limit” or put exceptions on any natural right (as that right was not created by the state). But most statutes simply cannot violate natural rights because they are of the variety (using Blackstone’s formulation) that “restrains a man from doing mischief to his fellow citizens.” Another formulation of this concept was “for the good of the whole” which is not “for the benefit of the majority” but instead benefits each and every person. No valid use of the state police powers violates natural rights as there must be a harm prevented to properly use the police powers.

There are lots of unenumerated because there are lots of actions which do not cause harm to others. If I choose to wear a hat (or not) is a natural right because the act doesn’t harm others (so it is a part of your natural right to liberty). Kurt Lash is just wrong, and Washington and the Founders setup our government to protect the natural rights expressed in the Declaration of Independence.

read full comment
Image of Devin Watkins
Devin Watkins

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.