The Ninth Amendment

 Law  7 Responses »
Mar 122003
 

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” What are these unenumerated rights?

Many theorists, of whom Robert “Inkblot” Bork is the most notorious, have denied that unenumerated rights exist at all. The dominant school of legal philosophy, legal positivism, which holds that the only source of rights is the law itself, obliges its adherents to take this position. Unenumerated rights, implying an extralegal standard, are for the positivist a contradiction in terms. Frank positivists, like Bork, say that the Ninth Amendment is meaningless; less frank positivists, like Justice Robert Jackson, simply profess not to understand it. All positivists devoutly hope that if they ignore the Ninth Amendment it will go away. Historically this strategy proved highly effective. Before Justice Goldberg’s famous concurrence in Griswold v. Connecticut in 1965, the Ninth Amendment had been cited by the Supreme Court fewer than a dozen times.

Reciprocists, in a variation on the theme, claim that the Ninth Amendment is a mirror-image of the Tenth, which grants all unenumerated powers to the States or the people. The Ninth grants rights, the Tenth restricts powers, and rights begin where powers end. They’re two ways of saying the same thing. Reciprocism has been surprisingly popular, considering its insuperable problems. There are all sorts of enumerated rights, like the right to be free of cruel and unusual punishment and excessive fines, or the right to a trial by jury, that aren’t implied by the absence of a federal power. The Federalists made this same reciprocal argument against a Bill of Rights at the Convention, and they lost. “It is odd indeed,” as Randy Barnett* says, “to insist that the best interpretation of the Bill of Rights is based on the theory of its most vociferous opponents.”

The text doesn’t support reciprocism either. State governments are enjoined from violating whatever rights the Ninth may grant, by the doctrine of incorporation, which reads the Fourteenth Amendment as applying the Bill of Rights to the states. Incorporation clearly must include the Ninth Amendment; otherwise the rights it grants would be “disparaged” by comparison with the enumerated rights. So the Ninth enjoins state and federal governments equally, while the Tenth grants powers to state governments that the federal government does not possess. These are distinct propositions.

(I have never understood the necessity for incorporation doctrine. Every article of the Bill of Rights except the first is phrased in the passive voice: “the right to bear arms shall not be infringed,” “excessive fines shall not be imposed,” etc. These rules seem to me to enjoin the state governments equally with the federal, ancient case law to the contrary notwithstanding. But until I persuade the Supreme Court to go along with this view incorporation will have to do.)

There are other variations. Raoul Berger argues that even if Ninth Amendment rights exist, they can’t be enforced by the federal government, which is a pretty undistinguished argument from such a distinguished legal scholar. If they aren’t enforceable, how they can be rights at all? If that’s not “disparagement,” relative to enumerated rights, I don’t know what is.

All of these theories effectively read the Ninth Amendment out of the Constitution, thus violating the first principle of Constitutional interpretation: every clause has an effect. This has been reaffirmed countless times and was first stated by Chief Justice Marshall in Marbury v. Madison: “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it.”

There must be some unenumerated rights that are not implied by the enumerated restraints on government power. A few theorists acknowledge this; but as their next line of defense propose to read these rights as narrowly as possible. Calvin Massey, for example, proposes that they be limited to “those having a clear textual foundation in state sources in existence at the time of the Constitution’s adoption.” Of all the clauses in the Constitution the Ninth Amendment, which is deliberately open-ended, lends itself least readily to this sort of historical analysis. The Founders could have easily enumerated these rights from the states if that was what they had in mind.

I see only one way to construe the Ninth Amendment, and it requires, as one might expect, the Founders steeped as they were in Blackstone and Locke, natural rights theory. Now I’m as leery of this venture as the next blogger without a law degree, maybe more so. Generally I’m a pretty strict textualist in matters of Constitutional interpretation, but the Ninth Amendment commands us to look outside the text. This doesn’t mean judges can construct new rights willy-nilly. They must be constructed by analogy with, and under the same philosophy that informs, the enumerated rights. All enumerated rights involve either spheres of action in which the government cannot interfere (e.g., freedom of speech, press, and assembly) or procedural restraints when it can (e.g., trial by jury, unreasonable search). Unenumerated rights must be of the same nature. So there can be no Ninth Amendment right to, say, welfare, or, as Ronald Dworkin has proposed, to “equal dignity.”

John Hart Ely, who himself takes refuge in Ninth Amendment reciprocism, calls this “scary,” and I agree with him. But Constitutional interpretation is a scary business, and in any case, the judiciary constructs rights all the time. The Supreme Court has decreed, besides the famed right to privacy, a right to travel, a right to marry, a right to keep one’s citizenship, and many others, mostly under cover of murky and abstruse doctrines like “equal protection” and “substantive due process.” I wholeheartedly support such decisions as Loving v. Virginia, which struck down anti-miscegenation laws, and Griswold, which struck down restrictions on the sale of birth control. I merely object to the tortured reasoning to which the majority subscribed in these and related cases. Judges make moral and philosophical judgments, and the Ninth Amendment authorizes them to do so, in plain sight.

*Most of the arguments in this article, good and bad alike, come from one or another of the contributors to Barnett’s excellent anthology of essays on the Ninth Amendment.

Veiled Threat Department

 Business, Culture  6 Responses »
Mar 112003
 

“May your thoughts be as deep as your pockets,” a Citibank advertisement suggests. Oh yeah, that would fix me right up. Maybe my thoughts should have holes in them too, to complete the analogy. I don’t know if this is a national campaign, but Manhattan, at least, is full of Citi ads with seriously annoying fortune-cookie advice like “He who dies with the most toys is dead” and “Collecting interest does not count as a hobby” and “It’s a financial statement, not a scorecard.” The tagline is “live richly,” as if their concern was not with my finances but my well-being. I guess just asking them to collect my checking fees, keep their ATMs full, post their money market rates, and shut up would be too much.

I can barely tolerate Philip Morris commending shopkeepers for not selling cigs to minors and Anheuser-Busch moralizing against driving drunk, because I know they’ve got a gun pointed at their heads. Citibank lacks that excuse. In a world full of busybodies, do we really need a busybody multinational bank?

Sunday Epistemology

 Philosophy  11 Responses »
Mar 092003
 

Roderick Long posts an excellent two-part series (here and here) on Ayn Rand’s epistemology and its resemblance to Wittgenstein’s, of all people. Objectivist epistemology has never quite satisfied me. Rand rightly rejects the false dichotomy of nominalism and essentialism, and I can go along with concept-formation as selective attention, but she loses me, and Long, with her claim that all concepts involve measurement omission, particularly since she never supplies an example of how one might measure a highly abstract concept like justice or, to set the bar even higher, existence. (Peikoff, in Objectivism: The Philosophy of Ayn Rand, recognizes the difficulty. He has a crack at “thought,” which he supposes to be measurable by its content, intensity, effort and clarity, among other things, but he is not notably persuasive.) Rand gets entangled in one of the classic utilitarian problems: if we’re going to measure, or in this case omit to measure, we need units. Sometimes they’re available, sometimes not.

(Update: Ian Hamet comments.)

Why I Never Liked T.S. Eliot

 Poetry  2 Responses »
Mar 072003
 

Chard Whitlow
(Mr. Eliot’s Sunday Evening Postscript)

As we get older we do not get any younger.
Seasons return, and today I am fifty-five,
And this time last year I was fifty-four,
And this time next year I shall be sixty-two.
And I cannot say I should like (to speak for myself)
To see my time over again — if you can call it time:
Fidgeting uneasily under a draughty stair,
Or counting sleepless nights in the crowded tube.

There are certain precautions — though none of them very reliable —
Against the blast from bombs and the flying splinter,
But not against the blast from heaven, vento dei venti,
The wind within a wind unable to speak for wind;
And the frigid burnings of purgatory will not be touched
By any emollient.
I think you will find this put,
Better than I could ever hope to express it,
In the words of Kharma: “It is, we believe,
Idle to hope that the simple stirrup-pump
Will extinguish hell.”
Oh, listeners,
And you especially who have turned off the wireless,
And sit in Stoke or Basingstoke listening appreciatively to the silence,
(Which is also the silence of hell) pray, not for your skins, but your souls.

And pray for me also under the draughty stair.
As we get older we do not get any younger.

And pray for Kharma under the holy mountain.

–Henry Reed

Mitigating factor: Eliot said about this poem: “Most parodies of one’s own work strike one as very poor. In fact one is apt to think that one could parody oneself much better. (In fact some critics have said that I have done so.) But this one deserves the success it has had.”

(Update: Felicity McCarthy comments.)

Pool Alert

 Blogs  No Responses »
Mar 072003
 

Peter Briffa is giving up his prime source of idiocy, the Grauniad (such a shame he can’t click this), for Lent, so he says. Cinderella, unable to quit himself, has settled for taunting Briffa. He’s running a pool for when Briffa will crack. All losers must link, humbly, to the winner. Get your entry in today!

Why I Love The New York Post

 Sports  No Responses »
Mar 062003
 

Last night the Washington Wizards lost a key game in the playoff race in which Michael Jordan left with an injury, and the Post’s headline was: “Wizards lose Air, ground.” Would you get that in the Times? You would not.

I Know Just the Cop for Khalid Shaikh Mohammed

 Law, Movies  10 Responses »
Mar 062003
 

There has been considerable discussion of the ethics of police torture in the blogosphere without a single invocation of the seminal American text on the subject, a work with which all of these distinguished ethicists are doubtless familiar. I refer, of course, to Dirty Harry.

That famous torture scene on the football field has its troubling aspects. Callahan makes a point of ordering his partner, “Too Much Linguine” DiGiorgio, out of the stadium: “Go out and get some air, Fatso.” He knows he’s about to cross the line. He doesn’t want to make DiGiorgio complicit, but he doesn’t want witnesses either.

It’s also no certainty that the man they’re chasing is even the killer, although it’s highly probable. Nobody has had a good enough look at him to provide a physical description, and the only positive ID they have is from the ER doctor who treated his stab wound. It’s conceivable that someone else could show up at a big city hospital with the same sort of wound at the same time. But this is more than good enough for Callahan.

Callahan is also quite sure the girl, whose life he’s supposed to be interested in saving, is already dead. He tells the Mayor and the Police Chief so in an earlier scene, and Scorpio confirms his hunch by telling him in the bagman scene in the park that “I’ve changed my mind. I’m going to let her die. I just wanted you to know that.” And in fact the girl is dead. Callahan tortures Scorpio because he enjoys torturing criminals. In the famous bank robbery scene — “six shots, or only five?” — he fires the empty at the robber’s head only partly because the robber asks him to (“I gots to know”). Mostly he does it for jollies. If you doubt me take a good look at the grin on his face when the gun clicks.

Callahan does manage to discover the murder weapon (in an illegal search) and the location of the dead girl, so in a certain sense the torture is effective. In the long run, however, it proves disastrous. Callahan saunters into the District Attorney’s office the next morning expecting a hero’s welcome; instead he is informed that Scorpio isn’t going to prosecuted.

DA: You’re lucky I’m not indicting you for assault with intent to commit murder.
Callahan (doing classic Eastwood slow burn): What?!
DA: Where the hell does it say you’ve got a right to kick down doors, torture suspects, deny medical attention and legal counsel. Where have you been? Does Escobedo ring a bell? Miranda? I mean, you must have heard of the Fourth Amendment. What I’m saying is, that man had rights.
Callahan: Well, I’m all broken up about that man’s rights.
DA: You should be. I’ve got news for you, Callahan. As soon as he’s well enough to leave the hospital, he walks.
Callahan: What are you talking about?
DA: He’s free.
Callahan: You mean you’re letting him go?
DA: We have to, we can’t try him.
Callahan: And why is that?
DA: Because I’m not wasting a half a million dollars of the taxpayer’s money on a trial we can’t possibly win. The problem is, we don’t have any evidence.
Callahan: Evidence? What the hell do you call that? (He gestures toward Scorpio’s weapon on a side table.)
DA: I call it nothing, zero.
Callahan: Are you trying to tell me that Ballistics can’t match the bullet up to this rifle?
DA: It doesn’t matter what Ballistics can do. This rifle might make a nice souvenir. But it’s inadmissible as evidence.
Callahan: And who says that?
DA: It’s the law.
Callahan: Well then, the law is crazy.

Also in attendance is a Judge Bannerman, a professor of constitutional law — at Berkeley, naturally, which provokes, in me at least, some residual sympathy for Callahan. Bannerman summarizes the matter dryly:

The search of the suspect’s quarters was illegal. Evidence obtained thereby, such as that hunting rifle, for instance, is inadmissible in court. You should have gotten a search warrant. I’m sorry, but it’s that simple…The court would have to recognize the police officer’s legitimate concern for the girl’s life, but there is no way they can possibly condone police torture. All evidence concerning the girl — the suspect’s confession, all physical evidence — would have to be excluded…

Now, the suspect’s rights were violated, under the Fourth and Fifth and probably the Sixth and Fourteenth Amendments. Without the evidence of the gun and the girl, I couldn’t convict him of spitting on the sidewalk.

So is Callahan justified in torturing Scorpio? Legally, no way. He scotches a case that the State had a good chance of making. Morally, unclear. Part of his motive is to try to save the girl, unlikely as that is, but part of it is sadism. The movie doesn’t approve torture by any means, despite its reputation. Eastwood himself clearly wanted a chance to clean up Callahan’s act: the first sequel, Magnum Force, casts police vigilantes as the villains, against whom Callahan stands for law, order, and proper police procedure. (It is unsatisfactory for this very reason, among others.) If arch-badass Clint Eastwood is queasy about police torture, I’m not surprised that mild-mannered law professor Eugene Volokh is too.

(Update: Arthur Silber has some well-considered thoughts — on torture, not Dirty Harry.)

Like a Friend

 Literature  6 Responses »
Mar 022003
 

Will Duquette, proprietor of a fine blog of mostly book reviews, recently praised The Passion of Artemisia by Susan Vreeland by saying that when he was finished he knew the main character “like a friend.” That never seems like praise to me. I know dozens of fictional characters far better than I know any of my friends. I talk to my friends maybe twice a week; an author has direct access to his characters’ thoughts and actions 24 hours a day, plus, presumably, psychological insight and talent. He ought to be able to do better than I can. I would not testify, in advance, that any of my friends was incapable of committing some ghastly crime; I would take the stand for Newland Archer or Caspar Goodwood without hesitation.

Artemisia is a historical character, but still, you devote a few years to someone’s life and you ought to have a pretty good idea what makes them tick. “Like a friend” seems like a pretty abysmal standard.

Group Theory

 Blogs, Politics  7 Responses »
Mar 022003
 

The other day D-Squared called Steven Den Beste a nasty name for daring to mourn the people killed on September 11th. Den Beste, you see, lives in San Diego, and he didn’t know any of the New Yorkers who died, so mourning, in his case, is “grave-robbing.” Now this raises a nice question. Just what sort of relation will do? Apparently family, friends, and professional colleagues all qualify. (In another post D2 magnanimously lets Ann Coulter, who had a friend who died in one of the planes, off the hook.) Interestingly, mourning fellow members of humanity is OK too, as long as they aren’t fellow Americans; at least I haven’t seen D2 complain about “grave-robbing” when lefties shed crocodile tears over the hundreds of thousands of Iraqis that American sanctions are supposed to have killed.

So it’s not a matter of proximity, and it’s not a matter of choice either, since we choose our colleagues only incidentally and our families not at all. It seems, in fact, that only countrymen are out of bounds, and only patriotism is objectionable. Moral high-mindedness, or reflexive anti-Americanism? You make the call.

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