May 02, 2005

The Libertarian Constitution

by PG

In a discussion of the privacy line of cases (Griswold-Lawrence), a constitutional law classmate remarked that he didn't see why we didn't just use the 9th Amendment -- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" -- to avoid the textualist problem of privacy rights' being penumbral. To say that the states could deny all rights that were not specifically enumerated in the Constitution surely conflicts with the 9th.

I replied that this would give us a libertarian constitution, which he initially didn't see as a bad thing until I pointed out that such a constitution might also deny government the ability to regulate economic liberties. The right of contract is also an unenumerated "right," and it would appeal to originalists as being much more likely to have been contemplated by the elite white males who wrote the 9th than the right to contraception or abortion.

Since the New Deal, the federal government has regulated economics through the necessary and proper exercise of commerce clause power (Darby, Wickard). If contract were raised to the same fundamental right level as privacy, Congress would face a much higher standard (strict or at least heightened scrutiny) in setting the minimum wage or maximum hours than the current rational basis test demands. Assuming incorporation, so would states that sought to regulate the same matters for the sake of the general welfare -- if they even wanted to make such regulations, as many states likely would have a "race to the bottom," setting the lowest minimum wage and highest maximum hours in order to attract business.

In short, those who want to guarantee certain social liberties, but not economic ones, should look at who supports renewing the 9th Amendment -- most prominently of late, Randy Barnett -- before deciding that it's their new best friend. If the 9th Amendment is not an inkblot, it appears to have the potential to be a can of worms.

May 2, 2005 02:39 AM | TrackBack

Kurt Lash has a two-part paper on the 9th Amendment that is available on SSRN and is worth a look. He and Randy Barnett have clashed on the 9th Amendment and I understand that the latter is focusing on further responses to Lash now that the cannabis smoke is dissipating from his eyes. As I recall, Barnett's view of the 9th Amendment seems to be limited to rights in existence (but not enumerated in the Constitution) when the 9th was adopted. There is no "living" constitution for Barnett, nor for Justice Scalia. But Barnett supports the Lawrence decision on the basis of "liberty", pointing out that Kennedy's decision does not reference "privacy". So Barnett is not concerned with Scalia's "slippery slope" with Lawrence (nor with his medical cannabis case) but wants to take us back not to original intent but to original meaning. The subtitle of Barnett's "Restoring the Lost Constitution" is "The Presumption of Liberty". This brings me to this year being the 100th anniversary of the Lochner decision. Barnett and his followers take the position that Lochner was properly decided on liberty grounds. What this all amounts to is an attack on the New Deal. The Cato Institute and other libertarians support Barnett's restoration quest. But perhaps it is Barnett and his fellow originalists and libertarians who are lost. If we had time, we could discuss Barnett's views on the Second Amendment.

Posted by: Shag from Brookline at May 2, 2005 07:03 AM

What I think is more interesting about the Ninth Amendment is its so-called "inkblot status" along with Fourteenth Amendment Privileges & Immunities.

I find it to be the height of jurisprudential hypocrisy when someone says "I don't see that in the Constitution" when at the same time they don't see what is in the Constitution.

Posted by: KipEsquire at May 2, 2005 01:13 PM

My response.

Posted by: Owen Courreges at May 3, 2005 11:16 PM

Great post. I have posted my thoughts here.

Posted by: jon at May 4, 2005 10:14 AM
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