Congress and the Ninth Amendment
An idea I have been kicking around for about twelve years now, and should finally be writing down this summer: Congress and the Ninth Amendment. I have a lot of dimensions of this question to hunt down, but I am very open to thoughts and suggestions from anyone.
Congress is talking about the Constitution more these days, and that should be good news for Democrats and Republicans alike.
The House’s new Republican majority now requires that proposed legislation include a statement of constitutional authority, identifying which of Congress’s constitutional powers the legislation is based on. This forces both sides to think about, and publicly debate, the proper scope of federal legislation, which is supposed to be directed only at the items (like interstate commerce, defense, etc.) listed in Article I, Section 8 of the Constitution.
Some critics deny that interpreting the Constitution is any of Congress’s business. “It’s the courts’ job,” they say. But the Founders expected Congress and the president to consider the Constitution before passing laws. It worked for a while; many of the greatest constitutional-law arguments in the nation’s first century played out in Senate debates and presidential veto messages, and not in the Supreme Court. Gradually, however, Congresses and presidents relinquished their share of the responsibility. Often now, courts not only get the last word on the Constitution, they get the only word. But the original vision is surely more protective of the Constitution, just as it is healthier to brush and floss your teeth than it is to delegate things entirely to your dentist.
Liberals are understandably unenthusiastic about debating the constitutional bounds of federal power—a debate they thought they won decisively back when Franklin Roosevelt was president. But they (along with conservatives, libertarians, and everyone else) should be excited about a parallel opportunity: to debate the constitutional bounds of rights. In particular, Congress can finally give meaning to the Ninth Amendment.
The Ninth Amendment declares, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In other words, listing some rights in the Bill of Rights doesn’t weaken the unlisted ones. The Supreme Court has never done much with the Ninth Amendment. Unenumerated rights are by definition difficult to identify—there are many theories, but no consensus, on what these Ninth Amendment rights are. Even when the Court concludes that a new right exists, it resists calling it unenumerated, instead contorting the law to find it somewhere in the Constitution’s text and its penumbras.
The Ninth Amendment has much better potential in Congress. Its message is important there, even if it has been forgotten: do not read the Bill of Rights as an exclusive list, with any sort of government action permitted as long as it is not specifically forbidden. This is particularly powerful when combined with Congress’s renewed determination not to leave constitutional interpretation solely up to the courts. Instead of Congress asking only, “Would the Court strike down this law on First Amendment grounds? Second Amendment? etc.?”, it can also ask “Do we think that this violates free speech? Gun rights? Any rights not specified in the Constitution?” The Court will still get its chance to weigh in on a law’s constitutionality, but only if Congress and the president first conclude that the law is constitutional and pass it.
Take privacy as an example. Instead of just dissecting (or ignoring) the Court’s complicated privacy jurisprudence, Congress should make up its own mind on what privacy is all about, and on which government actions cross the line. The debate on one potentially intrusive law could pick up where the last one left off. The public would benefit from hearing what its representatives and senators truly think about privacy, and could keep it in mind when the next election comes along.
There is something here for everyone: the right to abortion and the right to life; the right to health insurance and the right not to have health insurance; the right to class equality and the right to purely individual treatment. Making these things a matter of congressional debate—of shifting political majorities and public opinion—admittedly means that any such rights are weak, and potentially reversed by shifting political whim. But lately, that’s how rights often get treated in court too. This sort of flexibility is unsettling there, but at Congress it is right at home. Besides, since by definition these are rights the Court is not protecting right now, proponents of the right would have nothing to lose.
The Ninth Amendment helps us remember that there is more to rights than what courts write about them, or even than what the Constitution says about them. The more that Congress elevates its discussion about the proper bounds of government power and individual liberty—and the less that those things are left to the sole discretion of our courts—the better off we are.