Important stuff from Randy Barnett on the 9th amendment and judicial review. Worth quoting:
Where I most strongly disagree with judicial conservatives is over their stance on unenumerated rights. If it is improper �judicial activism� to ignore the text, structure, and original meaning of the Constitution, then when assessing the proper scope of federal power it is improper to ignore the Ninth Amendment ,which says "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
And when addressing the proper scope of state power, it is improper to ignore the Privileges or Immunities Clause of the Fourteenth Amendment, which reads: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . ."
Judicial conservative deny and disparage both clauses because, in their view, this language provides insufficient guidance to judges to count as "law." .. Unfortunately Justice Scalia has adopted this same skepticism towards unenumerated rights with a vengeance, a stance that skews his entire approach to the Constitution. In contrast, Justice Thomas supported, for example, the judicial protection of the unenumerated right of parents to raise their children, in his concurrence in Troxel v. Granville, while signaling that protection of fundamental rights from infringement by state governments should properly be grounded in the Privileges or Immunities Clause (rather than in the Due Process Clauses). Moreover, he contended that laws interfering with fundamental unenumerated rights should receive strict scrutiny. (Read it -- his concurrence is only 2 paragraphs plus a crucial footnote.) For this and many other reasons, Justice Thomas would have my enthusiastic support to succeed Chief Justice Rehnquist when he retires.
Now I am fully aware that judicial conservatives believe that, because unenumerated rights are supposedly so open-ended, allowing judges to protect them would lead to, in Raoul Berger�s famous phrase, "Government by Judiciary." I will respond to this criticism at length in my forthcoming book Restoring the Lost Constitution: The Presumption of Liberty ..
For now, suffice it to say that, unlike limiting Congress to its enumerated powers which drives Democrats and leftists into a tizzy, discarding portions of the text (and its original meaning) because these provisions fail to meet your vision of the "Rule of Law" -- as judicial conservatives do both on and off the bench -- is something that may accurately be called �conservative judicial activism.� And it's no different than those on the left discarding the text because it fails to meet their vision of "Justice."
It�s a shame that many conservative Republicans do not understand all this because, if the protection of unenumerated liberties was added to their sometime support for limiting federal powers and their better-than-the-left enthusiasm for free speech, their views would not only be correct, they would resonate with the vast majority of Americans -- resulting in more and better judicial appointments.
When I worked at CATO I did a very small bit of library research on the 9th amendment for Randy (who likely had no idea who was doing it). Even before doing this research I'd thought that this line of thinking was important (taking my own cue from Marbary vs. Madison and the "English Constitution" as much as from the 9th). Barnett continues to show just how deep and strong the idea of unenumerated rights is for our understanding liberal constitutionalism.
Posted by Greg Ransom
