ࡱ> fheq` ZbjbjqPqP ;n::bR^8888888<<<8t,$J(Bj&!#######$c%h'r#8"((""#884#t#t#t#"|88#t#"#t#t#88t# ' <"vt###0$t#=("|=(t#=(8t#$t#"""##t#"""$"""" <<Ld@888888 4 JLPOL 63 (Cite as: 4 J.L. & Pol. 63) Journal of Law and Politics Summer, 1987 *63 LIMITED GOVERNMENT AND INDIVIDUAL LIBERTY: THE NINTH AMENDMENT'S FORGOTTEN LESSONS  HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=++++1.0&vr=2.0&DB=PROFILERWLD&DocName=0190480701&FindType=h" Charles J. Cooper [FNa] The ninth amendment received its most famous judicial exposition in Griswold v. Connecticut, [FN6] where the Supreme Court held that a Connecticut statute criminalizing the use of contraceptives could not constitutionally be applied to married couples. Justice Goldberg, concurring in Griswold, relied upon the ninth amendment in arguing that the Connecticut statute infringed upon the fundamental 'right of privacy in the marital relation.' [FN7] In the same vein, Justice Douglas suggested a few years later that 'the right of the people to education or to work or to recreation . . ., like the right to pure air and pure water, may well be rights 'retained by the people' under the ninth amendment.' [FN8] Even conservative scholars look to the ninth amendment for a grant of unenumerated rights. For instance, Stephen Macedo, in his booklet The New Right v. The Constitution, argues that the ninth amendment explicitly calls upon the judiciary to engage in 'principled judicial activism' based upon 'sound moral thinking . . . and . . . our political tradition.' [FN9] He seems to have in mind a jurisprudential revival of the line of cases exemplified by Lochner v. New *66 York. [FN10] As the balance of my remarks will seek to demonstrate, these interpretations turn the ninth amendment on its head. The rights protected by the ninth amendment derive from the absence of a power delegated to the federal government; accordingly, they can be enforced only against the federal government, not against the states. The history of the ninth amendment compels this conclusion. I. The Failure of the Constitutional Convention to Enumerate Individual Rights Most nonlawyers would be surprised to learn that the Constitution signed by the framers 200 years ago this September did not include a bill of rights. And, they would probably be shocked to discover that the Framers paid scant attention to individual rights during the four months that they were convened in Philadelphia. Throughout the summer of 1787, the delegates devoted most of their energies and attention to the structure and powers of the national government. The first reference to a federal bill of rights was not made until August 20th, almost three months after General Washington had called the Constitutional Convention to order. Charles Pinckney, the twentynine yearold South Carolinian, submitted a detailed bill of rights to the House. [FN11] His propositions, which included many of the freedoms later incorporated into the first eight amendments, were referred to the Committee of Detail without debate or consideration. [FN12] Apparently, the Committee of Detail did not believe that the Constitution needed a bill of rights, for the issue was not raised again until the last week of the Convention. Then, on September 12th, George Mason suggested that the Constitution be prefaced with a bill of rights. [FN13] The Virginian argued that a declaration of rights would 'give great quiet to the people.' [FN14] As the principal author of Virginia's Declaration of Rights, Mason assured his fellow *67 delegates that the Convention could prepare a federal bill of rights in a matter of hours by using the state declarations of rights as models. [FN15] Evidently persuaded by Mason's arguments, Elbridge Gerry of Massachusetts moved that a bill of rights be added to the Constitution, and the motion was seconded by Mason. [FN16] At this point, Roger Sherman of Connecticut rose to argue against a federal bill of rights. Sherman thought that a federal bill of rights would be redundant because the rights of the people already were protected adequately by state constitutions. [FN17] Mason responded that the state bills of rights would provide no protection from the new national government because, under the proposed Constitution, federal law would be supreme. [FN18] The Convention nevertheless rejected Gerry's motion to include a bill of rights in the Constitution. In fact, the rejection of the motion was unanimous, Mr. Mason having failed to convince even his fellow Virginians of the merit of his position. [FN19] Given that Roger Sherman's reliance upon state constitutions was so obviously wrong, it may seem puzzling that the Convention rejected Mason's proposal. Later in the same week, however, some light was shed on the more likely reason that lay behind the delegates' vote. On September 14th, Pinckney and Gerry moved to insert a clause in the Constitution which would declare 'that the liberty of the Press should be inviolably observed.' [FN20] At this point, Mr. Sherman again voiced an objection, but this time he argued that such an amendment was unnecessary because ' t he power of Congress does not extend to the press.' [FN21] The delegates, apparently agreeing with Sherman, defeated the motion. [FN22] Just three days later, the Convention met for the last time and the Constitution was signed. Mason and Gerry refused to affix their signatures to the document, in large part because it did not include *68 a bill of rights. [FN23] These two men, along with others who came to be known as AntiFederalists, continued to attack the Convention's failue to adopt a bill of rights throughout the ratification debates. II. The Ratification Debates and the Call for a Bill of Rights In order to unerstand fully the purpose of the ninth amendment, one must be familiar with the nature of the debate over the ratification of the Constitution. The Federalists, led by Alexander Hamilton, James Madison, and James Wilson, opposed a federal bill of rights for two reasons: they believed that a bill of rights was unnecessary, and, more importantly, they believed that it was dangerous. On the other hand, the AntiFederalists, led by George Mason and Elbridge Gerry, asserted that a bill of rights was essential to safeguard individual rights. Both sides agreed, however, that there were certain fundamental rights of the people that could not be abridged by the national government. The Federalists believed that a bill of rights was unnecessary because the structure of the national government adequately protected the rights of the people. Their structural argument was premised on the notion that the national government would be one of enumerated, and therefore limited, powers. The people were protected by virtue of the fact that the federal government in most cases would lack the power to act in a manner that might affect their civil liberties. The Federalists' theory is perhaps best illustrated by the position that they took on the proposed amendment protecting freedom of the press. They argued that such an amendment was unnecessary because the national government lacked the power to control the press in the first instance. James Wilson, the famed Pennsylvania lawyer and one of the foremost opponents of a federal bill of rights, asked: '[W]hat control can proceed from the federal government to shackle or destroy that sacred palladium of national freedom?' [FN24] He *69 conceded that an amendment would be necessary if 'a power similar to that which ha d been granted to Congress for the reglation of commerce, had been granted to regulate literary publications.' [FN25] However, since Congress lacked the power to regulate the press, the porposed amendment to the Constitution would be superfluous. Alexander Hamilton viewed the issue in precisely the same manner. Writing in support of ratification, he asked: 'Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?' [FN26] It is important to remember, of course, that the structure of the national government under the Constitution protects more than just freedom of the press and other individual rights that might be deemed to be 'fundamental.' The structure chosen by the Framers also established the right of individuals, vis vis the national government, to do anything that the newlyconstituted government lacked the power to prevent them from doing. The Framers were well aware of this fact when them chose to grant the national government only specifically enumerated powers. As General Lawshington, the president of the Convention, wrote to his friend Lafayette: 'The people evidently retained every thing which they did not in express terms give up.' [FN27] Quite apart from the question of whether an express enumeration of individual rights was a necessary safeguard against government encroachment, the framers of the original Constitution elected against such an enumeration because of the danger of omission. James Wilson explained the matter succinctly to the Pennsylvania Ratifying Convention: 'If we attempt an enumeration [of rights], every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.' [FN28] Wilson thought that 'an omission in the enumeration of the powers of government is neither *70 so dangerous nor important as an omission in the enumeration of the rights of the people.' [FN29] Thus, as Wilson's statement makes clear, the Federalists feared that the enumeration of rights might imply that the national government had the power to abridge any right not expressly preserved. The Framers' belief that the people retained the right, visvis the federal government, to do anything that the national government lacked the delegated power to prevent them from doing created a body of rights that was virtually limitless. No one could hope to catalogue all of these rights, and Wilson was indignant at the suggestion that such a task should have been undertaken in the Constitutional Convention. During the ratification debates, he exclaimed: 'Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.' [FN30] The Federalists' fear of a bill of rights can perhaps be illustrated by considering a hypothetical situation in which a law professor importunes one of his firstyear students to purchase a new BMW sedan for him during the student's summer trip to Europe. The professor, who is involved in the Critical Legal Studies movement, has only a fuzzy recollection of 'black letter' law, but he nonetheless sets about drawing up the necessary papers. He first drafts an instrument that grants the student the power to acquire a new BMW on his behalf. Although this power of attorney does not expressly forbid the student from acting as the law professor's agent on other matters, the law professor is adequately protected. Under the ancient canon of construction expressio unius est exclusio alterius, the expression of one thing means the exclusion of another. [FN31] Therefore, the explicit mention of the student's authority to purchase the car firmly implies that the student lacks the authority to act with respect to other matters. The instrument that the professor has drafted would be called a special power of attorney. Before the law professor gives the student this special power of attorney, however, he discusses the matter with his wife, who is the *71 Anti Federalist of the family. Not surprisingly, she is a little wary of placing so much trust in any student, particularly a firstyear law student. The wife suggests that the student might purchase, on the professor's behalf, 500 kegs of beer in Bavaria. The professor at first shrugs off his wife's suggestion because he realizes that the instrument that he has drawn up cannot logically be construed as authorizing the student to take such an action. But the more he thinks about the matter, and about this particular student, the more concerned he becomes. Because he decides it is better to err on the side of caution, the professor amends the original instrument to provide expressly that the student lacks the authority to purchase beer on his behalf. After making this change, the professor gives the student the power of attorney and bids him farewell. A few weeks later the professor receives the following telegram from the student: Congratulations on your recent acquisition of a BMW sedan, per your specifications. STOP. Car shipped to Baltimore, as directed. STOP. While in Germany, also got great deal for you on Mercedes Benz convertible 450SL. STOP. Handles great, and ladies here in Paris love it. STOP. Wish you were here. The law professor is outraged that the student, while acting as his agent, has purchased two cars. He immediately takes a copy of the power of attorney to his colleague, a 'contracts' professor, who notes that the original agreement would have made it clear that the student's authority was limited to the acquisition of a BMW sedan. The amendment that was made as an extra precaution, however, made the agreement ambiguous. Because the amendment stated that the student did not have the power to purchase beer, it could be argued that the student was authorized to take any other action as the professor's agent. This hypothetical captures fairly well the Federalists' fear of a bill of rights. James Iredell of North Carolina, one of the leading Federalists, said that the grant of authority to the national government could 'be considered as a great power of attorney, under which no power can be exercised but what is expressly given.' [FN32] *72 The Federalists clearly believed that if specific limitations were placed on this 'power of attorney,' it might follow by implication that the federal government had the power to take any action that was not inconsistent with these explicit prohibitions. III. The First Congress' View of the Ninth Amendment In many states, including Virginia, the Constitution was ratified only on explicit assurances that the First Congress would propose a bill of rights. Nonetheless, many Federalists continued to oppose a bill of rights, and the desirability of amending the Constitution was debated in the House of Representatives of the First Congress. One of my favorite statements during these debates concerned the necessity for a constitutional amendment explicitly protecting the right of peaceable assembly. Congressman Sedgwick of Massachusetts objected to such an amendment on the ground that 'it is a self evident, inalienable right which the people posses . . . [and] that never would be called in question . . .' [FN33] Sedgwick argued that if the House was going to 'descend to such minutiae,' [FN34] it may as well have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper; but [I] would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed. [FN35] Despite the opposition to a bill of rights by Federalists such as Representative Sedgwick, the first ten amendments were adopted by Congress in 1789 and ratified by the states two years later. The first eight amendments, of course, positively disable Congress from enacting certain kinds of legislation. The ninth amendment, on the other hand, was not intended to grant any additional rights to the people. Instead, it was crafted specifically to respond to the concern *73 that an enumeration of rights retained by the people would imply that the enumeration was exhaustive. In introducing his proposal for a bill of rights on the floor of the House, Madison stated: It has been objected also against the bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I ever heard urged against the admission of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution. [FN36] The final clause of the resolution to which Madison was referring was framed as follows: The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution. [FN37] Since the Framers understood that delegated powers and retained rights were two sides of the same coin, the clause in Madison's proposal negating any implied purpose 'to diminish the just importance of other rights retained by the people' was entirely redundant to the clause negating any intent 'to enlarge the powers delegated by the Constitution.' Neither clause added anything of substance to the other. Accordingly, the meaning of the ninth amendment was not changed when Madison's original proposal was amended by the House to delete reference to delegated powers. Indeed, the congruence of meaning between Madison's original proposal and what ultimately became the ninth amendment was confirmed by Madison himself, in a letter to George Washington. Madison was advising President Washington of Edmund Randolph's opposition to Virginia's*74 ratification of the ninth amendment. Governor Randolph had argued against the enlargement of delegated powers rather than a preservation of retained rights. Madison found Randolph's point 'altogether fanciful.' [FN38] As he put it, [i]f a line can be drawn between the power granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended. If no line can be drawn, a declaration in either form would amount to nothing. [FN39] Thus Madison states clearly that the wording of his original proposal and the ninth amendment are merely two complementary ways of saying the same thing namely, that with respect to any field of endeavor over which the national government lacked delegated power, the American people retained the right, vis vis the national government, to do as they pleased. IV. Application of the Bill of Rights A. James Madison and the Alien and Sedition Act A few years after the ratification of the Bill of Rights, James Madison employed the principle of the ninth amendment to argue against the Alien and Sedition Act of 1798, which made it a crime to write or utter anything that would tend to bring officials of the federal government into disrepute. The Virginia and Kentucky legislatures circulated resolutions objecting to such laws. In support of the Virginia resolution, James Madison drafted a detailed committee report that included a demonstration of the constitutional infirmity of the Sedition Act. Madison's analysis still stands as one of the alltime best examples of the correctand now largely forgottenway to approach illegitimate exercises of the federal power. Madison began his attack on the constitutionality of the Sedition Act by asking whether Congress had been given authority to legislate on the subject at hand. Since no authority to regulate the press appears on the face of the Constitution, defenders of the legislation *75 had sought to find it implied. Their primary argument was based on some of the more general language in the Constitution: the preamble, [FN40] the clause empowering Congress to collect taxes and 'to pay the Debts and provide for the common Defense and general Welfare,' [FN41] and the clause allowing for such laws as are 'necessary and proper' to suppress insurrections. [FN42] Madison demonstrated that to read these constitutional provisions to allow a measure like the Sedition Act would render the Constitution's specific enumeration of federal powers quite illustory. ' I t must be wholly immaterial whether unlimited powers be exercised under the name of unlimited powers, or be exercised under the name of unlimited means of carrying into execution limited powers.' [FN43] Only in the second section of his analysis did Madison turn to the first amendment. For Madison, the discussion of the first amendment merely supplemented his main point, that Congress lacked the delegated power to regulate subversive speech. [FN44]     Page PAGE 1 Copr. ( West 2004 No Claim to Orig. U.S. Govt. Works  &RU ! 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