Justices who want to get rid of substantive due process

[brucejoel99]

Personally, I find the Ninth Amendment a much stronger way to protect the rights of the people.

I suppose so, since it fairly screams "hey, federal judges, read whatever rights you want into me!", whereas the Fourteenth Amendment has to be made to say that over the course of the conference and opinion-writing process. I'm a proponent of using the Ninth Amendment as minimally as possible (basically just as a way to dismiss arguments that a right being unenumerated means ipso facto that it doesn't exist) precisely because of this "plucking new rights from thin air" quality. If something like the right not to get eugenically sterilized or not to get arrested for having anal sex really were on the line, though, I think most people even slightly open to legal realism would probably grit their/our teeth and accept a Ninth Amendment rationale against overturning it.

I will die on the legal hill of calling out originalism, though, for its jurisprudential hypocrisy concerning the 9th Amendment. The Federalists literally opposed a Bill of Rights at its outset because they thought that enumerating any right would risk implying that all rights which weren't explicitly enumerated therein had been surrendered. The 9th, drafted & proposed by Madison, was the Federalist attempt to enshrine the people's unenumerated natural rights that, although not explicitly enumerated in the Constitution, were just as legally valid as those that were, with the courts being the arbiter of deciding which rights are protected & which aren't, thereby playing a critical role in maintaining the entire federal system's stability against states' legislatures, which he viewed as the venues where rights were at their most vulnerable. I can't stress that enough: Madison literally wanted the federal courts to rely on the 9th to protect the people against tyranny of the state &, specifically, the states & their legislatures, as he "hardly expect[ed them] to take enlightened views on national affairs." His whole point was literally that the educated & well-reasoned federal judiciary would act as a check on the tyranny of uninformed & unenlightened state legislatures.

That freakin' Madison, of all people, held such an expansive interpretation of the 9th, understanding it to be a safety valve to guard against future encroachments which the Framers didn't/couldn't anticipate upon individual rights & liberties, is not brought up nearly enough. Indeed, in combination with the inherently high constitutional amendment threshold's capability of rendering the amendment process ineffective for protecting the civil rights of minority groups that likely don't hold any influence in a supermajority of state legislatures, it sure seems like the 9th could've been understood at the time of its ratification as making it easy af to expand individual rights & hard af to take them away with an amendment, which honestly tracks, given that (jurisprudentially-consistent) originalists would be the first to tell you that the Framers were much more concerned about government having too much power than they were about the people having too many rights.

[brucejoel99]

Personally, I find the Ninth Amendment a much stronger way to protect the rights of the people.

I suppose so, since it fairly screams "hey, federal judges, read whatever rights you want into me!", whereas the Fourteenth Amendment has to be made to say that over the course of the conference and opinion-writing process. I'm a proponent of using the Ninth Amendment as minimally as possible (basically just as a way to dismiss arguments that a right being unenumerated means ipso facto that it doesn't exist) precisely because of this "plucking new rights from thin air" quality. If something like the right not to get eugenically sterilized or not to get arrested for having anal sex really were on the line, though, I think most people even slightly open to legal realism would probably grit their/our teeth and accept a Ninth Amendment rationale against overturning it.

I will die on the legal hill of calling out originalism, though, for its jurisprudential hypocrisy concerning the 9th Amendment. The Federalists literally opposed a Bill of Rights at its outset because they thought that enumerating any right would risk implying that all rights which weren't explicitly enumerated therein had been surrendered. The 9th, drafted & proposed by Madison, was the Federalist attempt to enshrine the people's unenumerated natural rights that, although not explicitly enumerated in the Constitution, were just as legally valid as those that were, with the courts being the arbiter of deciding which rights are protected & which aren't, thereby playing a critical role in maintaining the entire federal system's stability against states legislatures, which he viewed as the venues where rights were at their most vulnerable. I can't stress that enough: Madison literally wanted the federal courts to rely on the 9th to protect the people against tyranny of the state &, specifically, the states & their legislatures, as he "hardly expect[ed them] to take enlightened views on national affairs." His whole point was literally that the educated & well-reasoned federal judiciary would act as a check on the tyranny of uninformed & unenlightened state legislatures.

That freakin' Madison, of all people, held such an expansive interpretation of the 9th, understanding it to be a safety valve to guard against future encroachments which the Framers didn't/couldn't anticipate upon individual rights & liberties, is not brought up nearly enough. Indeed, in combination with the inherently high constitutional amendment threshold's capability of rendering the amendment process ineffective for protecting the civil rights of minority groups that likely don't hold any influence in a supermajority of state legislatures, it sure seems like the 9th could've been understood at the time of its ratification as making it easy af to expand individual rights & hard af to take them away with an amendment, which honestly tracks, given that (jurisprudentially-consistent) originalists would be the first to tell you that the Framers were much more concerned about government having too much power than they were about the people having too many rights.

Then explain why there isn't a right to contract.

There exists no absolute inherent right to contract, given the breadth of the state's police powers to regulate professions, so the state therefore has the able power to do so by appropriate legislation to, say, protect an individual's ability to make a living. Short of original respectments of a right to contract that extends so far as to permit one to hire somebody to commit murder on one's behalf, I don't think that the issue of, say, people being legally prohibited from doing business with other people without a professional license to do so is as constitutionally significant or, frankly, existent a one as, say, a fundamental right of the people to control one's body that extends to those certain personal choices central to individual dignity & autonomy.

[brucejoel99]

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This is so bad that it almost seems like farce.

Counterpoint #1: The historical fact is that Madison did not draft the Ninth Amendment as we can now see it in the Constitution. What Madison wrote, that became the Ninth, was the 2nd draft. The 1st draft version of the Ninth Amendment was created/written, collectively, by the 1788 Virginia Ratifying Convention. The 1st draft was worded this way: "That those clauses which declare that Congress shall not exercise certain powers, be not interpreted, in any manner whatsoever, to extend the powers of Congress but that they be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution." (Bernard Schwartz, "The New Right and the Constitution," published 1990, page 48.) Schwartz also said, "Similar amendments were proposed by the two remaining ratifying conventions -- those in New York and North Carolina." (Ibid.) When James Madison proceeded to draft his own proposals for amendments that would, ostensibly, become the Bill of Rights, he rewrote the proposal that his state's ratifying convention came up with, and he worded it this way: "The exception 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." (Ibid.) But that is obviously not what we see in the Constitution today; Madison's proposal was sent to a congressional committee that rewrote the wording of the Ninth into what we know today: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." James Madison did not draft those words, a congressional committee in 1789 drafted them.

Madison was literally Virginia's member of that congressional committee, the House Committee of 11 to be exact, which consisted of 1 member from each state for considering the BoR. Although chaired by Vining of Delaware, am I supposed to believe that Madison's influence as a literal proposer of what they were considering became non-existent in session? Lol.

Counterpoint #2: One Federalist, Alexander Hamilton, had written in the Federalist papers that he was opposed to adopting a Bill of Rights into the Constitution because he thought it was unnecessary and "would even be dangerous," because doing so might tempt Congress into exercising more powers than were delegated by the Constitution. (If you've read Justice Goldberg's concurring opinion in Griswold v. Connecticut, you should be familiar with this quote.)

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted, and, on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? 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? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence (sic) for claiming that power.

Your assertion that "The Federalists literally opposed a Bill of Rights at its outset because they thought that enumerating any right would risk implying that all rights which weren't explicitly enumerated therein had been surrendered," does not mesh with what Hamilton actually wrote, and you did not support your assertion with any documented references to any other Federalists.

At the Pennsylvania ratifying convention in 1787, James Wilson, a significant Federalist participant, literally said as follows:

If we attempt an enumeration (of rights), everything 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.

That was the Federalist line on a BoR in 1787: that it'd be better to enumerate the powers of the federal government with the implication that any powers not enumerated were reserved to the people than to enumerate the people's rights, given the increased likelihood of the latter to entail the implication that all rights not enumerated were fair game for government, hence why none other than Hamilton himself then widely disseminated Wilson's argument in publishing Federalist No. 84!

Counterpoint #3 (blending together 1 and 2): When Madison stood up in the House of Representatives in 1789 and introduced the members of the House to his various proposals for amendments to the Constitution, he said (again, if you've read Goldberg's Griswold opinion, you'd be familiar with this):

It has been objected also against a 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 have ever heard urged against the admission of a bill 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.

In a book published in 1980, Prof. John Hart Ely wrote about what I call the traditional interpretation of the Ninth and which he called the "received" interpretation ("received" = an interpretation that has been widely accepted as authoritative and true).

The received account of the Ninth Amendment ... goes like this. There was fear that the inclusion of a bill of rights in the Constitution would be taken to imply that federal power was not in fact limited to the authorities enumerated in Article 1, Section 8, that instead it extended all the way up to the edge of the rights stated in the first eight amendments. (As in "Obviously the federal government has authority to do everything except abridge freedom of speech and so forth.") The Ninth Amendment, the received version goes, was attached to the Bill of Rights simply to negate that inference, to reiterate that ours was a government of "few and defined powers." (Ely, "Democracy and Distrust," page 34.)

Ely himself does not agree with that interpretation, because of two reasons: he thinks that such an interpretation of the 9th makes the 9th and 10th unnecessarily redundant of one another, and he thinks that the Founding Fathers were not recognizing the possibility that (in Ely's words) "rights and powers are not simply the absence of one another but that rights can cut across or 'trump' powers. (As in 'A law prohibiting the interstate shipment of books may be a regulation of commerce, but it violates the First Amendment and thus must fall.')" (Ibid, page 36.) Ely's first reason for rejecting the "received" interpretation fails because the purposes of the 9th and 10th Amendments were parallel, not identical. And Ely's second reason is a way of transcending what was understood at the time - the late 1780's - that (constitutional) rights and (constitutional) powers DO have a reciprocal relationship to one another. That WAS the understanding at the time. If WE, in contemporary times, want to transcend what the 9th was originally understood to mean, then we have to amend the Constitution again to do so.

I'm literally arguing that WE in contemporary times should actually just, y'know, get the 9th's original understanding right. I do, dispute, the validity of this Ely interpretation in addition to the received understanding, though, in light of all else.

Counterpoint #4: I have never, ever before seen any assertion than James Madison was mistrustful of the power of the state legislatures, because they might violate the people's rights. Everything you said in that regard was completely, utterly news to me. I demand to see at least one source, and you did not provide it, even while you were asserting it. Even the one unsourced quotation of Madison that you included in your post was not "on point." According to what you quoted, Madison expressed fear that state legislatures would "hardly" be expected to have "enlightened views on national affairs." Take note, please: national affairs =/= rights retained by the people. Those are two completely different things. If you are going to PROVE that Madison mistrusted the state legislatures to the point that he feared that those lawmaking bodies might violate the people's rights, then you have to do much, much better.

Your premise is worthy of rejection. If you are going to PROVE on the attempted basis of refuting that one aforementioned quote that James Madison didn't mistrust the state legislatures' power to violate the people's rights, then you have to do much, much better than the bolded: just stating right off the bat that the (obviously not at all significant /s) matter of which rights are retained by the people of the U.S. is inherently incapable of being perceived as a national affair of the U.S. To say that the likes of Madison didn't consider the Constitution a quintessentially national affair is laughable given that they recognized exactly that insofar as it established the United States & our various branches of our government; defined the powers that they may exercise; set forth the procedural modalities through which they may exercise said powers (i.e., legislatively adopting policy, executing the laws, & adjudicating legal disputes), including broad recognitions of rights so as to constrain governmental officials in the exercise of said powers over the people; &, as a federal constitution, defined the role of the states, the principles governing their interrelationships with the federal government, & the immunities which they may claim against the same. That's to say that the likes of Madison, relevant to the 9th, saw the Constitution as, above all else, established by the people of the United States for themselves in order to promote the flourishing of the United States & of every single one of them while simultaneously ensuring respect for the people's rights & the rule of law, because as he - on presumably good authority - saw it, "[w]hen the people have formed a Constitution, they retain those rights which they have not expressly delegated. It is a question whether what is thus retained can be legislated upon."

Counterpoint #5: Madison's individualistic views about how untrustworthy state legislatures are - even if you can prove that he felt that way - is not dispositive to proving how most of the people who participated in the adoption of the Constitution felt. As one of America's best Originalists said, "the search" for the intending meaning of the provisions in the Constitution:

... is not for a subjective intention. If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest. Nor would the subjective intentions of all the members of a ratifying convention alter anything. When lawmakers use words, the law that results is what those words ordinarily mean. ... Thus, the common objection to the philosophy of original understanding -- that Madison kept his notes of the convention at Philadelphia secret for many years -- is off the mark. He knew that what mattered was public understanding, not subjective intentions. Madison himself said that what mattered was the intention of the ratifying conventions. His notes of the discussions at Philadelphia are merely evidence of what informed public men of the time thought the words of the Constitution meant. Since many of them were also delegates to the various ratifying conventions, their understanding informed the debates in those conventions. As Professor Henry Monaghan of Columbia has said, what counts is what the public understood. (Bork, "The Tempting of America," page 144.)

This just sounds like an easy excuse for originalists to ignore evidence that may conflict with their pre-conceived notions.

Counterpoint #6: If you think that your interpretation of what Madison thought about the untrustworthiness of state legislatures is the historically correct explanation, then you plainly do not agree with Barron v. Baltimore, 1833. I already know that politicallefty disagrees with that Court decision, but do you disagree with it too?

Sure, given the BoR's actual, y'know, text. With the sole 2 exceptions of the 1A's provision that "Congress shall make no law..." & the 7A's reference to "any Court of the United States," there exists no explicit textual basis or even an implication that the first 10 amendments were meant to be only applied to the feds. How is a general enshrinement of those rights of the American people which aren't to be violated not meant to be equally respected by all aspects of the state in the absence of an explicit limitation upon its application to only certain aspects thereof? Perhaps that question is why criticism of Barron is actually much more prevalent than any of your writing on the subject would seem to indicate, given the likes of such a treatise as William Crosskey's Politics and the Constitution in the History of the United States (1953), which argued precisely that a consistently Federalist interpretation of the Constitution would've held that if the 1st Congress meant to apply the entire BoR to the feds only, then it would've done so explicitly, as it only did in the 1st & part of the 7th.

Maybe that question was also the reason why an express purpose of the 14th Amendment was to not only overrule Barron, but to do so in the manner that'd serve to firmly incorporate the Bill of Rights against the states too. (Granted, they did a boo-boo in terms of cleaning up the Establishment Clause's specific limitation upon "Congress," thereby enabling very technical arguments that contradict literally every understanding of the 14th to nevertheless persist to this day, but still).

I could go on and on with even more points, but I don't feel like doing it now.

And I could presumably go on & on with even more counterpoints of my own to any further points of your own that you could bring up, but none of this would be necessary if you could just tone it down with the excessive hyperbole (e.g., "drivel") & accept that objective judicially-minded people can, y'know, reasonably disagree about a matter of con-law.

[brucejoel99]

If it's impossible for 9th Amendment rights to be objectively identified by federal judges, then why wasn't that, y'know, ever raised as a point in argument against the 9th Amendment at any congressional or state ratification debate? Why is the Founders' intent for the 9th Amendment to be used ignored out of fear of its open-ended nature when they didn't fear the same? Why are originalists so "concerned" about identifying 9th Amendment rights that they ignore it when its Framers, not uncertain of its meaning as the generations since theirs have proven to be, expressed no concerns about the same?