Justices who want to get rid of substantive due process

[David Hume]

In his Dobbs concurrence, Justice Thomas once again stated he wants to gut substantive due process in total. I classify Justices' altitude to SDP in three categories.

1, want to get rid of it.
White, Scalia, Thomas

2, don't want to get rid of it when it's not necessary or impossible
Rehnquist and Alito

3, don't want to get rid of it
Roberts and many others

Rehnquist was in a situation when conservatives don't have a safe majority, yet there were moderates who were up for grab. He had to wrote relatively moderate opinions to get the votes of Powell, O'Connor and Kennedy. I think he would get rid of SDP if he could. Alito is similar.

Gorsuch is between 1 and 2, probably closer to 1.

Kavanaugh is 3 for sure.

Barrett is a wild card

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Thomas wants to get rid of SDP and replace it with Privileges or Immunities by overturning Slaughterhouse, something on which, for once, I entirely agree with him. Most other anti-SDP justices would probably be willing to just send all those precedents into a black hole, but he at least claims he wouldn't.

[MarkD]

I think that neither Byron White nor Antonin Scalia belong in category 1.
White had numerous opportunities to elaborate on the meaning of the due process clause, and he never once, in what I've seen, said that due process does not have any substantive meaning. His concurring opinion in Griswold v. Connecticut surely was a strong rendition of strict scrutiny while utilizing the due process clause. His dissents in Roe and Moore v. East Cleveland, and his majority opinion in Bowers all read as though he accepts substantive due process, but gave the concept a narrow scope (that way, he could strike down laws he did not like and uphold laws he did like). So I would put him in category 2 or 3.
Scalia also said he accepted that due process has substantive meaning, not just procedural meaning, too, but he also gave the concept a narrow scope. In his plurality opinion in Michael H. v. Gerald D, Scalia's description of how to give substantive meaning to due process emphasized deeply rooted history and tradition, in a manner almost identical to what Alito has just said. So I would put Scalia in category 2.
Hugo Black clearly belongs in category 1.

It would also be interesting in finding out how many Justices accept a theory that Robert Bork called "substantive equal protection." According to Bork, that concept originated in 1942 with the opinion written by Justice Douglas in the case of Skinner v. Oklahoma.

This was the beginning of what came to be known as "substantive equal protection," an extraordinarily deceptive and therefore powerful means by which judges can embed their notions of public policy in the Constitution without appearing to do so. Using the due process clause to strike down the substance of what a legislature enacted has obvious difficulties. The clause on its face required a fair process, not a fair substance. To say, for example, that sterilization was a deprivation of liberty without due process of law would have been transparently to add to the Constitution a principle that had not been there before. But to say that the law denied equal protection of the laws because people who had done similar things were treated differently sounds much more like the application of a real constitutional provision.

Prof. Evan Gerstmann (of Loyola Marymount U. and Law School) said, "The first case to hold that the equal protection clause protects certain fundamental rights was Skinner v. Oklahoma." ("The Constitutional Underclass," 1999, page 44, footnote 16.)

After Skinner, the Court has inferred a number of unenumerated, substantive "fundamental rights" from the equal protection clause: the right to vote (Baker v. Carr and many subsequent voting rights cases), the right to interstate travel (Shapiro v. Thompson), the right to use contraceptives (Eisenstadt v. Baird), the right to marry (Zablocki v. Redhail, Turner v. Safley, and Obergefell v. Hodges), and any of a vast number of other "fundamental rights" could simply be plucked out of the air coming out of the mouths (word processors) of various justices - as long as they have first made up their mind that they want to strike down a law - and place that "right" into the equal protection clause instead of the due process clause. All they have to do is to cite Skinner as their "authority" to do it. Bush v. Gore was an alleged equal-voting-rights issue, so that fact demonstrates even conservatives are willing to do it.

[Skill and Chance]

Thomas wants to get rid of SDP and replace it with Privileges or Immunities by overturning Slaughterhouse, something on which, for once, I entirely agree with him. Most other anti-SDP justices would probably be willing to just send all those precedents into a black hole, but he at least claims he wouldn't.

Didn't Gorsuch join a Thomas concurrence flirting with the Privileges or Immunities idea?

[David Hume]

I think that neither Byron White nor Antonin Scalia belong in category 1.
White had numerous opportunities to elaborate on the meaning of the due process clause, and he never once, in what I've seen, said that due process does not have any substantive meaning. His concurring opinion in Griswold v. Connecticut surely was a strong rendition of strict scrutiny while utilizing the due process clause. His dissents in Roe and Moore v. East Cleveland, and his majority opinion in Bowers all read as though he accepts substantive due process, but gave the concept a narrow scope (that way, he could strike down laws he did not like and uphold laws he did like). So I would put him in category 2 or 3.
Scalia also said he accepted that due process has substantive meaning, not just procedural meaning, too, but he also gave the concept a narrow scope. In his plurality opinion in Michael H. v. Gerald D, Scalia's description of how to give substantive meaning to due process emphasized deeply rooted history and tradition, in a manner almost identical to what Alito has just said. So I would put Scalia in category 2.
Hugo Black clearly belongs in category 1.

It would also be interesting in finding out how many Justices accept a theory that Robert Bork called "substantive equal protection." According to Bork, that concept originated in 1942 with the opinion written by Justice Douglas in the case of Skinner v. Oklahoma.

This was the beginning of what came to be known as "substantive equal protection," an extraordinarily deceptive and therefore powerful means by which judges can embed their notions of public policy in the Constitution without appearing to do so. Using the due process clause to strike down the substance of what a legislature enacted has obvious difficulties. The clause on its face required a fair process, not a fair substance. To say, for example, that sterilization was a deprivation of liberty without due process of law would have been transparently to add to the Constitution a principle that had not been there before. But to say that the law denied equal protection of the laws because people who had done similar things were treated differently sounds much more like the application of a real constitutional provision.

Prof. Evan Gerstmann (of Loyola Marymount U. and Law School) said, "The first case to hold that the equal protection clause protects certain fundamental rights was Skinner v. Oklahoma." ("The Constitutional Underclass," 1999, page 44, footnote 16.)

After Skinner, the Court has inferred a number of unenumerated, substantive "fundamental rights" from the equal protection clause: the right to vote (Baker v. Carr and many subsequent voting rights cases), the right to interstate travel (Shapiro v. Thompson), the right to use contraceptives (Eisenstadt v. Baird), the right to marry (Zablocki v. Redhail, Turner v. Safley, and Obergefell v. Hodges), and any of a vast number of other "fundamental rights" could simply be plucked out of the air coming out of the mouths (word processors) of various justices - as long as they have first made up their mind that they want to strike down a law - and place that "right" into the equal protection clause instead of the due process clause. All they have to do is to cite Skinner as their "authority" to do it. Bush v. Gore was an alleged equal-voting-rights issue, so that fact demonstrates even conservatives are willing to do it.

Scalia is a little complicated. He called SDP an “atrocity,” an “oxymoron,” “babble,” and a “mere springboard for judicial lawmaking.” I think he fundamentally believed SDP is wrong, but had to accepted it occasionally because there are simply no votes to get rid of it, and want to formulate a theory to narrow it that others can follow.

White is similar. "Although the Court regularly proceeds on the assumption
that the Due Process Clause has more than a procedural
dimension, we must always bear in mind that the substantive
content of the Clause is suggested neither by its language nor
by preconstitutional history; that content is nothing more than
the accumulated product of judicial interpretation"

These two both think SDP is fundamentally wrong. White is probably closer to 2.

[politicallefty]

Thomas wants to get rid of SDP and replace it with Privileges or Immunities by overturning Slaughterhouse, something on which, for once, I entirely agree with him. Most other anti-SDP justices would probably be willing to just send all those precedents into a black hole, but he at least claims he wouldn't.

What are the practical changes for rights and liberties between SDP and the Privileges or Immunities Clause? All I am aware of is Justice Thomas's attempt to remove more and more constitutional protections.

[Mr. Reactionary]

Thomas wants to get rid of SDP and replace it with Privileges or Immunities by overturning Slaughterhouse, something on which, for once, I entirely agree with him. Most other anti-SDP justices would probably be willing to just send all those precedents into a black hole, but he at least claims he wouldn't.

What are the practical changes for rights and liberties between SDP and the Privileges or Immunities Clause? All I am aware of is Justice Thomas's attempt to remove more and more constitutional protections.

Im a big proponent of tearing off the scab that is the slaughterhouse cases. Relying on P&I would at minimum automatically incorporate the entirety of the bill of rights to the States rather than requiring selective incorporation after a secondary "liberty" analysis. At minimum that would overturn precedent saying that grand juries arent required in the States and would put to bed questions about if the 3rd or 7th amendments are incorporated. This actually expands the bill of rights.

I dont have an exhaustive list of purported "rights" that were bootstrapped in through substantive due process but the most well known are:

Right to contract around most laws (largely abandoned in Carolene Products)

Right to send child to religious school (which the 1st probs protects anyway)

Right to teach child a foreign language (again 1st probs protects it)

Right of both marrieds and unmarrieds to use birth control

Right to abortion (now overturned)

Right to decide which relatives live in your house

Right to interracial or same sex marriage (which equal protection probs protects)

Freedom from excessive punitive damages (which is probs protected under 8th amdt)

Right to sodomy (which under the Oconnor concurrence in Lawrence v TX is probs partially protected under equal protection

So the only purported "rights" based on substantive due process that likely arent protected by a different clause in the constitution is birth control, equally applied sodomy bans, and certain zoning regs limiting distant relatives from cohabiting.

[politicallefty]

Thomas wants to get rid of SDP and replace it with Privileges or Immunities by overturning Slaughterhouse, something on which, for once, I entirely agree with him. Most other anti-SDP justices would probably be willing to just send all those precedents into a black hole, but he at least claims he wouldn't.

What are the practical changes for rights and liberties between SDP and the Privileges or Immunities Clause? All I am aware of is Justice Thomas's attempt to remove more and more constitutional protections.

Im a big proponent of tearing off the scab that is the slaughterhouse cases. Relying on P&I would at minimum automatically incorporate the entirety of the bill of rights to the States rather than requiring selective incorporation after a secondary "liberty" analysis. At minimum that would overturn precedent saying that grand juries arent required in the States and would put to bed questions about if the 3rd or 7th amendments are incorporated. This actually expands the bill of rights.

I dont have an exhaustive list of purported "rights" that were bootstrapped in through substantive due process but the most well known are:

Right to contract around most laws (largely abandoned in Carolene Products)

Right to send child to religious school (which the 1st probs protects anyway)

Right to teach child a foreign language (again 1st probs protects it)

Right of both marrieds and unmarrieds to use birth control

Right to abortion (now overturned)

Right to decide which relatives live in your house

Right to interracial or same sex marriage (which equal protection probs protects)

Freedom from excessive punitive damages (which is probs protected under 8th amdt)

Right to sodomy (which under the Oconnor concurrence in Lawrence v TX is probs partially protected under equal protection

So the only purported "rights" based on substantive due process that likely arent protected by a different clause in the constitution is birth control, equally applied sodomy bans, and certain zoning regs limiting distant relatives from cohabiting.

I appreciate you making that list, although I do question your sincerity. I will say that I believe that Barron v. Baltimore was wrongly decided. However, even without substantive due process, other avenues remain. Griswold and its close progeny were not based on substantive due process. Justice Douglas was very careful not to revive a line of jurisprudence that would overturn the New Deal and Great Society in one fell swoop

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

[Okay, maybe Mike Johnson is a competent parliamentarian.]

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.

[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.

[MarkD]

- snip -

- snip -

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.

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.

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.

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.

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.

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.)

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?

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

[Donerail]

Why on earth would anyone in the year of our lord two thousand and twenty-two "agree with" Barron v. Baltimore? It's a dead letter.

[politicallefty]

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 don't see how that's any different from those that advocate for substantive due process or even those that argue for breathing life into the Privileges or Immunities Clause. What you say against the Ninth Amendment is what many on the right like to say about the Fourteenth Amendment. Thomas wants to use the Privileges or Immunities Clause to roll back decades of rights. He has no intention of reimagining the rights determined under substantive due process. The majority opinion in Griswold is probably on the shakiest ground of all, "penumbras, formed by emanations". While I don't agree with every word (not surprising, considering it was 1965), I do really like most of Justice Goldberg's concurrence in Griswold.

Why on earth would anyone in the year of our lord two thousand and twenty-two "agree with" Barron v. Baltimore? It's a dead letter.

That is true, but it is worth considering when looking at the rights protected by the Bill of Rights. My point above is that it was wrong when it was decided. That would give more weight to the Ninth Amendment as a way of protecting the rights of the people.

[Benjamin Frank]

I think that neither Byron White nor Antonin Scalia belong in category 1.
White had numerous opportunities to elaborate on the meaning of the due process clause, and he never once, in what I've seen, said that due process does not have any substantive meaning. His concurring opinion in Griswold v. Connecticut surely was a strong rendition of strict scrutiny while utilizing the due process clause. His dissents in Roe and Moore v. East Cleveland, and his majority opinion in Bowers all read as though he accepts substantive due process, but gave the concept a narrow scope (that way, he could strike down laws he did not like and uphold laws he did like). So I would put him in category 2 or 3.
Scalia also said he accepted that due process has substantive meaning, not just procedural meaning, too, but he also gave the concept a narrow scope. In his plurality opinion in Michael H. v. Gerald D, Scalia's description of how to give substantive meaning to due process emphasized deeply rooted history and tradition, in a manner almost identical to what Alito has just said. So I would put Scalia in category 2.
Hugo Black clearly belongs in category 1.

It would also be interesting in finding out how many Justices accept a theory that Robert Bork called "substantive equal protection." According to Bork, that concept originated in 1942 with the opinion written by Justice Douglas in the case of Skinner v. Oklahoma.

This was the beginning of what came to be known as "substantive equal protection," an extraordinarily deceptive and therefore powerful means by which judges can embed their notions of public policy in the Constitution without appearing to do so. Using the due process clause to strike down the substance of what a legislature enacted has obvious difficulties. The clause on its face required a fair process, not a fair substance. To say, for example, that sterilization was a deprivation of liberty without due process of law would have been transparently to add to the Constitution a principle that had not been there before. But to say that the law denied equal protection of the laws because people who had done similar things were treated differently sounds much more like the application of a real constitutional provision.

Prof. Evan Gerstmann (of Loyola Marymount U. and Law School) said, "The first case to hold that the equal protection clause protects certain fundamental rights was Skinner v. Oklahoma." ("The Constitutional Underclass," 1999, page 44, footnote 16.)

After Skinner, the Court has inferred a number of unenumerated, substantive "fundamental rights" from the equal protection clause: the right to vote (Baker v. Carr and many subsequent voting rights cases), the right to interstate travel (Shapiro v. Thompson), the right to use contraceptives (Eisenstadt v. Baird), the right to marry (Zablocki v. Redhail, Turner v. Safley, and Obergefell v. Hodges), and any of a vast number of other "fundamental rights" could simply be plucked out of the air coming out of the mouths (word processors) of various justices - as long as they have first made up their mind that they want to strike down a law - and place that "right" into the equal protection clause instead of the due process clause. All they have to do is to cite Skinner as their "authority" to do it. Bush v. Gore was an alleged equal-voting-rights issue, so that fact demonstrates even conservatives are willing to do it.

Scalia is a little complicated. He called SDP an “atrocity,” an “oxymoron,” “babble,” and a “mere springboard for judicial lawmaking.” I think he fundamentally believed SDP is wrong, but had to accepted it occasionally because there are simply no votes to get rid of it, and want to formulate a theory to narrow it that others can follow.

White is similar. "Although the Court regularly proceeds on the assumption
that the Due Process Clause has more than a procedural
dimension, we must always bear in mind that the substantive
content of the Clause is suggested neither by its language nor
by preconstitutional history; that content is nothing more than
the accumulated product of judicial interpretation"

These two both think SDP is fundamentally wrong. White is probably closer to 2.

Procedural due process is directly mentioned in the 5th Amendment.

"nor be deprived of life, liberty, or property, without due process of law"

Of course, a purpose was to extend the 5th Amendment to state laws, but the 14th Amendment directly connects due process with equal protection.

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Far from it having no 'preconstitutional history' the related concepts of due process and equal protection date to the Magna Carta. As imperfect as the Magna Carta was, certainly by the time of the writing of the 14th Amendment, the concept that 'due process and equal protection' was to prevent arbitary laws was well established.

There has been a concerted effort going back at least 40 years from the neo feudalist Federalist Society to lie about the meaning of the concept of due process and equal protection. Roe V Wade was entirely consistent with the striking down of arbitary laws.

In reality, all that exists is a far right extremist court that is ruling based on its wants irrespective of the Constitution (the same as those of the Federalist Society and its wealthy genuinely elite funders) and anybody who is looking for legal/constitutional justifications to try to make sense of these rulings is fooling themselves believing that this court is being honest in any way.

There is zero reason to not believe that clause in the 14th Amendment was written to establish substantive due process.

[brucejoel99]

- snip -

- snip -

snip

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.

[MarkD]

- snip -
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."

Wow. Those are two big, heap sentences, Kemosabe. Next time, you might try using - y'know - a few more periods and capital letters. (I'm not sure, but part of me is wondering whether you did that because you were mocking the way I write such long posts. Hmm.)

I'm not going to pick it all apart. I want to get a couple of things off my chest for now.

First, I do apologize for the "drivel" comment the other night. Your post made me so very angry, beginning with your disparaging comment about the "jurisprudential hypocrisy" of originalists, and in my anger, I forgot to try to keep a lid on my temper and stick to just making reasonable arguments rather than hurling invective, ad hominem attacks. I'm sorry that I lost my temper.

Second, do I recognize that you sincerely believe that your interpretation of the Ninth Amendment is a good-faith and objective effort to interpret it? Yes, I'm sure you're sincere about that. But one of my HUGE problems with what you posted last week - and which I was thinking about including as a seventh, or eighth, or whatever counterpoint, but I decided to quit writing - is that you do not seem to realize that your expressed method of judges identifying unenumerated rights is impossible to do objectively.

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. ...

There is NO objective definition of "natural rights," just like there is no objective definition of natural law. This is one thing about which I found Justice Hugo Black's dissenting opinion in Griswold to be so enlightening and educational. Black repeatedly argued against what he called a "natural law due process philosophy" which he very persuasively argued was a jurisprudence that our Founding Fathers did not want the judiciary to exercise. In a lengthy but very educational footnote in that dissenting opinion, Black said (footnote 6):

This Court held in Marbury v. Madison, 1 Cranch 137, that this Court has power to invalidate laws on the ground that they exceed the constitutional power of Congress or violate some specific prohibition of the Constitution. See also Fletcher v. Peck, 6 Cranch 87. But the Constitutional Convention did, on at least two occasions, reject proposals which would have given the federal judiciary a part in recommending laws or in vetoing as bad or unwise the legislation passed by the Congress. Edmund Randolph of Virginia proposed that the President

". . . and a convenient number of the National Judiciary ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final, and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by ___ [original wording illegible] of the members of each branch." 1 The Records of the Federal Convention of 1787 (Farrand ed.1911) 21.

In support of a plan of this kind, James Wilson of Pennsylvania argued that:
". . . It had been said that the Judges, as expositors of the Laws, would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive, and yet not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature." 2 id. at 73.

Nathaniel Gorham of Massachusetts
"did not see the advantage of employing the Judges in this way. As Judges, they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures." Ibid.
Elbridge Gerry of Massachusetts likewise opposed the proposal for a council of revision:
". . . He relied, for his part, on the Representatives of the people as the guardians of their Rights & interests. It [the proposal] was making the Expositors of the Laws the Legislators, which ought never to be done." Id. at 75.
And, at another point:
"Mr. Gerry doubts whether the Judiciary ought to form a part of it [the proposed council of revision], as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. . . . It was quite foreign from the nature of ye. office to make them judges of the policy of public measures." 1 Id. at 97-98. Madison supported the proposal on the ground that "a Check [on the legislature] is necessary." Id. at 108. John Dickinson of Delaware opposed it on the ground that "the Judges must interpret the Laws; they ought not to be legislators." Ibid.
The proposal for a council of revision was defeated. The following proposal was also advanced:
"To assist the President in conducting the Public affairs, there shall be a Council of State composed of the following officers -- 1. The Chief Justice of the Supreme Court, who shall from time to time recommend such alterations of and additions to the laws of the U.S. as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union. . . ." 2 id. at 342.
This proposal too was rejected.

And Black also said, "In 1798, when this Court was asked to hold another Connecticut law unconstitutional, Justice Iredell said. ..." (What I'm going to quote below is two entire paragraphs from Iredell's opinion in the case of Calder v. Bull, rather than just the one paragraph that Black quoted.)

If, then, a government, composed of legislative, executive and judicial departments, were established by a constitution which imposed no limits on the legislative power, the consequence would inevitably be that whatever the legislative power chose to enact would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true that some speculative jurists have held that a legislative act against natural justice must in itself be void, but I cannot think that under such a government any court of justice would possess a power to declare it so. Sir William Blackstone, having put the strong case of an act of Parliament which should authorize a man to try his own cause, explicitly adds that even in that case, "there is no court that has power to defeat the intent of the legislature when couched in such evident and express words as leave no doubt whether it was the intent of the legislature or no." 1 Bl.Com. 91.
In order, therefore, to guard against so great an evil, it has been the policy of all the American states which have individually framed their state constitutions since the Revolution, and of the people of the United States when they framed the federal Constitution, to define with precision the objects of the legislative power and to restrain its exercise within marked and settled boundaries. If any act of Congress or of the legislature of a state violates those constitutional provisions, it is unquestionably void, though I admit that as the authority to declare it void is of a delicate and awful nature, the court will never resort to that authority but in a clear and urgent case. If, on the other hand, the legislature of the Union or the legislature of any member of the Union shall pass a law within the general scope of its constitutional power, the court cannot pronounce it to be void merely because it is in its judgment contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the court could properly say in such an event would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. Calder v. Bull, 3, us 386, 398 (1798).

Judges do NOT have any greater knowledge than ordinary people who vote or than elected legislators as to what are the "natural rights" of people. A judge's theory that people have a natural right "to be let alone," or a "right to privacy," is not superior to anyone else's theory about the same concepts.

And Black did a delightful job of poking fun at Justice's Goldberg's claim that he and other judges were entirely capable of being, and certainly would be, objective when they identify unenumerated, but "fundamental" rights. (I'm not going to repeat the whole dialogue between Goldberg and Black, about objectively identifying unenumerated but fundamental rights, but it was fun to read!)

John Hart Ely, who I quoted before in discussing interpretations of the Ninth Amendment, also pointed out that "natural law" can mean virtually anything at all, and that a large part of American history has been rife with acknowledgments that the concept is far too vague to be of any use to objective interpreters of law. At one point, Ely quotes from a book by Benjamin Rights, published in 1931, American Interpretations of Natural Law. "[N]atrual law has had as its content whatever the individual in question desired to advocate. This has varied from a defence of theocracy to a defence of the complete separation of church and state, from revolutionary rights in 1776 to liberty of contract in recent judicial opinions, from the advocacy of universal adult suffrage to a defence of rigid limitations upon the voting power, from philosophical anarchy in 1849 with Thoreau to strict paternalism five years later with Fitzhugh, from the advocacy of the inalienable right of secession to the assertion of the natural law of national supremacy, from the right of majority rule to the rights of vested interests."
Ely goes on to say,

It was, indeed, invoked on both sides of the slavery question. Calhoun cited natural law to "prove" the inferiority of blacks, and the Kentucky Constitution and 1850 and the Kansas Constitution of 1857 declared the right to own slaves "before and higher than any constitutional sanction." Small wonder, then, that abolitionists like Wendell Phillips came to realize that "Because 'nature' no longer spoke with a single voice, only the judge's conscience ultimately determined the source of right."
It has thus become increasingly evident that the only propositions with a prayer of passing themselves off as "natural law" are those so uselessly vague that no one will notice -- something along the "No one should needlessly inflict suffering" line. "[A]ll the many attempts to build a moral and political doctrine upon the conception of a universal human nature have failed. They are repeatedly trapped in a dilemma. Either the allegedly universal ends are too few and abstract to give content to the idea of the good, or they are too numerous and concrete to be truly universal. One has to choose between triviality and implausibility." (R. Unger, Knowledge and Politics 241 (1975).)
(Democracy and Distrust, pages 51-52.

Getting back to the quote by Justice Iredell, since the purposes of the federal constitution and the state constitutions are, "to define with precision the objects of the legislative power," we would have to look at the Ninth, if we interpreted it YOUR way, as if it provided no "precision" whatsoever. That is why I have to believe that Black's and Potter Stewart's dissenting opinions in Griswold were the ones that had the historically correct and verifiable interpretation of the Ninth Amendment. It's the interpretation I called before the traditional interpretation and which Ely called the "received" interpretation, and it's the interpretation which Stewart said, "Until today [June 7, 1965], no member of this Court ever suggested that the Ninth Amendment meant anything else."

The US Constitution, of course, does not affirmatively tell the states what powers they MAY exercise, it only tells the states what not to do. And I say again that to our Founding Fathers, there clearly was a reciprocal relationship between the powers delegated to the federal government and the rights retained by the people -- even your quote from James Wilson supports that -- so the Ninth can only, plausibly, be utilized by the federal government to control its own behavior, not the states. Again, since the states do not get their powers from the US Constitution, there is nothing to see as a reciprocal of delegated powers of the states.

So do I recognize your sincerity of belief that you are correctly interpreting the Ninth? Yes, I do. But you fail to see that the Ninth cannot be objectively used as federal authority to tell the states what they cannot do.

ADDENDUM: One more thing I remember from Black's dissent in Griswold:

"This clause [the Ninth] was manifestly introduced to prevent any perverse or ingenious misapplication of the well known maxim that an affirmation in particular cases implies a negation in all others; and, e converso, that a negation in particular cases implies an affirmation in all others. The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies." (Joseph Story, Commentaries on the Constitution of the United States (5th ed. 1891)).

You are, unintentionally, pushing a political heresy.

[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?

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Mark, thanks for apologizing for the previous personal attack against Bruce, but just so you know, future personal attacks in this thread will be moderated.

Carry on, gentlemen.

[MarkD]

As far as I'm concerned, there is nothing to "carry on." IMO, Bruce and I are at a stalemate - an impasse, a Mexican standoff - and it is futile to try to carry on this debate. Neither of us are going to improve on the quality of the arguments we've already presented, so there's no point in trying to continue this. In the interest of taking care of my high blood pressure, I am hereby calling a truce, that neither of us has "won," and I'm quitting this debate.

[politicallefty]

I'm not exactly sure what happened here, but I do have some thoughts. Everyone from the left to the right believes that there are rights belonging to the people that are protected beyond those enumerated by the Constitution. That is the point of the Ninth Amendment. There are those that say that the Ninth Amendment is not a source of unlimited rights and on that I would agree. It is a means through which one interprets what rights belong to the people. I would ask how one determines what rights belong to the people if the Ninth Amendment and substantive due process are off the table.

[MarkD]

I'm not exactly sure what happened here, but I do have some thoughts. Everyone from the left to the right believes that there are rights belonging to the people that are protected beyond those enumerated by the Constitution. That is the point of the Ninth Amendment. There are those that say that the Ninth Amendment is not a source of unlimited rights and on that I would agree. It is a means through which one interprets what rights belong to the people. I would ask how one determines what rights belong to the people if the Ninth Amendment and substantive due process are off the table.

The way to determine what are rights retained by the people is to determine the full scope of the federal government's powers, and after that has all been accounted for, the remainder is the rights retained by the people. Rights have a reciprocal relationship to powers. I can use, hypothetically, the case of Sebelius v. NFIB to illustrate the point. The people challenging the individual mandate provision within Obamacare were arguing to the SCOTUS that Congress does not have a delegated power to force everyone in the country to get health insurance. They argued that forcing people to buy or obtain health insurance is not within the power to regulate interstate commerce, or the power to tax, or any other enumerated power in the US Constitution. So, therefore, an individual retains the right to go about their daily life without health insurance, if someone wants to take the risks associated with that. However, the SCOTUS decided that the congressional taxing power covers the penalty provision within the individual mandate, so that it IS constitutional. And that means that individuals to not retain the right to go about without health insurance. Wickard v. Filburn is another classic example. When the SCOTUS decided that the power to regulate interstate commerce does cover the act of producing and consuming too much home-grown wheat, the SCOTUS was denying that farmers retain a right to grow and consume all of their own wheat if they want. Whenever the SCOTUS strikes down a federal law because the law is not within any enumerated powers, that is when the Court is saying that people retain a right to do something per the Ninth Amendment.

EDIT: Hey, waitaminute. I remember now that you told me that you were once in agreement with Justice Stewart's description of the meaning of the Ninth in his dissenting opinion in Griswold. If so, then you should already be familiar with this.

[David Hume]

I'm not exactly sure what happened here, but I do have some thoughts. Everyone from the left to the right believes that there are rights belonging to the people that are protected beyond those enumerated by the Constitution. That is the point of the Ninth Amendment. There are those that say that the Ninth Amendment is not a source of unlimited rights and on that I would agree. It is a means through which one interprets what rights belong to the people. I would ask how one determines what rights belong to the people if the Ninth Amendment and substantive due process are off the table.

You have to remember that the Bill of Rights was originally designed to explicitly forbid the Federal government from depriving some fundamental rights of the people. My understanding of the ninth amendment is that the first eight did not exhaust all the rights that the Federal government cannot deprive. The Federal government cannot deprive the rights of the people unless there are corresponding powers delegated to them enabling them to do so. As a result, the ninth amendment does not apply to states and cannot be incorporated against states.

[politicallefty]

The way to determine what are rights retained by the people is to determine the full scope of the federal government's powers, and after that has all been accounted for, the remainder is the rights retained by the people. Rights have a reciprocal relationship to powers. I can use, hypothetically, the case of Sebelius v. NFIB to illustrate the point. The people challenging the individual mandate provision within Obamacare were arguing to the SCOTUS that Congress does not have a delegated power to force everyone in the country to get health insurance. They argued that forcing people to buy or obtain health insurance is not within the power to regulate interstate commerce, or the power to tax, or any other enumerated power in the US Constitution. So, therefore, an individual retains the right to go about their daily life without health insurance, if someone wants to take the risks associated with that. However, the SCOTUS decided that the congressional taxing power covers the penalty provision within the individual mandate, so that it IS constitutional. And that means that individuals to not retain the right to go about without health insurance. Wickard v. Filburn is another classic example. When the SCOTUS decided that the power to regulate interstate commerce does cover the act of producing and consuming too much home-grown wheat, the SCOTUS was denying that farmers retain a right to grow and consume all of their own wheat if they want. Whenever the SCOTUS strikes down a federal law because the law is not within any enumerated powers, that is when the Court is saying that people retain a right to do something per the Ninth Amendment.

EDIT: Hey, waitaminute. I remember now that you told me that you were once in agreement with Justice Stewart's description of the meaning of the Ninth in his dissenting opinion in Griswold. If so, then you should already be familiar with this.

I did tell you that I wasn't entirely or necessarily in agreement with Justice Douglas's majority opinion in Griswold, but I don't recall agreeing with Justice Stewart's dissent. I've spoken in the past that I'm more in line with Justice Goldberg's concurrence. I don't agree with everything he said, but I do agree with his invocation of the Ninth Amendment to protect certain liberties.

I was simply asking for your view on how rights and liberties are to be determined when they are not explicitly enumerated. With all due respect, I do not share your view. Rights as a reciprocity to certain governmental powers is redundant. It's the same issue I have when people read the Ninth and Tenth Amendments together. I do not believe the Tenth Amendment overrides the Ninth. Looking at the text of each amendment, the Tenth specifically mentions "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States [...]". That is the relevant phrase in the Bill of Rights that ultimately establishes the federal government as one of enumerated powers. The text of the Ninth mentions rights that belong to the people, not the federal government nor the states.

You have to remember that the Bill of Rights was originally designed to explicitly forbid the Federal government from depriving some fundamental rights of the people. My understanding of the ninth amendment is that the first eight did not exhaust all the rights that the Federal government cannot deprive. The Federal government cannot deprive the rights of the people unless there are corresponding powers delegated to them enabling them to do so. As a result, the ninth amendment does not apply to states and cannot be incorporated against states.

I've already stated that I believe Barron v. Baltimore was wrongly decided. Barron doesn't get much attention today on account of the Fourteenth and incorporation, but it was a topic of debate amongst abolitionists. I think the Bill of Rights should have been read as they are.