Reply to Patterico

This post is a continuation of an exchange with Patterico, of Patterico's Pontifications, that began in the comments on another post. Patterico is an assistant district attorney in LA County, so is obviously a worthy adversary and someone whose views, especially where it concerns the law, should be taken seriously. I'm going to shift gears a bit in our debate, however, because I think we were getting off on a tangent. The real disagreement between us, I think, revolves around the question of what limitations are placed upon the government (i.e. the majority) by the Constitution. We both agree that if a large enough majority got together, they could amend the Constitution to override all of the safeguards placed in it, even removing the bill of rights. And I would hope that we both agree that if they did so, the legitimacy of government would be undermined. But that's not really relevant to this question of what is legitimate authority exercised by the government and what are the limits on it.

I'm sure we would both agree that the Bill of Rights itself limits what the government may do to an individual citizen. We may quibble a bit on interpretation of some of those amendments, but we at least would agree, I hope, that they are designed to protect liberty from the government, which means to protect liberty from democracy or from the whims of the majority. I feel safe in saying that he would agree with me on the importance of those amendments, including the second amendment, which is far too often cast aside by many people who are otherwise enthusiastic supporters of the bill of rights. I would hope we could also agree that those are not the only rights which exist, that in addition to those enumerated rights there are unenumerated rights that also legitimately act as limitations on what the government may do to an individual. The case for this is so obvious that I should hardly need to defend it. The 9th amendment demands a recognition of this fact, as does the legislative history of the bill of rights. Let me briefly discuss that history.

At the time of the Constitution, there was a split among the founders over the question of whether to add a bill of rights to the Constitution. Several state ratification conventions demanded that a Bill of Rights be added as a condition of their approval of the new Constitution. Alexander Hamilton, among others, argued that this was a bad idea. Their argument was twofold. First, that a bill of rights was pointless. As Hamilton put it in Federalist 84, "For why declare that things shall not be done that 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?" In this view, since there was no authority given to Congress to violate those rights in the first place, there was no need to make a positive declaration of such rights. Secondly, they argued, it was dangerous to add a bill of rights simply because no one could possibly list all of the rights that an individual has and if you made a list of such rights, the government would then move in to regulate all those areas not listed. Again Hamilton argued this view: "They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted." The 9th amendment was added to the bill of rights for the express purpose of insuring that this would not happen. As Madison said when presenting his initial list of amendments:

"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 [the Ninth Amendment].

The 9th amendment declares that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." So certainly we should be able to agree that the one position on this question that is not acceptable is the position that says that anything not explicitly protected in the bill of rights is open to governmental intrusion. We should at least be able to agree that there are unenumerated rights that exist which are equally binding under the bill of rights, and equally valid as restrictions on the power of government. Unfortunately, that is precisely the position taken today by many conservative judicial thinkers, including Justice Scalia. In that same 1996 speech I have cited many times, in response to a questioner who argued that there are rights which should be beyond the reach of the majority in all cases, Scalia replied:

Well, as I say, we certainly believe that in America, and that's why we have a Billof Rights. We set them forth in the Bill of Rights. But that is the limit of them, and I do not make up other ones. Because anyone can make up other ones. I mean, you know, to talk about the natural law is not to talk about something we all agree upon.

For Scalia, as for many conservatives, any claim against the government that is not explicitly forbidden by the bill of rights is "inventing" or "making up" or "discovering" a "new right never before found in the Constitution." How often have we heard this rhetoric thrown around? It's the argument they made against the Lawrence decision (which struck down anti-sodomy laws), and the argument they made against the Griswold decision (which struck down laws against the use of contraception), and the argument they made against the Loving decision as well (which struck down laws against interracial marriage). In all three cases, the rhetorical argument was identical, that these were "activist judges" who were "discovering a new right never before found in the Constitution" and that this "judicial tyranny" endangers the people's "right to govern themselves." But this, it seems to me, takes the very position that the founders declared totally unacceptable, that any right not explicitly listed in the Constitution was within the government's prerogative to regulate and prohibit. They simply read the 9th amendment out of the Constitution entirely, as Bork did so famously when he declared it to be nothing more than an "inkblot" on the Constitution.

That brings us to the place where we will likely disagree, the key question: what criteria should be used to determine when an unenumerated right is legitimate and when it is not? Stated another way: what criteria should be used to determine when a particular exercise of governmental authority is legitimate and when it is not? I offer my answer here: by reference to the natural rights of mankind that, according to the Declaration of Independence, are unalienable and for the protection of which governments are created. Scalia offers the same argument against this that Patterico does, that we cannot solve the question by reference to "natural law" or "natural rights" because, as Scalia put it, "to talk about the natural law is not to talk about something we all agree upon." This strikes me as a very weak argument. We do not all agree upon the proper interpretation of specific provisions of the Constitution either, but that does not mean that judges should not refer to the Constitution itself. But again, let's look at what we should at least be able to agree upon:

A. That there are unenumerated rights that should be equally limiting upon the government's actions

B. That to declare that all unenumerated rights are fair game for government prohibition is the one position one simply cannot legitimately take.

Therefore, it should be obvious, we must have some set of criteria to distinguish between legitimate and illegitimate assertions of unenumerated rights. Even if the founders did not leave us with any such criteria to use, the mere fact that they told us plainly that there are unenumerated rights would demand that we develop some means of deciding which ones are legitimate and which are not. And I would submit that we must follow the path of George Mason, perhaps the most dogged defender of the rights of conscience among the founders. In a draft of the Virginia Declaration of Rights in 1776, Mason wrote that "a frequent recurrency to fundamental principles is absolutely necessary to preserve the blessing of liberty." It is to those fundamental principles that we must recur in answering this question, and those fundamental principles are nowhere better expressed than in the Declaration of Independence.

The touchstone of those principles is found in the second paragraph, the self-evident truth that all men are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, and further that governments are instituted among men for the specific purpose of securing those rights. All people must be free to live their lives as free people, with self-determination to pursue happiness in the manner that they choose, but of course there must be some limits upon that. If my idea of pursuit of happiness meant stealing your car or murdering your children, this would obviously not be within my sphere of liberty because I would then be depriving you of your self-determination and freedom. There must, then, be some criteria that defines where one person's liberty ends, that tells us when the government (i.e. the majority) may justly intervene to limit one's actions. And I would argue that the same man who gave us those fundamental principles in the Declaration also gave us the answer to this question. Natural rights, Jefferson argued, are "the objects for the protection of which society is formed and municipal laws established." And it was Jefferson who provides us with a compelling distinction between those actions that the government may justly prohibit and those actions that it may not:

"Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual."

Here Jefferson answers our question for us and provides a consistent basis for determining when a given action is the exercise of rightful liberty and when it is an action that may justly be restricted by the government - when our actions violate the equal rights of others. He further expressed this in arguing that each person's unalienable right was to "as much liberty as each may exercise without injury to the equal liberty of his fellow citizens." The freedom and happiness of man were, for Jefferson, "the sole objects of all legitimate government." Jefferson was hardly alone in these sentiments. I could as easily have provided virtually identical statements from James Madison, George Mason, Thomas Paine, Ben Franklin, George Washington and many others. I would argue that this provides us with the basic framework in which to answer these questions. Does it answer them for us in all cases? Of course not. There will still be disagreements over how best to apply these principles to specific situations. But we should bear in mind a couple of things.

First, that the burden should always be on the government to assert a legitimate authority, not on the individual to assert a legitimate right. We start from the premise that we are all endowed with unalienable rights that precede government and that we institute government solely to secure those rights. The charter that created the government was, according to Madison, a charter of power granted by liberty, not a charter of liberty granted by power and our rights, said Jefferson, are "derived from the laws of nature, and not as the gift of their chief magistrate." It is not up to the government to grant us dispensation to do something, it is incumbent upon them to show that any particular restriction they seek to place upon an individual's pre-existing liberty is justified. Judges must weigh those justifications out and balance the arguments, and when they do so it shows us why the courts were right in the three cases I listed above.

No one needs to prove that they have a right to marry the person of their choice regardless of their race, or the right to use contraception, or the right to have sexual relations with their consenting adult partner in the privacy of their own home. It is incumbent upon the government to prove that they have a legitimate authority to deny those rights, and by what possible argument could they pretend to do so? In all three, the argument is the same, that the action offends some portion of the community even though it does not have any impact upon their lives whatsoever. That the mere existence of this action that they don't like, regardless of the question of how it injures them or deprives them of any equal right, is enough to justify the government's use of coercion to prohibit it. But as Randy Barnett has noted, if we were to accept this as a legitimate basis for legislation, there are no longer any limits at all on what the government may do. All a legislature would have to do is assert that something offends some portion of the population and - voila! - the intrusion is justified. But this is such a clear violation of the principles that form the basis for determining legitimate governmental action that it is hardly worth spelling out the reasons why it fails those tests. And contrary to the assertions of conservatives, such limitations on what the government may do is not a limitation on the people's "right to govern themselves", it is only a limitation on the people's right to govern the lives of others in violation of the basic principles of human freedom. And that is precisely the sort of limitation that the Constitution was designed to foster, not inhibit.