We libertarians like to distinguish ourselves from our friends on the right and left by our equal concern with economic and social/civil liberties. For libertarians, the right to engage in contract and exchange with consenting adults is just as important as the right to engage in speech and sex with consenting adults. Other civil liberties, such as the right to bear arms or to buy, sell, and ingest various chemical substances are outgrowths of the right to contract and the right to engage in “anything that’s peaceful” (i.e., that does not cause harm to innocent others).
Yet these two types of liberties are not only separated in the political philosophies of contemporary liberals and conservatives, they are also deeply bifurcated in the way the Supreme Court has come to think about the constitutional status of those rights. The rights of contract and exchange had some decent level of constitutional protection for a brief period early in the twentieth century, but the New Deal ended that. Meanwhile, the right to marry, the rights of parents, the right of free speech, the right to engage in consensual sexual behavior, and others like it have recently been staunchly defended by the court and often more strongly than in decades past.
Of particular interest are the rights other than free speech, especially those surrounding sexual behavior. These are often subsumed under “the right to privacy,” but there is no actual “right to privacy” in the text of the Constitution.
However, it’s equally true that the rights of parents, the right to marry, and all the rights to contract and exchange are also nowhere to be found in the text of the Constitution. But more important, the rights of parents and the right to marry are largely considered uncontroversial despite the lack of textual referent, while privacy rights and economic rights are lightning rods. Is there a way to untangle this, perhaps to reconcile them?
In the early 20th century, the due process clauses of the Fifth and Fourteenth Amendments were interpreted as protecting the rights of contract, particularly in labor markets. The most famous (or infamous) of the cases from that era was Lochner v. New York (1905), in which the Supreme Court overturned a New York law establishing maximum hours for bakers on the grounds that it unconstitutionally interfered with the right of contract of the bakery and its employees.
Lochner’s fame now is as the representative case of this whole class of decisions that were subsequently rejected during the New Deal. The post-1935 court rejected these earlier decisions as it sought to find constitutional justification for the greater willingness of Roosevelt and Congress to intervene in a variety of private economic arrangements.
“Lochner-era thinking” is now a pejorative among most constitutional experts, reflecting their belief that using the due process clauses to defend substantive unenumerated economic rights stood in the way of the greater economic role for government thought to be necessitated by the Great Depression and New Deal.
More generally, during the New Deal the burden of proof of constitutionality underwent a significant change from what libertarian legal scholar Randy Barnett calls a “presumption of liberty” to a presumption of constitutionality. Until the New Deal, the burden of proof lay on government to demonstrate that a challenged law was within the constitutionally defined powers of the legislature and did not violate the presumed, and broadly read, liberties of the people, including rights not explicitly enumerated in the Constitution.
Since the New Deal, the presumption has been that laws passed by the democratic process (assuming “due process of law”) are constitutional unless the challengers can demonstrate that such a law violates the rights enumerated in the Constitution or those that have been established by the Supreme Court to be “fundamental” even if not enumerated. The result has been a gradual extension of state power and erosion of liberties, except in those areas that are explicitly enumerated (such as the Bill of Rights) or that the court has chosen to define as fundamental (e.g., privacy).
In the various “privacy” cases of the 1960s and beyond, especially those dealing with birth control and abortion, the court sought a way to defend the unenumerated “right to privacy” in the Constitution itself so that it would have the status of a fundamental right. However, the court could not revert to the due process clauses, as that would appear to reopen the door to Lochner-style economic rights. So instead, Justice William O. Douglas found the right to privacy in the “emanations and penumbras” of the Bill of Rights. Although this approach is better than jurisprudence that does not recognize unenumerated rights at all, scholars such as Barnett argue it suffers mightily from the appearance of capriciousness.
That perception of capriciousness may well lie at the center of debates over “judicial activism.” Courts that define as fundamental those liberties associated with either liberalism or conservatism tend to cause the other group to charge “judicial activism.” But when the court defines those liberties that a group likes as fundamental, the court is perceived by that group to be just doing its job in preventing legislative overreach.
There is an alternative approach, however. All unenumerated rights can find a unified textual justification in the Ninth Amendment, which reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This approach has three advantages: First, it would provide a grounding in the actual text of the Constitution for the idea that unenumerated rights are deserving of constitutional protection. This might have the consequence of avoiding the charge that judges are inventing constitutional language that does not exist in the text. Second, it would bring all these rights into an intellectually consistent framework rather than picking and choosing which part of the Constitution applies in which case. Third, it could provide a framework, as Barnett argues, for reestablishing the existence of constitutionally protected, yet unenumerated, economic rights and liberties.
The core of libertarianism is the right to create the voluntary associations we wish to, so long as they do not harm others. That right is not explicitly in the Constitution, but that presumption of liberty is the intellectual backdrop for the whole document. And this is precisely why the Ninth Amendment is there — to confirm that those rights belong to individuals even if they are not specified in the text, no matter what area of human interaction they apply to.