In part 2 of this series (December), I argued that unenumerated noneconomic rights such as those of parents or the right to marry are generally considered “fundamental rights” under the approach libertarian legal scholar Randy Barnett labels “Footnote Four-Plus.” That is, the rights of parents are nowhere enumerated in the Constitution including the Bill of Rights, but are nonetheless protected as fundamental by the long tradition of recognizing them as implicit in the Due Process Clause of the Fourteenth Amendment. Strictly speaking, they are not among those rights that Footnote Four alone would protect given that they are unenumerated. But faced with the pre-Carolene precedents of Meyer and Pierce that still made sense as good law, even as economic liberties that had once been protected by the same clause were seen to be no longer worthy of protection, the Court had to find a way to continue to offer such protection. The solution, interestingly enough, has been to define them as “fundamental” and to do so under the idea of “substantive due process” without much of a blink in the face of the rejection of that doctrine in other areas.
Put differently, it is something of a mystery that Meyer and Pierce remain good constitutional law and serve as the binding precedent for later parental rights cases and cases involving the right to marry and the right to engage in consensual sexual behavior (such as Loving v. Virginia and Lawrence v. Texas). Faced with the Footnote Four approach, the Court in Griswold felt it necessary to cram the square peg of privacy into the round hole of a Bill of Rights that never mentions such a right in order to avoid two unpalatable alternatives. The first was to find such a right in the Fourteenth Amendment, arguing that a right to privacy had the same standing as the right to marry or parental rights under the Due Process Clause. That alternative was very likely rejected for fear of a return to Lochner, and no Court wanted to go there.
The second alternative open to the Griswold Court was the approach in Justice Arthur Goldberg’s concurrence: make use of the Ninth Amendment. As Barnett’s book Restoring the Lost Constitution argues, taking a second look at the Ninth Amendment’s explicit discussion of unenumerated rights provides us with a way to both undo the damage to the Constitution’s protection of economic rights done by the post–New Deal courts and to find a way to protect unenumerated rights that does not rely on the Court’s having to pass judgment on the very contentious issue of which unenumerated rights are fundamental and which are not. Relying on the Ninth Amendment can resolve a number of the constitutional puzzles in which the parental-rights cases play a curious role. It also offers a way to reconcile the economic liberties and personal liberties cases under one conceptual umbrella, and one that is actually in the text of the Constitution.
The Ninth Amendment
The text of the Ninth Amendment is straightforward enough: “The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.” As Barnett argues, the historical context of the amendment was a concern that a bill of rights that specified certain rights that people had might be interpreted as an exhaustive list. Many present at the drafting of the Bill of Rights wanted to avoid that interpretation and make it clear that just because they had listed a whole series of rights in what are now the first eight amendments, later generations should not take that list as exhaustive. The people “retained” a whole variety of rights that they had before entering into the constitutional “contract” that gave certain specified powers to government. Barnett argues that the historical context out of which that argument rose was one in which people were believed to possess certain natural rights prior to the creation of a constitution and government. Even as they agreed to institute a government for the purpose of enforcing those rights, they did not give up those rights to the state. Rather, they accepted limits on those rights necessary for the limited powers of government, but “retained” all of the other rights they possessed previously. As Barnett sees it, the Ninth Amendment just confirms that view.
The importance of unenumerated rights is clear every time debates erupt over whether a certain right is “in” the Constitution. This is certainly obvious in the debate over whether a “right to privacy,” which is not explicitly stated in the Constitution, can really be said to exist. The same could be said of the recent decision in Lawrence v. Texas (2003), which was read by Justice Antonin Scalia as finding a “right to sodomy,” which appears nowhere in the Constitution. Barnett’s view of the Ninth Amendment gets around those problems by pointing out that it provides a textual location for unenumerated rights. Yes, there’s no explicit right to privacy in the document, but that is equally true of any of a million individual “rights” that one could list. The whole point of the Ninth Amendment is to respond to that argument by shifting the burden of proof: the courts should approach constitutional interpretation with what Barnett calls a “presumption of liberty” and expect the state to show where the powers it wishes to exercise are explicitly granted, or “necessary and proper.”
Historically, that was never better articulated by the Court than in Justice Goldberg’s concurring opinion in Griswold. He there makes the case for grounding the right to marital privacy and the consequent right to purchase contraceptives in just this sort of reading of the Ninth Amendment. After explaining both the history of the amendment and the Court’s earlier protection of the right to marry and raise children in Meyer and Pierce, he makes the case for using the Ninth Amendment to ground those rights:
Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family — a relation as old and as fundamental as our entire civilization — surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government, though not specifically mentioned in the Constitution.
Goldberg still frames the discussion in terms of those “fundamental” rights the Court has decided to protect, but he also notes earlier in his concurrence that such rights must come from a broad social and historical understanding of our institutions, rather than the personal preferences of judges.
His concurrence and the larger intellectual framework provided by Barnett provide a way to ground parental rights in the Constitution in a manner consistent with both the unenumerated noneconomic rights currently protected by the Due Process Clause of the Fifth and Fourteenth Amendments in some cases and by the “emanations and penumbras” of the Bill of Rights in others. Uniting all of these unenumerated rights in the language of the Ninth Amendment would have three salutary effects:
First, it would provide a grounding in the actual text of the Constitution for the idea that unenumerated rights are deserving of constitutional protection. That 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 of 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. Bringing all unenumerated rights under the Ninth Amendment would solidify each by the presence of the others.
And, to close the circle, it should come as no surprise that we can find a way to link up the jurisprudence underlying those personal liberties with economic liberties. Although Meyer and Pierce are now known as “parental rights” cases, they were just as much about freedom of contract. In both cases, the fundamental issue was whether parents could contract with schools to provide their children the education they thought appropriate. Yes, it’s about the right of parents to raise their kids as they see fit, but the means to that end was the right of contract, which is why they were seen as extensions of Lochner. The same could be said of the right to marry as well as, in an implicit way, the consent at the core of sexual relationships. Cases such as Meyer and Pierce, which are still considered good law, demonstrate the unity of economic and personal 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 as Barnett and others have argued, the presumption of liberty is the intellectual backdrop for the whole document. And that’s precisely why the Ninth Amendment is there — to confirm that those rights belong to individuals even if they are not specified in the text and no matter what area of human interaction to which they apply.
This article was originally published in the January 2015 edition of Future of Freedom.