The Proud Duck

Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

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Friday, October 14, 2005
It's been awhile since I posted last, but I just noticed this morning that four people actually took a look at this dust-encrusted site last week. So I thought I'd bore you guys away with some dull thoughts on constitutional law.

Since it's Supreme Court nomination season, the subject of abortion has come up. More specifically, the subject of how the Constitution can be understood as protecting a right to it when neither abortion nor the "right of privacy" upon which the Court's abortion jurisprudence is based can be found anywhere in the actual constitutional text.

Without going into endless detail on the arguments, I thought I'd address one of the arguments I've seen presented to explain where the right of abortion is to be found: the idea that the right to abortion is derived from the 9th Amendment, which states that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Some Pro-Roe people argue that's all it takes to enshrine abortion in the Constitution -- that is, even if abortion isn't specifically mentioned in the Bill of Rights, it's one of the rights "retained by the people."

The problem with this argument is that it's way too broad, which is why the federal courts have pretty much avoided using the 9th Amendment as a basis for striking down laws. If a court had the authority to declare anything at all a right "retained by the people," this would amount to an absolute judicial veto power over anything the legislature might do. Moreover, unlike a presidential veto, it can't be overridden, except by a constitutional amendment. It's very unlikely that the Framers, with their concern for checks and balances, meant to give any branch of government -- even "the least dangerous branch" -- such an unchecked power.

The 9th Amendment was enacted at the insistence of those, such as James Madison, who didn't want there to be a Bill of Rights in the first place. Their thinking was that the Constitution's structure itself protected individual rights just fine: Because the Constitution set up a system of enumerated powers of government, and those enumerated powers didn't include the power to restrict speech, establish or restrain religion, or infringe on the right to bear arms, an affirmative guarantee of those rights was superfluous. They also feared that listing affirmative rights might lead government to ignore the limits of its enumerated powers and expand its power to the limits of the Bill of Rights -- which, interestingly enough, has largely been done, the Commerce Clause having been expanded into virtually a general federal police power to pass laws without even a laughable connection to the regulation of commerce between the states.

The bottom line is that the 9th Amendment was never intended to be judicially enforceable. It's simply too broad and too vague. It contains no internal standard by which a court could determine what rights are "retained by the people," and so would (if it were judicially enforceable) give judges absolute discretion in policymaking. A judge could declare, for example, that the people's rights include a right to housing, or health care, or any number of things that are properly understood as political rather than constitutional questions, and requrie that policy be formulated accordingly. No matter whether one agreed with the court's policymaking or not, the point would be that those policies would have only the barest minimum of democratic legitimacy. True, there is some connection between elections and judges; people elect executives who appoint them. But the ability of an individual voter to influence policy is diluted by every layer of representation that is added between him and the person making the ultimate decision. Putting total power in the hands of life-tenured judges would render democratic consent virtually a symbol, nothing more.

The 9th Amendment should instead be treated as it was intended -- as a reminder to the government that just because the Bill of Rights set up a last-ditch backstop, it shouldn't throw the ball past the catcher's glove -- the sphere of government power as established by the body of the Constitution's enumerated powers.


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