December 13, 2006

Here's a Novel Idea

Interpreting a provision of the Constitution so that it means what it says. Why is this such a refreshing new insight on the part of the academy? Not to knock Prof. Barnett, of course -- somebody had to say this.

The problem, of course, is that we don't know exactly what "other" rights were meant by this phrase: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But clearly it means something, and it was important, or else the Framers wouldn't have bothered amending the Constitution to put it there.

An open invitation to judicial policymaking? Apparently. But also apparently that's what was intended.


Anonymous said...

One wonders what rights the framers of the Constitution were thinking of. Could TL perhaps suggest some ideas for thought?

Burt Likko said...

I didn't really have time last night to flesh out the ideas before we went to dinner; didn't mean to leave anyone dangling.

The right of privacy is the immediate standout. Nowhere in the Constitution is such a right enumerated; scholars and judges have labored mightily over the existence and extent of the concept for a hundred years. Yet few have suggested that a Constitutional right of privacy can be found in the Ninth Amendment; instead they have tried to locate it in "penumbras" of more explicitly-defined rights. That has left a lot of issues on somewhat shaky ground.

Anything defined as a "substantive due process right" would count. Some scholars and courts question the applicability of the due process clause to direct individual rights. But, for instance, the right to marry is an individual right that comes from a lengthy legal and historical tradition which could be identified as one of the sorts of rights "reserved to the people" and which the government cannot restrict. Or maybe it can, within certain limits. As it stands now, marriage is, legally speaking, created by statute entirely, yet it enjoys an inchoate status as a Constitutional right as well. Or the right to have children, or the right to indoctrinate one's children in one's own religion. Or the right to cast a secret ballot in an election (surprisingly, the Federal Constitution seems to permit a state requiring public voting).