Posted by
Gamecock on Tuesday, December 12, 2006 2:13:50 PM
Mark Levin's "And Another Thing..." blog on NRO today addresses an issue much discussed on Redstate, i.e. the meaning of the Ninth Amendment to the U.S. Constitution in the Bill of Rights as well as two pending cases that could be the most significant in history that implicate the Amendment.
The amendment reads as follows:
Amendment IX - Construction of Constitution. Ratified 12/15/1791.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Levin (The Great One, as dubbed by his WABC pal, Sean Hannity) essentially agrees with my previously stated opinion that the Ninth Amendment is a rule of construction to interpret the first Eight Amendments in context, and which essentially codifies the Declaration's reference to inalienable rights, rather than being a source of amorphous and innumerable additional FEDERAL constitutional rights.
As Levin puts it:
"By its express text, the Ninth Amendment merely sets forth a rule of construction governing the first eight amendments. Its text cannot plausibly be read as a font of any rights. True, the Ninth Amendment presupposes the existence of “other [] [rights] retained by the people,” but the source of those rights must lie elsewhere...
And they include as well the broad array of non-constitutional rights that state law is free to protect, including (to the extent not covered by the Constitution’s guarantee of a “Republican Form of Government”) the basic right of the people to engage in self-governance. Indeed, those who seem to think that any right that is really, really important must be constitutional engage in the very disparagement of non-constitutional rights that the Ninth Amendment is designed to guard against."
I have generally agreed with Levin, but the two pending cases, as well as Barnett below make the best arguments I have ever heard on the other side of the substantive debate.
Read the whole Levin post and follow the links for two excellent posts at Benchmemos (also on NRO) by Ed Whelan and Matthew Franck respecting the Ninth Amendment.
http://levin.nationalreview.com/post/?q=ZjIwNjE4YjNlMTRlNWU5ODc3MzkzN2I4...
Below are the main portions of Randy Barnett's WSJ column and Matthew Franck's rebuttal on Bench Memos on the two potentially landmark cases that rely upon the Ninth Amendment to degree unprecedented in constitutional jurisprudence. The link to the whole Barnett article (subscription required) follows the following excerpt, which is followed by portions and link to Francks:
RULE OF LAW
In Re: Life or Death
By RANDY E. BARNETT
December 9, 2006; Page A9
In Abigail Alliance v. von Eschenbach, a three judge panel of the D.C. Circuit Court of Appeals ruled that, when a drug passed Phase I trials establishing its safety, a terminally ill patient has a right to try the drug before its efficacy is established, provided the patient has no other FDA-approved drug available for treatment. However, two weeks ago the circuit granted the government's motion for an en banc rehearing before all the members of the court.
At stake is the right to life. Although the parties are pleading the Due Process Clause of the Fifth Amendment, their claim also finds textual support in the original meaning of the judicially neglected 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."
The Ninth Amendment's author, James Madison, explained to the first Congress that it was added to guard against the 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." If the right to preserve one's life is not among the natural liberty rights retained by the people when they established government, then none are: The Declaration of Independence not only affirmed the natural right to life, it also affirmed that "to secure these rights, Governments are instituted among Men."
Of course, under our Constitution, state governments have the power to protect the health and safety of their citizens, and the federal government has been accorded the power to regulate the interstate marketing of drugs. But the question is whether terminally ill patients with no alternative have the right to take a chance on a drug of unproven effectiveness after Phase I trials establish its safety to the satisfaction of the FDA. If the retained right to life is truly fundamental, as the Declaration attests, and is not to be denied or disparaged, as the Ninth Amendment attests, then this decision is the patient's to make unless very good reasons exist to the contrary.
This is not a situation where "quack" doctors peddle false hope to dying patients, inducing them to avoid alternative effective treatments or simply to waste their assets. A physician's recommendation of a post-Phase I drug is backed up by the FDA's conclusion that it is safe, as well as a pharmaceutical company's willingness to wager millions of dollars on the approval process to show it is also effective. Does it make any sense to respect the liberty of citizens to strap waxed boards to their feet and slide down snowy slopes with trees whizzing by for the thrill of it (I am not making this up), yet deny the dying access to potentially life saving drugs that have been proven safe?
The natural rights to life and health are also at stake in the "partial birth abortion" cases that were argued to the Supreme Court in October. The Eighth and Ninth Circuit Courts of Appeals both held the federal ban on partial birth abortion was unconstitutional because it lacked an exception for the health of the mother. While this procedure is highly controversial when performed late term, the ban applied throughout the entire pregnancy. Moreover, the statute allows even late term use of the procedure to protect the woman's life (the very same right to life at issue in Abigail Alliance).
It is not as if Congress denies the existence of a constitutionally protected right to preserve one's health. Instead, Congress claimed that the procedure could be banned because it is never necessary to protect the health of the mother. However, both the Eighth and Ninth circuits found substantial medical authority that the banned procedures are necessary at times to preserve a woman's health.
In the face of this medical disagreement, the government argues that the congressional decision to ban the procedure should be upheld because it supported by some medical authority and therefore is "rational." Under the government's theory, however, when there is substantial disagreement among medical authorities, any decision by the government would be "rational" because supported by one side or the other.
Standing in the government's way is the 2000 case of Stenberg v. Carhart, in which the Supreme Court struck down a Nebraska ban on partial birth abortion because it too lacked an exception for the health of the mother. The court ruled that "where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health" a woman and her physician have a right to opt for that procedure. In other words, in the face of disagreement among reputable medical authorities, we should defer to the choice of the individual and her doctor, rather than to politicians.
Stenberg was decided 5-4 with Justice O'Connor providing the fifth vote to strike down the statute and Justice Kennedy in dissent. With Justice Alito replacing Justice O'Connor, observers are guessing that Stenberg is "in play."
But these cases are not really about the contentious liberty to choose abortion. Rather, they concern the fundamental right to preserve one's health. Is it so hard to imagine a conservative justice siding with a patient, her doctor and a substantial body of medical authority, over the highly politicized opinion of Congress?
Which brings us back to the issue of deference. Is Congress entitled to blind deference when a person's life and health is at stake? Or do the people themselves deserve deference when their choices are supported by state-licensed and regulated physicians and either substantial medical authority or Phase I trials? The Ninth Amendment was added to the Constitution precisely to affirm, in Madison's words, "the just importance of other rights retained by the people." We will soon learn whether the courts agree.
http://online.wsj.com/article_email/SB116562303655545069-lMyQjAxMDE2NjE1...
Mr. Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown Law Center and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2003).
Also see:
Matthew Franck's "Deny or Disparage" response:
In the Saturday edition of the Wall Street Journal (sub. req’d), Randy Barnett of Georgetown’s law school urges the federal courts to take up the Ninth Amendment in defense of the “natural liberty rights retained by the people when they established government.” In Barnett’s view, such rights would include the “right to preserve one’s life” by the use of experimental drugs that have been deemed “safe” in Phase I trials by the FDA but not finally approved for general prescription use after complete testing for their efficacy. And they would include the “right to preserve one’s health” by means of a partial-birth abortion as long as there is some “disagreement among reputable medical authorities” as to whether such an abortion was “necessary” to a pregnant woman’s health.
In one of his more trenchant opinions on our rights-manufacturing jurisprudence (a dissent, more’s the pity), Justice Scalia had this to say, in Troxel v. Granville (2000): “The Declaration of Independence . . . is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal [in the Ninth Amendment] to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”
http://bench.nationalreview.com/post/?q=MmQ1NTI3OTI5NDFkMjk2ODNmMWRlMDEz...
Levin:
"Just so. And anyway, “not . . . deny or disparage” is strange language to use in a provision calling for the judicial vindication of rights. How does one disparage a right, after all? Point and giggle?"
UPDATE
NEIL STEVENS' PRIOR DIARY EXCERPTS AND LINK
Denying and Disparaging the 9th
One amendment has been shoved under the bus by all though. That one is the 9th, and I wish it weren't so, but it doesn't get enough respect.
I understand why the left denies and disparages the 9th amendment. That's easy: they see 'rights' as alternately tools to be used by judges to achieve policy goals that cannot be won with elections, or as responsibilities of the government as a representative of classes of people collectively. That is about the only meaning the word can have with them, after all. Alien to them is the concept of an absolute natural order or, Sagan forbid, a deity-given order of how things are and should be.
So for them, such a broad amendment stating facts about the world, steeped in a concept of humanity that is contraindicated by their worldview, is nothing more than an "inkblot." It's easy for them to declare that, too. When you have a "living Constitution," some parts grow beyond their text (1st, 14th) while others shrink (2nd, 9th, 10th, Article 1,...).
The right's opposition to the amendment is harder to understand logically, though. We're the steady opponents of judicial activism, determined champions of an enduring Constitution, and last supporters of textualism in Constitutional interpretation. Why, then, do some of us hop onto the bandwagon and declare the 9th to be "meaningless?"
Unfortunately I think the reason is emotional. We've been hit over the head so many times by an activist Judiciary finding excuses to use their self-proclaimed supremacy over the Legislature and the Executive, that we've forgotten that our view of rights is not the same as theirs. We see "rights" in a Constitutional law context and cringe just on reflex.
What we should be doing instead is upholding the 9th along with the rest, but with the constantly-needed reminder that rights and the role of the Judiciary do not change with the makeup of the Supreme Court. We ought not shy away from our otherwise-principled respect for the document as it is written, just because we fear runaway judges perverting it into a blank check for activism.
READ THE WHOLE THING AND COMMENTS (MY COMMENTS ARE RE-PRINTED IN THE COMMENTS TO THIS DIARY AS WELL.)
http://www.redstate.com/blogs/neil_stevens/2006/sep/22/denying_and_dispa...
Gamecock, a civil and criminal trial and appellate lawyer for two decades in federal and state courts throughout the South, is presently vice-president of a multi-state real estate investment firm headquartered in Charlotte, N.C. For more Bio info see his personal "Gamecock" Townhall website. Gamecock is also an original contributing writer for www.race42008.com and recently joined The Minority Report as well.
http://theminorityreportblog.blogspot.com/index.html
"One man with courage makes a majority." - Andrew Jackson