Ninth Amendment
Another looming constitutional battleground concerns the meaning of the Ninth Amendment to the Constitution: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the People.” Many modern constitutionalists understand this amendment to say that there is some unknown array of unremunerated rights that lie fallow in the Constitution, waiting only to be unearthed by far-sighted judges.
Professor Thomas Grey of the Stanford Law School has suggested, for example, that the Ninth Amendment constitutes a “license to constitutional decision makers to look beyond the substantive commands of the constitutional text to protect fundamental rights not expressed therein.” Rights to abortion, contraception, homosexual behavior, and similar sexual privacy rights have already been imposed by judges “detecting” such rights in the Ninth Amendment. The problem is that, in the words of Justices Stewart and Black, this understanding of the amendment “turns somersaults with history” and renders the courts a “day-to-day constitutional convention.”
The more conventional understanding of the Ninth Amendment has viewed it in the historical context of the Bill of Rights, of which it is a part. By this understanding, it was written to dispel any implication that by the specification of particular rights in the Bill of Rights, the people have implicitly relinquished to the new federal government rights not specified. Like the Tenth Amendment—which serves as a reminder that powers neither given to the federal government nor prohibited to the states in the Constitution are reserved to the states or to the people—the Ninth Amendment was adopted to emphasize that our national government is one of limited powers. Its principal purpose was to prevent an extension of federal power, not to provide an open-ended grant of judicial authority that would have the opposite effect.
This post was excerpted from Imprimis, April 2010.
Saturday, May 29, 2010
Sunday, May 23, 2010
Constitutional Changes of the Future—Part 5
Political Questions:
In areas that were once viewed as inappropriate for judicial involvement, federal courts have begun to assert themselves in an unprecedented and aggressive manner. The limited role of the judiciary, for example, with regard to matters of national defense and foreign policy is not explicitly set forth in the Constitution, but such matters have from time immemorial been understood to be non-justiciable and within the exclusive responsibility of the elected branches of government. As far back as Marbury v. Madison (1803), Chief Justice John Marshall recognized that “Questions in their nature political…can never be made in this Court.”
Yet just in the last several years, the Supreme Court, in a series of 5-4 decisions, has overruled determinations made by both the legislative and executive branches regarding the treatment of captured enemy combatants. Most notably, the Court ruled in Boumediene v. Bush (2008) that foreign nationals captured in combat and held outside the United States by the military as prisoners of war—a war authorized by Congress under Article I, Section 8, and waged by the President as Commander-in-Chief under Article II, Section 2 (both parts of the Constitution)—possess the constitutional right to challenge their detentions in federal court. Thus, in yet one more realm of public policy—one on which the sovereignty and liberty of a free people are most dependent, national defense—judges have now begun to embark upon a sharply expanded role.
If there is no significant realm left of “political questions,” if there are no longer any traditional limitations upon the exercise of the judicial power, then, every matter coming before every president, every Congress, every governor, every legislature, and every county commission and city council can, with little difficulty, be summarily recast as a justiciable dispute, or what the Constitution, in Article III, Section 2, describes as a “case” or “controversy.” As a result, every policy debate taking place within government , at every level, will become little more than a prelude for judicial resolution.
This post was excerpted from Imprimis April 2010.
In areas that were once viewed as inappropriate for judicial involvement, federal courts have begun to assert themselves in an unprecedented and aggressive manner. The limited role of the judiciary, for example, with regard to matters of national defense and foreign policy is not explicitly set forth in the Constitution, but such matters have from time immemorial been understood to be non-justiciable and within the exclusive responsibility of the elected branches of government. As far back as Marbury v. Madison (1803), Chief Justice John Marshall recognized that “Questions in their nature political…can never be made in this Court.”
Yet just in the last several years, the Supreme Court, in a series of 5-4 decisions, has overruled determinations made by both the legislative and executive branches regarding the treatment of captured enemy combatants. Most notably, the Court ruled in Boumediene v. Bush (2008) that foreign nationals captured in combat and held outside the United States by the military as prisoners of war—a war authorized by Congress under Article I, Section 8, and waged by the President as Commander-in-Chief under Article II, Section 2 (both parts of the Constitution)—possess the constitutional right to challenge their detentions in federal court. Thus, in yet one more realm of public policy—one on which the sovereignty and liberty of a free people are most dependent, national defense—judges have now begun to embark upon a sharply expanded role.
If there is no significant realm left of “political questions,” if there are no longer any traditional limitations upon the exercise of the judicial power, then, every matter coming before every president, every Congress, every governor, every legislature, and every county commission and city council can, with little difficulty, be summarily recast as a justiciable dispute, or what the Constitution, in Article III, Section 2, describes as a “case” or “controversy.” As a result, every policy debate taking place within government , at every level, will become little more than a prelude for judicial resolution.
This post was excerpted from Imprimis April 2010.
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