More on the Ninth Amendment

Mr. Pattis makes an excellent point about the Ninth Amendment, which I believe is the most important of all the amendments. Several months ago there was quite a blog fight going on between Freespace, Southern Appeal, and other blogs as to its meaning. (Parts I, II, III, IV, V, VI, VII, VIII, IX, X)

Simply put, the Ninth Amendment is explained by (among other things) Madison’s concern that the Bill of Rights must “be so framed as not to imply powers not meant to be included in the enumeration.” Madison and others were understandably concerned that if you said people have a right to A, B, and C, but left out D—possibly out of simple inadvertence—that people would then assume that D was intentionally left out, and therefore, that you don’t have a right to D. In Hamilton’s words,

[Federal officers] might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.

The Ninth Amendment therefore represents the continuing validity of our natural rights—just because the Constitution does not mention the right to run barefoot through sprinklers, doesn’t mean you don’t have that right.

Where do we look for guidance, then, as to whether an asserted right—like the right to choose your own death—really is a right? To political philosophy, and the best guide to that political philosophy is the Declaration of Independence. The political philosophy of the Declaration holds that we have certain rights which no just government has the authority to take from us—including the right to liberty. As Randy Barnett has recently explained at length, the existence of this right means that the burden must always be on the government to justify any curtailment of that liberty. And the Declaration explains how such a justification is to be performed: since government exists “to secure [our] rights,” any curtailment of liberty must be justified, not in terms of some alleged social “benefit” from curtailment, but in terms of the protection of individual rights. Thus, laws against murder or robbery are justified, while laws against private, adult, consensual sexual activity, are not.

Now, when it comes to suicide laws, the issue becomes a little bit more complicated. The Declaration holds that we “are endowed by [our] Creator with certain unalienable Rights, that among these are Life.” The complication is that word unalienable. According to the political philosophy of the Declaration, each person owns himself in life estate: he does not own himself in fee. This is why our rights are unalienable—we cannot give away our rights to life, liberty, and the pursuit of happiness, no matter how much we may be misled into wishing to. We therefore have no right to commit suicide. As Locke explained,

[T]he legislative…can [not] possibly be, absolutely arbitrary over the lives and fortunes of the people…. [It has] but the joint power of every member of the society given up to…[the] legislator…and nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another…. [H]aving, in the state of Nature, no arbitrary power over the life, liberty, or possession of another, but only so much as the law of Nature gave him for the preservation of himself and the rest of mankind, this is all he doth, or can give up to the commonwealth, and by it to the legislative power, so that the legislative can have no more than this.

A very plausible case can be made, then, that our natural rights do not include the right to commit suicide. I myself do not agree with this—I believe that we do own ourselves in fee, and that we do have a natural right to commit suicide—but it is not clear that the Ninth Amendment, even if properly applied, would protect such a right.

Comments

[David Giacalone]

Tim, You always write as if the definition of the word "liberty" is clear as a bell.

I know you disagree with the position of Brandeis history professor, David Hackett Fischer, on the various and varied meanings of "liberty" and "freedom", but I think readers might nonetheless want to check out his thoughtful Feb. 7, 2005 op/ed piece from the New York Times.

Meanwhile, one indication that the meaning of "liberty" for drafters and signers of the Declaration of Independence might not be as expansive or clearcut as you assert, can be seen by reading the Webster's 1828 Dictionary definition of liberty:

LIB'ERTY, n. [L. libertas, from liber, free.]

1. Freedom from restraint, in a general sense, and applicable to the body, or to the will or mind. The body is at liberty, when not confined; the will or mind is at liberty, when not checked or controlled. A man enjoys liberty, when no physical force operates to restrain his actions or volitions.

2. Natural liberty, consists in the power of acting as one thinks fit, without any restraint or control, except from the laws of nature. It is a state of exemption from the control of others, and from positive laws and the institutions of social life. This liberty is abridged by the establishment of government.

3. Civil liberty, is the liberty of men in a state of society, or natural liberty, so far only abridged and restrained, as is necessary and expedient for the safety and interest of the society, state or nation. A restraint of natural liberty, not necessary or expedient for the public, is tyranny or oppression. civil liberty is an exemption from the arbitrary will of others, which exemption is secured by established laws, which restrain every man from injuring or controlling another. Hence the restraints of law are essential to civil liberty.

The liberty of one depends not so much on the removal of all restraint from him, as on the due restraint upon the liberty of others.

In this sentence, the latter word liberty denotes natural liberty.

4. Political liberty, is sometimes used as synonymous with civil liberty. But it more properly designates the liberty of a nation, the freedom of a nation or state from all unjust abridgment of its rights and independence by another nation. Hence we often speak of the political liberties of Europe, or the nations of Europe.

5. Religious liberty, is the free right of adopting and enjoying opinions on religious subjects, and of worshiping the Supreme Being according to the dictates of conscience, without external control.

6. Liberty, in metaphysics, as opposed to necessity, is the power of an agent to do or forbear any particular action, according to the determination or thought of the mind, by which either is preferred to the other.

Freedom of the will; exemption from compulsion or restraint in willing or volition.

7. Privilege; exemption; immunity enjoyed by prescription or by grant; with a plural. Thus we speak of the liberties of the commercial cities of Europe.

8. Leave; permission granted. The witness obtained liberty to leave the court.

9. A space in which one is permitted to pass without restraint, and beyond which he may not lawfully pass; with a plural; as the liberties of a prison.

10. Freedom of action or speech beyond the ordinary bounds of civility or decorum. Females should repel all improper liberties.

To take the liberty to do or say any thing, to use freedom not specially granted.

To set at liberty, to deliver from confinement; to release from restraint.

To be at liberty, to be free from restraint.

Liberty of the press, is freedom from any restriction on the power to publish books; the free power of publishing what one pleases, subject only to punishment for abusing the privilege, or publishing what is mischievous to the public or injurious to individuals.

Yes, the definition takes up a lot of space, but that is sort of my point.

[Timothy Sandefur]

Well, I use the term liberty to refer to "Freedom from restraint, in a general sense, and applicable to the body, or to the will or mind." I'm really not sure how this definition would invalidate anything I said. Of course definitions matter, but I think my use was perfectly consistent with this definition. Can you explain how it was not?

[David Giacalone]

Tim, You have just chosen a definition that seems both too limited (dealing very generally with constraints on the body and mind) and too unlimited (not taking into account myriad exceptions to bodily liberty which are fully allowed by our system of laws).

More specifically, it seems unlikely that the drafters and signers of the Declaration, which was their bold assertion of civil and natural and political rights, were not using the term "liberty" in its "civil" and political context, and taking into account natural law.

Thus, according at least to Webster in 1823, "natural liberty" can be limited by the laws of nature [a rather slippery concept]. And "civil liberty" can be restrained "as is necessary and expedient for the safety and interest of the society, state or nation." "Hence the restraints of law are essential to civil liberty."

Even "liberty of the press" is subject "to punishment for abusing the privilege, or publishing what is mischievous to the public or injurious to individuals."

None of these limitations are self-defining or self-evident. All suggest that society has interests that it may seek to protect beyond those of the individual. None lead to your assertion that "any curtailment of liberty must be justified, not in terms of some alleged social “benefit” from curtailment, but in terms of the protection of individual rights."