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Dildos and the Ninth Amendment
Thursday, August 14th, 2008A few days ago on my own blog I wrote a post about the possibility that the Supreme Court will hear a case next term on whether states can outlaw the sale of sex toys. We currently have a circuit split on the issue, with the 5th circuit striking down a Texas ban on sex toys and the 11th circuit upholding an Alabama ban on sex toys. That usually means that the court will take the case to clear up the split and I speculated on what the outcome might be.
A reader left a comment after that post that offered such a great opportunity to educate people on the nature of the relationship between government and individual rights, and specifically about the nature of the 9th amendment and the status of unenumerated rights, that it deserves its own post. The reader began:
Yes, it’s appaling that dildos are illegal. But it’s within the powers of a government to make them so, and correct for a court to uphold a law.
Sure, it’s a matter of the government legislating “morality”, but that’s what governments do. Stealing, for instance, is illegal because it is wrong to steal.
No, this is false. Stealing is illegal because it violates the rights of others. The natural rights philosophy that is the basis of our political system holds that the law intervenes only to protect another person from being harmed against their will or from having their rights violated. Jefferson expressed this idea best:
Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.
There are two important parts of that quote. The first establishes what I said above, that the proper limits on our actions are when they violate the equal rights of others. The second sentence, though, is even more important. Notice that he makes no distinction between laws passed democratically and laws decreed by a king or a dictator. The law, regardless of how it is passed, is tyrannical if it violates the rights of the individual.
This is in keeping with the natural rights view among the founders, which held that it was very important to put roadblocks in place to prevent the majority from violating individual rights. That was why they insisted upon the Bill of Rights in the first place and it is why they also insisted that there was no way they could possibly list all of the rights that government may not justly violate.
It’s the job of a democratic government to regulate people’s behaviour in accordance with what society thinks is reasonable. A bill of rights is an emergency last-resort stopper on the behaviour of government: you can’t expect that every law that you happen to not like will be a rights violation.
This is absolutely false. The Bill of Rights was hardly viewed as an emergency last resort by those who wrote it, nor should it be viewed that way by us. The Bill of Rights defined the proper limits of government, at least partially. It is the job of any government to protect our rights against the incursions of others. It is not their job to be the police force for the majority in enforcing laws against whatever the majority happens not to like.
When the Bill of Rights was passed, Madison and others made very clear that it was not to be viewed as a definitive list of rights that allowed all other unenumerated rights to be regulated as the majority/government see fit. That was precisely the outcome that they feared in attaching a Bill of Rights and the 9th amendment was written specifically to eliminate that as an option. They made quite clear that no such enumeration of all the rights that could not justly be violated was possible. James Wilson, for instance, said:
All the political writers, from Grotius and Puffendorf down to Vattel, have treated on this subject; but in no one of those books, nor in the aggregate of them all, can you find a complete enumeration of rights appertaining to the people as men and as citizens…Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.
Before the Pennsylvania ratification convention, Wilson further explained this position:
In all societies, there are many powers and rights, which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed to be given. The
consequence is, that an imperfect enumeration would throw all implied power into the scale of the government; and the rights of the people would be rendered incomplete.
Likewise, Charles Pinckney:
[W]e had no bill of rights inserted in our Constitution; for, as we might perhaps have omitted the enumeration of some of our rights, it might hereafter be said we had delegated to the general government a power to take away such of our rights as we had not enumerated…
Perhaps the strongest statement came from James Iredell:
[I]t would be not only useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.
This, Madison explained, was precisely why the 9th amendment was written. It was precisely to prevent people in the future from taking the position that anything not specifically listed as a right could be regulated as long as the majority/government sees fit. So we know, beyond any reasonable doubt, that there are rights that are not listed in the constitution but that the government is still forbidden from violating. How do we determine what they are?
Randy Barnett’s answer to this question is the best I’ve ever seen. Because no exhaustive list of rights is possible, the burden of proof needs to be placed on the government to show that it has a compelling interest in regulating that particular action. It should never be on the individual to prove that they have a legitimate right to do something. He calls this the presumption of liberty.
“Stealing, for instance, is illegal because it is wrong to steal.”
Are there still people out there that are this dumb? Is it not wrong to commit adultery, to mock people with mental disabilities, to say horribly racist things, to lie to women to get them to sleep with you? Hm, what might be different between those things and stealing? Dumb. Ass.
Oh and as for the 9th amendment stuff, people need to be more aware of this concept because it is very likely the most important in the whole entire document.
One of Radley’s favorite targets, Justice Scalia came to my law school and was asked (via a written question read by a professor, because, well, Scalia is a a massive pussy) how his staunch beliefs of originalism gelled with the fact that so much of the Constitution and Bill of Rights was written in vague, general terms that HAD to be interpretted and applied in a given context. His response was that the founders wrote the document this way because they didn’t want to make it too long.
What a boob.
I will just take this opportunity once again to post a link to my tribute to Alabama’s sex toy law.
http://www.realitythinking.org/
Yes. And if that weren’t enough, they make up the vast majority of the voting public.
There’s also a pretty strong rumor going around Alabama AG Troy King (noted Gay Basher) has a love affair going on with ….wait for it…Another man!
AL has the law, but the stores are still open. There are two in Tuscaloosa. Selling all the same toys and movies you find in any such adult store in any state where there is no such law.
Since the federal government only has the authority that it was granted in the Constitution, how can DC have jurisdiction here? Of course it’s an issue for the States (see 10th amendment). The Constitutional Republic that makes up the political foundation of our country is not libertarian. It’s based on a very limited federal government (which can be very well aligned with libertarian ideals – in theory), and a union of mostly sovereign states (some of whom can have very unlibertarian ideas of governance).
If a state wants to ban rubber/plastic/battery-operated objects of various shapes and sizes, that’s no business of DC. Is it just? Of course not – but we are talking about government here. If the federal government is to follow its own rules, it should remain silent on this issue. We can’t complain when the federal government oversteps its Constitutional bounds and ends up being more authoritarian than we’d like in 98% of cases, but then ask it to save the day for the other 2% of cases that align with our philosophy.
Yes, but now they’re referred to as medical devices.
That reminds me of the says when all porn had to be identified as being “For Educational Purposes”.
The 9th Amendment was included to ensure that the list of Rights in the Bill is not seen as exhaustive. That said, the Bill of Rights was also originally written as a set of limitation on the federal government. Many of its provisions as just that even if today they are viewed as a charge to the federal government to protect these rights against intrusion by the States.
In other words, while there surely exist many unenumerated rights, which are reserved to the people, it is not clear that when a state violates these rights there is a federal recourse under the 9th amendment for them. Whether the people of Texas decided to have the regulation of sex toys reserved to themselves or to their state government is simply not a federal question.
To clarify my comment: I haven’t done my own research on this, but I’m fairly certain that the limitation on “excessive bail” was intended to be universal (crime being mostly a state matter at the time). On the other hand “Congress shall make no law …” clearly says nothing about what laws state legislatures may or may not pass.
Lior is right. The 9th Amendment is a restriction on the federal government. Classical 18th century federalism had no problem with individual states using their police powers for purposes of upholding morality. In fact, “health, safety, and morals” is part of the classic definition of police powers.
To be fair, you should state outright that your interpretation assumes that the 9th Amendment is incorporated into the states, and correspondingly destroys the traditional understanding of police powers to delete any and all laws regarding “morals.” If you want to look at state laws in the 18th century, however, you’ll find a TON of them. So at a minimum, you should note that your interpretation has little to do with the way state governments were actually run at the time of the founding, and represents a libertarian interpretation that is essentially a radical position.
Lior,
Now that covers state legislatures as well via the 14th, in many cases.
For most of the 19th century there was no 14th amendment.
I must admit I am a bit wishy washy on strict federalism. Federal government making sure rights are preserved or expanded is good in my book (and I like to think the 14th justifies it). Federal governmnent restricting rights and getting in everyone’s business is bad.
Frank, Lior and Sydney,
I think it should be noted that often, cases like this – and though i haven’t read the case law, I would wager this case too – is not typically decided under the 9th amendment. Courts almost never cite the 9th amendment in striking down state laws. The 9th Amendment is seen more as a prism through which to interpret the rest of the enumerated rights rather than a direct statement of legal principles.
The federal government can get into the business of state’s when the state law violates a right recongized under the fed. constitution (including, of course, case law interpretting the Document). That is obviously what the claim must be here. The question is whether the law unnecesarily or too intrusively infringes an important right, not whether it is a law that controls morality. Sex, and bodily integrity have been viewed has important, fundamental rights guaranteed by the federal Document. There was the CT case where they struck down a ban against condoms and the sodomy case out of TX that began to carve out that principle. Now, the Supremes will decide if that right to not have your sexual habits intruded upon by your state gov. includes the right to use dildoes. If they think it is not the business of the feds then they can say so and that would be even better than not getting involved at all.
They will decide this – I would wager – under the 14th amendment’s equal protection clause which incorporates the 5th Amendment’s right to Liberty/Due process. I.e. this will be a substantive Due Process case.
Nick T,
I don’t mean to base my argument on the 9th amendment either (I did mention 10th however). And yes, the essential argument in their minds is whether dildo illegality infringes on a right found in the Constitution (even when it isn’t mentioned in the Constitution, which is why these rulings can be so magical and mystifying)
I think it’s safe to say that if the federal government can win in Wickard v Filburn (to use just the most well-known example), there is no activity or product legislated on by the States that can’t be overturned or overruled at the federal level by claiming Constitutional authority. In our current day and age, “states rights” is an empty phrase, in theory and practice. Doubly so when federal funding is used as a means to extort the kind of state laws DC wants. My only point was that *if* one assumes the federal government obeys the Constitution (as it is written), then any authority not expressly granted to it must fall to the States and/or the People – even if the outcome is one that libertarians do not agree with. Roe v Wade, anyone?
“which held that it was very important to put roadblocks in place to prevent the majority from violating individual rights.”
This is why banning smoking in bars is legal.
This is why banning smoking in bars is legal.
Huh?
I would argue, in response to those asserting a federalist interpretation of the 9th amendment, that the 14th amendment requires the application not only of the first 8 amendments to state action but the full range of natural rights (”privileges and immunities”) that underlie the bill of rights and especially the 9th amendment. But this is a subject for its own long and detailed post; perhaps I’ll do that this weekend. For an excellent discussion of this concept in the meantime, I highly recommend both of Randy Barnett’s books on the subject.
Well Zeb, as I see it when someone smokes in an enclosed space they are violating my right to 1. Breathe reasonably clean air and 2. not smell like cigarettes. IMO the argument “it’s his property he can do what he wants” is invalid. Why? Well, is he allowed to institute a stealing is legal rule in his bar? Because smoking affects more than just the user steps need to be taken to ensure individuals rights are not infringed upon by the majority (or in this case a minority). Follow my logic?
Oh really? That’s why it’s perfectly legal for city police to lock you up and throw away the key without a trial eh? Why are we bitching and moaning about Scalia’s decision in the Hudson case? All the state (county or city) has to do is pass a law saying the police can bust down your door whenever they want to without any type of oversight since the 4th amendment doesn’t apply to them. Those federal agents stumped because a defendant won’t testify against himself, just have a state trooper beat him with a phonebook until he confesses. All we need to do is pass a state law saying it’s legal…
Oh, that’s right, the constitution is the SUPREME LAW OF THE LAND, which means that any law at any level must be constitutional, which means none of them are supposed to violate the bill of rights. That doesn’t mean that all laws ARE constitutional, just that they’re supposed to be.
Sam, say I own a bar. If I put up a sign that says “people are allowed to steal from you in here” no one will come in to my bar. Problem solved; your example is ridiculous. If I put up a sign saying “you can smoke in here” people will come in who like to smoke or who don’t mind it too much. In either case, you have the choice not to be exposed to the thing you don’t like.
You do have a right not to smell like smoke or to breathe second hand smoke, and you can exercise that right by not going to places where people smoke. Similarly, smokers and bar owners have a right to smoke or maintain a smoky establishment and they can exercise that right by maintaining and regulating their private property as they see fit.
I consider smoking in an enclosed space to be a violation of my individual rights. Logically, regardless of how ridiculous my example may be, if it is ok for the owner of a bar to allow violations of one of my rights, why not another?
I’ll also point out that regardless of if the owner posted in his bar. “people are allowed to steal from you in here” the government would still be allowed to, and would, prosecute people that stole, regardless of the owners rule.
What if the sign said “I can charge blacks more for beer than whites” or, “Whites are allowed to beat blacks in here”. Surely by your logic that is within the owners right to do on his property, no? This would likely not effect his business in the appropriate community.
Well, I consider the fact that I am not getting a blowjob right now a violation of my indiviual rights. Where is MY law?
Zeb,
Don’t be silly. You realize it takes 2 people to have a blowjob right? So if there was a law that compelled people to give blowjobs that would be a violation of their rights? Nobody can tell you you cant have a device that gives you a blowjob though!
P.S. I’m going to assume you couldn’t refute anything I said since you resorted to sillyness
Hey! I’m not getting a BJ either – zeb’s right! There oughtta be a law goddammit!
Sam, yes! If he wants to charge one group of people more than he charges another in order to serve them, that should be his right. Just as he should have the right to not server any group of people for what ever reason he so chooses. Your stealing and beating examples are just strawmen.
Ed,
You’re right that a more detailed discussion of the 9th amendment, as incorporated against the states, is a subject for another day requiring another post.
I should note that whily Randy Barnett has his perspective, I think it’s accurate to say that it is highly, highly controversial. Even as the Supreme Court has struck down state laws on condoms, homosexual sex, and abortion (all decisions I disagree with, btw), they have never done so according to the 9th Amendment, but pursuant to what they view as “substantive due process” under the 14th Amendment. Randy Barnett poses a much, much, much more radical interpretation that Constitutional jurisprudence should use the 9th Amendment, basically as a libertarian hammer, to strike down almost all state laws that infringe upon libertarian-understood freedom. As Griswold, Roe, and Lawrence were controversial decisions striking down state laws on condoms, abortion, and homosexual sex, the decisions used substantive due process that mirrored the substantive due process of the Lochner era (except that it dealt with sexuality instead of contracts). Randy Barnett poses a much more radical agenda than using substantive due process (which is regarded as a sham by many that is just a perfect example of judicial legislating from the bench).
All I’m saying is, just because Randy says something doesn’t mean it carries any weight. It’s a radical theory.
This is not a federal issue. The States get to decide on this one. The Fourteenth Amendment didn’t repeal the Tenth Amendment.
Sam-
You have a right not to be exposed to smoke until you violate the private property rights of the bar owner. His right to do with his property as he wishes trumps your right not to be exposed to smoke. In order for the bar owner to violate your rights, YOU have to voluntarily enter the bar, thus voiding your right. And yes I would also apply this to the extremes of beating blacks and allowing theft. If you’re dumb enough to enter that bar, you deserve it.
Ed Brayton favors the view that the 14th Amendment imposes the Bill of Rights on the states and gives a broad power to the Federal government to overturn state laws. This is also the view of Randy Barnett. However, the late liberal Constitutional scholar Raoul Berger demolished this view in numerous books and law review articles. This simply was not the general view of the 14th Amendment when it was adopted.
Robert: What (should) stop the local government from violating your rights is the State Constitution. The Bill of Rights was concieved as a limitation on the newly-formed Federal Government. Expressions such that “Congress shall make no law” ought to make this clear. In practice, States violate (natural) right in certain ways and the Federal Government has stepped in with limited remedies — but this is not a good solution.
Moreover, just because the Constitution bars the Federal Government from doing something, and is the supreme law of the land, doesn’t mean that State governments are also barred from doing the very same thing. For example, “Congress shall make no law respecting an establishment of religion” is not incompatible with non-acts-of-Congress such as “… no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right … but that all persons, professing a belief in the faith of any Protestant sect. … shall be capable of being elected into any office of profit or trust, or being a member of either branch of the Legislature, and shall fully and freely enjoy every privilege and immunity, enjoyed by others their fellow subjects” [1776 Constitution of New Jersey], or with requiring all office-holders to attest: ” I, A B. do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.” [1776 Constitution of Delaware]. See similarly the 1776 Constitution of Maryland.
These practices specifically do violate the 14th amendment (denying privileges or immunities based on religion). But the Constitution also says “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Does this limit the taxing powers of the states? Given your beliefs, please explain the necessity of the many clauses of the first part of the 1844 NJ constitution, which essentially duplicate parts of the Bill of Rights. By the way, you may want to compare this to that.
In fact, the idea that (parts of) the Bill of Rights are incorporated against the states is quite recent (about 80 years old). It may be a good one, policy-wise, but it’s not obvious.
Specifically in the case at hand the 9th amendment was supposed to be a bulwark against Federal intervention in State matters. It more-or-less says: “a. The Federal government may not ban sex toys [since that would abridge the people's unenumerated rights to privacy, sexual autonomy, etc]” and “b. The Federal government may not interfere when the people of a State decide the extent to which they reserve their privacy rights to themselves and the extent to which they delegate them to their State to regulate”.
I can’t speak for Zeb, but if you had addressed that question to me, I would have said you are absolutely correct. At least about the pricing policy. And the reason is this: The government does not have the power or the capacity to guaranty citizens “fair” treatment from everyone under all circumstances. If that’s what the public demands from government, then the result will be more and more restrictions and dictation of behavior. The will be no end, because there is no limit to the kinds of activity that can be discriminatory.
And, there will most assuredly be no end to the public’s demands to force other people to be “fair”.
Finally, if the government has the power to control your private property beyond what it takes to protect the private property of others, then it’s no longer your private property. It’s theirs.
This reminds me of the case where the EEOC demanded that Hooters hire men as waiters. The only difference then was that their action just happened to be unpopular with the public. When the public agrees, there is no end to what can pass as perfectly acceptable. Smoking bans are one of those things.
[...] least, I think I’m up to number 14. Another from Thomas Jefferson, via Ed Brayton. Rightful liberty is unobstructed action according to our will within limits drawn around us by the [...]
I’ve seen no indication that the Ninth Amendment was designed to protect ‘rights’ that some judges may decide to invent centuries later. Rather, it was intended to preempt any argument that while Common Law might recognize a right, the Constitution did not do so explicitly, and therefore such a right should not be protected. For example, while the Fifth Amendment provides that one has the right not to have one’s property taken for public use without just compensation, it doesn’t explicitly say that one has the right not to have the property taken for purposes of giving to someone else. When the Constitution was written, nearly everyone would have regarded such a right would have been considered too obvious to need explicit mention; the Ninth Amendment says that the lack of mention should not be taken to suggest the right shouldn’t be protected.
If society’s norms change so that rights are recognized which would not have been recognized before, the proper way to protect such rights is by passing laws or Constitutional amendments to protect them. The notion that the Men in Black Robes should decide what rights should be protected is preposterous.
I do not approve of state legislation that would outlaw sex toys, but I see no legitimate basis for the federal government to prevent state legislatures from passing such stupid legislation, beyond the fact that legislators who do so may find themselves unelected.
Speaking of the Bill of Rights, there’s a big hoopla in the news about Walmart saying things to their employees about the Presidential candidates. There is some disagreement as to whether the company was trying to influence how their employees were going to vote. That apparently would be a crime.
We’re sitting here talking about whether the Constitution allows the government to ban smoking in the workplace, but here is a case where the federal government is blatantly violating an explicit Constitutional prohibition on limiting speech and no one says a word. I could be wrong, of course, but I don’t think the First Amendment says “Congress shall make no law … abridging the freedom of speech except when it’s Walmart doing the speaking.”
By the way, I consider freedom of speech to be absolute, despite the oft repeated nonsense about yelling Fire! in a crowded theater.
The only thing amazing about the smoking ban is that it brought attention to the degree of control government has been exercising over business for decades. Usually, workplace regulation is only a burden for the employers, so no one else gives a shit.
Well, crap. I meant to post #30 under the “Save Carthage!” thread.
In fact, it’s not even on-topic for that thread either. I’m clearly losing it. Probably the result of too much whiskey and too many women. Well, at least the former. The latter is impossible.
I think it’s cute how y’all discuss whether the government has the power to do anything. The government can do anything it wants. Haven’t you figured that out by now? How long is it going to take?
The government has all the fancy weaponry and the legal cover to use it.
From the film The Aviator: “Not me, Howard. The United States government. We just beat Germany and Japan. Who the hell are you?”
Have fun tilting at windmills, people. The government is here to stay and it will do whatever the fuck it wants to do, your puny little opinions be damned.
Thank you for noticing. You’re kind of a cutie yourself.
#20
Robert, just as a point of fact, the Bill of Rights application to state laws has nothing to do with the Supremacy Clause. The BoR was always considered as limitations on the federal government and not on the states up until after the 14th Amendment was passed.
The 14th Amendment had to be passed and later court-interpretted to have the BoR protect citizens against their state government’s intrusions.
Maybe when you’re not doing anything, Dave, we could get a cup of coffee.
The ninth ammendment is rarely remembered, yet its contents are incredibly important. America would be a far better place if people gave it the attention that the first and other ammendments get.