Rights Retained by the People

by Robert J. Romano

Originally Published March 2nd, 2004

Updated November 17th, 2004

The crisis of definition brought about by judicial activism threatens the very meaning of the law, and of our rights, as our conceptions of liberty are warped to mean new things.  Our most important strength as a nation is the Federal Constitution, its continuity, and its inherent rule of law.  It limits the exercise of power, and clearly with judicial activism there is an example of a grave abuse of the supreme law of the land.  The problem with judicial activism is not its intent, which is to protect rights, it is the practice of which erodes the public’s confidence in the courts.

The judicial power extends to all cases in law and equity, arising under the Federal Constitution, as is stated in Article III, Section 2.  Rights are protected as a province under the law (i.e. liberty under law), and indeed, many rights are articulated specifically in the Constitution.  However, the Ninth Amendment to the Federal Constitution also states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Under an original understanding of the Constitution, applying Article III, Sec. 2 and the Ninth Amendment, and through the practice of judicial review as annunciated in Marbury v. Madison in 1803, it is up to the judicial branch to determine when certain laws violate written rights, or those rights specifically enumerated in the Constitution, and also when such laws violate those unwritten rights “retained by the people.”  These rights are “endowed by their Creator”, as is stated in the Declaration of Independence, and they include, but are not limited to, “life, liberty, and the pursuit of happiness…” Just because “the pursuit of happiness” is not specifically enumerated into the Constitution, does not mean that such a right was forgotten about when the Constitution and the Bill of Rights were drafted.  The Fifth Amendment to the Constitution states clearly that without due process of law, life, liberty, or property cannot be deprived.

           Supreme Court justices should consider both the approaches of activism and restraint as being viable towards finding laws to be unconstitutional, so long as the activism is geared toward protecting rights.  In order for a law to be found unconstitutional, and the power of the branches restricted, it must be established that either the law itself is a clear violation of the Constitution, or that certain unalienable rights are being violated by the law in question.  Just because a right is not written specifically into the Constitution, does not mean it is not protected.  With this in mind, it is important as a judge to determine if a right is basic and fundamental, and that it is protected from abridgment.  Congress has the power, according to Article I, Section 8, “[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof…” Therefore, the Supreme Court must consider what Congress has determined to be protected as basic and fundamental rights, by viewing all constitutional legislative acts with equal consideration as to the Constitution itself.  If a right is protected by an act of Congress that was passed and signed in a constitutional manner, and is itself not an unconstitutional law, then it has the full force of the law.  Therefore, it is not only the province of the Supreme Court to defend those rights enumerated under the Constitution, but also those rights protected by acts of Congress, and also those rights which are not mentioned by neither the Constitution nor by Congress, and are retained by the people.

           The ability and power of both the judicial and legislative branches to determine what those rights are is fundamental to defending those rights and in ensuring the equal protection of rights under the law.  What is less clear is by what procedure should the courts determine what all the rights retained by the people actually are.  Congress retains the power to make all laws that shall be necessary and proper for carrying into execution the foregoing powers enumerated under the Constitution.  Therefore, justices should interpret what the law specifically states about judicial review and the proper process in the courtroom for determining what additional rights are protected by the Ninth Amendment, since Congress also has the power to enumerate certain rights, and also since it is clear the “interpretation of the laws is the proper and peculiar province of the courts”, as was stated by Alexander Hamilton.  Such a process defined by Congress for the judicial branch would be necessary and proper, since it is up to the courts to determine the constitutionality of acts of legislation.  

Therefore, our rights must be enumerated and defined by the law, and interpreted with an original understanding as to the intent of the law. Congress should debate and pass laws governing the enumeration of additional rights as it takes place in the judicial branch, or perhaps, prohibit such enumeration in any branch but the legislative.  The latter option, giving to the legislative branch the power to legislate our rights, may be the most promising remedy.

            Clearly articulated, the problem of not necessarily knowing what one’s rights are at any given moment, as they are subject to judicial definition, means that what the judges can give, they can also take away.  There is no provision which prevents the Supreme Court from reversing prior rulings, and therefore nothing which prevents them from articulating rights today, and eliminating them tomorrow.  Rights not clearly defined can fade from judicial memory, or be changed arbitrarily under the guise of judicial review.  America should support legislation in Congress, or even a constitutional amendment, that will eliminate the danger of judicial tyranny, and bring the interpretation of the laws back under the authority of the Constitution.

            It is true that it is up to the judicial branch to “say what the law is…” in a given case brought to the courts.  However, when our rights are not clearly articulated by the law to begin with, judicial review becomes a matter of inferring what our rights are given the circumstances that arise in the case which has the standing to be brought to the courts.  Justices use a variety of approaches to interpreting the law.  Some place their determination of the public good higher than the law itself.  Others use a purely textual approach, and interpret the Constitution quite literally.  Others lean on precedence, or the doctrine of stare decisis.  In short, there is little guidance in the way of enumerating precisely what judicial review should mean, other than that it is the process by which laws are to be found constitutional, or unconstitutional on the basis that rights or the Constitution itself are violated . 

            Since the Constitution through the Ninth Amendment clearly states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people…” it is incumbent that those rights be defined and protected. 

            Of course, specifically limiting our rights under law, with precise enumeration and definition, may on the surface seem to violate the very purpose of that Amendment, and offends our sense of moderation.  However, since the Congress is directly elected by the people, and represents the people, and has the legislative power, I believe that in the Ninth Amendment it is implied that Congress can use its powers to enumerate those rights retained by the people.  Civil Rights Acts have been passed variously over the course of American history, and have been enforced, and found to be constitutional.  Rights enumerated by Congress have to be in concert with those already enumerated by the Constitution, and not violate the powers expressly stated in the Constitution.

            Enumerated rights legislation is an important step for America to take as we address the issues posed by an active judiciary which seeks to impose its will upon the American people.  As the people lose the power to legislate, we lose our republic.  If Congress lacks the power to define the law, and the implications of our rights, then our very freedom is a matter of judicial opinion.  The problem posed with merely legislating those rights not enumerated in the Constitution is that the courts may not want to have their powers put in check, and could find that law to be unconstitutional since it could be interpreted that Congress is limiting the judicial power with duties and responsibilities not expressly enumerated by the Constitution.

            Therefore, the best remedy may be the amendment process, since it would force the judiciary to comply.  If such enumerated rights legislation was found to be unconstitutional, America should repeal the Ninth Amendment with a new amendment:

            Repealing the Ninth Amendment in this way would rightly put the power to legislate back in the hands of the legislative branch, and ultimately bring the control of the law back to the people whom are represented by the Congress.  The ability for the legislative branch to enumerate those rights consistent with the Constitution will expand those rights, and ultimately add to our understanding of them, as they will be clearly defined under law.  It will also restore the public’s confidence in the constitutional process.

The republican form of government, as we know it, constituting three separate and yet equal branches of government, the legislative, executive, and judicial, is perhaps the best means yet devised of maintaining equal liberty under law.  In such a way, the republic is both powerful enough to protect her interests, and yet limited enough not to harm the rights of her citizens.  An enumerated rights amendment would strengthen the government’s hand in ensuring the equal protection of our rights under law, and would open up with the people a necessary and continual debate on how we define our rights.  The only way to protect the rights which we retain under the law is to secure them.  It is my belief that the laws are best made by the legislative branch, enforced by the executive branch, and applied by the judicial branch.  It would still be up to the courts to determine if laws are unconstitutional, or if certain rights legislated conflict with articles expressly enumerated in the Constitution, and in this way, proper checks are made on this legislative power.  All laws are necessarily subject to judicial review.  It would add responsibility to our freedom to elect representatives and senators which will make the best laws which establish and protect our rights.

This way, the people will have back a government that represents what the people believe their rights are.  And, if the people feel that their rights are being violated, they may elect representatives to make laws which properly protect them.  Citizens can then assess their rights, and lobby Congress to protect those rights under laws enacted on behalf of the common good, and consistent with the provisions of the amendment and the Constitution.  It may very well be that citizens will have all sorts of definitions of what they believe their rights under law ought to be, and for this reason, I believe that the amendment is necessary, for just as citizens will believe in a different scheme of rights, so too may judges – in whom we the people give the power to interpret what our rights under law actually are – have an arbitrary sense of what our rights are.

We take responsibility for our freedom to elect representatives and senators which will make the best laws which assess, establish, and protect our rights, and for this reason, I believe in fact that a constitutional amendment is not necessary in order for the Congress to enact legislation which defines and protects rights.  I do believe, however, that such an amendment is necessary to prevent the judiciary from doing so arbitrarily without any legislative process.

 The true culprit in this crisis of definition is a lack of limitation on the power of the judiciary to say what the law is.  The judicial power, as vaguely defined as it is, is sufficient for the purposes of judicial review.  However, without any limitations to assess what our legally protected rights are, it is a power with good intentions that leaves the potential for a judicial tyranny.  What the Supreme Court puts in place the Supreme Court can take away.  The potential of both rights to be enumerated and rescinded through judicial review leaves great danger that our rights will be further eroded and the powers of the legislative and executive branches so limited in its ability to protect rights equally that eventually we will witness the complete dissolution of confidence in the constitutional system.

Arbitrary rulings by the judiciary do not protect our rights if those rights are subject to change.  A common teaching is to “know your rights.” How is one to conceivably know what his or her rights are, as protected under law in an adversarial judicial system? Petitioners and respondents, with their competing claims, go to a State or Federal court, and the judiciary decides.  Instead our rights can be defined by the Congress.  But is this too a sweeping power?

            A potential problem posed by the amendment is the question of equality of opportunity versus equality of outcome.  Would the Amendment give too much power to the Congress to enumerate rights retained by the people? Would we just be trading judicial activism away for legislative activism? Whereas, some would argue for an equal scheme of rights under law which ensure that all have an equal opportunity to succeed, others would believe that they are entitled to the right to have the same outcome as those more successful in life.  The latter would support that the government guarantee equality of outcome, while the former would argue that it is beyond the scope of legitimate government power to engage in economic leveling.  However, with the amendment, would that not be up to the Congress to decide? Does it afford the Congress too much power to define what a right is? Or, as a principle, is equality of outcome so impractical as to render it unenforceable?

John Adams once wrote:

It clearly is not up the government to create an equality of outcome, rather it is sufficient that rights be equally protected under the law.  A clear distinction is made between equal rights and unequal outcomes, and it may be that because we all have the same rights that no two outcomes are ever the same.  Unequal outcomes are an implication of equal rights.

Even though the Congress might see fit to enumerate rights that would prove to be beyond the scope of what a right has always been thought to be, the people shall always have recourse to oust those representatives and senators which they feel are not acting in the people’s best interests.  The recourse to elections has always kept the legislative branch in check, and in fact, is the most effective check on the power to define and thus protect our rights.

Governments are established to secure the rights of the people.  Under law, we are endowed with certain unalienable rights, and among these are life, liberty, property, and the pursuit of happiness, and without due process of law, those rights may not be deprived.  The people and their representatives ought to have the power to secure those rights.  With this amendment, both houses of Congress can make and pass laws which would do just that.