Rights: Enumerated and Unenumerated

One of the major points of controversy during the debate over ratification of the constitution was whether it should contain a bill of rights. Many existing state constitutions already contained bills of rights that limited state governments, but the federal constitution, as originally proposed, did not.

The Federalists argued that a bill of rights was unnecessary because the federal government would be a government of limited powers, unlike state governments, which are granted general powers. Thus, you wouldn’t need to worry about the feds infringing, say, your exercise of religion, because the constitution does not enumerate any authority to do so.

If fact, the Federalists argued, explicitly listing some rights that the government could not infringe would imply that it was free to violate other unlisted rights. No bill of rights could exhaustively list all the fundamental rights of the People, after all.

Anti-Federalists were unpersuaded by these structural arguments, pointing out that Congress could easily justify infringing rights by claiming that doing so was “necessary and proper” to carrying out an enumerated power.

The Anti-Federalists of course had the better of argument, and after ratification the first Congress promptly set about introducing amendments to the constitution that eventually became the bill of rights we know and love today.

But the Federalists’ worry about the dangers of enumerating rights was prescient. We have been arguing ever since about whether the constitution protects rights not explicitly listed, and if so, which ones.

James Madison tried to address this concern in the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

So the Ninth tells us there are unenumerated rights. It doesn’t exactly say directly that the constitution also protects those rights, whatever they are, but that certainly seems strongly implied.

Ok then, there are unenumerated rights and presumably the constitution protects them. But what are they? How do we determine what they are?

This question is really one front in a larger controversy about where law fundamentally comes from. One school of thought argues that law exists objectively in nature and that humans “discover” this natural law and write it down. But it’s there whether we codify it or not.

Hence, we all have natural rights as humans that we are born with. These rights can certainly be violated by tyrannical authorities, but they can’t be taken away. Jefferson nods at this idea when he calls the rights to life, liberty, and the pursuit of happiness inalienable in the Declaration of Independence.

Conversely, legal positivism considers law a purely social construct and argues that the only law that exists is that which is imposed by a governing authority. Positivists dismiss the idea that laws or rights exist apart from society’s rules, called the positive law (hence the name).

Positivism has the advantage that it is determinate: we know what the law is, because we have authorities and mechanisms that establish positive laws. There is a lot of disagreement, on the other hand, about exactly what comprises natural law. Every person seems to be the judge of their natural rights. You just can’t organize a society, much less a government, that way.

But positivism has a dark side, because it’s basically amoral. There are no higher principles of justice or fairness, the law is whatever it is. Do you live in a brutal dictatorship without individual liberty? Sucks to be you.

Under natural law, conversely, tyrannical governments that violate our natural rights are illegitimate. You are permitted to resist and even overthrow such a government. This was exactly the point that Jefferson was making in the Declaration. The colonists were justified in rebelling due the Britain’s continued violation of their inalienable rights.

Ironically though, having founded their entire national project on natural law theory, the framers then went on the engage in the greatest and arguably most successful experiment in positive law making in history, through the adoption of written constitutions, first establishing the states and eventually the federal government.

So the tension between positive and natural law was baked into the system right from the jump. And this dispute finds it’s most direct and troublesome expression in the debate about unenumerated rights.

The bill of rights sets out (positive) rights that are explicit. We can argue about exactly what they mean or how to apply them, but no one disputes they’re there.

But the Ninth Amendments tells us there are other (natural) rights that are not listed. They can’t be denied just because they aren’t included in the bill of rights. But what are they? We have to develop a positive law mechanism to decide the content of what Professor Amar calls the “unwritten constitution.”