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February 14, 2006


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Andrew Hyman

Regarding the Schwartz Lecture, I belatedly submitted a comment, and would like to repeat it here.

At about 54:30 into the Schwartz Lecture, Breyer discussed the Ninth Amendment. He quoted Harvard History Professor Bernard Bailyn as saying that rights, like law itself, shouldn't be fixed or frozen. Breyer therefore concludes that the Ninth Amendment is a license for the Supreme Court to change those rights.

But Breyer omits some critical stuff that Bailyn said (a similar omission is contained in Breyer's book, Active Liberty). Here's the full quote from Bailyn, in which Bailyn repeatedly says that the Ninth Amendment protects rights once they are ENACTED INTO LAW (emphasis added):

"When the federal Constitution was written the wisest minds in America decided that there should be no national Bill of Rights, not merely because most of the state constitutions already contained some such protections, but, as Madison (who would later write the federal Bill of Rights) said, "There is a great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude." In other words, the enumeration of rights by the federal government, the mere listing of them and defining them, would necessarily limit their scope. "The rights of conscience in particular [he said], if submitted to public definition, would be narrowed more than they are likely ever to be by an assumed power." The right solution, he and others then felt, was what is implied in the present 9th Amendment: that, in addition to the rights specified by the states, there is a universe of rights, possessed by the people latent rights, still to be evoked and ENACTED INTO LAW.

"But was this workable? In any given situation, someone would have to decide whether the rights that were claimed were valid, and that would leave the existence of rights to the mercy of personal and political opinion, and no one would be safe. Some rights a core body of rights protected against the powers of the federal government would have to be specified, and the residue somehow protected in general terms. This is the compromise that we have inherited from them and that we live with, and struggle with, and benefit from, every day of our lives: in the first eight amendments of the Constitution, a carefully worded list of specific rights protected from encroachment by the federal government, together with the belief that there are not only rights protected by the states but a reservoir of other, unenumerated rights that the people retain, which in time may be ENACTED INTO LAW."

Thus, Professor Bailyn repeatedly pointed out that the rights protected by the Ninth Amendment become protected by enacting them into law. In other words, it's NOT OKAY to deny or disparage rights merely because they're absent from the enumeration in the Bill of Rights, but it IS OKAY to deny or disparage rights because they've not yet been approved by the democratic process. So, the Ninth Amendment DOES protect rights listed in state constitutions, and in state and federal statutes, as well as protecting rights that are outside the scope of the enumerated federal powers. But, the Ninth Amendment DOES NOT authorize judges to protect rights that haven't been enacted into law. It seems like Justice Breyer concludes the opposite. If he's going to cite Bailyn, at least Breyer should mention that Bailyn doesn't agree with him.

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