On federalism, freedom, and the founders' view of retained rights: a reply to Randy Barnett.

• Author: Lash, Kurt T.
• Position: Response to article in this issue, p. 937

I want to thank Randy Barnett for commenting on my article, A Textual-Historical Theory of the Ninth Amendment. Professor Barnett's essays on the Ninth Amendment in the 1990s triggered the modern debate over the original meaning of the Ninth, and his recent book, Restoring the Lost Constitution, synthesizes his earlier work and presents a sophisticated theory of constitutional rights. (1) I welcome his thoughts and I completely understand his critical stance regarding my work; if my conclusions are correct they significantly undermine some of Barnett's key assertions about the original meaning and modern application of the Ninth Amendment. In his current essay, I believe that Barnett has identified some conceptual issues that could benefit from some additional clarification. His "individualist" reading of the Ninth and Tenth Amendments, however, is at odds with the common understanding of popular sovereignty at the time of the Founding and is contradicted by key pieces of historical evidence. Most of all, Barnett's failure to address Madison's actual testimony about the federalist meaning of the Ninth and Tenth Amendments critically undermines his effort to put a libertarian spin on an expressly federalist historical record.

Professor Barnett's response (2) and this Reply present only a snapshot of the larger historical debate between Barnett and myself regarding the original meaning of the Ninth Amendment. A more detailed look at the original sources which constitute the subject of this debate can be found in two articles I originally published in the Texas Law Review and in a forthcoming article in the Iowa Law Review, The Inescapable Federalism of the Ninth Amendment. (3) The Iowa piece contains an extensive analysis of the historical documents and issues which informed the drafting, ratification, and application of the Ninth Amendment and provides a point-by-point comparison of Barnett's reading of the evidence with my own. In this brief Reply to Barnett's response essay, I want to clear up some terminological matters and focus on a few of his key historical claims.

1. TERMINOLOGY

   1. Federalism and Majoritarianism

      I begin with some issues of terminology. In his current essay, Barnett characterizes my approach to the Ninth Amendment as "majoritarian" (hence the title of his essay). In prior work, however, Barnett described my approach to the Ninth as federalist. (4) I think this latter term best captures my approach to the Ninth since it highlights one of the key differences between Barnett and myself in our reading of the historical record. For example, I agree with Barnett that the Ninth protects individual rights from federal abridgment. Where we differ involves the effect of the Ninth Amendment on the states. Barnett believes the retained rights of the Ninth are individual in nature and this limited set of rights is applied against the states by way of the Fourteenth Amendment's Privilege or Immunities Clause. I, on the other hand, view the Ninth as protecting both individual and collective rights against federal abridgment. (5) Although some individual rights originally left to state control were applied against the states through the adoption of the Fourteenth Amendment, many (indeed, most) remain under the collective control of the people in the states, free from undue federal interference (including interference from federal courts) even after the adoption of the Fourteenth. Aspects of the original federalist protections of the Ninth thus remain in effect.

   2. Individual v. Non-Individual Rights

      One of the issues which may give rise to some confusion regards how Professor Barnett and I define individual rights. As I use the term, individual rights are those which can be exercised by an individual alone. For example, a single individual may engage in the right to free speech by openly criticizing the government. Collective and majoritarian rights, on the other hand, can only be exercised by a defined group of individuals, for example the people in convention exercising their collective right to alter or abolish their form of government. (6) The theory of popular sovereignty maintains that no one person can (legitimately) exercise this power alone, but only as a participant in a collective act. The same is true for any action that requires the assent of a majority. One can, of course, conceive of collective and majoritarian rights as "individual rights" in the sense that each member of the defined group has a right to participate in the group action (a "share" of the collective right, if you will). But this does not make the collective or majoritarian right "individualist" unless one is willing to destroy the distinction between individual and non-individual rights. The Founders certainly did not. (7)

   3. Collective and Majoritarian Rights

      Professor Barnett believes that I have not properly distinguished between collective and majoritarian rights. Perhaps some clarification is in order, but Barnett is wrong to think the terms are completely independent. Collective rights are majoritarian rights. When meeting in their collective sovereign capacity (for example, in convention), a majority of "the people" have the right to determine their fundamental law. (8) Rights and powers which the people leave to the ordinary political process are also controlled through majoritarian procedures (both in voting for representatives and in representative voting). Thus, although I agree with Barnett that a retained sovereign right is not the same thing as a right held by a governing majority, the majority of the collective people nevertheless have the right to determine which of their retained rights shall or shall not be delegated to a governing majority. Although Barnett may disagree with this on account of his libertarian theory of constitutional legitimacy, the Founders embraced a theory of government that Barnett affirmatively rejects: popular sovereignty. (9)

      It is possible that part of what Barnett is driving at is the distinction between the ordinary majorities of the political process and the "higher law" majorities of the people acting in their collective sovereign capacity (such as during a constitutional convention). If so, Barnett is right to distinguish between the two kinds of majorities, but the distinction makes no difference to my overall thesis: the Ninth Amendment leaves certain matters under the control of the sovereign people in the states who may then either place the matter beyond the reach of ordinary political majorities (by enshrining a right in their state constitution) or leave the matter within the hands of the state legislature and the ordinary political process. (10) In other words, the point of my articles on the Ninth Amendment is not to celebrate majoritarianism as such, but to recapture the Ninth Amendment's federalist focus on the people's retained right to decide certain matters on a state level.

      In past essays I have contrasted my federalist model with what I refer to as Barnett's libertarian model--a characterization to which he has not previously objected. Here, Barnett seems to think I use the term disparagingly, (11) preferring instead to call his approach "individualist" or an "individual rights" model of the Ninth Amendment. I cannot agree with Barnett's attempt to claim the rhetorical high ground as providing the "pro-individual rights" reading of the Ninth Amendment. Barnett's approach to the Ninth Amendment is no more protective of individual rights than mine (a point he seems to recognize, however grudgingly). (12) Both of us believe that the Ninth Amendment protected individual rights against federal action and did not protect individual rights against state action. Barnett, however, insists that the Ninth protected only individual rights and that this same set of rights is protected against state action by the Fourteenth Amendment. It is because his approach links the Ninth and Fourteenth Amendments and envisions a "presumption of liberty" against any government action that I label his approach libertarian. (13)

      By embracing the term "federalist," I bear the burden of overcoming the pejorative associations of the term with the dark historical legacy of "states' rights" rhetoric. Today, it is common to view state majorities, and not the national government, as the more likely offender of individual freedoms. At the time of the Founding, however, the primary concern of those whose votes were critical to ratification was the potentially tyrannical federal government. This middle group generally considered preserving the sovereign prerogatives of the people in the states to be the best way of preserving individual rights. As Samuel Adams (an eventual supporter of the Constitution) wrote to Richard Henry Lee:

      I mean my friend, to let you know how deeply I am impressed with a sense of the Importance of Amendments; that the good People may clearly see the distinction, for there is a distinction, between the federal Powers vested in Congress, and the sovereign Authority belonging to the several States, which is the Palladium of the private, and personal rights of the Citizens. (14) Men like Adams, who ratified the Constitution on the condition of an added Bill of Rights, did so because they believed that prohibiting any unduly latitudinous construction of federal power would protect state autonomy and thereby preserve individual liberty. If the idea of preserving individual liberty through the mechanism of state-protective amendments seems counterintuitive, one need only recall the controversy over the nationally enacted Alien and Sedition Acts. These statutes are stark reminders of how broad assertions of federal power can threaten individual liberty. Madison himself insisted that the Acts violated both individual freedom and the reserved powers of the people in the several states. (15)

   4. Democracy v. Majoritarianism

      Having labeled my approach "majoritarian,"...