Kurt Lash's majoritarian difficulty: a response to a textual-historical theory of the Ninth Amendment.

• Author: Barnett, Randy E.
• Position: Response to article in this issue, p. 895

INTRODUCTION

When it comes to interpreting the Ninth Amendment, Kurt Lash and I agree about many important issues--indeed, too many to enumerate here. But Lash has an idee fixe: majoritarianism. In particular, he believes in a retained collective right of the people to majoritarian rule or a collective right of the majority to rule--or something like this; he is not clear. So powerful is his commitment to this idea that it sometimes bends his interpretation of the copious evidence he discusses to support his belief that the Ninth Amendment originally referred to "collective" majoritarian rights.

Consider this. By my count, the word "majoritarian" appears in Lash's article twenty-four times. And the number of times the term appears in any of the authorities he cites? My count is zero. The term "majoritarian" is a modern term, not one found in the original sources, (1) but neither do any of his sources refer to the "majority" or "majority rule." Likewise, Lash uses the term "collective" to describe rights thirty times, though it appears in his sources just once, in a quote from St. George Tucker. (2)

While there is no doubt that the Founders believed in majoritarian governance, this does not entail the belief that electoral majorities had a collective right to violate the retained rights of individuals. As will be explained below, James Madison and other Federalists came to believe that the violation of individual rights by majorities in the states under the Articles of Confederation had revealed majority rule to be a problem that needed to be solved by the Constitution and Bill of Rights, not a right to be affirmed by the Ninth Amendment.

Following Akhil Amar's collectivist reading of the Bill of Rights as a whole, (3) Lash reads the Ninth Amendment collectively as well. While Lash readily allows that the rights retained by the people include individual natural rights, all his writings to date emphasize the collective right of the majority to govern in the states. Some versions of his mantra include "the people's collective right to regulate marriage," (4) "collective revolutionary rights," (5) "the people's collective right to regulate speech on a state level," (6) "collective majoritarian rights," (7) and "retained collective or majoritarian rights." (8) The last formulation sounds a variation on the collectivist theme that he also employs repeatedly: majoritarian rights. Other such references include, "majoritarian democratic rights," (9) a "majoritarian right" to "regulate religion at a local level," (10) "state majoritarian rights," (11) "individual and majoritarian rights," (12) and "the majoritarian right to local self-government." (13) How exactly a "collective" right of the people as a whole relates to "majoritarian" rights is left unexamined.

The nature and scope of this purported right or rights is not at all clear. A collective right belonging to the people as a group is not the same as a right of a majority to govern. The connection between the concepts of "collective" and "majority" is never explained. A power of states or majorities to control or regulate individual rights is not the same as a state or majority right to control individuals. The formulations of this purported right that I offered in the opening paragraph are mere guesses. Of course, if even a single one of his historical sources had named this right, it might have been easier to evaluate its content by examining the source. Instead, every one of the formulations quoted above is Lash's and he never clearly identifies or defines the fight or rights he has in mind.

When he does, as I expect he will, he needs to explain how it differs from the Guarantee Clause of Article IV that reads: "The United States shall guarantee to every State in this Union a Republican form of Government." (14) Notice that a republican form of government is not the same as a majoritarian government, at least as evidenced by the U.S. Constitution itself. And even before the Constitution was adopted, most states had begun adopting new constitutions that emulated its tripartite structure, making them much less majoritarian than they had previously been. Did this violate the Ninth Amendment, or did the fact these constitutions were adopted by a majority satisfy the Ninth Amendment? Without a clearer formulation of this alleged right, it is impossible to say.

But this is just the start of Kurt Lash's majoritarian difficulty. In my most recent writing on the Ninth Amendment, I examine five proposed models of the Amendment's original meaning. I showed how the most salient evidence strongly supports the individual rights and federalism models and directly refutes the state law and residual rights models, while seriously undermining the collective rights model to which Amar and Lash adhere. (15) In this essay, I will add to this analysis by showing that Lash's collective and/or majoritarian vision of the Ninth Amendment as now described in A Textual-Historical Theory of the Ninth Amendment is contrary to text, structure, and evidence of historical meaning.

Lash's majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, (16) and those who wrote the Constitution. (17) Not coincidentally, it is contrary to the individualism of the other amendments constituting the Bill of Rights (18) and the public meaning of the Ninth Amendment as it was received during its ratification. (19) It is also contrary to the individualist conception of popular sovereignty adopted in the text of the Constitution as interpreted by a four-to-one majority of the Supreme Court in its first major constitutional decision. (20) And it is contrary to the individualist interpretation of the Ninth Amendment by the one source he cites who actually uses the word "collective": St. George Tucker. (21) In sum and substance, the collectivist interpretation of the phrase "others retained by the people" is anachronistic--a projection of contemporary majoritarianism onto a text that is and was most naturally read as referring to the natural rights retained by all individuals, and to these rights alone.

1. THE ANTIMAJORITARIANISM OF THE FOUNDERS

   1. The Antimajoritarianism of James Madison

      Reading a right of state majoritarian rule into the Ninth Amendment is particularly odd given that this provision was conceived and formulated, as all acknowledge, by one of the more antimajoritarian figures of the day: James Madison. (22) Indeed, in a variety of fora, Madison consistently expressed his view that popular majorities, especially those at the state level, were the principal threat to "private" or individual rights. As Madison wrote in a letter to Thomas Jefferson in the period between the drafting of the Constitution and the Bill of Rights:

      Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. (23) This concern for the violation of private individual rights by majorities was reflected in Madison's theory of faction. "By a faction," he famously wrote in Federalist No. 1 O, "I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." (24)

      Madison had previously made a similar point to the Constitutional Convention itself in words that foretold the argument of Federalist No. 10. "In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger." (25) He then applies this insight to state governments:

      We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. What has been the source of those unjust laws complained of among ourselves? Has it not been the real or supposed interest of the major number? Debtors have defrauded their creditors. The landed interest has borne hard on the mercantile interest. The holders of one species of property have thrown a disproportion of taxes on the holders of another species. The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. (26) Indeed, Madison called for a constitutional convention to revise the Articles of Confederation, in part, to address the vice of "the injustice of state laws" (27) that resulted from majoritarian rule in the states:

      If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights. (28) Madison's explanation of why popular majorities are not to be trusted with the rights of the minority is worth considering in full:

      Place three individuals in a situation wherein the interest of each depends on the voice of the others, and give to two of them an interest opposed to the rights of the third? Will the latter be secure? The prudence of every man would shun the danger. The rules & forms of justice suppose & guard against it. Will two thousand in a like situation be less likely to encroach on the rights of one thousand? The contrary is witnessed by the notorious factions & oppressions which take place in corporate towns limited as the opportunities are, and...