Our legal culture has lost the context in which the Constitution was written. I speak of the natural law, the idea of law as founded upon reason and logic and not merely the ipse dixit of a given power. This has had profound implications for the modern misinterpretation of the Constitution.
To demonstrate this, let me give one clear example of the incompatibility of the modern positive-law notions with the ideas of the Founders. When the Constitution was drafted, it did not contain any bill of rights and had no explicit protection for freedom of speech. To the legal positivist, without any explicit protection for the freedom of speech, the government could regulate speech. Yet none of the Founders actually believed this.
When the idea of a bill of rights was proposed, the objection was that the Bill of Rights was unnecessary and these rights were already protected. See Federalist No. 84. Instead, any enumeration of the rights already protected was seen as dangerous. If we say we have rights 1 to 100, that implies that we don’t have right 101. So the enumeration of rights would limit the rights already protected. This problem was eventually solved by James Madison by explicitly rejecting the idea that the rights already protected were limited by the enumeration in the Bill of Rights in the Ninth Amendment. The only conclusion that can be drawn from this is that even before the Bill of Rights the people believed they already had the right to freedom of speech.
How can this be from a positivist view of the Constitution? There is nothing explicit in the Constitution that mentions the freedom of speech, and yet it was originally widely understood that this right was already protected. Originalism disproves this strict textualism and instead requires a greater context to understand the original meaning of the constitutional text.
There are only two reasonable originalist arguments that would protect the freedom of speech without the First Amendment. The first interprets the meaning of the word “law” as used in the Constitution before the Bill of Rights. The second incorporates the common law of agency and contract to limit the proper scope of the delegated power. It’s likely that both of these are valid and reinforce each other. These also require an understanding of the Lockean notions of rights and liberty and the just powers of government as commonly understood at the founding.
The Founders distinguished between “law”—which is the use of government power in the service of a rational, general, public principle—and mere “will” which was arbitrary political power. This distinction, of course, requires an understanding of the Lockean idea of rights and liberty to determine what are the rational objectives that government is instituted to protect. Justice Samuel Chase, in the first big Supreme Court opinion Calder v. Bull (1798), gave examples of arbitrarily power including one “that takes property from A and gives it to B.” He explains that:
An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact and on republican principles must be determined by the nature of the power on which it is founded.
Notice it is not only an “express compact”—the written constitution—but also republican principles that underlie the legislature’s rightful authority. Indeed, the Founders just finished fighting a war because the government would not respect these fundamental rights.
The other argument comes from the common law understanding of contract and agency law. Our Constitution is in many ways a contract between us—the people—and those we hire to run the government on our behalf and where we delegate certain powers to our agents in government. But like any contract, not everything is spelled out explicitly; instead there are prohibitions implied by the text even if not explicitly stated. The government officers are also the people’s agents hired to accomplish certain goals of protecting our rights and they are obligated to faithfully attempt to accomplish those goals. To purposefully violate those rights is like hiring a guard for a bank who then robs the bank—clearly beyond the scope of authority delegated even if not explicitly stated.
The reason that governments are “instituted among men” is to protect our natural rights, as the Declaration of Independence states. Those natural rights of life, liberty, and property protected implicitly in the original Constitution are explicitly protected in the Bill of Rights. That right of liberty is the right to do all those things which do not harm another’s life, property, or equal liberty. While this might sound circular, it’s actually reflective. We have the right, for instance, to swing our arms around until that would interfere with another’s equal right to do the same.
Read in this way, the extent and meaning of the Bill of Rights becomes clear. Merely speaking or printing your opinion doesn’t cause harm to another person (but defamation was considered to cause harm). Private belief or exercise of religion doesn’t cause harm. Mere possession of a firearm doesn’t cause harm to another. The Fourth Amendment protects private property where it isn’t used to conceal evidence of harm to another (in which case a warrant can be issued).
The right to “assistance of counsel” was meant to overturn the common law prohibition on hiring counsel in non-treason felony cases. This would clearly fall within the natural right of property and liberty to hire the counsel of your own choice with your own money. It wasn’t until the 20th century that it was reinterpreted as a right to be provided counsel. See Betts v. Brady, 316 U.S. 455 (1942) (Sixth Amendment “not aimed to compel the State to provide counsel for a defendant”), overruled by Gideon v. Wainwright, 372 U.S. 335 (1963). This becomes especially important in the recent Supreme Court case Luis v. United States, where the government denied this natural right (but the Court rejected the government’s assertions and recognized the original right).
The rights contained within the Bill of Rights recognize various natural rights (specifically those of a person’s liberty to do those acts not harmful to others). It is within this context that the Ninth Amendment has to be read to protect those other natural rights which are not explicitly enumerated in, but still protected by, the Constitution.
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Devin Watkins is a legal associate in the Cato Institute’s Center for Constitutional Studies.