Presumption of Nonauthority and Unenumerated Rights
by Jon Roland*
The Ninth Amendment was authored originally by James Madison, as part of his commitment to seek amendments to the newly adopted Constitution that would define a “bill of rights”. They began as suggested amendments from each of the state ratifying conventions. Some of those found their way into the somewhat more explicit articles 3 through 10, which, because the first two were not ratified at the time, became the first eight amendments. But it should not be concluded that the suggested amendments that did not get adopted in something like their original form were rejected. Rather, it seems clear, Madison intended to consolidate them in what became the Ninth and Tenth Amendments. Let us examine the final wording adopted:
Article the eleventh [Amendment IX]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Article the twelfth [Amendment X]
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Madison’s original proposed formulation of what became the Ninth and Tenth Amendments is:
The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.1
What did Madison mean by “other rights”, which are sometimes called, and disparaged, as the “unenumerated rights”? Disparaged by some, because it is not obvious from the text of the Constitution what those rights might be, or where they could be found, if not in the text.2 This article will seek to discover what those rights are, and argue that there are indeed clues in the text of the unamended Constitution, and in the other amendments, proposed and adopted, in state constitutions, as well as in the historical evidence leading to the ratification.3
One of the clues is found in the fact that some “rights” are expressed as declarations, and some as restrictions on delegated powers. From this we can discern that in the Constitution and its amendments, public action is partitioned into delegated powers of government and rights against the positive acts of government. Constitutional rights are rights against public action by public officials. Therefore, we might more precisely call them “immunities”, as they are called in the 14th Amendment. Immunities are the complement of delegated powers: Every delegated power is a restriction on immunities, and every immunity is a restriction on delegated powers. Thus, a constitutional right, or immunity, can be expressed either as a declaration, or as a restriction on a power. The two modes of expression represent different ways of expressing the same concept.4
So why, if this is so, do we need both the Ninth and Tenth Amendments?5 The answer lies in the inherent ambiguity of the language available in which to express both rights and delegated powers. It is easy to construe written delegations of power more broadly than was intended by the framers of that language, and a right, expressed as either a declaration or a restriction on delegated power, may provide a convenient way to clarify the boundaries, from the opposite side. Legal language is not just denotative, with a semantic mapping to objects or concepts, but also evocative, reminding the reader of a complex web of ideas associated with historic events and the usage of the term, so that he may sometimes be more likely to clearly understand what is meant if the language is expressed in the terms of “rights”, than if expressed in the terms of powers, delegated or nondelegated.
From the amendments proposed by the ratifying conventions, and rights recognized in state constitutions, we can identify the following as some of what most people of the period would have recognized as among the “unenumerated rights”:6
|
| Right | Source |
|---|---|---|
| 1 | Writs in the name of the People. Rights to the prerogative writs such as quo warranto, habeas corpus, mandamus, prohibito, procedendo, and certiorari, which any person has the right to prosecute on behalf of anyone else.7 | New York Proposed Amendments8 |
| 2 | Habeas Corpus. Right of the petitioner, the person held, and the respondent. | Virginia Convention Bill of Rights9; New York Ratification Declaration10; North Carolina Declaration of Rights11 |
| 3 | Correction of Errors. Writ of certiorari. | New York Proposed Amendments12 |
| 4 | Appeals & Error. Writ of certiorari. | New York Ratification Declaration13 |
| 5 | Suspending Habeas Corpus. Clarifying and restricting conditions for suspension. | New York Proposed Amendments14 |
| 6 | Right to Remedy. Not just right to petition, but to have demurrer, oyer and terminer. | Virginia Convention Bill of Rights15; North Carolina Declaration of Rights16 |
| 7 | Natural Rights. Reference to rights recognized in common law and equity, and by the political philosophers. | Virginia Convention Bill of Rights17; North Carolina Declaration of Rights18 |
| 8 | Challenging Jury. Right to strike biased jurors in voir dire. | Virginia Convention Proposed Amendments19; North Carolina Proposed Amendments20 |
| 9 | No Titles of Nobility. Not only not grant special powers , privileges, or protections to the disadvantage of others, but prohibit them to citizens from any source. | Massachusetts Convention Proposed Amendments21; New Hampshire Convention; New York Proposed Amendments22 |
| 10 | Ex Post Facto Laws. Clarification and expansion of prohibitions in Art. I, Sec. 9 (and 10). | New York Ratification Declaration23 |
| 11 | Publish Journals. Right to recordation of public acts and disclosure of records. (Don’t just leave it to private publishers.) | Virginia Convention Proposed Amendments24; North Carolina Proposed Amendments25 |
| 12 | Publish Accounts. Right to complete and accurate reports of revenues and expenditures. | Virginia Convention Proposed Amendments26; New York Proposed Amendments27; North Carolina Proposed Amendments28. |
| 13 | Emigrate. Right to leave (and return). | Pennsylvania Constitution of 1776.29 |
The above is only a partial list, and a more complete list can be found in examining the other proposed amendments and bills of rights of the states ratifying conventions, which are the ultimate authority for what the provisions of the U.S. Constitution meant when it was ratified, and the constitutions of the states at that time.
It is the thesis of this article that all of the rights recognized in the declarations of rights or proposed amendments of the state ratifying conventions, and in the state constitutions, can be presumed to have been generally recognized as rights throughout the thirteen states, and any that were not explicitly made one of the other amendments to the U.S. Constitution must be considered as being included in the unenumerated rights of the Ninth Amendment.
From these we can discern several key ideas:
The common law prerogative writs, not limited to habeas corpus, are matters of fundamental right, and not just privileges established by statute, or susceptible to statutory restriction or disablement.
Individuals have a right to prosecute a public right, for such prerogative writs, and for declaratory, injunctive, and performance relief.30
The essence of these rights is the right to a presumption of nonauthority. People have a right to challenge the authority of officials, and the burden of proof is on the officials that they have authority to do what they are doing or propose to do.
The right to the presumption of nonauthority does not depend on the support of a court, but defaults to a finding of nonauthority even if a court declines to grant oyer and terminer. All that is necessary is to file or notice the court, notice the respondant, and wait the customary 3-20 days for the response. It is the respondant official who has the right to oyer and terminer in such a case, to support his claim of authority if he has such authority.
One of the common law rights included is the right of demurrer, to challenge the authority of a prosecution at the outset, before trial is commenced, and this is also fundamental, and not subject to statutory restriction or disablement.
The unenumerated rights are not limited to the right to a presumption of nonauthority, which is the basis for the prerogative writs, but also include rights to the positive duty of officials to report and disclose their activities, and not resist such disclosure without strong justification. They include the derivative rights to be assisted or facilitated in prosecuting rights, or to have the means to do so.
The natural rights are those that arise out of the laws of nature, and include the right to have official acts be logical, reasonable, and rational. One may not be required to do the impossible.
Delegations of power are never plenary, but are further constrained, beyond their subject matter, to what is reasonable and pursuant to a legitimate public purpose.
It is a matter of common right to engage in any occupation, not subject to licensure or taxation, but only that acts committed in the course of such occupation not be violations of law.
There is a right not to be subjected to laws or official acts that are unknown, unknowable, incomprehensible, or too vague to allow for easy interpretation, or to have the rules governing one’s behavior change adversely between the contemplation of an action and the enforcement of the law or application of the due process.
There is a right not only not to have one’s rights legislatively impaired, disabled, or disfavored, but also not to have some accorded special privileges or protections that favor them over the rest of the people, in ways not essential to the performance of public duties. This means official immunity for damages extends only to each act under color or law for which an official has authority and that is not an abuse of discretion, not to everything an official might do while on the job.
There must always be an effective remedy available for any infringement of a right, one that is not made so time-consuming, expensive or difficult to obtain as to make the right meaningless as a practical matter. All fundamental rights must have judicial remedies, not just political remedies, because the political process is often inadequate to protect the rights of individuals or minorities.
There is a right not to be subject to laws one does not have the right, with the consent of a grand jury, to prosecute or help prosecute.
There is a right to do one’s duty, and a duty to defend the rights of others, as militia, as jurors, or in any similar capacity. That means each has a duty to independently decide what is an what is not lawful, and to resolve conflicts of laws, in any situation with which one may be confronted. This duty is inalienable, and may not be relinquished to others. The exercise if judicial review by a judge in cases before him is nothing more than the exercise of the general duty of constitutional review which everyone has in situations they encounter.
Part of the right to trial by jury is the right to have the jury review the decisions of the bench on issues of law before the court, in reaching a general verdict. That means a right to have all issues of law argued in the presence of the jury, and to enable them to read all pleadings and laws involved in the case.
There is a right not to have officials take actions, under color of delegated authority, that may be convenient or that may tend to achieve the outcome sought by the exercise of a delegated authority, but only to make the reasonable effort such a delegation authorizes, which need not be sufficient to attain the ends.
There is a right to have delegated powers construed narrowly, and complementary rights or immunities construed broadly, and when in doubt, the decision must always be in favor of the claimed right against an action of government over the claimed power of an official to so act.
One can recognize in these precepts the principles of natural right and justice that most of us take for granted, or that are embedded in our public processes, but which are not always made explicit or stated as positive rights. That is what the Ninth and Tenth Amendments do, each in its own way.
We must also recognize, however, that these rights have undergone a substantial erosion over the last two centuries. This article is not to provide a thorough review of all the ways this has occurred. That would take many volumes. It is to provide an introduction to the evidence of what the Founders meant by the unenumerated rights, and how the most fundamental of them, the right to a presumption of nonauthority, is the foundation for the entire system of Anglo-American law and constitutional government.31
Presumption of Nonauthority
A search of the literature will not find the phrase “presumption of nonauthority”, except in writings that trace back to the author of this article. However, a search on phrases used in law that begin with “presumption” yields several words that are synonyms of nonauthority. Consider the following:
Of Liberty. Nonconstraint by government officials32
Of Innocence. Burden of proof is on the prosecutor.
In favor of the Defendant. Burden of proof is on the plaintiff.
Of Assent. If one has due notice and a duty to object and fails to do so within a specified period of time.
Of Public Access. For a roadway or place where the public has had access for a long period of time.
Of Ownership. If the person has long unchallenged possession of a thing.
Of Intent. If the evidence offers no plausible theory that the subject did not have intent.
Now consider some presumptions with opposite meaning:
Of Constitutionality. When courts defer to the constitutional judgment of legislatures.
Of Legitimacy. When courts defer to the actions of public officials.
Of Validity. Documented public acts of officials, especially in other states or nations.
These contrary presumptions are not supported by the historical evidence we are presenting.
Some Latin legal maxims shed some light on this question:33
Potestas stricte interpretatur. A power is strictly interpreted.
In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.
Delegata potestas non potest delegari. A delegated power cannot be delegated.34
Ubi jus ibi remedium. There is no right without a remedy.
These maxims indicate the ancient heritage of the principles being discussed in this article.
If we accept that powers are to be construed as narrowly as the text permits, and rights are the complement of powers, then it follows that rights are to be construed as broadly as the text permits, and in the event of any doubt, the decision must always be against a claimed power and in favor of a claimed right against the exercise of the claimed power. This means that “strict construction” means narrow for powers and broad for rights, not narrow for both.
It also follows that it is never constitutional for any branch or official to defer to the judgment of other branches or officials, to presume the constitutionality or legitimacy of their acts, other than the specific exception made for the “full faith and credit” of the judicial acts of one state by another. Acts of the legislature must always be deemed unconstitutional unless or until proved otherwise. Likewise the acts of administrative or executive branch officials, or even of other courts, other than, perhaps, courts superior in the appeals hierarchy, for the same case involving the same parties and issues. This means that the only form of stare decisis that is compatible with the written Constitution is the weak form of persuasive precedent, rather than the strong form of binding precedent, such that a court might very well find a dissenting opinion more persuasive than a majority opinion. The number of votes a legal position gets on a multi-judge panel might be enough for that panel to decide a case, but not for anyone else. A judicial panel is not a legislative body, and its decisions are not enactments of law, only practices, which may or may not be consistent with the Constitution.
Some confusion has arisen from the practice of the courts to make decisions not only as interpretations of a constitution or statutes, but as prudential or equity decisions, and to frame those prudential or equity decisions in ways that make them appear to be constitutional interpretations. Many court justices have advocated that people reduce their tendency to look to politically weak courts to protect their rights, and to refocus their efforts on getting protection through the "political branches", legislative and executive. Many of the decisions of the courts that have seemed like contractions of rights have actually not been constitutional interpretations but "prudential" decisions, for the convenience of the court, intended to push back on the tendency of the political branches to relinquish responsibility for constitutional compliance protection onto the courts, and to force people to seek redress through the political process rather than through litigation. Unfortunately, this practice becomes deference by the courts to the political branches, which can have the practical effect of allowing the delegation of both legislative and judicial authority to administrative officials, and be interpreted by the political branches, and eventually the courts themselves, as restrictions on constitutional rights. When officials of all three branches try to evade their duty to enforce the Constitution, by trying to push the duty off onto other branches, the enduring result is less likely to be activation of effective public demand for protection of their rights than expansion of the powers of petty tyrants too numerous, well organized, and well-funded to be readily overcome by diffuse public pressure. *Founder and President, Constitution Society. Http://www.constitution.org
11 Annals of Cong. 454 (J. Gales & W. Seaton eds. 1834) (Speech of Rep. J. Madison). http://www.constitution.org/ac/001/r01-1/bill_of_rights_hr1789.htm
2The Lost Jurisprudence of the Ninth Amendment, by Kurt Lash, Professor of Law and W. Joseph Ford Fellow, Loyola Law School, Los Angeles, Texas Law Review, Vol. 83, February 2005. http://www.constitution.org/9ll/schol/kurt_lash_juris_9th.htm
3Documentary History of the Bill of Rights. http://www.constitution.org/dhbr.htm
4The Lost Original Meaning of the Ninth Amendment, by Kurt Lash, Professor of Law and W. Joseph Ford Fellow, Loyola Law School, Los Angeles, Texas Law Review, Vol. 83, No. 2, December 2004. http://www.constitution.org/9ll/schol/kurt_lash_lost_9th.htm
5Randy Barnett discusses this in “Two Conceptions of the Ninth Amendment”, http://randybarnett.com/12harvjl29.htm
6See table at http://www.constitution.org/bor/sources.htm
7Common Law Writs. http://www.constitution.org/writ/writs.htm
8"Provided, That all commissions, writs, and processes, shall run in the name of the people of the United States, and be tested in the name of the President of the United States, or the person holding his place for the time being, or the first judge of the court out of which the same shall issue." New York Ratification Debates, http://www.constitution.org/rc/rat_ny.htm
9“10th. That every freeman restrained of his liberty is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
10“That every Person restrained of his Liberty is entitled to an enquiry into the lawfulness of such restraint, and to a removal thereof if unlawful, and that such enquiry and removal ought not to be denied or delayed, except when on account of Public Danger the Congress shall suspend the privilege of the Writ of Habeas Corpus.” “That the Privilege of the Habeas Corpus shall not by any Law be suspended for a longer term than six Months, or until twenty days after the Meeting of the Congress next following the passing of the Act for such suspension.” New York Ratification Declaration, http://www.constitution.org/rc/rat_decl-ny.htm
11"10. That every freeman, restrained of his liberty, is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same if unlawful; and that such remedy ought not to be denied nor delayed.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm
12"Resolved, as the opinion of this committee, that all appeals from any courts in this state, proceeding according to the course of the common law, are to be by writ of error, and not otherwise." New York Ratification Debates, http://www.constitution.org/rc/rat_ny.htm
13“That all Appeals in Causes determineable according to the course of the common Law, ought to be by Writ of Error and not otherwise.” New York Ratification Declaration, http://www.constitution.org/rc/rat_decl-ny.htm
14"Provided, That, whenever the privilege of habeas corpus shall he suspended, such suspension shall in no case exceed the term of six months, or until the next meeting of the Congress." New York Ratification Debates, http://www.constitution.org/rc/rat_ny.htm
15"12th. That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely, without sale, completely and without denial, promptly and without delay; and that all establishments or regulations contravening these rights are oppressive and unjust.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
16"12. That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property,or character; he ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay; and that all establishments or regulations contravening these rights are oppressive and unjust.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm
17"1st. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
18"1. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm
19"15th, That, in criminal prosecutions, no man shall be restrained in the exercise of the usual and accustomed right of challenging or excepting to the jury.” Virginia Convention Proposed Amendments, http://www.constitution.org/rc/rat_va_23.htm
20"16. That, in criminal prosecutions, no man shall be restrained in the exercise of the usual and accustomed tight of challenging or excepting to the jury.” North Carolina Proposed Amendments, http://www.constitution.org/rc/rat_nc.htm
21“Ninthly. Congress shall at no time consent that any person holding an office of trust or profit, under the United States, shall accept of a title of nobility, or any other title or office, from any king, prince, or foreign state.” Massachusetts Convention Proposed Amendments, http://www.constitution.org/rc/rat_ma.htm
22"Resolved, as the opinion of this committee, that the Congress shall at no time consent that any person, holding any office of profit or trust in or under the United States, shall accept of any title of nobility from any king, prince, or foreign state." New York Ratification Debates, http://www.constitution.org/rc/rat_ny.htm
23“That the Prohibition contained in the said Constitution against ex post facto Laws, extends only to Laws concerning Crimes.” New York Ratification Declaration, http://www.constitution.org/rc/rat_decl-ny.htm
24"5th. That the journals of the proceedings of the Senate and House of Representatives shall be published at least once in every year. except such {660} parts thereof, relating to treaties, alliances, or military operations, as, in their judgment, require secrecy.” Virginia Convention Proposed Amendments, http://www.constitution.org/rc/rat_va_23.htm
25"5. That the Journals of the proceedings of the Senate and House of Representatives shall be published at least once in every year, except such parts thereof relating to treaties, alliances, or military operations, as in their judgment require secrecy.” North Carolina Proposed Amendments, http://www.constitution.org/rc/rat_nc.htm
26"6th. That a regular statement and account of the receipts and expenditures of public money shall be published at least once a year.” Virginia Convention Proposed Amendments, http://www.constitution.org/rc/rat_va_23.htm
27"Provided, That. the words from time to time shall be so construed, as that the receipts and expenditures of public money shall be published at least once in every year, and be transmitted to the executives of the several states, to be laid before the legislatures thereof." New York Ratification Debates, http://www.constitution.org/rc/rat_ny.htm
28"6. That a regular statement and account of receipts and expenditures of all public moneys shall be published at least once in every year.” North Carolina Proposed Amendments, http://www.constitution.org/rc/rat_nc.htm
29“XV. That all men have a natural inherent right to emigrate from one state to another that will receive them, or to form a new state in vacant countries, or in such countries as they can purchase, whenever they think that thereby they may promote their own happiness.” Pennsylvania Constitution of 1776, http://www.constitution.org/cons/pa/pa_1776.htm
30This is contrary to the precedent in Frothingham v. Mellon, 262 U.S. 447 (1923). Discussed by Steven Winter in “The Metaphor of Standing and the Problem of Self-Governance”, 40 Stan. L. Rev. 1371. http://www.constitution.org/duepr/standing/winter_standing.htm
31This is brought out in the 1786 English case, The Trial at Large, ... In the Nature of a Quo Warranto, Against Mr. Thomas Amery, , ... of the City of Chester. http://www.constitution.org/trials/amery1786/amery1786.htm Submitted to verdict by a jury.
32Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty, Princeton University Press (December 15, 2003).
33Jon Roland, Principles of Constitution Interpretation. http://www.constitution.org/cons/prin_cons.htm
34Coke, 9 Inst. 597. http://www.constitution.org/coke/coke9th.htm
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