FUNDAMENTAL RIGHTS
The current preoccupation with individual rights obscures the Founders’ concern in 1787 with the rights of the community rather than the individual. For them “individual rights, even the basic civil liberties that we consider so crucial, possessed little of their modern theoretical relevance when set against the will of the people.” 52 “In the Convention and later,” wrote Alpheus T. Mason, “states’ rights—not individual rights—was the real worry,” 53 The Founders were concerned with erecting a structure of government that would diffuse and limit delegated power, not with fortifying individual rights.54 “It was conceivable,” wrote Gordon Wood, “to protect the common law liberties of the people against their rulers, but hardly against the people themselves.” 55 As Louis Henkin observed, “the Constitution said remarkably little about rights” because the federal government “was not to be the primary government . . . governance was left principally to the States.” 56
The Colonists claimed “the rights of Englishmen”; what were they? When people in the seventeenth century “talked about rights,” Sir William Holdsworth concluded, “they meant the rights which the existing laws gave them.” 57 By 1765 these had crystallized into Blackstone’s triad: personal security, personal liberty (i.e., freedom to come and go), and property.58 The opening resolve of the First Continental Congress affirmed that the Colonies by “the principles of the British Constitution . . . are entitled to life, liberty and property.” 59 In the Virginia Ratification Convention, Edmund Pendleton declared, “our dearest rights—life, liberty and property—as Virginians are still in the hands of our state legislatures.” 60 Later Justice Story wrote that “the most general rights, which belong to all mankind, may be said to be the right to life, to liberty and to property.” 61 And Chancellor Kent paraphrased Blackstone.62 In 1866, James Wilson, chairman of the House Judiciary Committee, read the Blackstone triad to the 39th Congress and commented, “Thus, sir, we have the English and American doctrine harmonising,” 63 thereby indicating that the rights conferred by the Fourteenth Amendment were confined by the triad, as its due process clause confirmed.
Manifestly the historically limited view of “fundamental rights” cannot sustain the inexhaustible activist claims. Indeed, two leading activist theoreticians admit as much. Paul Brest acknowledges that “Fundamental Rights adjudication is open to criticism that it is not authorized and not guided by the text and original history of the Constitution.” 64 And Michael Perry recognizes that the individual rights which activists champion are judicial constructs of the “modern” Court.65
Substantive due process not being as fruitful as of yore, activists have been turning to the Ninth Amendment as a fresh cornucopia of “rights.” It provides that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” 66 What is enumerated is embodied in the Constitution; what is retained is not. Reservations are not grants of power to deal with what is retained. Put differently, what is retained is excluded from the federal jurisdiction. This is made clear by Madison’s explanation in introducing the Bill of Rights: “the great object in view is to limit and qualify the power of Government by excepting out of the grant of power those cases in which the Government ought not to act.” 67 Given that the federal government “ought not to act” in the “excepted” zone, much more was federal action precluded in the “retained” zone.68 Instead of expanding federal jurisdiction, the Bill of Rights was meant to curtail it. To obviate the implication that the nonmentioned rights “were intended to be assigned into the hands of the general Government,” Madison stated, this danger would be “guarded against” by the draft precursor of the Ninth Amendment.69 Justice Black, who read the Bill of Rights into the Fourteenth Amendment, observed that the Ninth Amendment “was intended to protect against the idea that ‘by enumerating particular exceptions to the grant of power’ to the Federal Government ‘those rights which were not singled out, were intended to be assigned into the hands of the General Government.’ ” 70 The fact that Amendments One through Eight were meant to limit the powers of the federal government militates against a reading of the Ninth that would confer unlimited federal judicial power to create new “rights.” 71
The cheerleader of the cornucopian movement is Randy Barnett.72 Deploring the Supreme Court’s “neglect” of the Ninth Amendment’s expansive possibilities, Barnett proffers a “powerful method of protecting unenumerated rights,” a “presumption of liberty” that would require a State “to show that the legislation [claimed to be] infringing the liberty of its citizens was a necessary exercise of its police power.” 73 But it is for a plaintiff to set forth a cause of action before the State is called upon to prove the negative. To shift the burden of persuasion to the State by Barnett’s “presumption of liberty,” more is required than bare assertion of an unheard-of claim.74 Recent Supreme Court pronouncements are unsympathetic to “novel,” nontraditional “substantive due process” claims,75 which are the more compelling when claimants invoke the unidentified rights “retained by the people.”
The “Privileges or Immunities of a Citizen of the United States”
NARROW as was the protection afforded blacks by the “privileges or immunities” clause, it was at least designed to shield them from violence and oppression. Even that limited goal was soon aborted when the Supreme Court divorced the rights of “a citizen of the United States” from the freedom from the discrimination proscribed by the Amendment. Consequently, the provision has become the all-but-forgotten clause of the Constitution.1 In the Slaughter-House Cases the Supreme Court grounded this view in part on the differentiation between the declaration in the first sentence of §1 that “all persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside” and the second-sentence provision that no State “shall abridge the privileges or immunities of a citizen of the United States.” From this Justice Miller deduced that a “citizenship of the United States and a citizenship of a State . . . are distinct from each other,” and that §1 secured only the privileges of a “citizen of the United States.” 2 So meager was his catalog of those privileges as to move Justice Field to exclaim that if this was all the privileges or immunities clause accomplished, “it was a vain and idle enactment.” 3 Slaughter-House was a five-to-four decision, and Field was joined by Chief Justice Chase and Justices Bradley and Swayne in an opinion that took more accurate account of the framers’ intention than did that of Miller.
Preliminarily it will be useful to pull together a few strands that tie the privileges or immunities of §1 to the specific enumeration of the Civil Rights Act of 1866. There is first the correspondence to the Civil Rights Bill’s “civil rights and immunities,”