People Have Rights. States Have Powers.

A terrific post by Jim Henley stating concisely the most obvious problem with using the framework of “states’ rights.” This language not only does not appear in the constitution, but is alien to the underlying principles of the constitution. States, under this framework, have powers, but it is human beings that have rights. When you talk about governments having “rights,” you’re dealing with some system of government other than liberal democracy.

In addition to Henley’s arguments against the 10th Amendment, I would note that its invocation is sort of a broader version if the illogic inherent in trying to claim that abortion is about “federalism.” George Wallace waved the 10th Amendment when blocking the schoolhouse doors for the same reason that the denizens of redstate.org want to make reproductive freedom about “federalism”; it’s a lot easier to pretend the 10th Amendment is some sort of broad grant of “states’ rights” than to explain why the 14th Amendment is silent on the question of whether states can maintain apartheid through coercive authority. The 10th Amendment in fact, merely states something that is not in any dispute–that if the federal government does not have governing authority, powers are retained by the states or rights by the people. As Harlan Fiske Stone pointed out, “[t]he amendment states but a truism that all is retained which has not been surrendered.” I’m sure Henley and I would disagree considerably about how the scope of federal authority should be construed, but the 10th Amendment adds no content to the debate.

And speaking of Ackerman’s review of Bork, Henley’s discussion of the Ninth Amendment reminds me of this gem from Ackerman’s review. Ackerman critiques Bork’s (ahistorical) claim that the Ninth Amendment is a mere “inkblot” of no constitutional significance:

Sticking to the text, he reports that it “states simply, if enigmatically, that ‘[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'” The puzzle here is why Bork should find the text “enigmatic.” It seems, almost preternaturally, to be written with him in mind. What Bork is up to is precisely to use “the enumeration in the Constitution, of certain rights” to “disparage” the idea that there are other constitutional rights of fundamental importance. I especially admire the Framers’ choice of the word “disparage.” I can think of no better word to describe Bork’s general tone.

[..]

…the Ninth Amendment speaks to all interpreters of the Constitution, presidents no less than courts, citizens no less than legislators, and expressly cautions all of them against committing the interpretive blunder that Bork would impose in the name of the Framers. (1990:1430)

As Henley says, and I have argued before, there is nothing the least bit unusual about the idea expressed by the “penumbras” language used by Douglas in Griswold; to argue that rights are implicit in the structure of the text is a banal interpretive move, and the Ninth Amendment certainly settles any questions about its legitimacy. One can, of course, prefer other methods of interpretation or the application of such an analysis in an individual case, but to argue that this interpretation is illegitimate within the framework of American constitutionalism is absurd.