From: Joseph M. Giarratano
Work Product
6 September 1991
In Defense of Liberty:
(The Natural Law Principles underlying the United States Constitution)
“Let me add that a bill of rights is what the people are entitled to against every government on earth,
general or particular, and no just government should refuse, or rest on inference.”[1]
Freedom and democracy are very much alive in our world today. All one needs to do is pick up a
newspaper or turn on the television set to see vivid pictures of the spirit of freedom in action: the
recent events in the Soviet Union are a wonderful example. All around us the world is changing, the arm
of oppression is being pushed aside by the natural urges toward liberty. We Americans view this
unfolding drama with a sense of pride and satisfaction. Finally others are coming to learn and enjoy
what we have cherished since the days of our Revolution.
Yet I also fear that we Americans tend to take our liberty for granted. We have become
comfortable and complacent, and forget that our Bill of Rights has no power to protect itself. We, the
people, neglect our duties as sovereigns. We and not our elected officials, the Executive, Legislative,
and Judicial branches of our government, are the true guardians of our liberty.
In our complacency we do not hear a warning echoed from the past about government, and its
tendency to degenerate:
“As particular wills act constantly in opposition to the general will, so does government make an
incessant effort against sovereignty. As this strife becomes more marked, the constitution changes for
the worse. And since there is no corporate will which, by resisting the will of the Prince, can achieve
equilibrium, it must happen that, sooner or later, the Prince will oppress the sovereign and break the
social treaty. This is the inherent and inevitable vice of the body politic which, from the moment of its
birth, tends consistently to its destruction….There are two general ways in which government
degenerates; when it contracts, and when the state becomes dissolved.”[2]
Rousseau held that a government contracts when it passes from the hands of the many to those
of the few, or, in other words, when it changes from a democracy to aristocracy. Of course we in the
United States need not fear being ruled by an aristocracy (At least not in the traditional meaning of that
term). We have a “representative” form of government—we are guaranteed free elections to vote for
and elect those of our own choosing to represent us. Even so our complacency is the major threat to
our liberty, and the chief flaw that lends to the deterioration of our form of Republican government.
In a well attended State every citizen hastens to the assembly: in a neglected State no one (with
the exception of special interest groups) will move a step in order to attend it, knowing that the general
will seldom, if ever, prevails; and becomes in the long run, the cares of home and individual lives drive
out all others. As soon as “We the people”, thinking of the affairs of state, say “They don’t concern me”,
it is time to conclude that the State is in decline. Our elected representatives are not, nor they can be,
our representatives. They can only be our Commissioners. Sovereignty cannot be represented. It
consists essentially in the general will, and will cannot be represented without our watchful and active
participation. The better constituted a state is, the more do public affairs occupy men’s – the citizen’s –
minds to the exclusion of their private concerns.
One only needs to look at the decline in voter turn-out and public attendance at our general
assemblys and Congress, to see that we have, to a great extent surrendered the responsibility of our
sovereign duties. In our complacency we lend credence to Rousseau’s axiom: “For words do not alter
facts, and when the people have rulers who govern in their name, they are always, no matter how they
be called, an aristocracy.” In the final analysis, no matter our form of government, we “the people” are
the true guardians of our liberty and freedoms; and not those who we commission to represent us.
Keeping the above in mind, that we are the true protectors of our own liberty, I would like to
address the judicial philosophy currently expounded by the U.S. Supreme Court; and it’s direct effect of
the Bill of Rights.
The Bill of Rights gives us the framework of our fundamental rights in criminal cases involving the
citizens. The “Great Writ” of habeas corpus, guaranteed under all but the most extreme circumstances
by the explicit command of the constitution[3], has been the method by which previous generations of
Americans have sometimes succeeded in vindicating the guarantees of the Bill of Rights. These
amendments were enacted by the generations of the American Revolution because they recognized
and, realized, how tyrannical government could use criminal laws and procedures to suppress the
liberties of the people.
There is a current attitude in our country, actuated by the fear that crime has become such an
overwhelming threat, that the only alternative to compromising our constitutional rights is surrendering
to anarchy. Nowhere is this more evident than in recent decisions handed down by the U.S. Supreme
Court. The present court, lead by Chief Justice William H. Rehnquist, has discovered ways to drastically
limit or eliminate the protections guaranteed us by the Bill of Rights. Crime is a very real and serious
concern in our society. On the whole we are frustrated, angry, and demand that our leaders “get tough
on crime”. Our frustration is legitimate but we cannot let our anger blind us to a simple truth: our
Constitution is not soft on crime, it is tough on tyranny. The Constitution is not filled with bothersome
technicalities designed to keep criminals on the streets. Our Bill of Rights is not a safe-haven for
violators of the law. Our constitutional protections exist to protect the citizen against arbitrary
prosecutions and unjust convictions. The fact is that our Founders and Framers of the Constitution (with
Bill of Rights), placed, in their wisdom, a higher value on protecting the innocent than on convicting the
guilty. They were well aware of how criminal prosecutions could be used for political and other
nefarious purposes. In response to the prevailing attitude recent Supreme Court rulings have greatly
enhanced and expanded prosecutorial powers. The rights of the accused are being systematically
dismantled, traditional remedies to guard against abuse are being tossed aside, most frequently with
the rationale of administrative convenience.
Out of frustration we may feel that this is a legitimate and necessary response to our declared
“war on drugs”. We may agree with the Court because we think it is all a part of “getting tough on
crime”, but we must be wary of what we condone. The practical effects of these new rulings touch each
of our lives. The High Court, indeed, has become very tough on crime. Its new rulings have authorized
the issuance of general warrants; to randomly stop, question, and search the belongings of interstate
travelers; cars can be stopped and searched; and, citizens can be arrested and held without being told
why, detained for hours, all without the benefit of legal counsel. No warrants or probable cause
required.
No one can doubt that these are very effective law enforcement techniques. Yet they are not
new techniques, they are the stuff of tyranny. Hitler, Stalin and Mussolini were familiar with these
techniques and could no doubt boast of low crime rates. Are we, in our anger and frustration, now
willing to concede that it is far better to endure the coercive force wielded by a government in which we
may have some say, rather than risk having crime—even if it entails accepting tyrannical government
practices? In 1776, the prevailing attitude in our young country was that, “Government, even in its best
state, is a necessary evil; in its worst state, an intolerable one.”[4] The generation of the American
Revolution abhorred these kinds of techniques, and framed a Constitution to create a government that
would at least be of the “best state”. Are we now so willing to condone the evisceration of our liberties
and discard the wisdom that gave rise to our Bill of Rights.[5]
In his final dissent from the bench of the U.S. Supreme Court, retired Justice Thurgood Marshall
warned: “Power, not reason, is the new currency of this Court’s decision making”. Justice Marshall
condemned the new Court majority, and identified a long “hit list” of decisions which they intend to
overturn. He continued in his dissent, “By limiting full protection of the doctrine of stare decisis to
‘cause involving property and contract rights’….the majority sends a clear signal that essentially all
decisions implementing the personal liberties protected by the Bill of Rights and the Fourteenth
Amendment are open to reexamination…. The continued vitality of literally scores of decisions must be
understood to depend on nothing more that the proclivities of the individuals who now comprise a
majority of the court….”[6] The “hit list” identified by Justice Marshall includes a wide range of specific
precedents dealing with the First Amendment speech and association rights, civil rights and
discrimination, search and seizure, protections against compelled self-incrimination and double
jeopardy, the right to counsel, and various death penalty issues.
Justice Marshall concluded his final dissent with frightening forecast of the fate of justice in the
United States. Accusing the new Court majority of a “blatant disregard for the rule of law”, he stated
that this past term’s overturning of key precedents “is but a preview of an even broader and more
farreaching assault on this Court’s precedents. Cast aside today are those to face society’s ultimate
penalty. Tomorrow’s victims may be minorities, women, or the indigent. Inevitably, this campaign…will
squander the legitimacy of this Court as a protector of the powerless. I dissent.”[7]
The trend has been to permit and authorize, a higher degree of governmental intrusion into the
life of the citizen. This trend beckons to an old cry: that the Bill of Rights places an unnecessary burden
on the government by hindering it in its useful and necessary exertions. From this standpoint, whether
veiled or unveiled, the Rehnquist Court has virtually written the Fourth, Fifth, Sixth and Eighth
Amendments, and habeas corpus, out of the Constitution. At the dawn of our Republic Thomas
Jefferson addressed the time worn argument of inconvenience:
“But tho (sic) [a bill of rights] is not absolutely efficacious under all circumstances, it is of great potency
always, and rarely inefficacious)…There is a remarkable (sic) difference between the characters of the
Inconveniences (sic) which attend a Declaration of rights, and those which attend the want of it. The
inconveniences of the Declaration are that it may cramp government in it’s useful exertions. But the evil
of this is shortlived, moderate…The inconveniences (sic) of the want of a Declaration are in permanent,
afflicting and irreparable: they are in constant progression from bad to worse…”[8]
The judicial philosophy of the current court, most clearly espoused by Chief Justice Rehnquist, appears
extremely and explicitly hostile to the outlook which gave rise to the Declaration of Independence and
the Constitution. Cloaked behind a mask of pseudo-conservatism (pseudo because a true conservative
would pay deference to our constitutional heritage) and, the doctrine of original intent, a frightening
spectre arises: the “Leviathan” of Thomas Hobbes. Hobbes, in essence, held that the government could
do no wrong and that the citizen possessed no rights that the government was obliged to respect (that
government was the source and creator of all rights). This outlook was adamantly rejected by our
Founding Fathers and the framers of the Constitution. The generation of the American Revolution
believed that there is a higher law above all written law, and that the constitution reflected the natural
and inalienable rights of man which the state was morally and legally bound to respect.
The Rehnquist court has explicitly and repeatedly denied the existence of natural law and natural
rights, expressing the view that law has nothing to do with morality, and that moral notions only have
force by virtue of their having been enacted as positive law by the majority. The current attitude of the
Court appears to ridicule any notion that the court should defend the rights of the citizen against the
majority as expressed by actions of the Executive and Legislative branch.
Our constitution established three branches of government, coordinate and independent, so that
they might check and balance one another. Our founders understood that a wisely tempered Judiciary
is the strongest possible buttress of a good constitution. The Judiciary was designed to be the
“protector” of the laws. It serves to protect the people against the government and also to protect the
government against the people. It plays no part in either the Legislative or Executive functions. The
very fact that it does not do so increases its power, for though it can initiate nothing, it can stop almost
anything from being done. It is more sacrosanct and more deeply revered as the guardian or protector
of the laws than either the Executive who administers the laws or the Legislative who ordains them.
But, if the power of the judiciary grows even a little beyond what it should be, it may well overturn
everything. As Rousseau warned:
“It is not in its [the Tribunate] nature to be weak. If it is anything at all, its power never falls below what
is necessary for its operation. It degenerates into tyranny whenever it usurps the Executive Power (we
can add the Legislative as well), whose moderator it is, and tries to make laws instead of confining itself
to its proper function of protecting them.”[9]
In a letter to Judge Spencer Roane, who sat on the Virginia Supreme Court of Appeals and who
opposed the U.S. Supreme Court’s claim to ultimate jurisdiction in federal questions, Jefferson stated:
“….And after twenty years confirmation of the federated system by the voice of the nation, declared
through the medium of elections, we find the judiciary on every occasion, still driving us into
consolidation…. In denying the right they usurp of exclusively explaining the Constitution, I go further
that you do, if I understand rightly your quotation from the Federalist, of an opinion that “the judiciary is
the last resort in relation to the other departments of the government, but not in relation to the rights
of the parties to the compact under which the judiciary is derived.” If this opinion be sound, then
indeed is our Constitution a complete felo de se…The Constitution, on this hypothesis, is a mere thing of
wax in the hands of the judiciary, which they may twist and shape into any form they please. It should
be remembered, as an axiom of eternal truth in politics, that whatever power in any government is
independent, it is absolute also; in theory only, at first while the spirit of the people is up, but in
practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass.
They are inherently independent of all but moral law…..”[10]
Because government, in all it’s branches, plays such an important function in our day to day lives, and
legislative branches are exercising authority to reform the safeguards protecting our freedoms from
encroachment by limiting the Bill of Rights: we are obligated to rediscover the roots of our freedoms.
And, the checks put in place at the formation of our unique form of government.
Our freedom and the political theory that underlaid the American Revolution found its roots in
the doctrine of the social contract; and the Natural Law principles that buttressed that doctrine. It was
the political theory expounded by John Locke that penetrated into the North American Colonies, and
passed through Samuel Adams and Thomas Jefferson into the American Declaration of Independence.
The achievement of our Declaration is that, at its heart, it gave timeless symbolization in words to a
philosophy of human rights and self government.
The Declaration of Independence is our founding document, as much so as our Constitution
which followed, in its second paragraph Jefferson encapsulated a political theory and our national creed.
The truths there declared to be “self evident” were not new; they derived from John Locke, dissident
English Whigs, and philosophers of the Enlightenment, and were very much a part of American opinion.
Equality, the natural rights of man, the sovereignty of the people, the right of revolution—these
principles endowed the American Revolution with a high moral purpose united to a theory of free
government. For the first time in history “the rights of man”, not the rulers, were laid as the foundation
of a nation.
In the days when government was still held to be sui generis and to stand over against subjects as
something of a separate order, it was natural to think that there was, or should be, a contract between
them which fixed their mutual limits. Today the government is not sui generis; it is just a part of the
legal association, as the body of general citizens is equally a part; and its rights and duties are fixed, like
those of the citizens generally, under and by the one and only contract of the Constitution.
Even so we cannot and, should not, ignore the service that the doctrine of contract and, the
doctrine of Natural Law behind it, has rendered to the cause of liberty; and to the general cause of
political progress. Its fruits may not prove its truths, but we would do well to remember them. As
stated earlier there is a frightening trend resonating from the decisions being handed down by the
present Supreme Court: that government is the source of man’s rights and, then, government is to
determine what rights will be afforded the citizens and will also determine what protection will be
afforded those same rights. This attitude smacks of Hobbes’ “Leviathan”, and even a cursory review into
our Constitutional heritage will underscore the belief our Founders had in the principles of Natural Law.
Some would argue, as Professor Lawrence Tribe of Harvard, that adherence to natural law as a
judicial philosophy could take the court in an even more troubling direction than it is going now.[11] On
the contrary I would hold that we cannot ignore natural law principles in Constitutional jurisprudence
without denying our Constitutional heritage. More importantly, I believe that it is the Natural Law
concepts that lend life to our Constitution and keep it from becoming a static document, and a deadletter instrument.
Without its philosophical underpinnings our Constitution becomes nothing more than a deed of
contract and a dead hand on political development. Is not a belief in historical growth the true
philosophy for the progressive? A deed, if we conceive it broadly enough, may be a beckoning hand to
progress rather than a dead hand on development. But without the salt of the Natural Law our
Constitution, our deed of political association, has detrimental consequences. This is the warning
Thomas Paine made when he opened the Rights of Man by denouncing Burke for seeking to lay the dead
hand of 1689 on the living present of 1791, and for saying as it were to the Convention Parliament and
its antique notion of contract, “O Parliament, live for ever.” We do ourselves, and our Founding Fathers,
a disservice if we toss the baby out with the bath water. Natural Law is rooted and grounded in the
reasonable nature of man.
I. Do individuals possess natural rights apart from the positive enactments of
law?
(a) Natural rights are those which grow out of nature of man and depend upon his personality and are
distinguished from those which are created by positive laws enacted by a duly constituted government
to create an orderly civilized society.[12] Natural law is long established in American law.[13] If
fundamental rights have any philosophical foundation, it is upon the rock of natural law which has
actuated so much of American legal thought.[14]
Natural life is the period of a person’s existence considered as continuing until terminated by
physical dissolution or death occurring in the course of nature; used in contradistinction to that juristic
and artificial conception of life as an aggregate of legal rights or the possession of a legal personality,
which could be terminated by civil death, that is, that extinction of personality which resulted from
entering a monastery or being attained of treason or felony.[15] That this notion was central to the
Framer’s intellectual understanding of their government can be seen from the Declaration of
Independence, which echoed earlier colonial declarations of rights: “We hold these truths to be selfevident, that all men are created equal, that they are endowed by their Creator with certain inalienable
Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these rights,
Governments are instituted among Men, deriving their just powers from the consent of the
governed”.[16]
As early as 1775 the staunch federalist, Alexander Hamilton, proclaimed his allegiance to natural
law principles.[17] Indeed, Hamilton went so far as to proclaim:
“The Sacred Rights of Mankind are not to be rummaged for among old parchments or
musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand
of Divinity itself, and can never be erased or obscured by mortal power.”[18]
That an individual is in possession of a natural right to life part from the positive enactments of
law cannot be seriously disputed. Especially when one considers that the largest part of the intellectual
baggage of the Framers’, whether of stars like Madison, Mason or Wilson or bit players like Richard
Dobbs Spaight, Jared Ingersoll and William Pierce, was a tempered version of the oldest and most
famous liberty-oriented political philosophies: the school of natural law and natural rights.[19] The
Framers’ conception of natural rights taught that certain rights were inalienable; they were beyond the
powers of government and could not be surrendered to it, despite even a written constitution to the
contrary. Such thinking was epitomized by the second paragraph of the Declaration of Independence.
Admittedly, the words therein were those of an advocate of rebellion and therefore were phrased in the
most virulent terms. However, the same natural rights philosophy also infused other argument made in
favor of a bill of rights.[20] Madison Himself spoke of the “pre-existent rights of nature” in the
introduction of his amendments in Congress.[21]
II. Does an individual retain unenumerated natural/substantive rights protected by the
Ninth Amendment?
(b) In drafting the Ninth Amendment, surely its authors had in mind some bundle of rights worthy of
constitutional protection. Perhaps the surest indication of the kind of rights with which they were
concerned lies in the fact that the Ninth Amendment was proposed, considered and adopted as a part of
the Bill of Rights. This was no accident: it was the logical product of a century and a half of colonial
government. Accordingly, during the Virginia ratification debates, Patrick Henry declared that George
Mason’s 1776 Virginia Bill of Rights “secures the great and principle rights of mankind,”[22] The
American Revolution had its intellectual underpinnings in Lockean theory, and the constitutional
Framers, though not fettered by natural law, clearly relied on natural principles in formulating
constitutional guarantees.
Lockean thought was the dominant political theory at the time of the Constitution’s adoption.[23]
Constitutional limitations upon the federal government’s power and express diffusion of its exercise
were intended to guarantee the liberties of the individuals forming the society by dividing the potential
power of the state to seize those liberties for itself. The Constitution specifies precise measures to
divide and check the exercise of power but is generally silent about protection of individual substantive
rights. The elaborate devices created to limit power were, of course, intended to serve some
substantive end. The procedural safeguards in the original Constitution implicitly protected against
encroachments upon individual entitlements. It was for this reason that Hamilton and Wilson opposed
adoption of the Bill of Rights.[24] With this conceptional understanding it is possible to see the function
to be discharged by the Bill of Rights. It identifies the ends of government, the rights that the system of
limited jurisdiction, indirectly voting, and separation of power is designed to protect.[25] It is this
theoretical substantive end which the Ninth Amendment was intended to serve that must be kept in
mind when examining its specific content.
Construing the Ninth Amendment as a mere declaration of a constitutional truism, devoid of
enforceable content, renders its substance nugatory and assigns to its Framers an intention to engage in
a completely moot exercise. Such a view is clearly at odds with the contextual historical evidence[26],
and the specific articulated concerns of its Framers, and violates the premise of Marbury v. Madison
that the Constitution contains judicially discoverable and enforceable principles.[27] As Chief Justice
Marshall stated, “It cannot be presumed that any clause of Constitution is intended to be without
effect.”[28] The Court held in Griswald that “The Ninth Amendment to the Constitution may be
regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a
basic part of the Constitution which we are sworn to uphold”.[29]
The Framers understood and observed a distinction between “natural” rights and “civil”
rights.[30] Positive rights had their source in state common, constitutional, and statutory law; natural
rights stemmed from the Lockean notions concerning the “unalienable” rights of the people.[31] But,
because both forms were considered to be “essential to secure the liberty of the people”,[32]the
package of rights expressly enumerated in the first eight amendments contain both natural and positive
rights. It is a fair inference, then, that the unenumerated rights of the Ninth Amendment were thought
to consist of both varieties.
Rights were enumerated in the federal constitution to provide a clear barrier to federal action;
the specific guarantee selected for enumeration were derived from similar specific guarantees then in
existence under state charters, constitutions, or declarations of rights. The inclusion of the Ninth
Amendment was, in part, an attempt to be certain that rights protected by state law were not
supplanted by federal laws simply because they were not enumerated.[33] But the Ninth Amendment
was intended to do more than secure unenumerated state-based rights from federal invasion; it was
also to serve as a barrier to encroachment upon natural rights retained by the people. Madison feared
that the enumeration of rights,
“would disparage those rights which were not placed in that enumeration; and it might follow, by
implication, that those rights which were not singled out, were intended to be assigned into the hands
of the General Government, and were consequently insecure.”[34]
This inference could be “guarded against” by the Ninth Amendment. Id. The fact that Madison
had the same fear with respect to state bills of rights indicates that he appreciated that certain rights
were “natural…[and] retained by the people”, and were properly beyond the powers of
government.[35]
Thus, the Ninth Amendment protects two distinct categories of rights: positive rights, having their
source in State Law, and natural rights, grounded in conceptions of inalienable rights of man. This
division is wholly consistent with Madison’s conception of rights as procedural, or positive, and
substantive, or natural.[36]
Because the intent of the Ninth Amendment included the protection of natural rights it is
necessary to confront the amorphous body of natural law in order to define natural Ninth Amendment
rights without reference to sources wholly extrinsic to the Constitution. Madison’s contention that
“natural rights [are] retained” by the people is consistent with the theory that natural rights find their
source in the immutable, inalienable rights of mankind, possessed apart from and transcendent to
government.[37] It is the transcendent authority of these rights that makes them important to
confront; it is their gossamer nature that makes them virtually impossible to discern by application of
neutral principles. If they be paramount to legislative action, it is no accident that the Framers selected
the phrase, “retained by the people” to describe these rights.[38] Positive rights acquired substance by
the social compact; hence their retention by the people was ceded to the government as part of the
initial government contract. Natural rights could not, by definition, be so ceded.
When it is recalled that the objective in erecting a constitutional barrier to the denial of retained,
unenumerated rights was to preserve the great and principled rights of man, it becomes apparent that it
is possible to borrow from existing constitutional theory to put flesh on these skeletal rights. The
doctrine of fundamental rights, long a part of equal protection analysis, seems most conceptually akin to
Patrick Henry’s great and principled rights.[39] Moreover, to be consistent with Lockean political
theory, such fundamental rights must be seen to be adjacent to private rights not subject to invasion by
legitimate private action. But, for purposes of finding those paramount fundamental rights protected by
the Ninth Amendment against state or federal invasion, some limiting principles are prudent. An
asserted fundamental right should have textual foundation in the Constitution, however implicit or
attenuated. In this connection, the utility of finding constitutional meaning in “structure and
relationship” is germane.[40] This limitation is plainly not required by the Ninth Amendment, which
included would seemingly preclude reliance upon textual foundations other than the amendment itself.
Such limitation is prudential only, and intended to limit possible resort to personal values and subjective
preferences. Further, the right asserted as fundamental should have some historical authenticity in the
organic law of the nation, the states, the colonies or the common law. It should be consistent with the
theoretical construct of natural rights, so far as they subject can provide meaning (at the very least the
right to be plainly inferable from the analytical arguments advanced by natural law scholars). And, it
should be a right to be plainly inferable from the analytical arguments advanced by natural law
scholars). And, it should be a right generally recognized by a significant portion of contemporary society
as one inextricably connected with the inherent dignity of the individual (no suggestion is made that the
asserted right must command a majority – given the anti-majoritarian nature of judicial review, this is
unlikely). Rather, the right, even if highly controversial, should be recognized to exist in concepts of
inherent human dignity.
III. A judicial philosophy or application of judicial or legislative procedures that impose
a total negation of a citizens inalienable rights (i.e. the death penalty) violates the
spirit and the letter of the Ninth Amendment.
(c) The Ninth Amendment proves that,
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people.”
The Ninth amendment protects two distinct categories of rights: positive rights, having their source in
state law, and natural rights, grounded in the conception of inalienable rights of man. The Ninth
Amendment was born amid the heightened concern for both state sovereignty and individual liberty
that marked adoption of the Bill of Rights. It was specifically intended as a catch-all to preserve and
protect for the people their great and fundamental rights that were not enumerated in the first eight
amendments or elsewhere in the Constitution. Its text mandated treatment of the unspecified rights on
a par with the enumerated rights.[41]
Given the fact that the Framers understood and observed a distinction between natural and
positive rights, it would be untenable to argue that individuals do not possess a natural/substantive right
to life. A view to the contrary would be at odds with the contextual historical evidence, and the specific
articulated concerns of the Framers. “Absolute negation” of an individual’s natural right to life
necessarily “denies” or “disparages” an individual’s right “retained by the people” in violation of the
Amendment.
The Ninth Amendment is a counterweight to the vast momentum generated by government
power. This is an important, vital, structural role that is only partially filled by other constitutional
guarantees and prohibitions. Indeed, by its terms the Amendment is the final counterweight, to be used
against governmental intrusion upon the people when all else fails. It is precisely this role which the
Ninth Amendment should play in our jurisprudence addressing any fundamental right—enumerated or
unenumerated- “retained by the people”.
That it was Lockean political theory which actuated the Constitution and Bill of Rights cannot be
forgotten or ignored. The Ninth Amendment springs from and helps effectuate John Locke’s conception
of representative government which is so deftly embodied in the entire Constitution. Lockean theory
posits that each man is his own master. In the Lockean state of nature, no political control of any kind is
exerted upon the individual (which is not to say that in a theoretical state of nature there are no social
controls). Yet, upon formation of government, some individual rights are ceded to the state for the
purpose of more fully securing the liberty of all (natural rights could not, by definition, be so ceded).
Locke’s view of legislative power was as follows:
“First it is not nor can possibly be absolutely arbitrary over the lives and fortunes of the people. For it
being but the joint power of every member of society given up to that person, or assembly, which is
legislator, it can be no more than those persons had in a state of nature before they entered into
society, and gave it up to the community. For nobody can transfer to another more power than he has
in himself; and nobody had absolute arbitrary power over himself, or any other to destroy his own life,
or to take away the life or property of another…it is a power that hath no other end but preservation,
and therefore can never have the right to destroy, enslave, or designedly to empoverish the subjects;
the obligations of the law of nature cease not in society, but only in many cases are drawn closer…thus
the law of Nature stands as an eternal rule to all men, legislators as well as others…”42
This line of thought can be traced back to Hooker’s Ecclesiastical Polity, and St. Thomas Aquians,
and beyond him to Aristotle:
“Human laws are measures in respect of men whose actions they must direct, howbeit such measures
they are as have also their higher rules to be measured by, which rules are two—the law of God and the
law of Nature: so that laws human must be made according to the general laws of nature, and without
contradiction to any positive law of Scripture, otherwise they are ill made,”43
The sovereign has no absolute power to generate rights. The state can acquire nothing by simply
declaration of its will but must justify its claims in terms of the rights of the individuals who it
protects.44
Thus, representative government begins with the premise that the state’s rights against its citizens are
no greater than the sum of the rights of the individuals whom it benefits in any given transaction. The
state quo state has no independent set of entitlements. Because the state possesses only limited rights
derived entirely from individual constituents, it cannot regulate individual behavior in any greater
fashion than could the individual members of society regulate the behavior of their fellows. To be sure,
one purpose of the state is to assume and enforce community powers of self-help to prevent individuals
from seizing, through force or fraud, what is not rightfully their own. The Lockean state is empowered
to curb rape, murder, crime and other conduct that uses force or deceit to deprive others of what is
justly their own. But the empowerment to “curb” and protect against criminal activity that would
deprive others of what is justly their own is not a grant of power that permits the absolute negation of
the offender’s inherent right to life. Only by ignoring the fundamental political theory embodied in the
Constitution can the state be ceded power to absolutely negate the inalienable rights retained by its
citizens, whether they be enumerated or unenumerated. The intended function of the Ninth
Amendment is an eternal reminder that the state is not the source of an individuals natural/substantive
rights.
(d) That the death penalty was practiced at the time of the adoption of the Constitution presents no bar
to a Ninth Amendment challenge of its constitutionality in the present day. To attempt to disprove the
claimed right in such a fashion is “to use history as drunks use lamp posts—more for support than
illumination.”45 The proper historical inquiry is one which seeks to determine what history teaches are
the traditions from which the nation’s constitutional jurisprudence developed as well as the traditions
from which it broke. That tradition is a living thing.46 That tradition is not slavishly devoted to the
fidelity of the past. As James Madison stated when promoting the unratified Constitution:
“The glory of the people of America is that whilst they have paid a decent regard to the opinions of
former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or
for names, to overrule the suggestion of their own good sense, the knowledge of their own situation,
and the lessons of their own experience.”47
The Framers of our Constitution and the signers of the Declaration of Independence actually
understood, defended, and vindicated human rights to the greatest extent that they had ever been
recognized up to that time. However, they did not fully conceive of human rights as we understand
them today. We ourselves cannot fully predict what natural and human rights of the future may be in
light of the development and progress of the race. We cannot doubt this when we remember that a
little over a century ago we permitted slavery and human bondage and the majority of people did not
consider slavery as being morally or spiritually wrong; and when we further remember that over a
quarter of a century ago we liberated women from political disenfranchisement and gave them the right
to participate in government. These and numerous other examples illustrate the changes in our moral
philosophies that have take place in the short era of a century. Robert Morris, who was the principle
donor of money to finance the American Revolution, and who was a member of the Constitutional
Convention, died in a debtor’s prison. This form of punishment is no longer a part of the American
concept of morality and justice. Can it be seriously doubted that a present-day court would declare
unconstitutional any statute enacted by either the Federal or State Government which provided for
imprisonment for ordinary debt?
The natural rights protected by the Ninth Amendment are not static and fixed as of the date of
the adoption of the Constitution and the Bill of Rights. To interpret the Amendment in this manner
would take it out of its clearly-intended meaning. Such an interpretation would mean that there was a
cut-off date at the time of the adoption of the Bill of Rights: that prior to that date rights of natural
endowment were recognized, but after said date only such rights as were enumerated or known to exist
would be protected. This interpretation destroys the distinction between “enumerated” and
“unenumerated”, and restricts its meaning to be read as “such enumerated rights as are now known to
exist”. The Framers never intended that the science of law should become so fixed and archaic, while all
other sciences may go forward in the discovery of truth and may utilize it whenever it is found. It is
wrong to attempt to harness our rights to a civilization as it existed two hundred years ago, and it was
not the intention of the Founding Fathers—the Framers of the Bill of Rights—that we should do so.
Some would argue that the precepts embodied in natural law support the application of capital
punishment to those who commit murder. At first blush reasoning is sustained, but upon closer
examination of the natural law principles such is not the case.
In a state of nature all men, in their individual capacities, had the right to punish the transgressor of the
natural law:
“…Thus it is, that every man, in the state of nature, has a power to kill a murderer…And also to secure
men from the attempts of a criminal, who having renounced reason, the common rule and measure God
hath given to mankind, hath, by the unjust violence and slaughter he hath committed upon one,
declared war against all mankind, and therefore may be destroyed as a lion or a tiger, one of those wild
savage beasts with whom men can have no society nor security…”48
By the act of murder the offender has attacked the fabric of society. By violating its laws he has
placed himself in a “state of war” with mankind and society. As the individual in the state of nature had
the right of self-defense and self-preservation, so does society. But, when the offender has been
captured, confined and no longer poses an immediate threat, then capital punishment becomes an
unnecessary use of force. When the actual threat is ended, the state of war ceases between those that
are in society and are equally on both sides subjected to the fair determination of the law:
“…Because then there lies open a remedy of appeal for the past injury, and to prevent future harm; but
where no such appeal is, as in a state of nature, for want of positive laws, and judges with authority to
appeal to, the state of war, once begun, continues with a right to the innocent party to destroy the
other whenever he can, until the aggressor offers peace, and desires reconciliation on such terms as
may repair any wrongs he has already done, and secure the innocent for the future.”49
The law of nature, and nature’s God, is binding upon the state. It is, in its simplest terms, the
basic law: “Thou shalt not kill” which prefigures the Biblical injunction. The incapacitated offender, no
longer in a “state of war”, retains an inalienable right to life that must be respected.
Indeed, if this were not so, then when justice miscarries and the state executes an innocent
individual under the color of the law50 the tables would be reversed: the state, and all those responsible
for the unjust execution, would necessarily have to subject themselves to the raw law of nature.
As Rousseau points out: “…When punishments are frequent it is always a sign that the
government is weak or lazy. There is no man, be he ever so bad, who cannot be made good for
something. No man should be put to death, even to serve as an example, unless his continued existence
is a source of danger.”51 To execute an incarcerated prisoner violates the moral law, i.e., the Natural
Law.
CONCLUSION
Natural law undergirds our constitution. At it’s center lies reason and not religious dogma. The
two need not be confused. To comply with the original purpose of the Ninth Amendment, the textual
standard should be the entire Constitution. The original Constitution and its amendments project
through the ages the image of a free and open society. The Ninth Amendment recognized—at the very
out set of our national experience—that it was impossible to fill in every detail of this image. For that
reason certain rights were reserved to the people. The language and history of the Ninth Amendment
indicates that the rights reserved were to be of a nature comparable to the rights enumerated. They
were “retained…by the people” not because they were different from the rights specifically mentioned
in the Constitution, but because words were considered inadequate to define all of the rights which man
should possess in a free society and because it was believed that the enumeration might imply that
other rights did not exsist.
The Ninth Amendment, as the other portions of the Bill of Rights, should be viewed in a light that
does not countenance absolute negation of the rights retained by the people. There is normally a
presumption of constitutionality and a willingness to uphold a statute if it appears reasonably related to
a valid legislative end. But when the individual asserts rights recognized under the Ninth Amendment,
the Court should carefully sound a different note. Ninth Amendment rights are those which a free
society reserves to the people. Legislative actions may not “deny or disparage” them by mere showing
of reasonableness. In areas of general economic and social policy, the judicial branch must generally
defer to the constitutional power of the legislative branch. But when the legislative branch extends its
powers to regulate rights which are considered an essential ingredient of the free society established by
our Constitution, judicial authority is actuated and the Court must require overwhelming proof of
necessity and the absence of other and less burdensome means to achieve the legislative objective
before allowing the absolute negation of retained rights by legislative acts. In this realm, as in others,
there exists no pure set of criteria. That the criteria are loose, however, does not mean that they do not
exist. Our Constitution provides the basic text for the delineation of rights retained by the people with
respect to which state and federal governments have been denied the power to act. Accordingly, the
Ninth Amendment should be used to define rights adjacent to, or analogous to, the pattern of rights
which we find in the Constitution, the Bill of Rights, the Declaration of Independence, and their original
objective.
Absolute Negation of the natural/substantive rights retained by the people is not countenanced
by the Ninth Amendment. Lockean principles, so embodied in the Constitution, deny the premise of
absolute negation of life, and allows for only reasonable and necessary infringement of said right: i.e.
civil death.
Our judicial philosophy needs to take stock of Natural Law concepts when we interpret the
constitution. The Spirit that gave life to our Declaration of Independence sustains our Constitution, and
allows us to flourish in our freedoms.
“The moral sense, or conscience, is as much a part of man as his leg or arm. It is given to all human
beings…This sense is submitted indeed in some degree to the guidance of reason; but it is small stock
which is required for this: even less than what we call common sense. State a moral case to a
ploughman and a professor. The farmer will decide it as well, and often better than the latter, because
he has not been led astray by artificial rules.”52
DEDICATION:
To my friends who died by the hand of the executioner, and to all remaining on death row across
the country. To all the supporters of the Giarratano Review Action Committee (especially Jim and
Charlie Wine), and my defense team.
A special thanks to Marie Deans, director of the Virginia Coalition on Jails and Prisons, who has
been a constant source of inspiration to me—a spirit who sparked my soul to journey forward in the
fullness of life, and who saved my life in more ways than one.
To my many mentors of whom I can only list a few: Mike Farrell (good friend and citizen), John C.
Boger Esq., Mike Mello Esq., Rev. Joe Ingle, Coleman McCarthy (On the Left), James J. Kilpatrick (On the
Right); Tony Amsterdam, Esq., Richard Bonnie, Esq., and many others.
Also to Robert Deans, my buddy, friend, and collaborator.
Thanks to Mollie Cupp for pulling this together on computer for me, and welcome to the Va.
Coalition!
[1] Peterson, The Portable Thomas Jefferson, 1986 ed,; “Letter from Jefferson to James Madison”, Dec.
20, 1787.
[2] Jean-Jacques Rousseau, Du Contrat Social, section __________, 1762.
[3] U.S. Const., Art. I, section 9.
[4] Thomas Paine, Common Sense, pub 1776
[5] See generally: County of Riverside v. McLaughlin, 500 US 44 (1991 (suspect can be detained for 48
hours, longer on weekends and holidays, without probable cause being shown in either hearing or
warrant); Florida v. Bostick, 501 US 429 (1991) (police can search passengers’ baggage while using
public transportation); California v. Acevdo, _________________, (police allowed to search entire car
including closed containers, luggage, etc, within it); California v. Hoclari, _______________, (item
dropped by “fleeing” suspect can be used as evidence, even if police did not have any reason or
probable cause to chase individual); U.S. v. Verdugo-Urquidez, 110 S.Ct. 1056 (1990) (search warrant not
needed to search property abroad owned by foreign citizens); Quarles v. New York, 467 US 649 (1984)
(harmless error for prosecutor to question a defendant about his post-arrest silence); Arizona v.
Fulminate, 59 U.S.L.W. 4235 (1991) (admission of coerced confession permissible); Colorado v. Connelly,
479 U.S. 157 (1986) (confession rendered by mentally incompetent or mentally retarded admissible),
Tison v. Arizona, 481 U.S. 137 (1987) (juveniles subjected to death penalty though not actual
participants in murders); Michigan v. Harvey, 110 /S.Ct. 1176 (1990) (allowed prosecutors to use
statements taken from criminal defendants in violation of their right to counsel); U.S. v. Monsanto, 109
S.Ct. 2657 (1989) (pretrial freezing of assets, which would otherwise be used to pay legal counsel, does
not violate Sixth Amendment); Murray v. Giarratano, 109 S. Ct 2765 (1989) (no right to counsel for
indigents seeking collateral relief despite high incidents of error in capital cases); Teague v. Lane 489
U.S. (1989) (new decisions can not be applied retroactively to challenge existing convictions) Butler v.
McKeller, 101 S.Ct. 1212(1990) (prisoner are not entitled to the benefit of changes in constitutional law
decided while their cases are pending—even if the conviction is in error); Coleman v. Thompson, 501 US
722 (1991) (failure to comply with procedural rule, lawyer filed petition 3 days late, cannot have their
cases reviewed death sentence notwithstanding); Mu’mim v. Virginia, 500 US 415 (1991) (impartial jury
not denied where 8 out of 12 jurors admitted being exposed to extraordinarily prejudicial publicity
concerning murder. Judge need not question jurors about the effect of their exposure to pre-trial
publicity); McClesky v. Zant, 499 US 467 (1991) (only one chance to bring habeas petition before federal
court even if new evidence is discovered after first petition is heard); Wainwright v. Sykes, 433 U.S. 72
(1977) (failure of attorney to make timely objection bars federal review of legitimate trial error); and
Payne v. Tennessee, 501 US 808 (1991) (limiting doctrine of stare decisis to cases involving property and
contract rights. Stare decisis not applicable to personal liberties, court free to override prior
precedents).
[6] Payne v. Tennessee, cite supra at n. #1.
[7] Payne, cite supra at note #1.
[8] Peterson, supra; “Letter form Jefferson to James Madison”, March 15, 1789 (emphasis added).
[9] Du Contrat Social, section ________, 1792
[10] Peterson, supra at pp. 561, “Letter from Thomas Jefferson to Judge Roane,” Sept 6, 1819.
[11] July 15, 1991. Commentary in the New York Times entitled “Natural Law and the Nominee”.
[12] Black’s Law Dictionary, 5th ed.
[13] Freedman, Legal Theory 136-51, 5th Ed., 1967.
[14] Corwin, “the Debt of American Constitutional Law to Natural Law Concepts”, 25 Notre Dame Law,
258, 1950.
[15] Black’s 5th ed.
[16] Declaration of Independence, para 1, U.S. 1776
[17] The Works of Alexander Hamilton, 61-64, 87, H. Lodge ed., 1904.
[18] Id. At 113; see also, McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 404-05 (1819).
[19] See also Rassister, 1787: The Grand Convention, 41-57 (1966); Adams, Political Ideas of the
American Revolution, (1922); Mulbeth, Fundamental Law and the American Revolution (1933).
[20] See Wright, Natural Law 125-148; Haines, “The Law of Nature In State and Federal Judicial
Decision”, 25 Yale Law Journal 617, 624-25 (1916); John Quincy Adams, The Jubilee of the Constitution,
40-41 (1839) and Pamphlets on the Constitution (Fard ed., 1888).
[21] 1 Congressional Proceedings 454.
[21] 1 Congressional Proceedings 454.
[22] J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution, 17881 (2d ed., 1836).
[23] See Corwin “the ‘Higher Law’ Background of American Constitutional Law” (pt. 2) 42 Harv. L. Rev.
365, 394-409 (1929).
[24] The Federalist no. 84, Hamilton.
[25] See Epstein, Taking Private Property and the power of Eminent Domain, 1985.
[26] Annals of Congress at 446-47.
[27] U.S> (1 Cranch) 137, 166-67 (1803).
[28] ID., See Welcher, Principles, Politics and Fundamental Law (1961); Griswald v. Connecticut, 381 U.S.
479, 491 (1965).
[29] Id.
[30] Annals of Congress. At 954.
[31] The Bill of Rights: A Documentary History, 349 (Schwartz ed. 1971); Declaration of Independence,
para. 1 (U.S. 1776).
[32] 1 Annals of Congress at 454 (Madison’s remarks)
[33] See Caplan, “The History and Meaning of the Ninth Amendment,” 69 Virginia Law Review 223
(1983)
[34] 1 Annals of Congress at 456.
[35] 5 Madison Writings at 390 and N.1.
[36] 1 Annals of Congress at 454; 2 Elliot, Debates in the Several States Conventiona on the Adoption of
the Federal Constitution, 178 (2 ed., 1836).
[37] Friedman, Legal Theory, 117-21, 5th ed., 1967
[38] U.S> Constitution Amendment IX
[39] See Harper v. Virginia State Board of Elections, 383 U.S. 618 (1969); Yick Wo v. Hopkins, 118 U.S.
356, 370 (1885); Corwin, “The Debt of American Constitutional Law to National Law Concepts”, 25 Notre
Dame Law 258 (1950).
[40] See Black, Structure and Relationship in Constitutional Law, (1969).
[41] Massey, “Federalism and Fundamental Rights: The Ninth Amendment,” 38 Hastings Law Journal 305
(1987)
42 J. Locke, Of Civil Government, sec. 135 (1690)
43 Hooker’s Eccl, Pol., Lib. iii, Section 9.
44 Epstein, Takings: Private Property and the Power of Eminent Domain (1985); Corwin, “The Higher Law
Background of American Constitutional Law” (Pt.2 42 Harvard Law Review 1929.
45 Abrams, “Mister. Meese Caricatures the Constitution”, The New York Times, July 25, 1986 at A31,
Col.6.
46 See Poe v. Ullman 376 U.S. 497, 543.
47 The Federalist, No 14 at 52 (J. Madison) (6th ed., 1847).
48 J. Locke, Of Civil Government, section II.
49 Locke, supra, at section 20
50 See Generally Bedau and Radelet, “Miscarriages of Justice in Potentially Capital Cases”, 40 “Stan L.
Rev. 12 (1987); Tabak and Lane, “The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the
Death Penalty”, 23 Loy L. Rev. 59, 102 (1989); and, Giarratano, “To the Best of Our Knowledge, We have
Never Been Wrong: Fallibility vs. Finality in Capital Punishment”, Yale Law Journal 1005, vol. 100 (1991).
51 Du Contrat Social, section V.
52 Peterson, supra, “Letter from Jefferson to Peter Carr” August 10, 1787.