CAT-O-9TH-A-TAILS

The folks at Southern Appeal have been having a debate over the ninth Amendment, initial kick-off in comments here, first post here, summary of other folks' reactions here, with more between and above those posts as well. The Curmudgeonly Clerk throws in a few words here as well, with a brief reaction here.

Instead of getting into the highly detailed and professional debate over originalism, textualism, strict construction, and incorporation, let me try to work out a few idiosyncratic, incoherent points and continue in my Donald Luskin vein (sorry! It's weird, I know it; I get into ruts but I'm not actually obsessive) and note that my view is that the initial Problemstellung (which comes from the claim by Randy Barnett that judges are empowered through the 9th A to smack down states when they intrude on rights in the name of morality) is flawed for one fundamental reason.

The argument seems to claim that legislatures can't legislate on the basis of morality, because judges are empowered to determine whether or not state laws aim at "liberty" rather than "license." The main problem here is that there is no account of license that does not rest on a controversial moral view. In fact, the moral distinction between liberty and license is almost guaranteed to be controversial in Barnett's scheme -- after all, you need the distinction to justify judicial power to strike down state laws. Now whether or not the hypothetical judges who decide to take up this approach will be able to justify their exercise of power will be dependent on the prevailing legal-professional views of the purpose of 9th A. But they will also be dependent on myriad other factors, such as the rhetorical abilities of the individual judges, the party and interest-group constellation at the point of the decision, the action of other high-profile individuals (such as the MA SJC, the President, or the Mayor of San Fran, to pick a few at random), and so on. As an attempt to constrain judges from using their personal views of morality in their opinions, moreover, discussions about the meaning of 9th A will have some effect, but that effect shouldn't be overstated (and that's the political scientist in me talking). If I'm right that it is impossible to separate moral factors from the area of Establishment Clause judging, for example (see below), then I can't see how it will be possible to separate out moral factors when judges look at the 9th A, which is admitted by all hands to be more amorphous and vague than the Establishment Clause. At least with EC you know what the broad subject matter is by looking at the text of the Amendment.

MORE: I fiddled with this a bit within ten minutes of posting it.