Michael McConnell on the Ninth Amendment

One of the puzzles in constitutional law has been the original meaning of the Ninth Amendment. Some years ago, during his unsuccessful confirmation hearings, Judge Robert Bork analogized our lack of understanding of the Amendment to the situation where the language of a constitutional provision was obscured by an inkblot. He argued that since we don’t understand the provision, we are in no better position to enforce it than if an ink blot covered it.

Over the years, various explanations have been offered for the amendment. Some have argued that it protects enumerated natural rights to the same extent as the enumerated constitutional rights.  Others have interpreted it to have a much less significant role.

In my view, the best interpretation of the Amendment is supplied by Michael McConnell in a relatively recent law review article. At the beginning of my scholarly career, I had come upon the same idea, but was persuaded not to write it up. My mistake, although I don’t think I would have done as good a job as McConnell does.

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Thinking about Property Rights Can Solve This

Retro Red Toilet sign on white brick wall

The public debate in America over access to public restrooms by transgendered people has largely been dominated by vague claims for morality, justice and fairness. The situation was further complicated by the Justice Department’s decision to send a Mafioso-style letter to public school districts to adopt policies allowing transgendered individuals to use bathrooms of their choosing or lose federal funding. It’s a deal they shouldn’t refuse. 

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The Ryan “contretrumps” and the Separation of Powers

UNITED STATES - MAY 12 - House Speaker Paul Ryan speaks at a news conference following his meeting with Republican presidential candidate Donald Trump. (Photo By Al Drago/CQ Roll Call)

Now that Donald Trump is their presumptive nominee, elected officials within the Republican Party are faced with the difficult question of how they should respond. Some are saying it isn’t at all difficult—the people have spoken, by golly!—but I beg to differ. It’s a genuinely hard political question that ought to be framed by philosophical, institutional, and constitutional considerations.

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It Isn’t 1964: Don’t Nationalize Decisions about Transgender Access

The Obama administration has ordered schools and government facilities to give transgender individuals access to facilities such as bathrooms and showers on the basis of the gender which they identify, regardless of their biological sex.  Ed Whelan has already shown in a series of persuasive posts how wrong the administration is in it its interpretation of Titles VII and IX of the Civil Right Act. Here I want to discuss another mistake: the impulse to nationalize rules about complex matters of social norms that are better handled by private and decentralized ordering.

Permitting transgender people to use facilities involves issues of respect for individual difference and the privacy of personal space. I am not sure how I would resolve these issues myself. It may well depend on circumstances, such as context and place. But we will make more sensible resolutions of these issues in the long run, if the businesses and localities are allowed to make their own decisions for private and public facilities respectively.  New social norms are likely to be shaped for the better, if individuals and groups are allowed to act freely without government intervention outside of preventing force and fraud.

The contrary view is that this is a matter of civil rights where national laws are needed based on philosophical premises. The analogy is to the discrimination against African Americans before the Civil Rights Act.  Indeed, for the left on such matters it is always 1964.

But the analogy to racial discrimination of that era is misleading.

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The President’s Power to Spend

In House of Representatives v. Burwell, yet another big case arising over the Affordable Care Act, U.S. District Judge Rosemary Collyer has ruled that the administration’s implementation of the Act’s subsidy provisions violates the Constitution. Lots of fun here; let’s start with the basics.

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A Direct Glance at America

CHARLESTON, WV - MAY 5: Coal miners and their families pray before Republican presidential candidate Donald Trump addresses his supporters in Charleston, WV. (Photo by Ricky Carioti/The Washington Post via Getty Images)

In his neglected mid-century essay “The Direct Glance” Whittaker Chambers sought to understand the smugness of the West and America regarding Soviet Communism. The struggle against it was marked, Chambers thought, by a “boundless complacency” rooted in the West’s belief in its material superiority. And this failure of understanding left the West, Chambers argued, listless and without appeal.

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More News from Antonin Scalia Law School

As described in my earlier post and a splendid Wall Street Journal piece by my colleague Lloyd Cohen, some members of the GMU faculty strenuously oppose the renaming of GMU School of Law after the late Justice Antonin Scalia, and the Faculty Senate has passed a resolution to that effect. The mau-mau artists have somehow managed to convey the impression that faculty opposition includes members of the law faculty. That is emphatically not so. As of May 12, the law faculty unanimously approved a resolution in support of the renaming, and in protest against the GMU Faculty Senate’s shameful agitation. Res…

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Corpus Linguistics and the Misuse of Dictionaries

Recently, I attended an interesting conference on Corpus Linguistics and the Law.  Corpus Linguistics “is the study of language based on large collections of ‘real life’ language use stored in corpora (or corpuses) – computerized databases created for linguistic research.”  Much of the conference focused on how this method could be used to engage in originalist research. At present, originalism often uses dictionaries to determine the meaning of words at the time of the Constitution’s enactment.  But there are significant limits to dictionaries.  The promise of corpus linguistics is to use very powerful software to examine actual usage of words from…

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Immigration “Law” a la Obama: What a Wicked Game

Immigration Documents

A Ninth Circuit immigration decision bears crucially on the Supreme Court’s pending decision in Texas v. United States, better known as “the DAPA case.” The appellate court’s April 5 decision shines a harsh spotlight on the administration’s legal defense of its immigration policies.

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The Inadequacy of Trump and Clinton as Heads of State

The President of the United States is both head of government and head of state. As a result, he must not simply act as a party leader, but as the leader of the United States. He is both obligated to respect social traditions that contribute to national unity and behave personally in ways that promote the sound social norms that undergird civil society.

I have almost nothing good to say about President Obama’s policies as head of government. Probably the most important policy with which I wholeheartedly agree is his decision to move toward privatizing space exploration, a pretty insignificant matter. But I give him high marks as head of state. He has behaved decorously, has largely respected the social traditions of the office, and has refrained from personally denouncing his opponents.

Sadly, I have no such confidence in the performance of either of the candidates most likely to be elected President in 2016. It is almost superfluous to detail the reasons that Donald Trump is likely to fall short. He insults his opponents in the most personal terms and vulgarly discusses matters in public that should be private. My friend Heather Mac Donald rightfully argues that his presidency is likely to coarsen an already coarse social culture.

But Hillary Clinton is in my view no better.

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