Judge Bork’s Inkblot
Glenn Reynolds has five intriguing questions for John Roberts in today’s New York Times.
1. The Ninth Amendment provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Do you believe that this language binds federal courts, or do you believe – as Robert Bork does – that it is an indecipherable “inkblot?” If the former, how are federal courts to determine what rights are retained by the people? On the other hand, if the Ninth Amendment does not create enforceable rights, what is it doing taking up one-tenth of the Bill of Rights?
Bork is essentially correct because, absent enumeration, enforcement of this Amendment would allow judges to simply decide for themselves which “others” are “retained by the people.”
The Amendment is included because James Madison and others feared that, once certain rights were listed in the Constitution, it would eventually be presumed to be exhaustive. That’s why the original Constitution left them out. The presumption was to be in the other direction: Unless Congress was specifically empowered to act on something, it was prohibited from doing so. The Bill of Rights were a necessary compromise solution that came up during the ratification struggle.
2. Justice Joseph Story wrote in 1833 that “since the American Revolution no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property; to take the property of A and transfer it to B by a mere legislative act.” Was Story wrong? Or was the Supreme Court wrong this year when it ruled in Kelo v. the City of New London that a government had the right to take property for the use of private developers?
The Court was horribly, horribly wrong in Kelo.
3. Could a human-like artificial intelligence constitute a “person” for purposes of protection under the 14th Amendment, or is such protection limited, by the 14th Amendment’s language, to those who are “born or naturalized in the United States?”
Theoretically, yes, if that lifeform acquired sentience. “Personhood,” though would be a matter for the legislature to confer, not the courts. Presumably, artificial life can not be “born.” Congress could, however, confer naturalized citizenship on them.
4. Does a declaration of war by Congress have the effect of suddenly making proper actions by the executive and Congress that would otherwise have been beyond their constitutional powers?
In terms of domestic powers? According to the Constitution, no. According to a century and a half of practice and judicial precedent? Yes.
5. Is scientific research among the expressive activities protected by the First Amendment? If not, is Congress free to bar research based solely on its decision that there are some things we’re better off not knowing?
Scientific research per se is not protected by the First Amendment. Read it; it’s only one sentence:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Let’s assume, for the sake of argument, that science is not a religion. Congress has no authority, then, to regulate the speech, writing, or gathering of scientists. So, no, Congress can’t ban an idea because it prefers to limit the knowledge–although it has some very limited authority in the case of classified information related to national security.
To the extent experimentation is required, though, Congress has the authority to ban that conduct for legitimate public policy reasons. It could, to take some current controversies, ban the cloning of human embryoes or particular forms of animal experimentation they deem inhumane.