More on the 9th Amendment and Why It Matters

After stumbling across the 9th Amendment a couple days ago and concluding that it’s been unjustly ignored by the Supreme Court, I wanted to see if it’s gotten much attention in all the discussion of the unofficial opinion overturning Roe v. Wade. A Google search for “News” about “9th Amendment” only turned up a few items, mostly earlier in the year.

The first was by a New York University law professor in yesterday’s Los Angeles Times:

The right to abortion is what’s known as an “unenumerated” right, meaning that it has constitutional stature even though no text in the Constitution — short of the abstract “liberty” protected by the Fourteenth Amendment — protects it. The idea of such unwritten rights may seem puzzling, but it’s well-established in our constitutional system.

The 9th Amendment explicitly acknowledges their existence, stating that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And the Supreme Court has held that the right to travel across state lines and the right to vote (among many, many others) are constitutional rights even though they’re not specified in the text. So the question is not whether unwritten rights will be recognized, but which. And that of course requires the court to tell us how it will distinguish what’s in from what’s out.

[Justice Alito’s] Dobbs draft opinion takes a remarkably stingy approach to that question. It relies on the 1997 case of Washington vs. Glucksberg, which held that the Constitution did not protect the right to physician-assisted suicide. That opinion said that unwritten rights would be recognized only if they were “deeply rooted in this Nation’s history and tradition”. . . This approach effectively freezes an 18th- or 19th-century understanding of rights in place. The draft opinion’s application of this test doomed the right to abortion.

This approach is bizarre because it ignores the changes more recent cases have made to the Glucksberg test. Most prominently, the Obergefell case in 2015 not only made marriage equality the law of the land, but also transformed the role of tradition in discerning unwritten rights. The court rejected the idea that the rights inquiry could be “reduced to any formula.” It instead embraced an approach that “respects our history and learns from it without allowing the past alone to rule the present.” This shift allowed the justices to recognize same-sex marriage as a fundamental right. . . . Obergefell’s innovation was that it struck the chains of history from the inquiry of which unwritten rights would be recognized. . . .

The Constitution will gradually lose the support of the nation it governs if the court binds its interpretation of unenumerated rights, or its interpretation of abstract provisions like “liberty,” so closely to the past. The draft opinion is not just an assault on abortion, or on same-sex marriage, or on contraception. It’s an assault on the future of the Constitution.

I’d say Alito’s opinion is also bizarre because it ignores the clear meaning of the 9th Amendment. But he’s had lots of company.

A March article at the FindLaw site asks “Why Should We Care About the Ninth Amendment?” It explains why James Madison wrote the 9th Amendment and says it’s “seemingly so powerful”, but doesn’t really explain why it became one of the Constitution’s “most overlooked provisions”, the “redheaded stepchild of the Bill of Rights”:

The Supreme Court has largely ignored this amendment in all of its extensive jurisprudence. In more than two centuries of precedent, the court has yet to use the Ninth Amendment as the sole basis for a ruling.

In Roe v. Wade, which dealt with rights not mentioned in the Constitution, the 9th Amendment was referred to but downplayed in favor of the 14th Amendment. From the majority opinion:

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.

My guess is that the main reason the Supreme Court has almost always ignored the 9th Amendment is the Court’s conservatism. Why recognize that the common people have a right if some previous judge hasn’t already said so? We don’t want the citizenry running wild, exercising their rights all over the place. This disheartening article at Vox, “The Case Against the Supreme Court”, offers lots of evidence for this conclusion:

While the present Court is unusually conservative, the judiciary as an institution has an inherent conservative bias. . . .  For nearly all of its history, it’s been a reactionary institution, a political one that serves the interests of the already powerful at the expense of the most vulnerable. And it currently appears to be reverting to that historic mean.

Finally, it was surprising to learn that the biggest proponent of the 9th Amendment in recent history has been Joe Biden. In 1987, Biden was chairman of the Senate Judiciary Committee. He asked Robert Bork about the 9th Amendment. According to this interesting article at Politico (which has much more about the amendment), Biden’s question eventually led to Bork’s Supreme Court nomination being rejected:

Soon after the committee reconvened from its first recess, Biden pressed Bork on his criticism of the Supreme Court’s decision in Griswold [the contraception case]. Biden expressed his concern that Bork’s rejection of the court’s conclusion that the Constitution contained a general right to privacy — either in the penumbra created by the Bill of Rights . . . or in the Ninth Amendment — would imperil all of the Court’s subsequent decisions that relied on the precedent from Griswold. “It seems to me if you can’t find a rationale for the decision of the Griswold case, then all the succeeding cases are up for grabs,” said Biden.

Bork shifted uncomfortably in his seat before firing back at Biden. . . . “I have never tried to find a rationale, and I haven’t been offered one,” Bork said dismissively . . .

From his perch behind the committee table, Biden allowed a smile to spread across his face. He had successfully set the trap. Now he just had to wait for Bork to walk into it.

Two years ago, Biden said this at a Democratic candidates debate:

The only reason women have the right to choose is because it’s determined that there are unenumerated rights coming from the Ninth Amendment in the Constitution.

Then, in early February, President Biden told the leaders of the Senate Judiciary Committee that he wanted a Supreme Court candidate with a judicial philosophy “that suggests that there are unenumerated rights in the Constitution, and all the amendments mean something, including the Ninth Amendment”.

This week, after Alito’s opinion was leaked, Biden issued this warning:

One of the issues this court, many members of the court, have not acknowledged is there is a right to privacy in the Constitution. If this decision holds, it really is a radical decision. All of the decisions made in private life, who you marry, whether you can have an abortion, how you raise your child… it is a fundamental shift.”

The president went on to say that “one of the reasons” why he voted against “a number of members of the Court” was because “they refuse to acknowledge that there’s a 9th Amendment.”

Common sense says we have lots of rights not mentioned in the Bill of Rights, just like the 9th Amendment says, despite what some judges and law professors say, and that, as society changes, rights can evolve and take on more importance. The internet, for instance, makes the right of privacy even more important than it used to be. After women’s rights became a key issue in the 60s and 70s, five Republican justices and two Democrats realized that laws banning abortion were outmoded.

The Find Law article cited above concludes:

We can perhaps hope that [Biden’s recent] remarks [concerning the 9th Amendment] will be a rallying cry for the nation’s legal minds to think twice about it—or, at the very least, remember that it exists. 

The Data Priests

On June 15, Matthew Crawford of The New Atlantis testified at a hearing on smart home technology held by the U.S. Senate Judiciary Committee, Subcommittee on Antitrust, Competition Policy & Consumer Rights. This is from his opening statement:

I have no expertise in antitrust. I come to you as a student of the history of political thought.

The convenience of the smart home may be worth the price; that’s for each of us to decide. But to do so with open eyes, one has to understand what the price is. After all, you don’t pay a monthly fee for Alexa, or Google Assistant.

The Sleep Number bed is typical of smart home devices, as Harvard professor Shoshana Zuboff describes in The Age of Surveillance Capitalism. It comes with an app, of course, which you’ll need to install to get the full benefits. Benefits for whom? Well, to know that you would need to spend some time with the sixteen-page privacy policy that comes with the bed. There you’ll read about third-party sharing, analytics partners, targeted advertising, and much else.

Meanwhile, the user agreement specifies that the company can share or exploit your personal information even “after you deactivate or cancel” your Sleep Number account. You are unilaterally informed that the firm does not honor “Do Not Track” notifications. By the way, its privacy policy once stated that the bed would also transmit “audio in your room.” (I am not making this up.)

The business rationale for the smart home is to bring the intimate patterns of life into the fold of the surveillance economy, which has a one-way mirror quality. Increasingly, every aspect of our lives — our voices, our facial expressions, our political affiliations and intellectual predilections — are laid bare as data to be collected by companies who, for their own part, guard with military-grade secrecy the algorithms by which they use this information to determine the world that is presented to us, for example when we enter a search term, or in our news feeds. They are also in a position to determine our standing in the reputational economy. The credit rating agencies and insurance companies would like to know us more intimately; I suppose Alexa can help with that.

Allow me to offer a point of reference that comes from outside the tech debates, but can be brought to bear on them. Conservative legal scholars have long criticized a shift of power from Congress to the administrative state, which seeks to bypass legislation and rule by executive fiat, through administrative rulings. The appeal of this move is that it saves one the effort of persuading others, that is, the inconvenience of democratic politics.

All of the arguments that conservatives make about the administrative state apply as well to this new thing, call it algorithmic governance, that operates through artificial intelligence developed in the private sector. It too is a form of power that is not required to give an account of itself, and is therefore insulated from democratic pressures.

In machine learning, an array of variables are fed into deeply layered “neural nets” that simulate the binary, fire/don’t-fire synaptic connections of an animal brain. Vast amounts of data are used in a massively iterated (and, in some versions, unsupervised) training regimen. Because the strength of connections between logical nodes is highly plastic, just like neural pathways, the machine gets trained by trial and error and is able to arrive at something resembling knowledge of the world. The logic by which an AI reaches its conclusions is impossible to reconstruct even for those who built the underlying algorithms. We need to consider the significance of this in the light of our political traditions.

When a court issues a decision, the judge writes an opinion in which he explains his reasoning. He grounds the decision in law, precedent, common sense, and principles that he feels obliged to articulate and defend. This is what transforms the decision from mere fiat into something that is politically legitimate, capable of securing the assent of a free people. It makes the difference between simple power and authority. One distinguishing feature of a modern, liberal society is that authority is supposed to have this rational quality to it — rather than appealing to, say, a special talent for priestly divination. This is our Enlightenment inheritance. It appears to be in a fragile state. With the inscrutable arcana of data science, a new priesthood peers into a hidden layer of reality that is revealed only by a self-taught AI program — the logic of which is beyond human knowing.

The feeling that one is ruled by a class of experts who cannot be addressed, who cannot be held to account, has surely contributed to populist anger. From the perspective of ordinary citizens, the usual distinction between government and “the private sector” starts to sound like a joke, given how the tech firms order our lives in far-reaching ways.

Google, Facebook, Twitter, and Amazon have established portals that people feel they have to pass through to conduct the business of life, and to participate in the common life of the nation. Such bottlenecks are a natural consequence of “the network effect.” It was early innovations that allowed these firms to take up their positions. But it is not innovation that accounts for the unprecedented rents they are able to collect, it is these established positions, and the ongoing control of the data it allows them to gather, as in a classic infrastructure monopoly. If those profits measure anything at all, it is the reach of a grid of surveillance that continues to spread and deepen. It is this grid’s basic lack of intelligibility that renders it politically unaccountable. Yet accountability is the very essence of representative government.

Mr. Zuckerberg has said frankly that “In a lot of ways Facebook is more like a government than a traditional company.” If we take the man at his word, it would seem to raise the question: Can the United States government tolerate the existence of a rival government within its territory?

In 1776, we answered that question with a resounding “No!” and then fought a revolutionary war to make it so. The slogan of that war was “Don’t tread on me.” This spirited insistence on self-rule expresses the psychic core of republicanism. As Senator Klobuchar points out in her book Antitrust, the slogan was directed in particular at the British Crown’s grant of monopoly charters to corporations that controlled trade with the colonies. Today, the platform firms appear to many as an imperial power. The fundamental question “Who rules?” is pressed upon this body once again.

After a Major Event, Life Goes On, But Surreptitiously

gnote1A major event? Yes, finally replacing my aging but handy Blackberry with a new Android smartphone (good-bye, Verizon, you bloodsuckers!).

Some might say it’s only a phone. It feels more like a lifestyle. You can’t do that anymore. Do this now. How do I do that? Guess! Or download an app. Which app? That app! Wait, what did I just do? I must have touched something. Oh, no!

Come on, why do you zoom in on Google Maps by pinching your fingers together instead of spreading them apart? Isn’t spreading them apart a more expansive gesture? And why can’t I spread my fingers apart in the prescribed way? It’s probably a genetic defect. Those of us who can easily carry out the correct two-finger spreading motion are now better-suited to getting around and finding mates. The rest of us will tend to stay put and die alone. If only I could remember the Alternate Zoom Technique:

In addition to pinching the screen to zoom, you can also double-tap on your map, hold, and then scroll down to zoom in, or scroll up to zoom out.

Coincidentally, the New York Times reported more from the Snowden Files today:

When a smartphone user opens Angry Birds, the popular game application, and starts slinging birds at chortling green pigs, spy agencies have plotted how to lurk in the background to snatch data revealing the player’s location, age, sex and other personal information, according to secret British intelligence documents.

In their globe-spanning surveillance for terrorism suspects and other targets, the National Security Agency and its British counterpart have been trying to exploit a basic byproduct of modern telecommunications: With each new generation of mobile phone technology, ever greater amounts of personal data pour onto networks where spies can pick it up….

[Among] the most valuable of those unintended intelligence tools are so-called leaky apps that spew everything from users’ smartphone identification codes to where they have been that day.

Fortunately, I don’t play with angry birds. But Google Maps is said to be one of the best sources of information for the intelligence agencies. The Times quotes a secret report from Britain’s G.C.H.Q. suggesting that “anyone using Google Maps on a smartphone is working in support of a G.C.H.Q. system”. Thank you. No problem.

We know that corporations collect whatever information they can about us. Now we know that the NSA and GCHQ are doing the same.

But assuming that we don’t want to stop using our phones or the internet and we can’t get our governments to stop this spying, we can take some solace in the fact that these people are collecting so much data, they don’t know what to do with it. Most of us will never stand out in the crowd.

However, if you happen to be planning a terrorist attack, or want to tell the President he or she is a jerk, you should definitely avoid Angry Birds. Or communicate the old-fashioned way:

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