There are two ways to protect liberties: either directly, by enumerating the full scope of protected activity, or indirectly, by placing restrictions on law en forcement procedures. Our own system of liberty is of the indirect sort.
The Preamble to the Constitution makes clear the intent to secure an ideal of liberty, but the framers did not know how to articulate the full ideal of liberty. They made this explicit in the Ninth Amendment where they proclaimed that they were not enumerating the full extent of protected rights. Indeed, only the First and Second Amendments enumerate any protected activities. The rest of the Bill of Rights enumerates procedural restrictions.
If we could only see how to articulate the full ideal of liberty, and protect it directly in the Constitution, then the protection of liberty would no longer rely on the procedural restrictions. The conflict between liberty and crime control would be eliminated, allowing procedural restrictions to be relaxed in important ways. Liberty would be better protected at the same time as the hands of the police would be untied for stopping legitimately criminal activity.
As it turns out, the most conservative possible reading of the Ninth Amendment's protection of unenumerated "rights...retained by the people" is sufficient to secure a highly articulated definition of the full ideal of liberty. This means that we can shift from indirect to direct protection of liberty without having to introduce any changes in the concept of liberty that our existing system of liberty protects. We have a chance to gain what economists call a "pure efficiency" with respect to the existing goals of our legal system, improving the attainment of each goal at no cost to the others.
This does not mean that direct protection of liberty would be uncontroversial. Many people are already upset about what the Supreme Court will not let them outlaw and will not like to see the full ideal of liberty made explicit. Similarly, there are people who seem to think that hobbling the police is desirable in itself. But when crime control and the protection of liberty can be improved at the same time, it should be possible to make everyone happy with the change.
The Full Ideal of Liberty
Whatever else the framers of the Constitution meant to protect with the Ninth Amendment, there is one thing we can say for certain about what would have been widely regarded in the founding era as "rights...retained by the people". The following words were published on July fourth 1776: "We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness."
The Declaration of Independence is as central a statement of American values as the Constitution. When President Lincoln said: "Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal", the year referred to was 1776, not 1789. When we call America a free country we think of the Declaration of Independence and the Constitution together, and believe that the latter has secured the promise of the former. Under the Ninth Amendment, the Constitution should be held by the Supreme Court to do exactly that.
If the Supreme Court were faced with the task of protecting "life, liberty, and the pursuit of happiness" as legal rights held by all citizens of the United States, it would have to decide how to adjudicate between these rights. Consider life and liberty first. If these were the only rights listed then the condition that everyone have equal rights (implicit in the statement: "that all men are created equal") would mean that the only grounds for attacking anyone's life or liberty (as when using state power to punish their actions) is to prevent harm to the life or liberty or others.
Every graduate of a Western Cultures course should recognize that this is just John Stuart Mill's principle of liberty: "that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." ("Harm to others", in Mill's usage, was limited explicitly to harm to the security or autonomy (the life or liberty) of others.)
This equivalence is only reinforced when the inalienable the right to pursue happiness is added in. Mill called a person's security and autonomy their "direct interests". People also have indirect interests. I might care how others behave, not for how it affects my liberty or security, but because of the anger I feel at the thought of people drinking and dancing and fornicating for example. But it is inconceivable that these indirect interests could ever allow one person's pursuit of happiness (absent life or liberty interests) to take precedence over someone else's life or liberty.
First, one person's indirect interests would have to confront the indirect interests of others. If we assume that these indirect interests cancel, we would be left with equal protection of direct interests, which we have just seen is equivilant to Mill's principle. More intuitively, equal rights to the pursuit of happiness is clearly a call for toleration, as is Mill's principle.
There has been controversy over whether Mill's distinction between direct and indirect interests (or self-regarding and other-regarding interests) is workable. It is possible for one's vicarious interests in the behavior of others to break one's health, undermine one's autonomy, and otherwise affect one's direct interests. Nevertheless, a perfectly clear and workable distinction can be drawn: so long as a person's direct interests are only affected through his vicarious or "other-regarding" interests then his interest can be considered indirect.
Mill's principle places no restrictions on what the majority can do when direct interest clash, or when only indirect interests are involved. If society were to outlaw everything that Mill's principle allows it to, we would have a drab society indeed, far from the rough and tumble of our history. For this fuller scope of liberty we must rely on the freedom loving spirit of the electorate.
What Mill's principle does do is identify the all important core of liberty that we can state unequivocally must be protected. Laws that place the indirect interests of the some over the direct interests of others must not be allowed to stand. [A complete resolution of the issues of direct vs. indirect interests requires explication of the right to privacy. To nail down these foundations, I come back to direct vs. indirect interests in article 5 of this series: The Right to Privacy.]
(Alexander Rawls is pursuing a Ph.D.in economics.)
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