America's Unwritten Constitution: The Precedents and Principles We Live By (18 page)

The Ninth Amendment, after all, instructs us precisely
not
to read the Sixth Amendment (or any other constitutional listing of rights, for that matter) in a stingy, negative-implication, rights-denying fashion: “The enumeration in the Constitution, of certain rights”—such as the rights to confront and to compel witnesses—“shall not be construed to deny or disparage others retained by the people,” such as the right to establish one’s own innocence, even in contexts not directly involving witnesses.

But where, our hypothetical prosecutor might ask, does this putative right to verify one’s innocence come from? Even if the Sixth Amendment does not negate the existence of such a right, our prosecutor would insist that surely the amendment does not affirm this right, which is nowhere specifically mentioned in the amendment’s text.

Here, too, our prosecutor errs. When properly construed alongside the Ninth Amendment, the Sixth Amendment does indeed affirm and presuppose a defendant’s basic right to defend himself with truthful evidence.
The Ninth Amendment tells us to look beyond “enumeration” when interpreting—“constru[ing]”—the Constitution. It reminds us that not everything in the Constitution is textually itemized and specified. Some of what is in the Constitution is implied rather than expressed. Part of the meaning that can be extracted from the document lies between the lines and beneath the words. Thus, even as the Ninth Amendment emphatically warns against certain
anti
-rights readings of the written Constitution based on mere negative implication, the amendment warmly invites certain
pro
-rights readings based on positive implications.

Earlier, we saw how an implicit principle may properly follow
a fortiori
from an explicit provision—in particular, how the ineligibility of the vice president to preside over his own impeachment trial follows a fortiori from a clause that explicitly prevents a vice president from presiding over a president’s impeachment trial. The a fortiori idea is not limited to issues of government structure, such as impeachment, but also applies in the domain of constitutional rights.

For example: Since the First Amendment prevents the president from censoring publishers even when Congress has purported to authorize him to do so, surely it follows a fortiori that the Constitution prevents him from censoring publishers on his own say-so. Since the Fifth Amendment bars the government from placing a defendant twice in jeopardy for the same offense, surely it follows a fortiori that the Constitution bars the government from placing him thrice in jeopardy. Moving closer to our Hollywood hypothetical, since the Sixth Amendment guarantees a defendant the right to use legal force to compel an uncooperative witness to testify, surely it follows a fortiori that the Constitution entitles a defendant to put a cooperative witness on the stand. And—returning to the precise facts of our hypothetical—since the Sixth Amendment entitles a defendant to use legal force against others to establish his own innocence, via subpoenas compelling testimony from uncooperative witnesses, surely it follows a fortiori that the defendant has a right to introduce reliable physical evidence already in his possession that also establishes his innocence.

When we read between the lines and dig beneath the words, we see that the deep purpose of the Sixth Amendment is to ensure a fair trial for the defendant, a trial enabling him to show that he did not do what the government has accused him of having done—in short, a trial allowing him
to make “his defence,” in the concluding words of the amendment. The enumerations of specific rights, such as the rights to confront and compel witnesses and to be informed of the specific criminal charges leveled by the government, imply and presuppose this fundamental unifying structure—the spirit of the Sixth Amendment—which simply went without saying in much the same way that it went without saying that no man could be a judge in his own case.
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Indeed, these two implicit precepts—the right to demonstrate one’s innocence and the rule that no man may judge his own case—derive from the same taproot of simple justice. In one of the Supreme Court’s earliest discussions of enumerated and unenumerated rights, Justice Samuel Chase in 1798 suggestively linked the two ideas, condemning both “a law that punished a citizen for an innocent action” and “a law that makes a man a Judge in his own cause” as laws “against all reason and justice.” It “cannot be presumed,” Chase declared, that the American people had ever authorized their governments to make such laws.
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A defendant’s right to truthfully defend himself with reliable evidence and testimony would exist even if the Sixth Amendment had never been adopted. This root right would sensibly be understood as implicit in the very structure of the original Constitution’s Judicial Article, which speaks of “Trial[s],” “Courts,” “Law,” “Equity,” “Judges” and “judicial Power,” among other things. All these words in turn must be read against the Preamble’s promise that the Constitution would “establish Justice,” not subvert it. What is the purpose of a criminal “Trial,” in a “Court” worthy of the name, if not to allow a defendant a fair opportunity to show that he is innocent of the charges leveled against him? The very structure of the trial attests to this purpose: Strictly speaking, a trial is triggered when a defendant pleads “not guilty” and ends when the trier (typically a jury) renders a verdict of “guilty” or “not guilty.”
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But if all this is so, then it follows that much of the Sixth Amendment was itself arguably superfluous. Its textually specified rules of confrontation, compulsory process, and so on could have been properly inferred from the Philadelphia Constitution’s Judicial Article alone, even if the Bill of Rights had never been adopted. In this respect, the Sixth Amendment was hardly unique. As we have seen, the Article I, section 8, necessary-and-proper clause was widely viewed (by Publius and the
McCulloch
Court,
among others) as merely declaratory of the true scope and limits of federal power deducible from the rest of the Constitution, properly construed. So, too, the core of the First Amendment’s free-speech clause merely codified a principle of free political expression that was both implicit in the Philadelphia Constitution as a whole (recall our fictional Lincoln Abraham) and evident in the very enactment of the document (as we saw at the outset of the previous chapter).
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Nor is this brief list exhaustive. Still other explicit rules and principles of the Bill of Rights were also implicit in the Constitution as a whole. Indeed, the First Congress, which drafted the Bill of Rights, highlighted this fact by explicitly prefacing the document with official language proclaiming that some of its provisions were “declaratory” of existing law. And let’s also remember that at the Philadelphia Convention, future justices James Wilson and Oliver Ellsworth had similarly insisted, à la Blackstone, that the Article I, section 9, clause prohibiting Congress from passing ex-post-facto laws was logically unnecessary and merely declaratory.
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Thus far, we have focused on how the original Constitution as modified and glossed by the initial amendments, especially the Ninth Amendment, operates to limit federal power and to protect rights against
federal
officials. With regard to unenumerated rights against states, the key clause comes from the Fourteenth Amendment, which was adopted after the Civil War to ensure that states would never again abuse their citizens in ways that the old South had done, with disastrous consequences. It’s worth repeating this clause, this time with emphasis:
“No State
shall make or enforce
any
law which shall abridge the privileges or immunities of citizens of the United States.” With these words, Reconstruction Republicans ringingly proclaimed that all the fundamental rights, freedoms, privileges, and immunities applicable against federal officials would also apply against states. Thanks to this amendment, the basic (albeit unenumerated) right of a man to prove his innocence obtains not just in federal courts but in state courts, too—as do all other basic rights, both explicit and implicit, affirmed in the original Constitution and its first nine amendments.
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ALTHOUGH THE NINTH AMENDMENT
offers little detailed guidance about how to find unenumerated rights, it does give us one powerful textual
clue: Proudly echoing the Preamble, the amendment speaks of unenumerated rights of “
the people
.” Proper unenumerated rights should be
popular
rights—rights that the American people (and not merely a few judges, following their own subjective sensibilities) have in some way or another endorsed, embraced, enacted, or embodied.

The implicit constitutional rights that we have just surveyed easily pass this popularity test. After all, the people themselves ratified the original Constitution and all its textual amendments. If these texts (implicitly) affirm various rights, then these rights are rights that the people themselves have (implicitly) endorsed. The robust free-speech right elaborated in
Chapter 2
can also be seen as an obvious right of “the people,” for this robust right pervaded the very process by which the “We the People” enacted the Constitution.

But
implying
rights in an incomplete textual listing and
enacting
rights in the process of adopting the Constitution are not the only ways that the American people themselves can demonstrate that they claim and hold dear a particular unenumerated right. We must also consider
lived
rights.

Simply put, many of the Ninth Amendment rights of the people and the Fourteenth Amendment privileges and immunities of citizens may be found in everyday American life—in the practices of ordinary Americans as they go about their affairs and in the patterns of laws and customs across the land. The rights of
the people
include various rights that the people themselves live out; the fundamental privileges and immunities
of citizens
encompass those things that the citizens themselves treat as fundamental in their rhythms and routines.

Thus, the hero of our Hollywood-style hypothetical need not rely solely on the implicit logic of the written Constitution. The Ninth and Fourteenth Amendments also invite him to root his claim of right directly in principles of truth, justice, and the American way as understood and practiced by the American people.
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OUR HYPOTHETICAL IS JUST THAT
—an imaginary scenario—precisely because American governments have not routinely attempted to prevent defendants from introducing trustworthy exculpatory evidence. A close look at the rules that have actually operated to govern criminal defendants
in American courtrooms across the centuries will deepen our understanding of why our hypothetical hero deserves to prevail.

At the Founding, criminal defendants were never allowed to take the stand to testify on their own behalf. This categorical disqualification rule, which operated in both the new federal courts and every state court, derived from then-dominant understandings of truth and justice. It was widely thought that the testimonial performances of accused men would often be false—perjured fables cooked up by guilty defendants.
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Criminal defendants were not the only ones at that time who were disqualified from testifying. In general, no “interested party” could take the stand in American courts. In civil lawsuits, this included both the plaintiff and the defendant as well as anyone else who stood to gain or lose something as a result of the verdict. The underlying Founding-era vision was that witnesses should be governed by evidentiary rules akin to the recusal rules that applied to judges and juries. Just as no man should be a judge in his own case, neither should he be a witness in his own case. Only in the nineteenth century did this vision yield to a more modern conception allowing those with obvious biases to testify, thus leaving it up to the impartial trier of fact—the judge or the jury, as the case might be—to sift and sort the conflicting accounts.

In the early republic, almost all states followed common-law or state constitutional rules similar to the federal Fifth Amendment’s self-incrimination clause, rules that prevented the government from obliging a criminal defendant to testify against himself. These bans on compelled self-incrimination intermeshed with Founding-era testimonial disqualification rules. If
allowed
to testify, criminal defendants might feel
obliged
to testify. Unless crafted with care, a formal right to testify might morph into a practical duty to testify, a duty in tension with the right against compelled self-incrimination. The pressure to testify would be particularly acute if jurors were permitted to assume the worst about a defendant who chose to remain silent when given the option to take the stand: “If he really is innocent, why won’t he testify and tell us his story under oath?” By preventing all defendants from taking the stand, the old rule precluded this sort of jury speculation.

If he were allowed to testify, a guilty defendant might of course perjure himself in an effort to avoid conviction. At the Founding, many believed
that lying under oath was an especially grievous offense against both man and God—a willful and wicked act that might cause the perjurer to lose his immortal soul or suffer some other horrible punishment in the afterlife. But fallen and frail human beings, especially criminals, could not always be counted on to take the long view. If defendants were permitted to testify under oath, a person who up to that point was merely guilty of, say, an unplanned assault might go on to commit what many eighteenth-century Americans viewed as the even greater offense of premeditated perjury. Alas, a liar might lose his soul even if he saved his skin. And this sad outcome would have been induced by the legal system itself, which in effect would have led men into temptation by creating a perjury trap for petty criminals—a trap potentially triggering cosmic punishment vastly disproportionate to their underlying pretestimonial offenses. As a matter of tenderness and justice to defendants, it was thought better to spare them any temptation to perjure themselves than to allow them to testify.
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