The first two amendments in the Bill of Rights get more air time in Congress and more coverage in the press than just about any other part of U.S. Constitution. Every Representative, Senator, President, and Supreme Court Justice will have to weigh in on these two amendments at some point in their political career. However, the last two amendments in the Bill of Rights, the Ninth and Tenth Amendments are just as important to our individual freedom, liberty, and independence… …as the first two, even though your rarely hear them mentioned in the press or by politicians. It seems that when it comes to the Bill of Rights and our political leadership, the last in really are the first ones out, to paraphrase a common hiring adage.
I think it would be fair to say that most Americans have at least a passing familiarity with the First and Second Amendments to the Constitution. It’s nearly impossible these days to turn on the news and not see at least one story that’s centered on the hotly contested Second Amendment right to bear arms or a First Amendment freedom. However, even individuals who consider themselves plugged in and turned on to issues of government and politics don’t often find our conversations turning to the 9th and 10th Amendments. Truth be told, I didn’t really understand just how critical these last two Amendments in the Bill of Rights are to our national character and the protection of individual rights and freedoms myself until about ten years ago when I really began to read and study the Constitution and its history.
Over the past few years, as questions of government growth, over reach, abuse, and usurpation occur more and more often I have come to see these two amendments as at least equally important if not more so than the fir more familiar and more comfortable First and Second Amendments. I think I understand now why most people in government will go to just about any lengths not to discuss them, and why that is very bad news for We the People.
The Tenth Amendment to the United States Constitution reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
This Amendment sets up what should be a very simple litmus test by which to evaluate the powers exercised by the Federal Government. According to this amendment, there are only two questions that you have to ask to find out if a power being exercised or legislated by the federal government is Constitutional or not: “Is the power delegated to the United States?” and “Is the power forbidden to the States?”
The first question is very simple and straight forward. If the power in question is actually mentioned in the Constitution as delegated either to Congress, the President, or the Supreme Court, then it is agreed that the federal government has full legal authorization to use that power. If, however, it is not mentioned specifically, then the government can’t exercise that power until it is. This simple principle is why it took a constitutional amendment (18th) to bring about prohibition and make the manufacture, sale, and transport of alcohol a federal offense. Up until the ratification of that amendment, the federal government simply did not have a legitimate authority to declare a product like alcohol illegal. It’s worth noting that barely fifty years later, a simple act of legislation (The Controlled Substance Act) accomplished the same feat but was applied to multiple products at once. I’ve never understood how an amendment was needed for the one, but not for the other.
If the answer to the question of delegation is no, then the federal government cannot simply decide to exercise the power at a whim. They must first answer the second half of the amendment which asks “Is that power denied by the Constitution to the States?” If the answer to this question is also no, then it is the responsibility of the states, and NOT the federal government to exercise the power or not as they see fit. The powers neither specifically denied to the states nor specifically delegated to the federal government, according to this amendment are “reserved to the States respectively, or to the people.” Those undeclared powers are the powers of the states and the people to exercise at our leisure and not the purview of the federal government. No matter what, the federal government cannot legally exercise a power that is not specifically declared in the Constitution and have it be a legitimate legal exercise of authority.
This is the most clear and most definite limitation you will ever find on a national government’s power, reach, and scope. It was designed as a bulwark against the natural tendencies of all governments to accumulate, assume, and usurp power from those they govern. This was meant to be the shield of the American people, but we have failed to use it. We have failed to hold our government accountable to the 10th Amendment and as a result we have been saddled with decades of laws that are onerous, arbitrary, reactive, and in essence, patently unconstitutional on their face. Instead of asking these very simple questions to determine if they are able to exercise a power, the Congress, the President, and the Supreme Court are apparently of the opinion that the federal government can do anything and everything they so choose. The only time this carte blanche is even questioned is when some audacious citizen or group has the temerity to challenge these laws in court, and pursues that challenge all the way to the Supreme Court itself.
And, once before the court, the question is no longer “Does the law conform to the Constitution?” Instead, the justices combine their legal and political savvy and attempt, at any cost and by any means, to justify the exercise of powers nowhere to be found in the Constitution itself by the worst, most dishonest forms of linguistic gymnastics you can imagine. Remember for a moment the penalty that magically became a tax for the purposes of Supreme Court arguments, and then just as magically reverted to a penalty once the SCOTUS puppet show was complete and the so-called “Affordable” Care Act (bill) was shoved into the face of the American people. It is the Tenth Amendment that was meant to protect the American people from such gross usurpations of power through legislation that redefine the relation between the citizens and their government to one of subjects and rulers.
The question has gone from, “Can we justly exercise this power?” to “How can we justify exercising this power?” And for the American people, that is a problem that will continue to have negative results for generations until we decide to finally address it.
The Ninth Amendment to the United States Constitution reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
This was Madison’s way to make sure that people who read this document didn’t mistake the Constitution for a document that bestows rights upon the people. By specifically protecting unknown and undeclared rights before they are ever discovered is a means of permanently limiting the Federal Government’s power. By virtue of the Ninth Amendment, if a new Right to a fundamental freedom can be sufficiently proven and recognized so that it is declared, any law that violates that right becomes instantly and retroactively invalid and unconstitutional.
That may take some explaining. At first glance, it’s hard to see how an amendment can be retroactively applied to laws on the books, but you have to look at the language of the amendment itself. First, the amendment recognizes that there are certain rights that are specifically “enumerat[ed]” in the Constitution. That is a critical distinction to make because it both reinforces the overall purpose of the Constitution and the Bill of Rights. These documents are not meant to bestow or to grant rights to the people, it merely “enumerate[s]” them. It lists them for us to read, to see, and to recognize. It lists them as areas of our personal identity that are fundamentally outside the reach and the grasp of our government to dictate.
Our Rights are our own, and the failure of the government to recognize a right is not a failure of the Right or of the People, it is a failure of the government. And as such and laws that were passed and enacted as a part of that failure are null and void. The government is already proscribed from legislation to either “deny or disparage” this “certain other” right. It is important to protect these undeclared rights so that there isn’t an incentive to keep unrecognized or unenumerated rights from being forcefully repressed.
It doesn’t matter when a right is recognized, it has been protected by the 9th Amendment since the Bill of Rights was ratified in 1791.
This simple principle that all rights are equally protected, whether they are declared or not, somehow has gotten lost in the intervening years. It is this fundamental truth that really should have settled the equality of marriage issue long ago. Like it or not, we have allowed our Supreme Court to take on the mantle of defining certain legal terms in the United States, especially as they pertain to the Constitution. This has been accepted as part of the SCOTUS role as intended in the Constitution from the beginning. -Article III section 2 of the Constitution grants the Supreme Court his authority, and it is a necessary part of passing judgment according to the constitutionality of laws.
One of the most important things that we have allowed our Supreme Court to determine is the definition of what a “right” really is. I won’t get into that here since it’s a conversation in and of itself, but that definition is critically important. But for this particular discussion, let me simply say that we can all agree that there are certain things that we call rights in a legal sense, and the Supreme Court has been given the awesome responsibility of defining and recognizing what rights are and what the legal application of rights under the Constitution really entails. This is a weighty task, indeed. These things which are a right have a certain character that separates them from other things that we recognize as “not rights.” For instance, it is a right that someone has the freedom of “speech.” However, it is not a “right” to own a 1962 Ferrari 250 GTO Testarossa, much as I wish it were.
We can talk about what a right is or is not at another time, but for now let us simply agree that they exist.
We can see this in the past in cases of freedom of speech where the Supreme Court has made it clear that the term “speech” in a constitutional sense, extends far beyond the simple communication of words by voice. It covers all manners of expression of thought and will and can include actions, displays of clothing, art, etc. These are all forms of conveying one’s ideas and values, and as such are protected as an inherent right thanks to the Supreme Court’s definition of “speech” (Tinker vs. Des Moines 393 US 503, 1969).
The federal government recognizes a certain form of civil contract known as a “marriage” in both regulatory and legislative actions. As such, we have relegated this term to the realm of the Constitution and the interpretation of the Supreme Court. They have ruled that the right to marry freely, so long as the marriage is not a danger to one or more of the participants (child marriage, etc.), is a right of the people that has been undeclared up until now. That is well within their power to judge, and I think they got that decision correct.
So long as they don’t interpret that decision to mean that they can therefore violate the religious rights of other people, that is fine. If they can keep the spiritual and religious aspects of the union of marriage separate in a legal and philosophical sense from the civil contract by the same name, I see no conflict. People get equal treatment under the law, which was another undeclared right until the Fourteenth Amendment.
When you combine the limited powers that result from the Tenth Amendment, and the blanket protection of all rights of all people, both those specifically declared and the undiscovered alike, you have a very different type of government than the one which America lives under today. The Ninth and Tenth Amendments have slowly, quietly been eroded by the steady weathering influence of a government that is simply doing what governments always do. All governments everywhere seek to increase their power, authority, and reach. They all want to control more, with more certainty, over more people next year than they do this year. And they will always work towards that same end. The sad truth is this hasn’t even happened behind our backs it’s happened right before our eyes.
The big question is, are willing to allow it to continue? The fact of the matter is, ignored as they may be by most mainstream politicians, the Ninth and Tenth Amendments are still on the books. They haven’t been repealed, and no law can cancel them out. The very fact that we have a Twenty First Amendment is proof that you can’t simply change your mind on a part of the Constitution. But as Justice Louis Brandeis said in Olmsted v. United States, 277 U.S. 479 (1928):
“Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficial. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greater dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”