Why the 9th?

My father sent me the fol­low­ing email today:

I was talk­ing with one of our social stud­ies teach­ers today who is just fin­ish­ing a unit on the Con­sti­tu­tion with his eighth grade stu­dents. He men­tioned the 9th Amend­ment, and that con­ver­sa­tion led me to think about how the 9th Amend­ment relates to the ten­sion between those who advo­cate for a “liv­ing con­sti­tu­tion” and those who advo­cate for the opposite.

If the Amend­ment is inten­tion­ally vague for the pur­pose of allow­ing rea­son­able inter­pre­ta­tion of unan­tic­i­pated cir­cum­stances based on unenu­mer­ated rights, doesn’t that argue in favor of a more lib­eral approach to the inter­pre­ta­tion of the Con­sti­tu­tion? Based upon the word­ing of this Amend­ment, how else could the inten­tions of our Found­ing Fathers be understood?

Thanks in advance for giv­ing me your thoughts.

My response was as follows:

If the Amend­ment is inten­tion­ally vague for the pur­pose of allow­ing rea­son­able inter­pre­ta­tion of unan­tic­i­pated cir­cum­stances based on unenu­mer­ated rights

Sorry, this sen­tence makes no sense to me. The amend­ment is not vague in the least. It says:

The enu­mer­a­tion in the Con­sti­tu­tion, of cer­tain rights, shall not be con­strued to deny or dis­par­age oth­ers retained by the people.

The point of this amend­ment is to rein­force that rights orig­i­nate with the peo­ple… Peo­ple cede them to gov­ern­ment, gov­ern­ment does not grant them to people. 

The longer rea­son­ing requires a con­sid­er­a­tion of the his­tory of the Con­sti­tu­tion and the Bill or Rights. The found­ing fathers sub­scribed (as I do) to a phi­los­o­phy called “Nat­ural Rights”. This claims that as humans, we are born with cer­tain inalien­able rights (sound famil­iar?). The founders also believed (as I do) that the great­est threats to these rights are:

1. An out­side gov­ern­ment or peo­ple exer­cis­ing force to usurp our liberties, and
2. Our gov­ern­ment evolv­ing to tyranny.

So here is the ten­sion that results: how do you cre­ate a gov­ern­ment that is pow­er­ful enough to pro­tect us against for­eign ene­mies, but weak enough so that it does not usurp rights on it’s own? The solu­tion, as drafted in the Con­sti­tu­tion, was to grant lim­ited and spe­cific pow­ers to the fed­eral gov­ern­ment. By grant­ing suf­fi­cient pow­ers to pro­tect our peo­ple, they thought that the first con­cern would be addressed. By restrict­ing pow­ers to just those that were seen as nec­es­sary for a viable gov­ern­ment, they dealt with the sec­ond. (See Arti­cle I Sec­tion 8 for the enu­mer­a­tion of leg­isla­tive powers).

The Founders under­stood an insep­a­ra­ble rela­tion­ship between rights and pow­ers. By nature, peo­ple are granted God-​given rights. But as indi­vid­u­als, we cede cer­tain rights to join soci­ety. We no longer have the right to exact revenge (an eye for an eye), because we have ceded that right for the cor­po­rate ben­e­fit of the state’s police power. Every power that is granted to the state nec­es­sar­ily is a yield­ing of a per­sonal lib­erty. The orig­i­nal una­mended Con­sti­tu­tion sought to pro­tect rights by grant­ing only lim­ited powers.

But there were those who were con­cerned that gov­ern­ment would seek any oppor­tu­nity, any uncer­tainty as to the orig­i­nal pow­ers, to grow its pow­ers. As such, there were cer­tain rights they wanted to ensure that gov­ern­ment would never intrude. They wanted these rights to be enu­mer­ated as off-​limits to government.

But the oppo­si­tion fought back. They saw the list­ing of cer­tain rights as devalu­ing the count­less other rights that had not been ceded. They feared that — in time — the list­ing of cer­tain rights would give cred­i­bil­ity to gov­ern­ments infringe­ment on oth­ers. It was as a com­pro­mise between these two fac­tions that amend­ments 9 and 10 were included. Given this con­text, read Amend­ments 9 and 10 again. Their mean­ing is clear and unde­ni­able. They can not pos­si­bly be inter­preted to give gov­ern­ment the abil­ity to expand at will.

AMEND­MENT 9: The enu­mer­a­tion in the Con­sti­tu­tion, of cer­tain rights, shall not be con­strued to deny or dis­par­age oth­ers retained by the people.

The can only mean: those rights not listed in the pre­vi­ous amend­ments are also retained by the peo­ple are not dimin­ished in any way by this listing.

The 10th Amend­ment rec­og­nizes an addi­tional com­pli­ca­tion: there is another gov­ern­ment that has right­ful pow­ers… the State where the cit­i­zen resides. There was also a con­cern that the fed­eral gov­ern­ment would cause the States to be impotent.

AMEND­MENT 10: 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 was drafted to explic­itly state the fol­low­ing. The Con­sti­tu­tion restricts States from cer­tain pow­ers, some­times to pro­tect the peo­ple, some­times to give nec­es­sary power to the Fed­eral gov­ern­ment. Unless a power is explic­itly granted to the Fed­eral gov­ern­ment, or explic­itly pro­hib­ited to the State, it is left to the State and their cit­i­zens to allo­cate rights and pow­ers as they see fit.

Inter­est­ingly, because these Amend­ments do not explic­itly pro­tect spe­cific rights, the courts have long believed they were judi­cially inap­plica­tive. But when under­stood (and it is not dif­fi­cult to under­stand them) they require a spe­cific judi­cial phi­los­o­phy: when in doubt, the Fed­eral gov­ern­ment does not have the power in question.

But with these Amend­ments long for­got­ten, such restraint has been long neglected. Now “inter­state com­merce” is used to jus­tify laws that are not inter­state or com­merce. “Nec­es­sary and proper” is used to jus­tify laws that are “con­ve­nient and tol­er­a­ble”. The fed­eral gov­ern­ment has long loosed itself from the bonds of it’s enu­mer­ated pow­ers. And if the founders were right, this will unavoid­ably lead to a tyran­ni­cal gov­ern­ment. Maybe not today. Maybe not for 100 years. But the nature of gov­ern­ment is to amass power (this is evi­denced by the will­ful dis­re­gard of these amend­ments). By amass­ing power, rights are nec­es­sar­ily usurped. And through the usurpa­tion of rights, our lib­erty is lost.

So, here is my chal­lenge: find in Arti­cle I Sec­tion 8 where the fed­eral gov­ern­ment is granted the power to estab­lish a pub­lic health­care option. If you believe the plain lan­guage of Amend­ments 9 and 10 and the nec­es­sar­ily result­ing judi­cial phi­los­o­phy, no such power exists. If such a power should rea­son­ably be granted, the Con­sti­tu­tion pre­scribes a process. It just requires a bit more con­sen­sus than the 45% sup­port polls show for such policy.