Lately, some of the folks who are steamed at president Obama are accusing him of violating the 10th and/or 9th amendments of the US Constitution. I looked them both up, but I couldn’t figure out what they are angry about.
Can you give me some idea why they think Mr. Obama has violated these two amendments?
If you’d like to go into a full-blown debate about constitutional law, help yourself, but I’m not really asking for that, and I might not understand it.
BTW, I tried searching for previous threads on this subject, but the software was in a snit, and it bunted me into the weeds.
In most cases complaints about the Tenth Amendment being violated really just amount to complaints about the scope of the Interstate Commerce Clause which justifies federal regulation of everything from growing marijuana in your backyard to businesses discriminating against black people. There is a subset of conservatives that like to pretend that the real Constitution makes things like the NEA or DOE unconstitutional while allowing things like the drug war. They are, to put it in technical terms, off their rockers. That is, you can consistently say the drug war, Title VII, and the DOE are unconstitutional, but you can’t really pick and choose.
As for the Ninth Amendment, the Supreme Court has interpreted it to have virtually no meaning. But there are camps on both sides of the aisle who think it should be reinvigorated to protect certain unlisted rights because the parts of the Constitution currently serving that purposes–the due process clauses–are ill-suited for the job. Conservatives aren’t really free to criticize Democrats for violating the Ninth Amendment since they generally don’t believe in the protection of implicit constitutional rights (e.g. abortion). But some do it anyway.
This isn’t about Obama. Clinton got the same shit.
Nobody has ever been sure what these amendments are supposed to mean, and, they did not exist, nobody would miss them, in terms of enjoying constitutionally protected rights not otherwise covered. Unlike much of the Bill of Rights, they have not been the subject of any important court decisions. The Tenth has been read by the SCOTUS as “added nothing to the [Constitution] as originally ratified.”
However, the kind of conservative/libertarian who wants to see the federal government reduced to the powers and functions it had before Lincoln, never mind FDR, views these amendments as the very bedrock and bulwark of our liberties – or at least a useful drum to beat.
The recent reaffirmances of these amendments by various state legislatures can be filed under the heading of RW whining in reaction to the 2008 election, or, more broadly, under “irritable mental gestures resembling thought.” From the federal courts’ POV these resolutions have no constitutional significance whatsoever. Nullification is a dog that wouldn’t hunt before the Civil War and has been rotting in the pet cemetery ever since.
Let me ask-- I’ve heard this repeated a lot in my life but never seen a study or anything. Is it true that Ronald Reagan and George W. Bush presided over the two largest expansions of federal government in history?
I am not a constitutional lawyer. Having said that, here is my interpretation. What is says is, unlike current thought in some circles, we are not only entitled to the rights listed in the Constitution. This goes along with what I have said in other posts on various subjects - we have certain rights. that is the “deffault setting”. We do not have to ask government for the right to have or do things. We are not limited to only those rights that are spelled out in some master shopping list. In order to control or curtail these rights (or any rights) the government has to make a case and justify it.
And once again, Hamilton had valid concerns. He was worried that 1) other rights would go away because they were not on the master list and/or 2) the list would become impossibly long. However, there had to be some sort of wording to ensure that government would not view every right as a privilege to be granted or taken away. One of the main purposes of the constitution, was to limit government power.
Maybe he foresaw the “prove you need to be able to…” arguments coming. Maybe he saw the legalistic wangling of “there’s no law that says we can’t do this to you”.
That said my impression has been that the courts have viewed the 9th Amendment to only include things that are implied by what is already in the Constitution.
For example a right to privacy or a right to self defense. I know the 9th Amendment was not used for those but I think it is the catchall that allows for such things.
Isn’t the Ninth Amendment the driving force behind Penumbral Rights? That is to say things like extending the First Amendment to include things like “freedom of expression” as opposed to the specifically enumerated speech, press, and whatnot (i.e. also protecting paintings and flag burning and such). Am I off-base with that?
You can think of three categories of rights not explicitly enumerated in the constitutional text. One category is simply understanding what a word means in the modern era. Freedom of the press isn’t limited to literal printing presses because no interpreter is a literalist, even the strict constructionist. A second kind of protected right is protected because of the principles underlying constitutional text, rather than its express language. This is a so-called penumbral right. So, if the Third, Fourth, and Fifth Amendments protect privacy, then you might argue there is a constitutional right to privacy. A third category is a right wholly separate from those discussed in the constitutional text and justified by underlying principles. The basis for these rights has historically been the due process clause which prevents infringements on undefined “liberty.” This liberty has been interpreted to include a fairly limited set of unenumerated rights alongside the ones mentioned in the Bill of Rights (since the BoR didn’t originally apply to the states). The second and third categories often get a bit blurry.
The Ninth Amendment could conceivably serve that third role, but it never has.
I hate to venture into ad hominem here, but I’m tempted to suspect Hamilton’s intellectual sincerity in making that argument. He was no libertarian and no government-minimalist; that was Jefferson, and the two are opposing poles. In The Federalist Hamilton was defending the proposed Constitution we now have, but his original proposal was for a government far more centralized and hierarchical and, arguably, authoritarian.
Nitpick: The main purpose of the original Constitution was simply to set up a government. Apart from a few particular restrictions on things Congress can do, e.g., bills of attainder, it “limits” the federal government’s power only by dividing it among politically independent branches, and by explicitly enumerating the powers of Congress rather than assuming the plenary police power a state government has. Some people at the time didn’t think that was enough, thus the Bill of Rights was added.
Why wasn’t a right to privacy linked to the 9th Amendment? It is implied in the other amendments but not listed there. So why make it a part of other Amendments when the 9th seems to be there for the express purpose to allow such a thing?
Roe is often criticized for the judicial activism of finding a “right” where none existed. That said I am pretty sure, apart from the abortion debate, that most people would agree a right to privacy should be a Right (note capital “R”) guaranteed to us.
Let’s flip to the other side of the political spectrum.
In Heller they found a right to self defense in the 2nd Amendment.
Huh?
How can any reading of it remotely imply that? I do not think self defense is implied anywhere in the 2nd given its language.
That said I whole heartedly agree that self defense is an inherent right. Since it was not explicitly stated but seems obvious it should devolve out of the 9th.
So why this fanatical avoidance of the 9th? Privacy and self defense seem naturals to plop in there.
And how does the SCOTUS get away with suggesting the 9th is meaningless as has been suggested? It is a freaking Amendment to the Constitution and they are obliged to uphold it. Yet they can poo poo a part of it just cuz?
There is probably a good explanation that makes sense for all of that but seems more than a little odd and troubling to my untutored mind.