Is it Time to Repeal the 9th and 10th Amendments?

Great Debates
1

As it stands now, the 9th and 10th amendments to the Constitution of the United States are almost never used, even though they are two of the most powerful amendments the constitution has. In case they have currently slipped your mind, here are the amendments and a brief interpretation of each quoted from the World Book Encyclopedia (1981):

Note: The amendments are in bold, the interpretations directly follow (and are not in bold)

Quote Begins

AMENDMENT 9

Rights Retained by the People

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

Some people feared that the listing of some rights in the Bill of Rights would be interpreted to mean that other rights not listed were not protected.  This amendment was adopted to prevent such an interpretation.

AMENDMENT 10

Powers Retained by the States and the People

**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 adopted to reassure people that the national government would not swallow up the states.  It confirms that the states or the people retain all powers not given to the national government.  For example, the states have authority over such matters as marriage and divorce.  But the Constitution says the federal government can make any laws “necessary and proper” to carry out its specific powers.  This rule makes it hard to determine the exact rights of states.

End of Quote

Now, the interpretations given are obviously just interpretations and therefore you may or may not agree with exactly what they say, but they are put there just to give you an idea. I chose the World Book Encyclopedia for the quote because I am reasonably confident that their interpretations of the amendments are not there to further a political agenda.

Enough with the background, on to the debate. As far as I am concerned, the 9th amendment covers far more rights than any of the other amendments (and probably more than all the other amendments combined). If there is not an extremely powerful and compelling reason to ban a certain activity, it should be protected under the 9th amendment. Yet the 9th amendment is one of the least frequently used amendments. Here are a couple of examples of where the 9th amendment should protect people:

  1. The right to not help others. As far as I am concerned, the Welfare system is unconstitutional under the 9th amendment. If one individual is making 100,000 dollars a year and another is making 10,000 dollars a year, we can probably agree that the person with $10,000 is more in need of aid (though there are a few circumstances where that would not be true, such as if the person with $10,000 had no kids and the person with $100,000 had 20 kids). But, under most circumstances, we can say that the person with $10,000 is more needy. If the individual with $100,000 chooses to give money to the person with $10,000 I see nothing wrong with that. But when the government steals money from the rich to give to the poor that is unconstitutional under the 9th amendment. It is one thing when Robin Hood does it. Robin Hood was a crook. The government should not be a crook. Stealing money from the rich to give to the poor is socialism and has no place in a free society. People can (and do) choose to give money to the needy all the time. It is neither necessary nor constitutional for the government to do it for us.

  2. The right to do anything you want to your own body. The government has no right to force you to treat yourself in a certain way as long as your actions do not directly harm others. Should it be illegal to smoke marijuana? Maybe. If we conclude that the second hand smoke from marijuana is harmful to others then it perhaps should be illegal to smoke it in certain areas. Should it be illegal to cook marijuana into your food? Absolutely not. No one is directly harmed except for you and therefore this right should be protected under the 9th amendment. Should it be illegal to should yourself in the head with a .45 caliber weapon? Maybe. Since .45 caliber weapons are quite powerful, the bullet will go through your head and might hit someone else. Should it be illegal to shoot yourself in the head with a .22 caliber weapon? No. A .22 caliber weapon is weak. The bullet will almost certainly not go all the way through your head, but will instead bounce around the inside of your skull harming no one but yourself in the process. Now I am not actually outright saying that the right to kill yourself with a .45 caliber weapon is not protected by the 9th amendment, only that I can see an argument for why it should not be. Whether this argument has enough strength or not is another matter.

On to an example of the 10th amendment.

The states should have the rights to determine what drugs are legal or illegal in their own state (now I actually believe that drug use is protected by the 9th amendment, but whether second hand smoke is harmful enough to make smoking illegal is a decision that should be made by each state individually). There is a thread about legalizing marijuana where it was stated that a particular state legalized the growth of marijuana for private use (I cannot remember if this legalization was for the whole state of just a part of the state). The federal government however did not allow these people to grow marijuana without threat of federal prosecution. Now I realize that federal laws supersede state laws, but it does not change my opinion that the federal government never should have made laws to ban drugs to begin with. The federal government can regulate the interstate trade of drugs, but not whether or not they are legal.

I certainly do not believe that we should repeal the 9th and 10th amendments, but having them in our constitution is deceptive. As it stands now someone that reads our constitution might think that the 9th and 10th amendments actually protect some of our rights. But in truth, if a right is not protected under one of the other amendments, that right has no protection at all.

The misuse of the 9th amendment is a far more common problem than the misuse of the 10th amendment. The 10th amendment does come up periodically in court cases, but the 9th is almost unheard of. If the 9th amendment was not meant to protect anything, then it never would have been included to begin with. If the writers of our constitution knew that our government would take away any right not specifically protected by one of the other amendments, they would have taken the time to draft 650 amendments to the constitution to protect us from the tyranny of our current system. The exact fear that the listing of rights in the Bill of Rights would be interpreted to mean that other rights were not protected has actually come to be. The very thing the 9th amendment was made to prevent has happened anyway. With this being true, there is no reason to even have a 9th amendment since it only servers to deceive people, not to protect them.

2

Do you have any federal court cases where t.rhe basis of contention was the 9th and/or 10th Amendments?

It seems to me while you make some interesting claims, you provide no evidence of any caes to test these claims.

Without any real legal tests of either of these Amendments it appears the issues you raise are more out of spite or meanness than any real attempt to judge the amendments on legal merits.

If it ain’t broke, why fix it? :slight_smile:

3

Ask someone sitting in prison because they chose to burn a weed and inhale it in their own home if the system is ‘broken’.

Ask someone who is sitting in prison because they assisted an terminally ailing relative in suicide if the system is ‘broken’.

Ask someone who has had their business shut down because they didn’t have a handicapped-accessible washroom, despite having no handicapped customers, if the system is ‘broken’.

4

Why should we do the honest thing and repeal an amendment when we can all just violate our oaths to the Constitution and ignore them?

Works great so far.

5

Actually, the glaring lack of cases bringing up the 9th amendment is part of my problem with it. People have come to act as though it does not exist. Other than a few cases where the right to privacy is being protected by the 9th amendment I find almost nothing (I did find one thing, but it was a list of several hundred court cases and I could not find the one dealing with the failure of the 9th amendment to protect the right in question, so I didn’t bother posting it).

If someone brings a case before the Supreme court saying that using drugs is a First Amendment right protected because drug use is a form of freedom and self-expression, the court can reject that case on its first amendment grounds and still declare the law unconstitutional under the 9th amendment even though the 9th amendment was never brought up. This is not happening in many places that it should be.

6

There was a huge Pit thread about this a while back…personally, I would say in this case, no, it ain’t broken.

7

I don’t understand your interpretion of the 9th Amendment at all. All it says it that you may have rights that are not specifically enumerated in the Constitution. You’re right - it’s pretty useless. All it does is preclude the use of certain arguments. (i.e., “If it were a right it would be specifically mentioned in the Constitution.”)

8

SenorBeef: Not everyone’s taken an oath regarding the Constitution.

9

Procacious,

I’m certainly no expert in 9th and 10th amendment jurisprudence and hope that someone who is can weigh in with some perspective on how these amendments have been interpretted.

However, I do have some opinions, particularly in relation to your first example. In particular, I think you need to be careful in what you define as a “right”. After all, if we go “right”-happy then I can define as a right, for example, the right not to have to see ugly people when I walk down the street, the right to ride my bicycle without having to inhale the exhaust fumes from motor vehicles, the right to health care, the right to not have to breathe in other people’s smoke in public places, or alternately, the right to smoke whenever I want.

Anyway, you get the point. In the particular case that you point out of the “right not to help others”, I think that defining rights that come into play in our very highly interactive economic system gets particularly difficult. After all, it is impossible to figure out how much of any government services or benefits are accruing to any one individual and thus some “redistribution” is bound to occur. And, I bet if you took a poll almost everyone would think that they were on the losing end of government payments vs. benefits. Furthermore, we all have to pay for things that don’t benefit us directly or which we might even find to hurt us.

Finally, most of the decisions we make in running our economy have distributive effects. Is Alan Greenspan infringing upon my rights when he tightens the money supply and thus causes my employer to lay me off. Or is he infringing on my rights when he loosens the money supply pushing up inflation and reducing the value of my savings? What about patent law? Doesn’t allowing companies monopoly rights over intellectual property for a while infringe on the rights of others…Or maybe it is that the fact that the patent expires too soon infringes on my rights by allowing others to steal my intellectual property?

Anyway, I think you see where I am going here. In a highly interactive economic society, it is really impossible to define an “absolute right” to property and the like…Such “rights” are necessarily societal constructs. So, no, I don’t think the government is necessarily violating your rights when it uses some of your taxes for welfare.

Now, taking this out of the area of rights, you might argue that the social safety net in the U.S. is too generous and counterproductive (even if it is meager compared to most of the other Western democracies), but this is now an argument at the level of politics that we can disagree over. The problem that I have with many libertarians is their attempt to take a lot of things off the political table by defining rights that I don’t really think can be coherently and consistently proscribed. [On the other end of the table, I have trouble with people who I generally agree with politically who might try to argue that “health care” is a right…at least in the sense of some sort of inherent right, as opposed to a “right” that we as a society might choose to construct.]

10

Well, I don’t believe you should be so quick to blame. The government, in your words, “crooks” everyone. Not just the rich. And don’t let on like the rich folks are the innocent bystanders who can’t get back to their money. Everyone pays taxes, or at least should. And the rich DO have access to the money they pay into Social Security, or other forms of aid, should they need it. (Viewing the pending economy and their brilliance on the accounting books, they may need that money they put into the system.)

So are you saying that you want your right to stop things from happening to be revoked? You’ve complained this far, why give up the fight?

When the Constitution was written, the authors tried to cover everything they could think of. But seeing as that was over 200 years ago, I think some leeway should be given. They weren’t fortune tellers and they couldn’t see every little situation that has or will pop up down the road. The Constitution was written as a framework, to build upon and to guide. Just because the 9th amendment hasn’t been used much or because “people”, i’m asuming, the way you posted that word, that this means EVERYONE, have “ignored” it, doesn’t mean that it can’t or won’t be used by someone in the future. Why strip them of that right. The answers and reasons may not be so clear to us now, but it is a good possibility that in the future, they may be present to someone else.

I don’t understand your post. You get on here and rant that the federal government practically rapes people of their rights, but then, in reality, it is YOU lobbying for it.

11

My research shows that the Supreme Court has dealt with the Ninth Amendment a handful of times, with respect to the right to privacy. See Roe v. Wade and Griswald v. Connecticut. The latter case includes the following footnote which you might find interesting:

12

Works for me. :cool:

13

Say hello to the 16th Amendment:

Amendment XVI (1913)

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

14

Say hello to the 16th Amendment:

Amendment XVI (1913)

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

15

Man, that’s a lot of rights. :wink:

The important thing to remember about rights is that all people have them. The main factor in determining what rights you have is whether your action violates the rights of others. If you were the only person in the world, you would have the “right” to do absolutely anything you wished.

I’ll tackle your examples one by one.

The right not to see ugly people is superseded by the ugly person’s right to walk down the street. No matter how ugly the person is and no matter what he is wearing (even if he is wearing nothing at all) he has the right to exist and the right to walk down the street. You in turn have the right to ignore him, the right to not look at him, and the right to hurl insults at him as long as you do not cross into the area of harassment (since he has the right not to be harassed).

The right to ride your bicycle without inhaling exhaust fumes and the right to not inhale smoke are both measure by how harmful they are and how banning them would effect the rights of others. Basically, if the right to use a vehicle is considered more important than the right to not breath the fumes, then people will just have to put up with fumes. Laws may require people to put filters on their cars to limit the toxicity of the exhaust, or they may not. I admit that there is a lot of room for interpretation in the 9th amendment, but I find its glaring lack of use at the moment to be quite disturbing.

The right to health care is overpowered by the right to not help others. The government can force people to not harm others, but never should force people to help others. Helping others is always optional.

Basically, I don’t think the government should be helping anyone. Government is there to regulate that which the people cannot regulate themselves. And almost everyone is on the losing end of government benefits. With the exception of government employees whose very jobs only exist because of the government’s “wealth redistribution” policies, almost everyone is losing out. The government is extremely wasteful in the way they spend and it is not their job to spend our money anyway (don’t even get me started on the 16th amendment - income tax).

I certainly agree with you that the system is very complex. I am not claiming that I could right a 1000 page book in a few days that would make all things so black and white that we could do away with the Supreme Court entirely. Even under my ideal system, the Supreme Court would still be constantly changing which right is considered more important than which other right (i.e. the right to drive may overpower the right to not breath exhaust now, but if cars start releasing nerve gas in their exhaust, the opposite may be declared true). But as it stands now, the 9th amendment practically isn’t there (except for privacy rights). As an example, I cannot come up with a single reason why people should not be allowed to walk outside naked. I can come up with a ton of reasons why I would never want to walk outside naked, but no reason why the government should tell me that I cannot.

I am not arguing that government’s actions are unbalanced. Our system is bad for everyone. :stuck_out_tongue: I am arguing that it is not our government’s place to take such action at all, not matter how balanced it is. We are supposed to have freedom in this country. That includes the freedom to greatly succeed, to greatly fail, and to be so lazy that we die of starvation (not that it would ever happen since someone would give a starving person food even if their were no government intervention).

Hmm, how does one type sarcasm? Italics and bold? That last sentence you quoted was merely dramatic licensing for effect, not the result I am actually looking for.

I apologize for the confusion I created. The title of the post is sarcastic as are several of the sentences in the post. I do not fault the authors of the constitution at all (I actually think it took a lot of foresight to add the 9th amendment). I fault the people (and the judges most of all) for allowing our rights to be stripped away one by one. If I were a supreme court justice I would have dissenting arguments declaring this and that unconstitutional under the 9th amendment all the time (I say dissenting because I know I would only be 1 of 9 justices and the ones up their now certainly do not seem to interpret the 9th amendment anywhere near the way I do).

Thanks for the quote, chula. It has been a lot time since I read about the drafting of the constitution. It was the material in quotes such as the one you provided that lead me to my opinion about the 9th amendment all those years ago. I saw an amendment that surely covered far more rights than all the others combined, and was most upset upon discovering how few rights it seems to protect. I can understand that law imposing bodies have a lust for power and enjoy restricting the behavior of the people they control, but I at least thought that the courts wouldn’t stand for it.

Procacious grits his teeth until his gums bleed

I will be brief since I do not want to get too far off topic, but the changing of the constitution to remove a right that was once protected by the constitution is the greatest injustice there can be. Amendments to the constitution are meant to grant new rights not to repeal old ones. If we can just repeal anything we don’t like, let’s just repeal the whole constitution and start up a nice dictatorship (this, in case you did not guess, is sarcasm).

16

All the people who make laws which violate the ninth and tenth amendments have, indeed, taken an oath regarding the Constitution.

17

You don’t have the right not to be taxed. You never did have the right not to be taxed. You may wish to be not taxed, but it just ain’t a fundamental right. The 9th amendment protects you from violation of your rights not described in the constitution (for instance privacy, or abortion), not from any fake “right” that you can invent and come up with a capitalized label for.

Same with drugs and all the other causes that you brought up (which I am more inclined to agree with). Just Because You Capitalise something does not make it a fundamental right protected by the constitution.

18

The OP is correct, there is a great deal of tension between the Tenth Amendment and an ever expanding federal government. There has always been a conflict in the case law. Much of the history of the expansion of the powers of the federal government is tied up in Tenth Amendment jurisprudence.

Furthermore, the OP is correct in noting that there is a colorable argument that the federal supremacy in some matters should not extend to something as fundamental as a state’s right to decide on basic matters of criminal law. Also known as a state’s police power, this is usually considered a reserved power of the states. In other words the federal government may be exceeding its authority in forcing federal drug laws on the states which have voted to decriminalize marijuana in some way.

Conservatives who usually stand up for state’s rights should take notice. If you allow the drug laws to determine the question of federal supremacy in areas of the criminal law - kiss your state law goodbye.

This is a complex issue. Some other things which are relevant are the Necessary and Proper Clause and the Commerce Clause. Some people are not aware that much federal regulation and jurisdiction is based on a modern interpretation of the Commerce Clause which is very, ah, generous in its grant of power to the federal government.

It is fair to say that the Ninth and Tenth Amendments have taken a legal beating over the last two hundred years.

19

Could someone explain to me how the Ninth Amendment could be used to support a claim of any right? The only time it has been used is to say “just because the words ‘right to privacy’ can’t be found anywhere in the Constitution doesn’t mean the right doesn’t exist.” But you still have to find support for that right somewhere else.

20

Along with the Tenth Amendment is the debate over the Enumerated Powers Doctrine. Jeffersonwas an early strict constructionist.

That is, Jefferson believed that the enumeration of specific federal powers limits the federal govenment to those powers (keeping in mind the Necessary and Proper Clause). Moreover the Ninth and Tenth Amendments were viewed as working as checks on the expansion of the federal powers generally.

Don’t forget the Supremacy Clause.