The Bill of Rights, the first ten amendments to the United States Constitution, ends with two amendments whose meaning is rather ambiguous. The Ninth Amendment says:
The Tenth Amendment says:
I’m a lawyer, I went through courses in constitutional law, and these two amendments just never seemed to come up. So far as I know, neither amendment has ever provided the rationale for an important constitutional decision. What do these amendments mean, anyway? Does anybody have any theories?
My intrepretation:
Amendment 9 basically means that just because the Constitution lists a bunch of rights specifically, that doesn’t mean those are the only rights anybody can have.
Amendment 10 says that unless the Constitution explicitly reserves a power (e.g. coin money, raise an army) to the federal government, or explicitly denies it to the states, that right belongs to each of the individual states respectively. My intepretation of “or the people” is that unless the states specifically grant themselves those powers, they don’t have them, and thus they fall to individual citizens.
That’s basically my interpretation as well. I think that the tenth amendment is a more bit ambiguous than it would be if I had written it, since it doesn’t give any guidance as to which powers not specifically given to the federal government are allowed to the state governments, and which rights are reserved for the people.
Wasn’t Roe v. Wade argued on a ninth amendment and fourteenth amendment foundation? If so, I’d say that was a pretty important decision.
Posted by Fang:
But that implies individual citizens can claim the powers of states! I can’t believe the Founders meant anything like that!
The Bill of Rights was a compromise between Federalists and Anti-Federalists (namely, those who liked the idea of a national government and those who wanted it to be kind of like the European Union today [aka. Confederates.]). The Fed.s didn’t want a Bill of Rights; they felt it was dangerous to tell people what rights they have, because the federal government could say “We didn’t say you have such-and-such right!” and the people would be screwed; Jefferson and others felt the Constitution provided all the Bill of Rights would in its text. Anti-Federalists were willing to forget all their arguments about the Constitution if they slapped on these ten amendments. The 9th and 10th were the Federalists and Anti-Federalists making sure the government couldn’t weasel out of arguments by saying they didn’t grant states or the people a certain power.
The Connecticut contraception case (whose cite I don’t remember, but I’m sure you’ll find it rather quickly) was used by Mr. Justice William O. Douglas as part of the scenario under which he found the right to privacy in personal lives in “penumbras and emanations” of rights enumerated elsewhere. Other than that single case, I don’t recall the Ninth as being actively relied on by SCotUS for any decisions.
There’s extensive discussion of the Ninth’s meaning on the boards already. See my “Rights? What’s a Right?” thread and/or follow Dewey Cheatem Undhow’s advice in that and search on his or my screen names and the word Ninth (minty green has some cogent remarks as well.) Briefly, the two schools of thought are:
A. There are some rights that the First Congress neglected to enumerate, but which are discoverable by judicial recognition of the standard concepts of American citizens as to what their rights are. For example, the right to marry and the right to travel are not enumerated but have been defined by the Court as protected against state encroachment by the Fourteenth’s guarantees. Against Federal encroachment, one would have to find them in the Ninth, though such cases have not yet become “ripe.”
B. Only those rights enumerated in the Constitution as amended are Constitutionally protected against Federal or State action. However, there is no reason why a State Constitution or a Federal or State statute cannot guarantee a right, such as non-discrimination in employment or housing, or joining of a union for collective bargaining, and the Ninth exists to guarantee those rights against allegations that the government has no Constitutional right to protect such rights.
With regard to the Tenth, some high-school civics: The Federal government is one of limited powers, specifically delegated by previously independent states. All powers that are not given to the Feds. by the Constitution or reasonable inferences from it have been retained by the states, including those things which the Feds. may do but do not have exclusive power to do – except that the same Constitution restricts the states from a few things, meaning that those powers reside in “We the people” who created both Federal and state governments for the purposes defined. For example, it can be argued on a metaphysical plane that a right to pass an ex post facto law does exist – but the Constitution bars that power to both Federal and state governments, so it resides in the people, who have wisely decided that it’s a power neither level of government may exercise.
Um… slight errors of textual composition:
In the first sentence of my previous post, the reading should have been “In the Connecticut contraception case…the Ninth Amendment was used…”
In my very last sentence, I meant “…the power to pass an ex post facto law…”
From the majority opinion:
**
Outside of the redundant references to the 9th in Griswold v. Connecticut and Roe v. Wade, the Supreme Court has not done a darned thing with it. James Madison, who wrote the text of the amendment, was quite clear that it was nothing more than a rule of construction, not an independent basis for recognition of any asserted legal right.
The 10th Amendment is often cited by the courts, as it is a key expression of the limitations on the power of the federal government.
Findlaw annotations: 9th Amendment, 10th Amendment.
Do you agree? Is the ninth amendment, by itself (or at least principally), the basis for any specific right you can envision?
Nothing in the text of the amendment gives the slightest indication that it is the source of any substantive right. It recognizes that other rights exist, but that’s it.
Thanks.
No sweat.
I didn’t mean it quite like that. IANAL (or a constitutional scholar or anything like that for that matter), but what I meant to say was that if neither the Fed nor the State reserves the right to regulate or ban a particular type of conduct, a citizen has the right to engage in that conduct. Once again, this is simply my reading of the text - I don’t know about scholarly or historical accuracy.
The federal gov’t seems to have been able to completely ignore the 10th ammendment, at least in the modern era. Note that in the declaration of Independence, the country is called the united States of America (small “u”), not the United States of America. The emphasis is on the word “States”.
May I assume that this is a gripe about the Commerce Clause? If so, I would suggest that you frame your complaint as such instead of posting a content-free drive-by. Or did you have a specific complaint that some exercise of federal authority is outside the powers specifically delegated to it under the Constitution? If so, present your evidence, so that I may demolish it.
I believe what John Mace is griping about is certain laws like classifying marijuana as a Schedule I narcotic, and coming down hard on states that pass laws making marijuana legal, when there is no specific Constitutional provision for Congress to make certain drugs legal or illegal (aside from alcohol, which was banned by the 18th Amendment…and made legal again by the 21st.)
I can’t speak for John Mace, but IMHO ignoring the 10[sup]th[/sup] Amendment goes beyond expanding Commerce Clause. Mostly Americans take it for granted that the federal government need not defer to the states, and not just in the field of commerce. E.g., in the OP BrainGlutton said that it never seemed to come up in law school. That’s a way of ignoring it. Look at the Defence of Marriage Act. Federal Hate Crimes laws. Gun laws. Campaign Finance Reform.
My God, december, are we on the same wavelength on this one? I’ve said a number of times that the Defense of Marriage Act is a travesty because it flies in the face of the Full Faith and Credit clause and substitutes a Federal (unconstitutional) policy for each state’s Tenth Amendment powers to decide what marriages it will permit in its own jurisdiction and how it will deal with marriages performed elsewhere under comity. Do we, perhaps, have a stance in common?