Wednesday, November 12, 2014

Wrapping Up The Bill Of Rights - Amendments 9 and 10

The last two amendments in the Bill of Rights are short, deceptively simple, and of course, controversial.  What else is new, right?

Amendment Nine:

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

So, what does this actually mean?  It addresses a concern that many people, including our Mr. Madison, had.  The concern was that by enumerating or identifying certain rights in the Bill of Rights as being specifically protected from interference by the state, anything left unmentioned would be assumed to be fair game for an ambitious government.

We must remember that the Bill of Rights - and the Constitution in general - does not grant anyone any rights.  It protects rights already assumed to exist against infringement upon them by the government ("Congress shall make no law..."  "...shall not be infringed."  "No State
shall make or enforce any law which shall abridge..."  "...shall not be denied or abridged..." (that last phrase appears no less than four times in various amendments)).

In short, just because a natural right is not mentioned in the Bill of Rights, it is by no means assumed that the state has the power to abridge that right.

Amendment Ten:

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 one gets tricky and is consistently one of the most controversial of all the amendments.  We often hear about "states' rights" when the federal government appears to be especially overbearing and interferes with the internal workings of a state.  A strict and literal reading of the amendment would seem to support the claim by the states that the feds are getting too involved in state matters.  The idea here is that the federal government is delegated a certain amount of power, and certain areas in which it may exercise that power.  We call that "enumerated powers".  The assumption is that any power not specifically named by the Constitution as a federal power is therefore not authorized for the federal government to exercise.

People will make the case that many, many federal departments and agencies are, under a literal understanding of the Tenth Amendment, unconstitutional.  These may include the Departments of Education, or Housing and Urban Development, or a host of others whose purposes are never mentioned in the Constitution.  It may also be fair to criticize the federal government for trying to overrule state laws on marriage, drugs, alcohol, speed limits, and a thousand other things, again, based on the Tenth Amendment.

The view of the individual states as "laboratories of democracy" - a term coined by Supreme Court Justice Louis Brandeis - was intended to allow the states to experiment without overbearing federal interference.  This, presumably, would lead to the best and most efficient systems of doing things being adopted voluntarily by states after seeing what works and what doesn't in other states, as opposed to a one-size-fits-all federal mandate.

If there is any amendment that will likely be the one to cause controversy for as long as our Constitution stands, I nominate the Tenth.  The continuous tension between the state governments and the federal is one that, I think, absolutely must continue, or else we are no longer the United States of America, just the country of America.

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