Full Version: What's up with the 9th and 10th amendments?
I completely agree with Orat's reasoning in the "commercial speech thread" and especially appreciate his citing of the 9th amendment.
What is it about the 9th and 10th amendments that cause them to be completely ignored by the mainstream? Once you read them (and they are written in plain english, just like the other 8), it is clear that the authors did not mean for the bill of rights to define the frontier limits of government power. Article I, Section 8 does that.
All these debates about "does this violate the 1st amendment" or the 2nd, or the 3rd, etc, etc, are almost always irrelevant.
The FIRST question should be "is it authorized in Article I, Section 8?" Period. If the answer is "yes", then move on to make sure it does not violate any of the protections in the Bill of Rights.
So, the question is: why are the 9th and 10th amendments ignored, and why is Article I, Section 8 disregarded? Do you recall ever being taught, in a mainstream education establishment, the meaning of the 9th and 10th amendments and the original intent of Article I, Section 8 as the enumeration of all powers delegated to congress?
What is it about the 9th and 10th amendments that cause them to be completely ignored by the mainstream? Once you read them (and they are written in plain english, just like the other 8), it is clear that the authors did not mean for the bill of rights to define the frontier limits of government power. Article I, Section 8 does that.
All these debates about "does this violate the 1st amendment" or the 2nd, or the 3rd, etc, etc, are almost always irrelevant.
The FIRST question should be "is it authorized in Article I, Section 8?" Period. If the answer is "yes", then move on to make sure it does not violate any of the protections in the Bill of Rights.
So, the question is: why are the 9th and 10th amendments ignored, and why is Article I, Section 8 disregarded? Do you recall ever being taught, in a mainstream education establishment, the meaning of the 9th and 10th amendments and the original intent of Article I, Section 8 as the enumeration of all powers delegated to congress?
Perhaps our Founders would have been well-advised to make the 9th and 10th the 1st and 2nd amendments? Perhaps it can be attributed to the fact that the 9th and 10th follow the more "boring" rights outlined toward the end of the list. Indeed, some of the Founders (I think Madison was among them) did not want a Bill of Rights because they believed that years later, an enumeration of rights would be construed to be exhaustive so that therefore any rights not enumerated were assumed to not be retained. Their compromise was the 9th and 10th Amendments.
However, more likely, it is a result of a concerted effort over time to push power toward Washington and away from the States. The assumption now has become that the Federal government (specifically Congress) possesses ALL power, carte blanche, to achieve its desired ends. And this all-encompoassing power is limited only by a few citations in the Bill of Rights.
This is an exact reversal of how things were designed. Congress (and indeed the rest of the Federal Government), by default, is assumed to have ZERO power. Then, as the Constitution spells out, we add certain narrowly defined exceptions to this rule of "zero power". So the Constitution serves to spell out a few exceptions to the presumed powerlessness of the federal government. Whereas the popular perception today is that the Constitution serves to spell out the few exceptions to the presumed omnipotence of the federal government.
What's also not understood is that the original design of things was to be that the Federal government and the State governments were to be co-equal. Now in interstate affairs, the Federal government would take precedence because that was its domain. The Federal domain was interstate disputes, and foreign relations. The Federal government was NEVER supposed to meddle in the internal affairs of States nor make laws that usurp the State's sovereignty as the sole power concerning intrastate affairs. Here's a good quote illustrating this intent:
However, more likely, it is a result of a concerted effort over time to push power toward Washington and away from the States. The assumption now has become that the Federal government (specifically Congress) possesses ALL power, carte blanche, to achieve its desired ends. And this all-encompoassing power is limited only by a few citations in the Bill of Rights.
This is an exact reversal of how things were designed. Congress (and indeed the rest of the Federal Government), by default, is assumed to have ZERO power. Then, as the Constitution spells out, we add certain narrowly defined exceptions to this rule of "zero power". So the Constitution serves to spell out a few exceptions to the presumed powerlessness of the federal government. Whereas the popular perception today is that the Constitution serves to spell out the few exceptions to the presumed omnipotence of the federal government.
What's also not understood is that the original design of things was to be that the Federal government and the State governments were to be co-equal. Now in interstate affairs, the Federal government would take precedence because that was its domain. The Federal domain was interstate disputes, and foreign relations. The Federal government was NEVER supposed to meddle in the internal affairs of States nor make laws that usurp the State's sovereignty as the sole power concerning intrastate affairs. Here's a good quote illustrating this intent:
QUOTE
"The true theory of our Constitution is surely the wisest and best, that the States are independent as to everything within themselves, and united as to everything respecting foreign nations." --Thomas Jefferson
"It is a fatal heresy to suppose that either our State governments are superior to the Federal or the Federal to the States. The people, to whom all authority belongs, have divided the powers of government into two distinct departments, the leading characters of which are foreign and domestic; and they have appointed for each a distinct set of functionaries. These they have made coordinate, checking and balancing each other like the three cardinal departments in the individual States; each equally supreme as to the powers delegated to itself, and neither authorized ultimately to decide what belongs to itself or to its coparcener in government. As independent, in fact, as different nations." --Thomas Jefferson
"With respect to our State and federal governments, I do not think their relations correctly understood by foreigners. They generally suppose the former subordinate to the latter. But this is not the case. They are co-ordinate departments of one simple and integral whole." --Thomas Jefferson
"It is a fatal heresy to suppose that either our State governments are superior to the Federal or the Federal to the States. The people, to whom all authority belongs, have divided the powers of government into two distinct departments, the leading characters of which are foreign and domestic; and they have appointed for each a distinct set of functionaries. These they have made coordinate, checking and balancing each other like the three cardinal departments in the individual States; each equally supreme as to the powers delegated to itself, and neither authorized ultimately to decide what belongs to itself or to its coparcener in government. As independent, in fact, as different nations." --Thomas Jefferson
"With respect to our State and federal governments, I do not think their relations correctly understood by foreigners. They generally suppose the former subordinate to the latter. But this is not the case. They are co-ordinate departments of one simple and integral whole." --Thomas Jefferson
Correct me if I am wrong, but i believe this change was brought about after the Great Depression and with FDR. States had continuously stressed the powers they had and that the Federal Gov. didn't. However, the Fed Gov became a "nurturing mother" I guess you would say during the times of the Depression when states could not carry themselves, enacting much legislation that we still have today (Social Security, the FDIC, farm subsidies, etc.), and it seems that since that time. We don't see ourselves as - for instance - a Georgian, or Virginian. We see ourselves as American, and we look to the FEDERAL government now for answers. We don't really say anymore, "Our state legislature should do something about education."
And I believe that is the reason why the 9th and 10th AM aren't as important anymore.
And I believe that is the reason why the 9th and 10th AM aren't as important anymore.
QUOTE
However, the Fed Gov became a "nurturing mother" I guess you would say during the times of the Depression when states could not carry themselves, enacting much legislation that we still have today (Social Security, the FDIC, farm subsidies, etc.), and it seems that since that time.
Yes, and all of this was unconstitutional.
QUOTE
We don't see ourselves as - for instance - a Georgian, or Virginian. We see ourselves as American, and we look to the FEDERAL government now for answers.
I actually attribute much of this change to the Civil War. Few people recognize the significance of that aspect of the Civil War. Much of it was over this exact difference in view. The result of the Civil War was that the predominantly Southern (at the time) concept of state soverignty (which was a widely accepted concept among the Founders) was destroyed and replaced by the concept adopted by the Notherners that the nation was comprised of individuals.
Is there an official site where one might read these Amendments?
Its not an offical website but I found one that has the Bill of Rights posted.
The Bill of Rights
Findlaw has an interesting discussion of the 9th Amendment and how it was rarely invoked untill the Griswold v. Connecticut case that paved the way from Roe v. Wade.
The 9th amendment
QUOTE
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
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.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
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.
The Bill of Rights
Findlaw has an interesting discussion of the 9th Amendment and how it was rarely invoked untill the Griswold v. Connecticut case that paved the way from Roe v. Wade.
QUOTE
The Ninth Amendment had been mentioned infrequently in decisions
of the Supreme Court until it became the subject of some exegesis by
several of the Justices in Griswold v. Connecticut. There a statute
prohibiting use of contraceptives was voided as an infringement of the
right of marital privacy. Justice Douglas, writing the opinion of the
Court, asserted that the ``specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help
give them life and substance.''
of the Supreme Court until it became the subject of some exegesis by
several of the Justices in Griswold v. Connecticut. There a statute
prohibiting use of contraceptives was voided as an infringement of the
right of marital privacy. Justice Douglas, writing the opinion of the
Court, asserted that the ``specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help
give them life and substance.''
The 9th amendment
An excelent resource for Constitutional studies (including accurate full text in addition to anecdotal info) is www.constitution.org. I highly recommend it.
Ah! Thank you both. 
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