The Significance of the 9th and 10th Amendments

[DonaldFG]

I am wondering what the folks here believe about the 9th and 10th Amendments to the Constitution. I think these are extremely powerful statements.

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.

What do you think this means for the people (the citizens of the USA)?

 

[DGS49]

I haven't gone into the specific legislative history of the Ninth and Tenth, but the Ninth appears to be a manifestation of the concept that underlies the Declaration of Independence. Namely, that our rights come from God (or Nature, if you prefer), and NOT the government, so that if the government articulates a number of rights, that is not a comprehensive statement of the rights that one has, but merely the ones that Government chooses to emphasize.

The Constitution (Bill of Rights) does not grant the right to travel from place to place, or to own property, or to enter into contracts, but these rights are just as real as the right to speak freely, to be free from unreasonable searches, and so on.

The Tenth Amendment reflects the Founders' concept that the U.S. is a collection of sovereign states who have formed a national government for the limited purposes articulated (mainly) in Article I, Section 8. Everything else is reserved to the states and/or to the people. It is quite a logical listing, and includes naturalization and patent matters, printing money, and so on.

Thus, EDUCATION, for example, is not mentioned anywhere in Article I, so the Federal government is prohibited from doing anything with respect to education, as it is "...reserved to the States respectively, or to the people." Same for healthcare and pensions and radio and television.

See?

 

[Roadrunner]

I haven't gone into the specific legislative history of the Ninth and Tenth, but the Ninth appears to be a manifestation of the concept that underlies the Declaration of Independence. Namely, that our rights come from God (or Nature, if you prefer), and NOT the government, so that if the government articulates a number of rights, that is not a comprehensive statement of the rights that one has, but merely the ones that Government chooses to emphasize.

The Constitution (Bill of Rights) does not grant the right to travel from place to place, or to own property, or to enter into contracts, but these rights are just as real as the right to speak freely, to be free from unreasonable searches, and so on.

The Tenth Amendment reflects the Founders' concept that the U.S. is a collection of sovereign states who have formed a national government for the limited purposes articulated (mainly) in Article I, Section 8. Everything else is reserved to the states and/or to the people. It is quite a logical listing, and includes naturalization and patent matters, printing money, and so on.

Thus, EDUCATION, for example, is not mentioned anywhere in Article I, so the Federal government is prohibited from doing anything with respect to education, as it is "...reserved to the States respectively, or to the people." Same for healthcare and pensions and radio and television.

See?

Comes down to who has the tanks, the Feds, or the states and the people.

 

[C_Clayton_Jones]

I haven't gone into the specific legislative history of the Ninth and Tenth, but the Ninth appears to be a manifestation of the concept that underlies the Declaration of Independence. Namely, that our rights come from God (or Nature, if you prefer), and NOT the government, so that if the government articulates a number of rights, that is not a comprehensive statement of the rights that one has, but merely the ones that Government chooses to emphasize.

The Constitution (Bill of Rights) does not grant the right to travel from place to place, or to own property, or to enter into contracts, but these rights are just as real as the right to speak freely, to be free from unreasonable searches, and so on.

The Tenth Amendment reflects the Founders' concept that the U.S. is a collection of sovereign states who have formed a national government for the limited purposes articulated (mainly) in Article I, Section 8. Everything else is reserved to the states and/or to the people. It is quite a logical listing, and includes naturalization and patent matters, printing money, and so on.

Thus, EDUCATION, for example, is not mentioned anywhere in Article I, so the Federal government is prohibited from doing anything with respect to education, as it is "...reserved to the States respectively, or to the people." Same for healthcare and pensions and radio and television.

See?

Incorrect:

“The Tenth Amendment is not a limitation upon the authority of the National Government to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.”

United States v. Darby LII Legal Information Institute

The Constitution affords Congress powers both expressed and implied, where the courts determine if the National government has acted in an appropriate manner, pursuant to a permitted end. That a given power is not listed in the Constitution doesn't mean it's the sole purview of the states or that Congress may not exercise that power; the Commerce Clause, for example, authorizes Congress to enact all manner of necessary and proper regulatory policies, such as workplace safety, public accommodations, and wage and compensation standards.

“The [10th] amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.” ibid

 

[Procrustes Stretched]

I haven't gone into the specific legislative history of the Ninth and Tenth, but the Ninth appears to be a manifestation of the concept that underlies the Declaration of Independence. Namely, that our rights come from God (or Nature, if you prefer), and NOT the government, so that if the government articulates a number of rights, that is not a comprehensive statement of the rights that one has, but merely the ones that Government chooses to emphasize.

The Constitution (Bill of Rights) does not grant the right to travel from place to place, or to own property, or to enter into contracts, but these rights are just as real as the right to speak freely, to be free from unreasonable searches, and so on.

The Tenth Amendment reflects the Founders' concept that the U.S. is a collection of sovereign states who have formed a national government for the limited purposes articulated (mainly) in Article I, Section 8. Everything else is reserved to the states and/or to the people. It is quite a logical listing, and includes naturalization and patent matters, printing money, and so on.

Thus, EDUCATION, for example, is not mentioned anywhere in Article I, so the Federal government is prohibited from doing anything with respect to education, as it is "...reserved to the States respectively, or to the people." Same for healthcare and pensions and radio and television.

See?

Incorrect:

“The Tenth Amendment is not a limitation upon the authority of the National Government to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.”

United States v. Darby LII Legal Information Institute

The Constitution affords Congress powers both expressed and implied, where the courts determine if the National government has acted in an appropriate manner, pursuant to a permitted end. That a given power is not listed in the Constitution doesn't mean it's the sole purview of the states or that Congress may not exercise that power; the Commerce Clause, for example, authorizes Congress to enact all manner of necessary and proper regulatory policies, such as workplace safety, public accommodations, and wage and compensation standards.

“The [10th] amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.” ibid

implied powers

 

[Procrustes Stretched]

The Tenth Amendment reflects the Founders' concept that the U.S. is a collection of sovereign states who have formed a national government for the limited purposes articulated (mainly) in Article I, Section 8. Everything else is reserved to the states and/or to the people. It is quite a logical listing, and includes naturalization and patent matters, printing money, and so on.

Thus, EDUCATION, for example, is not mentioned anywhere in Article I, so the Federal government is prohibited from doing anything with respect to education, as it is "...reserved to the States respectively, or to the people." Same for healthcare and pensions and radio and television.

See?

Too bad most educated and informed people disagree with you and have since ratification

you didn't give opinions, you spoke from on high. your pocket Constitution is an inadequate substitute for reading the history of the American Colonies, the US and US Constitution

 

[DGS49]

As has been said by many before me, contemporary "Constitutional" law exists in spite of the Constitution, and not pursuant to it. The above "interpretation" interprets the tenth amendment out of existence.

Jones, above, makes the "case" that the Tenth Amendment simply does not mean what it clearly says. While I don't dispute that a lot of people feel the same way (the operative word being "feel"), it simply will not wash.

Even today's USSC, compromised as it is, at least pays lip service to the Tenth Amendment when it knows people are looking. Witness the debate over Obamacare. If the Tenth Amendment were just a "truism," it would not have been necessary for CJ Roberts to twist his pecker in a knot, trying to categorize the penalty for not signing up into a "tax." This was ONLY necessary because Congress does NOT have the constitutional power to require citizens to purchase health insurance. You can scan Article One until you are blind and deaf, but it is not in there. And the Tenth Amendment clearly states that unless it is, Congress lacks the power to do it.

 

[DonaldFG]

Well I was hoping for more numerous responses. But I do appreciate your comments.

None of you seem to think that these Amendments leave the people with much in the way of political power. My thinking is just the opposite. The federal government is intended to be limited by the delegated powers in The Constitution as structured in the three branches. But that does not mean the limits are absolute. One of you mentioned that laws can be extended in commerce for example.

It is obvious to me that the intent specified in the 9th and 10th Amendments allow for congressional legislative action to occur as a result of public pressure on specific issues, even outside the defined delegated areas. The final authority for legislative action is the demands of the people! And I might mention here that the powerful lobbyists we have today have nothing to do with the people. They certainly do not represent us!

Unfortunately, most Americans believe that public pressure they can apply to Congress can be done only through letters, phone calls, petitions, and street protests. Reading the amendments again reveals that no such limits on the people are mentioned. To be more specific, we have the right to modify our government as we see fit. And not just through elections of representatives. We have the right to assume law making power in whatever manner the majority agrees with.

With all the systemic failures we see in our government today, and obvious corruption, we the people must take some control of this mess. Former U.S. Senator Mike Gravel is right; we need the National Initiative!

 

[Procrustes Stretched]

As has been said by many before me, contemporary "Constitutional" law exists in spite of the Constitution, and not pursuant to it. The above "interpretation" interprets the tenth amendment out of existence.

Jones, above, makes the "case" that the Tenth Amendment simply does not mean what it clearly says. While I don't dispute that a lot of people feel the same way (the operative word being "feel"), it simply will not wash.

Even today's USSC, compromised as it is, at least pays lip service to the Tenth Amendment when it knows people are looking. Witness the debate over Obamacare. If the Tenth Amendment were just a "truism," it would not have been necessary for CJ Roberts to twist his pecker in a knot, trying to categorize the penalty for not signing up into a "tax." This was ONLY necessary because Congress does NOT have the constitutional power to require citizens to purchase health insurance. You can scan Article One until you are blind and deaf, but it is not in there. And the Tenth Amendment clearly states that unless it is, Congress lacks the power to do it.

If the framers couldn't agree, why should your opinion carry any more weight than the average Joes'?? You back nothing up, you offer only opinion -- opinion that appears to be uninformed

 

[Procrustes Stretched]

DonaldFG

Well I was hoping for more numerous responses. But I do appreciate your comments.

None of you seem to think that these Amendments leave the people with much in the way of political power. My thinking is just the opposite. The federal government is intended to be limited by the delegated powers...

Now you're talking.

Your opinion on 'these Amendments' leaving 'the people with much in the way of political power' is not necessarily opposite to those of others. Where others differ is on the interpretation and extent of those powers, as in interpreting them broadly versus narrowly.

Take the example of Justice Hugo Black. That man was a textualist, but not a strict constructionist. He was an FDR appointee who went against Presidents and tried his best to allow the Congress as much leeway as he thought the TEXT would allow.

Do you believe in a 'right to privacy?'

Youngstown Sheet Tube Co. v. Sawyer The Oyez Project at IIT Chicago-Kent College of Law

In a 6-to-3 decision, the Court held that the President did not have the authority to issue such an order. The Court found that there was no congressional statute that authorized the President to take possession of private property. The Court also held that the President's military power as Commander in Chief of the Armed Forces did not extend to labor disputes. The Court argued that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker."

---

FindLaw Cases and Codes

The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth [381 U.S. 479, 509] Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.​

 

[Shikica]

Number 9 means that the government has to covertly take away our rights

But also, they are the most basic concepts of a democratic state. Well they are very basic anyway.

I can't take the US constitution/bill of rights seriously these days. The government doesn't care about it so why should we. We are hardly protected at all.

 

[DonaldFG]

You are missing the point in the ninth Amendment, Shikica. The Constitution's Bill of Rights is as enforced as we, the people, make it. It is our responsibility to protect our freedoms. If we simply don't care and do nothing, our freedoms will be taken away. And that is slowly happening.

Our government has been ignoring the Constitution lately. In a few years they will likely shred it. We must empower ourselves to fight back.

 

[DGS49]

But Dante, the Framers DID agree, for the most part. And from their writings one can reasonably conclude that they are figuratively turning over in their graves about MOST of what the U.S. Congress does on a day-to-day basis.

The study of "Constitutional Law," today is the study of how Congress and the Supreme Court have used the device of "interpretation" to basically void the structure of government that was created in the U.S. Constitution. The Federal government has limited powers, clearly articulated in the Constitution, and everything else is "...reserved to the States respectively, or to the people." I don't have to read a 150 page opinion of the Supreme Court in order to understand what that means. In fact, the longer the USSC's opinion is, the more likely it is to be turning the Constitution on its head.

We are told that an amendment requiring the government to treat everyone equally ("...equal protection...") ACTUALLY requires that it treat some people better than others ("Affirmative Action"). That's what we get from the USSC.

When I say in places like this that the USSC is full of shit, people think I don't know what the cases say, but I do. I simply know that the cases - and the Court - are full of shit.

As for the non-existent "right of privacy" as mentioned above, the insidious side of that seemingly harmless "right" is that it is totally undefinable - so it means whatever the majority of the Court wants it to mean. The Court has taken an Amendment that says citizens should be free from "unreasonable searches," and is now preparing to "interpret" that to mean that Uncle John can't be prevented from marrying his boyfriend. This is "interpretation"?

This is bullshit.

 

[emilynghiem]

Number 9 means that the government has to covertly take away our rights

But also, they are the most basic concepts of a democratic state. Well they are very basic anyway.

I can't take the US constitution/bill of rights seriously these days. The government doesn't care about it so why should we. We are hardly protected at all.

Dear Shikica the authority of law is claimed, enforced and shared
by any citizens who adopt these laws and commit to uphold them.

If we do not accept this authority, but hand it to others, they will always have control.
We have "passive-aggressive" type behavior going on,
because people want consent respected, but then keep giving control to others to enforce for us.

No.

Even when you hire someone to build your house for you, you maintain control of the budget and plans.
You don't just let anyone run wild and build whatever they want, at whatever expense, and charge it to you!

If you wouldn't give your car and car keys to just anyone to drive, if you are legally responsible for the costs,
why hand over control of govt to others if we the taxpayers have to pay for whatever messes and debts they make?

 

[emilynghiem]

I haven't gone into the specific legislative history of the Ninth and Tenth, but the Ninth appears to be a manifestation of the concept that underlies the Declaration of Independence. Namely, that our rights come from God (or Nature, if you prefer), and NOT the government, so that if the government articulates a number of rights, that is not a comprehensive statement of the rights that one has, but merely the ones that Government chooses to emphasize.

The Constitution (Bill of Rights) does not grant the right to travel from place to place, or to own property, or to enter into contracts, but these rights are just as real as the right to speak freely, to be free from unreasonable searches, and so on.

The Tenth Amendment reflects the Founders' concept that the U.S. is a collection of sovereign states who have formed a national government for the limited purposes articulated (mainly) in Article I, Section 8. Everything else is reserved to the states and/or to the people. It is quite a logical listing, and includes naturalization and patent matters, printing money, and so on.

Thus, EDUCATION, for example, is not mentioned anywhere in Article I, so the Federal government is prohibited from doing anything with respect to education, as it is "...reserved to the States respectively, or to the people." Same for healthcare and pensions and radio and television.

See?

Incorrect:

“The Tenth Amendment is not a limitation upon the authority of the National Government to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.”

United States v. Darby LII Legal Information Institute

The Constitution affords Congress powers both expressed and implied, where the courts determine if the National government has acted in an appropriate manner, pursuant to a permitted end. That a given power is not listed in the Constitution doesn't mean it's the sole purview of the states or that Congress may not exercise that power; the Commerce Clause, for example, authorizes Congress to enact all manner of necessary and proper regulatory policies, such as workplace safety, public accommodations, and wage and compensation standards.

“The [10th] amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.” ibid

Dear C_Clayton_Jones and Dante
From the founding days of America, there has always been this debate about states' rights vs. federal powers.

it is another version of the age old issue of "individual will vs. the collective will and good of society/humanity"

this conflict is inherent in man, similar to rights and free will that are inherent in human nature.

it has never been resolved, but the issue has ALWAYS been to find a balance or points of agreement
so the two work together, and NEITHER is imposed at the expense of the other.

NEITHER imposing collective will to oppress the individual nor imposing the individual will to harm the collective.
NEITHER imposing federal control to the point of denying sovereignty of states
NOR exercising sovereignty of states or people to the point of dividing the union or threatening security.

the point is to satisfy both.

THIS is where I say we should recognize political beliefs as equal
and QUIT imposing one way over another way.

If we agree that effective laws would satisfy both the federal concerns and the states and people,
we do not need to COMPETE to impose one interpretation more than another. Why can't we satisfy both?

 

[DGS49]

Emily, I think you are wrong as respects Federal vs States. There is no need to balance the rights and powers of the state versus the Federal government. The concept is very clear from the Constitution itself; it's not a balancing, it is an allocation.

The Federal government reserved specific, limited powers for itself and said, "everything else is left up to the states." And when you examine Section 8 of Article 1 you can see that those specific powers are necessary and logical for the central government to have.

But starting with the Civil War and accelerating with the FDR presidency, the controlling politicos changed the Constitution (without going through the legal process of amending it) simply by appointing people to the USSC who were partisans and determined to bring about this metamorphosis through fallacious "interpretations" of the existing language.

But because the Constitution itself has not been modified, they have to go through these bizarre machinations to justify their revamp of the Federal government. This is why the bill authorizing the interstate highway system is called the "national defense" interstate highway system: because the federal government does not have the power to build roads merely for the convenience of the population to get from one state to another. The pretense was that the roads were necessary to move troops and equipment around in case there would be a war. that's also why Justice Roberts had to decide that the penalty for not having insurance was not a fee or a penalty for not doing something (which would be clearly unconstitutional), but rather a TAX.

My solution is to propose an amendment to repeal the Tenth Amendment. If we do that, the Amendment would have to be ratified by the state legislatures of thirty-four states, which would never happen. Then everyone would be made aware of what the Tenth Amendment actually means, and Congress maybe could not get away with what it's doing now.

 

[regent]

Justice Hughes said it best, the Constitution is what the Court say it is.

 

[Friends]

I am wondering what the folks here believe about the 9th and 10th Amendments to the Constitution. I think these are extremely powerful statements.

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.

What do you think this means for the people (the citizens of the USA)?

These are dangerous amendments which could be used by a reactionary Supreme Court to repeal much of the economic and environmental legislation signed during the twentieth century.

They are unnecessary because we the people already exert power through our elected officials.

 

[natstew]

The Federal government reserved specific, limited powers for itself and said, "everything else is left up to the states."

No no, The Federal Government wasn't a framer of our Constitution, representatives of the States were. Through their representatives,the People wrote the Constitution. All power began with the People, "Of the People, By the people, and For the People.
Certain powers were granted to the newly created Federal Government to enable the Federal Government to protect the People's God given rights.

 

[Tennyson]

MAIN

Neither the plain language reading nor textualism will suffice to discern the intent of the 9th Amendment.

For an innocuous amendment that only preserved the rights not enumerated in the first eight amendments, the question that needs to be asked is why did this amendment stall the ratification of the Bill of Rights for almost two years. The necessary and proper clause was revised in the select committee expressly to limit the powers of the federal government to Article 1, Section 8. The powers of the federal government were further limited to Article 1, Section 8 with the 9th Amendment

The 9th Amendment was created at the instance of the states originating in the ratifying conventions after examining the Constitution. The purpose of the 9th Amendment was to ensure that the states kept their rights not surrendered to the enumerated powers of the Constitution. It was the 10th Amendment that protected the state’s rights to exercise those powers. The 9th Amendment was created as a companion amendment to the 10th Amendment. The two amendments serve two purposes.

Though the 10th only protected the powers reserved to the states, it did not address the concerns of the states regarding the overreaching interpretation of the enumerated powers negating the limits set forth in Article I, Section 8.

The states insisted on this rule of construction. Madison agreed and explained how the language of the 9th covered that. Madison also used this very argument against the national bank. Madison in his explanation of the 9th Amendment explained the difference between the 10th and the 9th. The Ninth: "to guard against latitude of interpretation." The Tenth: "excluded every source of power not within the constitution itself."

Madison had guidance on all the amendments he wrote by the states. The states gave explicit instructions to Madison to add an amendment limiting the federal government from “constructive enlargement” outside the enumerated powers and to protect the state’s sovereignty not relinquished. Virginia did not trust that the government would limit itself to the enumerated powers under Article I, Section 8; as that amendment gave powers, the states wanted an explicit amendment that limited those powers. This Madison agreed to and crafted the Ninth Amendment. Madison wrote it as it reads, and the governor of Virginia, Randolf, suspended the state of Virginia from moving forward on the ratification process of the Bill of Rights because Madison did not place limitations on the federal government regarding state’s rights being protected from abuse of Article I, Section 8; this issue caused a two-year delay in ratification of the Bill of Rights. Madison explained the intent of the Ninth Amendment in a speech to the Congress that he did indeed stay true to their proposals from their state conventions regarding the ratification of the Constitution, and its meaning was a limiter on the expansion of the federal government.