A Proposed Amendment to the Constitution

 

Limited Powers Amendment to

The Constitution of 

the United States of America

"The government of the United States nor the governments of the several States have, nor shall be allowed, power not enumerated to them or power denied to them by the Constitution or by any of its Amendments."

Discussion: Does this proposed Amendment adequately treat of the problem of encroachment by the Federal government on the right of the States; and does it adequately treat of the problem of encroachment on the rights of individuals by the States?

© Curtis Edward Clark 2011

States' Rights and The 'Slow Rot' Principle

     Has the Ninth Amendment had little effect in the courts? It has certainly not had the power of a 'rule of construction', as James Madison said it was.
     The enlargement of federal powers in the previous century were able to be accomplished because the Tenth Amendment "does not prevent expansive interpretations of enumerated federal powers...render[ing] meaningless
the Tenth's reservation of powers to the states "[1]

     "Thus statism was to come," wrote Ayn Rand, "not by vote or by violence, but by slow rot—by a long process of evasion and epistemological corruption..."

     Critics of the loss of the federalism model claim the Tenth Amendment merely says the States retain all powers not ceded to the Federal government; and because of Rand's "slow rot" principle, those 'expansive interpretations'. Very recently discovered historical documentation show that the Ninth and Tenth Amendments were intended to work together so that "the Ninth prohibited interpretations of enumerated power that disparaged those states’ rights."[2]
     Well, how was this connection between the two Amendments supposed to work? (And why has this scholarship been ignored until now?) States that had demanded the relationship, like Virginia, held up ratification of the Bill of Rights for two years because they didn't think the Ninth was adequate to the job. But James Madison convinced them it was, in a speech to Congress opposing the National Bank (Feb. 2, 1791).
     "Madison's draft of the Ninth Amendment," wrote Kurt T. Lash in this new documentation called The Lost Original Meaning of the Ninth Amendment, "contained a rule of interpretation expressly limiting the constructive enlargement of federal power." Madison himself is said to have expressly stated that the altered version found in the Bill. "Madison's speech removed any ambiguity regarding his understanding of the Ninth Amendment, and the Virginia Assembly was entitled to rely on Madison's description of the Ninth when, only a few months later, it ratified the Bill of Rights."[1]
     Originalism pertains to the historical documents left behind by the Founders as to what they perceived to be the meaning of their words. See March 8 TPO Because it was Madison who wrote the original wording of the Ninth Amendment, and then convinced other Founders of its meaning, upon which they then ratified the Bill, it is Madison's words we must take into account.
     There is a world of difference between "original meaning" and "original intent". I will discuss that in the next blog.

     



[1] Texas Law Review [Vol. 83:331] 336
[2] Univ. of Pennsylvania Law Review

© Curtis Edward Clark 2011
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Original Meaning of Ninth Amendment Is Lost in Modern Jurisprudence

     The Ninth Amendment is the Constitutional description of "individual sovereignty".
     "Those Virginians, such as Patrick Henry and George Mason," wrote Dr. Roger M. Firestone,[1] "who argued most strongly for the Bill of Rights, knew that the individual would require defenses against the authority of the state. [ ] The battle now is not between the Republicans and Democrats, which are merely parties, nor between liberals and conservatives, who dispute over values, but, as it always has been, between liberty and tyranny...[ ] Despite the efforts of some to 'deny or disparage' its meaning, the Ninth Amendment stands, not as a waterblot,* but as a watershed, separating those who would yield to despots...."
     Jefferson wrote[2] about the inseparable and indispensable economic aspect of individual liberty, and how just laws were designed to protect the equal rights of all individuals.
     "Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day...", wrote Joseph J. Ellis.[3]
     As Van Ronk points out,[4] the Ninth Amendment "unequivocally vindicated the political doctrine that there are rights (plural) which exist independently of any written accounting in a political or legal document; and its corollary, that rights ultimately do not derive from written documents but precede and transcend them." 
     "Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect."[5]
     Is it not plain enough that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
     Apparently not. An Originalist interpretation, given the historical background of the Founders who demanded this provision and their reasons for it, 'other' rights retained by the people are all of those not 'enumerated'. It was the Federalists, after all, who pointed out that the federal government was not given the Constitutional power to trample on individual liberties, and for this very reason believed it was dangerous to create a Bill of Rights at all because "an inference would be drawn that the federal government could exercise an implied power to regulate such liberties."[5]

     As Robert F. McDonnell points out,[6] it was "rendered virtually useless by years of encroachment by the federal government and the ever-fading concept of federalism." This would indicate the Federalists, anti-Bill-of-Rights to begin with, were correct about that "implied power". But he makes the counter-point that Jefferson set out carefully the statement about 'self-evident' truths on which our freedoms are based."
     And so it was that Patrick Henry, James Mason, Edmund Randolph and others wanted it known in writing what Jefferson's 'self-evident' truths were based upon: "the primacy of the individual and the knowledge that unchecked governments have a tendency to subvert those rights."[6]
     But Madison made it clear to the Founders that the Amendment states but a rule of construction, [ ] and that it does not contain within itself any guarantee of a right or a proscription of an infringement," because, Madison said, of "last clause of the fourth resolution.''[7]
     And yet Bork's "inkblot" has had little effect in the courts. We will examine why, next time.


[1]  http://www.mastermason.com/rfire/masonry/waterblot.html
[2]  http://www.lexrex.com/enlightened/AmericanIdeal/yardstick/pr6.html
[3]  http://joseph%20j.%20ellis/
[4]  http://www.vanronk.info/2011/02/ninth-amendment-originally-speaking.html
[5]  http://legal-dictionary.thefreedictionary.com/9th+Amendment
[6]  http://static.record-eagle.com/edits/know_your_rights/26ninth.htm 
[7]  http://caselaw.lp.findlaw.com/data/constitution/amendment09/#t2

*Robert Bork called it an "'inkblot' on the Constitution."

© Curtis Edward Clark 2011
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The Ninth Amendment, Liberals, and Conservatives

     On March 11, I wrote, "if the Ninth Amendment is nothing but an inkblot to the Tea Party, the party will only mire itself deeper into the meaningless conversation about which of the lesser-of-two-evils of progressive argument to accept when those arguments are presented to them."
     Robert Bork is the apparent creator of that "inkblot" reference, but Tibor Machan* also said conservatives hate the Ninth Amendment, because, "actually, people have innumerable rights, and to list them all is impossible."
     That is where liberals have things in perspective, comparatively, so far as personal rights are concerned; it is why they support gay marriages and gay adoptions, personal drug use, abortion, and other things that conservatives despise and try to eliminate through legislation. But liberals deny such freedom when it comes to "windfall" profits or oil leases or the right to use incandescent light bulbs.
     Perhaps Bork meant "inkblot" in the sense that the Ninth Amendment has rarely been utilized in the courts to set precedents; it has actually been almost forgotten, to the delight of the Right.
     "The Ninth Amendment," wrote Daniel Farber, "is key to understanding how the Founding Fathers [ ] did not believe that they were creating these liberties in the Bill of Rights. Instead, they were merely acknowledging some of the rights that no government could properly deny."
     In the 1972 case of Baker v. Nelson, two gay students who wanted to get married cited the Ninth's protection of their right to marry as "unenumerated right to privacy". In the famous abortion case of Roe v. Wade, Chief Justice Harry Blackmun, rejected the lower court's Ninth Amendment justification, saying instead the right to privacy existed whether it came from the Ninth or the Fourteenth. Justice William O. Douglas Douglas "in his concurring opinion in the companion case Doe v. Bolton, stated more emphatically that, 'The Ninth Amendment obviously does not create federally enforceable rights.'"
    OMG! Of course it creates nothing--except the mandatory defense of it where necessary by the Courts, and the lack of offending legislation by any law-making body in the United States. There are very few other cases regarding the Ninth, but they do exist here and there.
    If anything, the Ninth Amendment is the most important one regarding personal rights, taking precedence over the First regarding free speech, peaceable assembly, and the right to practice one's religion; the Second which provides us with our means of self-protection. These rights, and others, could have been considered under the Ninth Amendment if the First and Second (and others) had not been created, though the specifics of the others may not have withstood some arguments had they not been written.
     But the fact is, all the arguments made by conservatives against personal liberties, arguments that fly in the face of the Ninth, are based on fallacious arguments, such as that marriage has always been for the lawful protection of children; the National Organization for Marriage calls it "fundamentally redefin[ing] what marriage is."
     What is marriage if not "the legal union of two people"? Who says it must be one male and one female, except God and his spokespeople? Citizen Link uses good statistics to show kids in married families, especially those with both biological parents, are better off growing up and do better as adults; but that doesn't say all of them are better off, nor that no children raised by gay or lesbian parents are not as well off. (I'll cite my own two sons as prime examples--they are now in their mid thirties; one is married with children, and one was in the military.)
     Instead, Link says, "If we are to concern ourselves with the welfare of children, we have to be concerned with the health of marriage in our culture."
Why should marriage be limited to one man and one woman?
     Why do people who deny the Ninth Amendment in today's liberal world think marriage should be between only heterosexuals? "First and foremost," says MInTheGap, "the reason that marriage has been, by definition, and institution between a man and a woman has roots in what the Creator of the World has proclaimed—way back in the book of Genesis."
     That reason, while it may be dogmatically religious, is also the reason it abuses the First Amendment prohibition against laws "respecting an establishment of religion."
     The Ninth is a protection of almost every action that is physically non-aggressive toward or against another person, which is the idea "that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." [John Locke, The Second Treatise of Civil Government, §6]"
     And that is all that the Ninth Amendment states; and it should read more like this:

"Whosoever shall act in accordance with the principle that no one may initiate aggression against another, shall not be found guilty of illegal acts."

 *1 2 3 4


© Curtis Edward Clark 2011
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What is Allegiance to the "United States"

     Allegiance to the government of the United States is not the same as allegiance to the State of which one is a legal resident. Article XIV, adopted in 1868, states that everyone who is born a citizen or is naturalized and who is subject to the jurisdiction of United States "are citizens of the United States."

     "The citizen was not, under the theory of States' rights, in contact with the National Government. He owed allegiance to his State, and the State dealt with the Nation. That theory was definitely set aside by [the Fourteenth] Amendment." *

     Americans now owed allegiance to both authorities. Congressman John Bingham was the principal author of Section One of the Fourteenth Amendment, the part with the words "citizen of the United States". "The phrase 'citizen of the United States' had been used for nearly 8 decades before the Civil War, but always to speak of persons within federal territories." Original Intent.org 

"It is federal, because it is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation." John C. Calhoun

     We unintentionally created what would become a behemoth national government, and it was entirely within the purview of the original Constitution because we had amended the original Constitution. But did creating 'national powers' within the 'federal' government automatically give it the broad powers it has today, with hundreds of federal agencies allowed to make law, and the President allowed to make legally binding executive orders, when the first sentence in the Constitution states: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives"?
     Federal powers began to expand, says Doug Fiedor, in 1825 (Wayman v. Southard) when Congress unconstitutionally delegated the power to the federal court to establish its own rules of practice." In that case, Chief Justice Marshall therefore denied that the delegation [of those powers] was impermissible," and "In 1940, that power was even written into law."
     In future blogs, I will continue to explain how federal expansionism became unlawfully practiced.
     For now it is enough to say that when I pledge allegiance to the United States, it is not the nation that James Madison and the other signers of the Constitution conceived, nor the same federal government that Calhoun described. It is a nation in which both parties conceive of positive rights as an extension of their Fourteenth Amendment duty to protect (and further define) the 'citizen of the United States'. 
     The defining of such a citizen' should have been severely limited, by by then it was too late to stop the national train.

* All asterisks in this post refer to my favorite pre-WWII reference on the Constitution: Constitution of the United States; Its Sources and Application; Thomas J. Norton, copyright 1943

The Unenumerated Rights in the Ninth Amendment

    After writing last week on the Big Government and the Ninth Amendment I was looking at other blogs and articles on the Ninth, and discovered this article:
    "Unfortunately, the 9th Amendment is hated by many conservatives as well as progressives. While being grilled by the Senate, Robert Bork said that the 9th Amendment had no more legal significance than an inkblot on the Constitution. There are two kinds of conservatives, those who want to return to Constitutional principles of a limited government that protects individual rights and those that want to establish an American Empire."
   I also found this, from my good email friend Tibor Machan (whom I met only once in 1979):
   "Many politicians are afraid of the Ninth Amendment of the U.S. Constitution. Many of their intellectual cheerleaders in the academy and media show equal disdain for this portion of that legal document. Why?" He goes on:

   "Why should the Constitution make this point anyway? Because, actually, people have innumerable rights, and to list them all is impossible -- whereas, listing the powers of government, which in the American system are taken to be limited and restricted, can be listed without having to produce a mammoth document."

   The progressive nature of modern American politics infects both sides of the isles in Congress, as Bork's statement makes clear in the ugliest of terms. It is in the nature of 'listing the powers of government' that limits it, and it's the nature of the Ninth Amendment to prevent limits on the behavior of Americans.
   But when Progressives are stupid enough to state aloud that "the difficulty of getting the Constitution amended" is reason enough for not only ignoring such provisions as the Ninth and Tenth Amendments, but for tromping on them with judicial activism and with legislation so complicated that former Speaker of the House Nancy Pelosi said with a smile, and without a hint of irony, that "We must pass this legislation so that you can see what is in it," it is clear that the Tea Party is far from getting the message that Originalism isn't about "smaller government"; it is about Constitutional government.
   But what Tea Partier have you ever heard speak of the Ninth Amendment? One of the "innumerable rights" preserved by the Ninth is the right to be free of mandates such as the requirement to purchase something from the market place--or be fined.
   This mandate of Obama-care takes "demand-based economics" to a new level. Fortunately, if this situation is handled correctly, it can be used to unravel the demand economics being forced on us by a "green" government, such as the unwanted production of bio-gas and the eventual "phasing out" (by government fiat) of incandescent light bulbs.
   Unfortunately, if the Ninth Amendment is nothing but an inkblot to the Tea Party, the party will only mire itself deeper into the meaningless conversation about which of the lesser-of-two-evils of progressive argument to accept when those arguments are presented to them. (They apparently don't see that there is no "unprogressive" argument being made.) And that is what will happen if the party doesn't begin to understand this ideological war isn't about "smaller" government, but about Constitutional government.




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