“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.”
In many ways I consider this to be the red-headed stepchild of the Bill of Rights. Nobody really wants it except when they do, and the only time they want it is when they want to use it as a weapon against somebody else. It only exists as a means of quieting down people who were nervous about centralized power, and since then it’s done little to no good despite the lofty goals it was originally envisioned to provide for.
The original purpose of the amendment was, as James Madison phrased it:
[F]rom looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.
Considering that within the twentieth century we were witness to Supreme Court cases that allowed the federal government to decide how much wheat you could grow on your own land for your own personal consumption (Wickard v Filburn), your house can be taken for private use (Kelo v City of New London), and the federales can kick in your door and snatch up your medicinal marijuana crops, even if it is legal to grow and use in your state (Gonzales v Raich). And these are all just abuses of the Commerce Clause, but I’ve harped on that one before. What I find far more interesting is the abuse of the other side of the equation.
The concern, as I see it, that was being addressed by the tenth amendment was not one of states being able to retain the powers they had enjoyed up to this point. Rather I think it is, as Madison points out, a continuation of the thread that runs throughout the Constitution and the rest of the Bill of Rights: people who had fought to free themselves from what they perceived to be an aggressive, oppressive regime and not wanting to re-create it in the new government they were now defining. One of the chief concerns and problems they had seen was that, being so far away from the seat of power, their concerns were not addressed and their complaints were ignored, and they believed that their local (and by extension state) governments would be more responsive in the event that government action would be needed at all (hence that little clause at the end “or to the people”).
This was never intended to be a carte blanche for state governments to violate the rights of citizens where the federal government couldn’t, and yet so many times that is exactly how some groups have attempted to interpret it. Waving the banner of “states’ rights”, they have tried to circumvent laws and statutes they didn’t like, usually ones that were intended to protect the rights of minority populations. While there are those who attempt to argue the historical implications of the North versus the South and economic issues that extend beyond slavery (some of which does have validity), the core of the issue was that Southern states wanted slavery and Northern states didn’t. This has come forward to us through the years as Jim Crow laws, “separate but equal”, and other forms of government imposed racism, which are times when federal power should intervene to protect the rights of minority populations against the will of the majority in a given area.
Unfortunately this same sort of abuse flows downhill in many ways; states use their power to impose all sorts of laws on their people, such as smoking bans, labor laws, property usage laws, and other means of restricting the free use of property and control over one’s own body. These laws can be and often are popular in the localities where they are passed, or at least popular enough with a large enough majority of the citizenry for that given issue (hence the phrase “tyranny of the majority”). Unfortunately there doesn’t seem to be as much of a groundswell from either the left or the right as yet to protect against these abuses.
I believe the original intent of the tenth amendment was to try to bring power closer to the people. The idea was that each state would have a limiting document similar to the Constitution (as I believe they all do) that was decided upon by the people of that state; by bringing power closer to the people, it would be more responsive, but also the limits on state power would have the same effect as the limits on federal power. This recursive limitation would flow down the chain of government power, so that ultimately the people would have power over themselves. Instead what we are finding is a constant tug of war between government actors at the state and federal level to determine who gets to make the decisions about our lives, whether any given action falls under ” powers … delegated to the United States by the Constitution” or those ” reserved to the States respectively”. Somewhere along the line the last bit about “the people” got edited out.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
At last we come to what I have to admit is my favorite amendment. If for no other reason, I love this amendment because it is the final answer to every question asked by most of the self-proclaimed “strict constitutionalists” I have met. In most cases these would be people who are looking for excuses to legislate their own petty meanness on the rest of the world, and when you call them on it, they have a standard fall back: their shield, their shelter, their raison d’étre almost universally seems to consist of “where do you find that right in the Constitution?”
Right here. Here it is. In the same way that the justice system lays the burden of proof on the prosecution, and for many of the same reasons, so too is the burden of proof that the government, that we the people have the right to take an action against other people. For my money this is the defining feature of the Bill of Rights, and in many ways the Constitution itself.
It is worth noting that the Ninth Amendment only exists in large part because of the debate about the Bill of Rights itself; by the very notion that there should be no need to specifically enumerate rights that would accrue to the people in a country where the powers of the government would be spelled out quite specifically, and the government would have no further or additional powers beyond those that had been granted to it by the very document that was being amended. It’s a nice thought. Any student of history, classical or modern, political or otherwise, should know it’s also a naïve one. So should anyone who has read Leviathan by Thomas Hobbes.
Call me cynical if you must, but it is my belief born out of study and experience that any human system built for managing people will do two things: grow and accrue more power unto itself. It is not (necessarily) some corrupt plot, it is simply the spontaneous order of human systems. Governments are designed to govern; that is their purpose. They can only do that so long as they are either stable or growing. No system can remain viable if it is stagnant. Therefore, for a government to remain viable it must continue to grow, and the only way for a government to grow is to become more powerful, and thereby more intrusive.
Having delineated specific areas and ways in which the government can’t grow in the first eight amendments, there are two possibilities left. The first is the Federalist assertion of a sort of “gentleman’s agreement” of government, that the rights of the people would be implicitly protected simply by virtue of having delineated the powers the government has. Which has worked so well up to now. The second possibility is finding new and interesting ways to interpret the powers granted by the Constitution, including simply ignoring any rights people might reasonably expect to enjoy, including those grounded in the common law tradition from which the Constitutional government evolved.
The modern upshot of this is widespread. As society has evolved, we have changed in our expectations of what it means to be a part of that society; we have even (thankfully) changed in our attitudes and beliefs about what it means to be human. We have recognized and defended rights along the way that are not specifically enumerated in the Constitution, but that are grounded in the same tradition as the other rights that are. One example is the right to privacy, which is often assailed by the aforementioned “where do you find that right in the Constitution?”
Let me be clear: I believe that all the rights that are defended and provided for by the Constitution, regardless of what philosophical approach you may take to it, derive from the following:
We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America.
That having been said, I see nothing that runs counter to a right to privacy. On the contrary, privacy in one’s person and effects seems to me to be eminently just, promotes tranquility, adds to the common welfare, and is one of the greatest blessings of liberty I can imagine. If you don’t believe me on that last point, throw wide the settings on your Facebook profile and wait five minutes.
Not everything people claim as a right truly is one; I get that. But to say that it must be spelled out to exist is absurd. The law is and always has been a lagging indicator of the culture at best, and a drag on the culture at worst. Far better to put the burden on those who would control us than on those of us who would be free.