"The Ninth Amendment doesn't guarantee the people any rights whatsoever. Its purpose is to guarantee that matters upon which the Constitution is silent are left to the states to decide."
I am having a difficult time believing you have read the Ninth and Tenth Amendments from the conclusion you have promulgated above.
The Ninth Amendment states, without any ambiguity, "The enumertaion in the Constitution of certain rights, shall not be construed to deny or disparage others (rights) retained by the people."
I do not understand how you can make the assertion that "The Ninth Amendment doesn't guarantee the people any rights whatsoever."
I do not know of any other meaning you can assign to the words penned in the Ninth amendment, words such as "rights," or "shall not deny or disparage," or "people" and then declare "The Ninth Amendment doesn't guarantee the people any rights whatsoever.?"
Then you subsequently state, "Its purpose is to guarantee that matters upon which the Constitution is silent are left to the states to decide."
Isn't the Tenth amendment the definitive declaration on what the "states...decide?"
"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."
Now if you are questioning the "jurisdiction" of the U.S. Constitution within the boundaries of a sovereign state, that is a legitmate question, but was answered with the ratification of the 14th amendment, which in my opinion, strenghtened the Ninth amendment but weakend the 10 amendment so severly, rendering it superflous.
One more point I would like to make, that I did not compose but was composed by Jon Roland of the Constitutional Society:
"Every right recognized by the Constitution is an immunity, that is, a right against a positive action by government, and is equivalent to a restriction on delegated powers. Conversely, every delegated power is a restriction on immunities. An immunity may be expressed either as a declaration of the right, or as a restriction on powers."
posted on 03/22/2004 5:14:32 PM PST
The Ninth Amendment:
"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
To understand the Ninth Amendment, and also the Tenth, one must first understand the purposes of the Constitution and the Bill of Rights. Our Founders intended for us to have a Constitutional Republic, based on the principles of Federalism.
The Founders very much feared a strong central government. They wanted to limit federal power and, corresponding to that, to leave as much authority to the states as possible. In other words, they would have been horrified at the thought that a federal judge could order a state to legalize abortion, sanction gay marriages, or either ban or permit alcoholic beverages.
There originally were no plans to include a Bill of Rights in the Constitution, but fear of federal power was so strong that James Madison finally consented to add such a provision to the document. So several amendments were drafted, each of them prohibiting the federal government from violating certain rights. For example, the First Amendment states (among other things) that CONGRESS shall make no law respecting the establishment of religion. Note that says nothing about a state legislature doing that, and in fact many states maintained state churches well into the 19th century. The Constitution, remember, was designed to limit federal power, not state power.
So where do the Ninth & Tenth Amendments come into play? Well, they were designed to clear up any misconceptions about the other provisions of the Bill of Rights. Having drafted several amendments preventing the federal government from restricting certain rights, a fear then arose that the feds might assume they can restrict rights not mentioned. In other words, the feds might say, "Okay, we can't restrict free speech since the First Amendment says we can't, but we can restrict alcoholic beverage consumption because there's no amendment that says we can't."
So to guarantee against that, two all-encompassing additional amendments were added. The Ninth was designed to prohibit federal restriction of rights not mentioned in the Constitution at all. The Tenth was designed to prohibit federal interference in areas that might be mentioned in the Constitution, unless the Constitution itself specifically authorized such interference. The Ninth & Tenth Amendments are complementary.
Note the precise language of the Ninth Amendment. It says the enumeration of certain rights shall not be construed to DENY OR DISPARAGE other rights retained by the people. That is negative construction. It is the opposite of positive construction, which would be something along the lines of: "In addition to the rights enumerated herein, this Constitution shall also grant to the people any additional rights they may wish."
But it doesn't say that. It says the federal government can't DENY OR DISPARAGE additional rights. It doesn't say they can grant them.
Who decides if those unenumerated rights are granted or not? The state legislatures and/or the voters. They are supposed to decide if a state is "wet" or "dry". They are supposed to decide whether or not abortion is legal or banned within their state borders. They are supposed to decide whether or not to sanction gay marriages within their confines. Until federal constitutional amendments were added giving blacks and women the vote, states were free to decide whether or not to grant the vote to those particular people. No one ever argued that the Ninth Amendment granted female suffrage as an unenumerated right. That's because the Ninth Amendment grants no rights whatsoever. It prohibits the feds from denying additional rights to those enumerated in the Constitution if the states agree to grant them.
That's why you were so badly mistaken on the prohibition issue. The Constitution was dead silent on that issue until the Prohibition Amendment was ratified. That didn't mean the people maintained a federally enforced "right to consume alcoholic beverages". It meant the issue was left to the states. Some states permitted alcohol. Some banned it. Others left it to individual counties, with the result that some states had half the counties "wet" and the other half "dry".
The interpretation you have given to the Ninth Amendment comes from radical libertarianism, which would ironically expand federal power uncontrollably. It would empower the feds to grant additional so-called rights at the expense of not only state and voter authority, but at the expense of actual constitutional liberties. The likely result of full implementation of your view of the Ninth Amendment would be most massive expanse of federal power in our nation's history.
posted on 03/22/2004 6:06:31 PM PST
BTW, I should also address the Fourteenth Amendment, which you mentioned. That amendment was not intended to federally grant any rights beyond giving the freed slaves full citizenship and granting them equal access to the court system.
That's why it didn't give women the vote (that took a separate amendment about 60 years later), or sanction a federally enforced right to consume alcohol, or legalize abortion, or mandate state sanctioned "gay marriages". Only in recent years, as leftist judges have trashed the Constitution and its true meaning, have such bizarre interpretations come into play (e.g., the current claim that the Equal Protection Clause requires states to sanction "gay marriages").
posted on 03/22/2004 6:18:47 PM PST
The ninth amendment was originally meant to be a rule of construction preserving the retained right of local self-government, not as a sledge hammer to give more power to the federal government in liberty issues. A constraint on federal power not a grant of federal power.
posted on 03/22/2004 6:36:42 PM PST
(We're bringing it on John but you can't handle the truth!)
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