VI.5: The Ninth and Tenth Amendments

The founders presented the U.S. Constitution to the state ratifying conventions in the 1780’s. Many state conventioneers only signed it on the condition that a Bill of Rights would be added.

So James Madison added a Bill of Rights. It included the first eight amendments that guarantee specific rights. He also added two general amendments, the ninth and tenth amendments.

He added the ninth amendment because it’s impossible to foresee every single specific right the people might need to protect. And he added the tenth because it’s just as impossible to foresee every single specific power that government officials might try to take. He worded those two amendments very carefully to cover all possibilities regarding those issues.

Ninth Amendment – The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This amendment clearly says the government cannot limit the peoples’ rights to those specifically enumerated in the first eight amendments.

Tenth Amendment – 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.

This amendment clearly limits the national government’s powers strictly to those enumerated in the Constitution. That leaves all powers not listed there to the states or to the people.

The people wanted the ninth and tenth amendments added because they knew the Constitution would be wide open to interpretation by politicians.

So they insisted on unambiguously preventing loose interpretations from either limiting the people’s rights, or expanding the government’s powers.

But the clear and unambiguous words of the tenth amendment have been ignored. Today there is no limit to the national government’s powers but those decreed by the Supreme Court. And of course that court is part of that same government. So which of the following statements is true?

1. Does the national government only possess those particular powers that are enumerated in the Constitution, as clearly stated in the Tenth Amendment?
2. Or are there constitutional clauses that politicians can interpret in ways that expand the national government’s powers beyond those that are specifically enumerated, in spite of the Tenth Amendment?

If the second statement is true, is there any limit in the imagination of man as to how far such interpretations can be stretched? Does the Tenth Amendment mean nothing at all? Do the specific national powers enumerated in the U.S. Constitution mean nothing at all? Unfortunately, statement #2 above has been declared true by the Supreme Court.

What clauses in the Constitution have politicians used to expand the national government’s powers, nullifying the ninth and tenth amendments?

The Reason to Freedom website, which no longer exists on the internet, listed the following 10 clauses in answer to that question. In other words, politicians have allegedly used these clauses to run roughshod over the Tenth Amendment:

1. The commerce clause (Article I, Section 8, Clause 3);
2. The contracts clause (Article I, Section 10, Clause 1);
3. The due process clause (Amendments 5 and 14);
4. The privileges or immunities clause (Article IV, Section 2, Clause1);
5. The equal protection of the laws clause (Amendment 14);
6. The general welfare clause (Article I, Section 8, Clause 1);
7. The necessary and proper clause (Article I, Section 8, Clause 18);
8. The supremacy clause (Article V I, Clause 2);
9. The takings and tax clauses (Amendment 5 and Article I, Section 8, Clause 1);
10. The enumeration of rights clause (Amendment 9).

And this begs a further question: If lawyers can interpret away the clear wording of the tenth amendment, can’t they interpret away the ninth amendment and even all the rest of the Bill of Rights as well?

Can they limit the peoples’ rights, even those clearly spelled out in the first eight amendments? Many believe this is already occurring, particularly regarding the first amendment freedoms of religion and speech, and the second amendment freedom to bear arms.

In his treatise, Civil Disobedience, Henry David Thoreau warned:

The lawyer’s truth is not Truth, but consistency or a consistent expediency. (Thoreau [1851] 1906, 384)

Words are such slippery things – their meanings change color in the hands of a skilled lawyer like a jungle full of chameleons. That’s not because lawyers are necessarily more evil than the rest of us, but because human language is so changeable. As a consequence, for all its greatness, the U.S. Constitution failed to clarify the limits of power of either the national or the state governments. And in spite of all that is claimed for it, it appears to be failing to guarantee the rights of the people.

Are the meanings of words really that changeable? If so, is it possible for any constitution in any language to ever clarify any issue for all time?

This site is for discussing how to improve our political system. It is NOT for discussing party politics or political figures. So if you have a non-partisan question or comment, feel free to leave it below.

Sources:

Thoreau, Henry David. [1851] 1906. “Civil Disobedience”. In The Writings of Henry David Thoreau. Boston and New York: Houghton Mifflin and Company, 1906.