"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" - Ratified on 12/15/1791
This amendment to the constitution was an attempt to place limits on the federal government by all the parties involved in the framing of the constitution. It was a compromise between the two major factions within the founding fathers (the Federalist and the Anti-Federalist) who disagreed on the necessity of a bill of rights being included in the constitution. Interestingly enough, both parties wanted the same end - limited federal power, they simply disagreed about how to get there.
The Federalist did not want a bill of rights in the constitution because they feared that it would lead to the people surrendering all rights not contained therein to the federal government. Essentially, they worried that the bill of rights would be treated as an "exhaustive list of rights" and that no other rights would exist unless the federal government was kind enough to grant them. The Federalist reasoned that the constitution did not grant the power of enumeration of rights to the federal government so under the 10th amendment the federal government would have no power to do so.
Amendment 10 of the United States Constitution:
"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." - Ratified on 12/15/1791
I have read that this concern of an "exhaustive list of rights" arose from the English "Magna Carta" in which the rights of the people were listed and the kings of England used this list as a means of denying the existence of any other rights of the people. However, I have not found any statements made by our forefathers declaring such. Please let me know if I am wrong. I would love to read it.
The Anti-Federalist argued for a bill of rights in order to ensure that certain rights would not be infringed upon by the federal government. They did not want the federal government to have the power of enumerating rights any more than the federalist did, they just wanted to ensure that certain rights would have a guarantee within the constitution. These guaranteed rights were mainly rights that were denied them by their former British rulers.
The Anti-Federalist attempts to ease the Federalist's concerns of an "exhaustive list of rights" consisted of three arguments. The first being that the constitution already enumerated certain rights of the people (Writ of Habeas Corpus for example) and that adding a few more would not add to the likelihood of an "exhaustive list of rights".
Secondly, the Anti-Federalist agreed that an exhaustive list of all rights would be impossible but that should not stop them from guaranteeing certain essential liberties within the constitution.
Third, the Anti-Federalist argued that if there was a danger of the constitution being construed as containing and exhaustive list of rights then the best solution was to have another amendment guaranteeing that this would not happen. Thus, we have the 9th amendment.
Unfortunately, the power behind the 9th amendment has never been fully enforced. For nearly 170 years the federal courts simply ignored it. The justices have attempted to subvert its meaning into something less that what is says by saying that they cannot understand it. They have taken the power of enumeration of unenumerated rights upon themselves despite being denied that power by the 10th amendment.
There have been some decisions based upon the unenumerated rights amendment since the latter half of the 20th century. The first landmark case was Griswold v. Connecticut in 1965 in which the Supreme Court found that the Ninth Amendment guaranteed the right to privacy. And, more notoriously, in Roe V. Wade where the court affirmed a woman's right to abort her fetus.
However, in my view both of those decisions are wrong. Not because we don't have those rights but because the courts were never granted the constitutional authority to enumerate them - either in th positive (yes, they exist) or in the negative (no, they don't exist). I believe that this conclusion of the meaning of the 9th amendment is fully supported by all the debates and letters between our forefathers on this issue. Do a Google search on the 9th amendment, the information is out there.
These arguments presented to the courts should have been in the form of "The state of Connecticut has infringed upon the right of the people to use birth control in order to protect the people's right of...". I'm not sure what people's right they would be protecting in this case but I'm sure they would have come up with one. Then the case could have been argued on the merits of the infringement rather than requiring the supreme court to assume a power not granted to it.
The same applies in Roe V. Wade. "The state has infringed upon the right of the people to abort a fetus in order to protect the rights of the unborn child". The protection of rights in this case is a little easier to ascertain though there would still be arguments to be made on both sides.
Today, conservatives want the federal government to have the power of enumerating the unenumerated rights in the negative only - even though that power was never granted to it and in spite of the positions of both the Federalist and the Anti-Federalist in the framing the constitution. The conservatives call the decisions of Griswold and Roe activist decisions because these decisions enumerate in the positive. However, our forefathers would roll over in their graves at the idea of the federal government being granted this authority to enumerate rights either way. This was the authority that the kings of England used to control the people.
If you place close attention to the various arguments made by conservatives on different cases and laws you will see that what they believe is that you, the individual have no rights other than what the State or Federal governments are willing to graciously give you. However, if you are a business you have the right to do whatever you want and the governments have no authority to tell you otherwise. Rush Limbaugh is a good example of this. He regularly assails the courts for "finding rights" in the constitution that are not explicitly listed there; such as the right to privacy. He seems to believe that the constitution contains an "exhaustive list of rights". That is unless the infringement is on your "business", then the states have no right to tell you what you can do in your own business. For instance, he assailed local legislatures for instituting laws banning smoking in privately owned business. So, it is apparently okay for the states to tell you that you can't use birth control but it is not okay for the states to tell you that you can't allow smoking in your business establishment. Absurd!
Of course, the liberals are no better. They want the people to have the right to an abortion on demand - without any restrictions from the government. They want to treat the unenumerated rights as "uninfringable" rights. However, it is completely okay for the state to infringe upon your right to not join a union and keep your own money. In the non "right to work" states you can be forced to pay dues to a union at your place of employment even if you don't want to join the union. The liberals and the unions argue that those employees enjoy the benefits of the union even if they do not join it and should be forced to pay the dues. So you have the right to abort a fetus anytime you want but you don't have the right to work without paying dues to a union. Absurd!
In full practice, the 9th amendment would limit the power of special interest groups dramatically. Cases would be decided on the balance of rights rather than on whether the rights exist or not. Forced union dues payment by non-members would be thrown out because your choice to not join a union and not pay them dues does not infringe upon anyone elses right to join that union. And the constitution deals with "individual rights" not "group rights", so the concerns of the unions about losing membership or power would (or should) hold no sway. If a group, such as a union, is to hold some power in society then it should be power that is gained through loyalty and service, not power gained by force of law.
Likewise, a localities infringing on a private business owner's right to allow smoking in their business would have to show that allowing the free exercise of that right infringed too heavily upon the rights of non-smokers. Arguments could be made on both sides but, again, you get the idea.
No right is uninfringable. You have the right to free speech but that right is infringed upon when it comes to shouting "fire" in a crowded movie theater. Why? In that case the rights of the other people in the theater to be safe takes precedence over individual right of free speech. Your right to free speech is infringed upon when it comes to slander and libel as well.
You also have the right to the free practice of your religion but you cannot stand on a public sidewalk in front of a house - whose owner you believe is not Christian enough - and bellow verses of the bible at them all day. You would be arrested for disturbing the peace and or harassment. There is no constitutionally listed right of "peace" or "freedom from harassment" yet few of us would argue that someone should be allowed to do that.
All rights, whether enumerated or not, come with responsibilities and if you exercise your right to "x" in an irresponsible manner, without regard for the "rights" of others, then your right to "x" can be infringed upon by the government. That is what our legislatures are supposed to do. They are not supposed to infringe upon your rights, enumerated or not, just because they think it is a "good" or "moral" idea.
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