December 15, 2010
The Disappearing Preamble and the Forgotten Ninth
Today is Bill of Rights Day, a national civil holiday established by President Franklin Delano Roosevelt through proclamation on Dec. 15, 1941. Considering his track record, FDR was certainly not someone you’d expect to honor such a document and the principles it embodies, but it was after all the 150th anniversary of the ratification of the first 10 amendments to the U.S. Constitution and perhaps he was expected to go at least through the motions of paying his respects.
In just the past couple of years, since the Progressive Caucus in the Congress has been trying to ram though its agenda, there’s been a sudden upsurge of public interest in the Constitution and those basic amendments, particularly the Tenth. I hope this is not a passing phenomenon. But I would urge they take a look at another amendment, every bit as important as the Tenth, maybe more so – the Ninth, which reads:
The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Unfortunately, as far too many Americans can attest from personal experience, over the past 80 years government at all levels has become increasingly “intrusive” – to put it mildly. Today we have the (for starters) the PATRIOT ACT, ObamaCare, a massive regulatory apparatus whose agents direct and interfere with every aspect of our lives, backed up by militaristic law enforcement ready to pounce on those who violate its edicts.
It’s now routine for police, whose slogan is to “protect and serve,” to force their way into people’s homes without knocking, shooting the family pet (and sometimes the residents) along the way. At airports, federal agents are directed/allowed to run their hands over screaming toddlers (“let’s make it a game”) and peer at women’s naked bodies in technological peep shows – “for your safety.”
It wasn’t meant to be this way. The authors of the Constitution intended the federal government to be one of limited and enumerated, or listed, powers -- meaning it would have power only over those matters that are specifically given it in the Constitution, and it would guarantee every state a “Republican form of government.” (Article I, Section 4). States, too, had constitutions and bills of rights to define and limit the powers of local and state authorities. These state-level bills of rights tended to be more specific than the federal, offering greater protection to personal liberty.
Just what constitutes a “Republican form of government,” the Framers didn’t say, at least not in the Constitution, but it wasn’t to be the bureaucratic oligarchy that it’s become – a government well-described by humorist P.J. O’Rourke as an “oozing behemoth … a monster of power and expense… a vast, rampant cuttlefish of dominion with its tentacles in every orifice of the body politic.”
Hoping to prevent the government from becoming what it has become, restrictions and limitations were spelled out in the 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 is the Amendment that Tea Party activists and other constitutionalist are focusing on, and pressing state legislatures to issue laws to prevent further federal encroachments on their sovereignty. And that’s fine. But it isn’t enough. They have to go further and demand adherence to the Ninth Amendment, and many conservatives (like many liberals) are reluctant to do so. But if they really want to “get government off our backs” and limit its reach, it’s got to be reasserted.
Now the Ninth Amendment was part of the basis for the 1965 Griswold Decision, which held that the state of Connecticut could not outlaw couples using birth control devices, so many conservatives who promote state sovereignty decry this as judicial activism.
Ethics professor Tibor Machan, “demystified” the Ninth in a 2005 commentary in the Orange County Register, saying:
The Ninth reads: "The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
So, while this does not sanction any kind of loose, "living" constitutional doctrine, it does make clear reference to rights that aren't explicitly listed in the U.S. Constitution.What could those rights be? Pretty much to do everything and anything the government isn't authorized to prohibit. Indeed, the point of the U.S. Constitution does not appear to be to spell out our rights in particular, other than to spell out for emphasis of some of the most crucial ones. It is, rather, to state what the strictly limited powers of government are.
The Ninth is being used in an important gun rights case. It’s not only a Second Amendment issue. An excerpt from a press release by the Arizona-based Goldwater Institute states:
On April 9, 2010, the Goldwater Institute filed an amicus brief in defense of the Montana Firearms Freedom Act. The law permits firearms to be manufactured and sold within state boundaries, free from federal regulation. Similar laws have also been enacted in Arizona, Idaho, Utah, Wyoming, South Dakota and Tennessee. The Institute’s amicus brief has been joined by nearly a third of the Arizona Senate, nearly half of the state House of Representatives, as well as one U.S. Congressman and various Arizona organizations. It is the first of many litigation salvos aimed at restoring state sovereignty and the principles of federalism under the U.S. Constitution.
The lawsuit defending the Montana Firearms Freedom Act, Montana Shooting Sports Association v. Eric Holder, challenges the federal Bureau of Alcohol, Tobacco and Firearm’s declaration that federal gun control laws pre-empt the act. The Institute’s brief argues that such federal pre-emption would undercut the purpose of preserving state sovereignty in our federalist system—protecting individual liberty from the concentration of power in the federal government. This is because enforcing federal gun laws would restrict the opportunities Montanans would have otherwise under the act to enjoy their right to keep and bear arms and their related personal right to manufacture and sell firearms under the Ninth Amendment. (Italics added)
That argument has never been made before. Goldwater Institute attorneys argue that “… the fundamental purpose of our federalist structure is to protect individual liberty.” To support their assertion they quote from a 1992 opinion delivered by Sandra Day O’Connor (New York 505 U.S. at 188), which in turn briefly cites the then-recent case of Coleman v. Thompson. From New York:
The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: "Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power." (Coleman v. Thompson, 1991)
The Institute paraphrases: “The fundamental purpose of our federalist structure is to protect individual liberty. The letter and spirit of the constitution thus requires our system of federalism to protect individual liberty and to prohibit any effort to consolidate power in a way that would undercut this basic structural purpose.”
It’s a compelling argument. The case is now at the Ninth Circuit Court of Appeals, with Second Amendment and Ninth Amendment advocates keeping a close watch on its progress. And well they might. It’s not often the Forgotten Ninth gets a day in court.
Nor is the Ninth Amendment the only part of the Constitution that’s ignored.
If you check an ordinary copy of the Constitution, turning to the section at the end where the amendments are listed, you’ll likely find the text starts right off with Amendment I, that prohibits Congress from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
When I was in grammar school (public school, BTW) we had to memorize three key documents: the first paragraph of the Declaration of Independence, the Gettysburg Address, and the Preamble to the Constitution. Plus we had to memorize the key point in each of the first 10 amendments.
It wasn’t until years later that I discovered that there was another preamble. I was looking through a set of facsimile copies of the nation’s Founding Documents and there, above the First Amendment, was a three-paragraph Preamble to the Bill of Rights. The relevant first paragraph states:
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
Say what? Abuse of power? By our Government? Why, the very idea! Yet it was so.
This was a eye-opener. Here was a statement explaining that “a number” of states did not trust the federal government, fearing it might misconstrue or abuse its powers, and they hoped to prevent this from happening. Therefore, they asked that “restrictive” clauses be added -- to extend “the ground of public confidence.”
Or as Jefferson put it: “Bind men down from mischief with the chains of the Constitution.”
Now of course I had been taught that the states demanded the Bill of Rights as a protective measure against the federal government. But this information was usually presented with an explanation that the states were unduly suspicious and that nowadays we know their fears were unjustified, and so on.
But it is one thing to have the reasoning presented and explained away, and quite another to see it in print; stated without apology by the authors themselves.
I’ve found no explanation for the apparent obliteration of the Preamble from text books and studies about the Constitution. Nor do I know when it was “disappeared” and dropped down the memory hole. It was not included in any of my text books – not in civics classes in high school or later in college. I’ve checked various text books and books about the Constitution, and it’s never there.
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Today it is reproduced in articles on the Internet, but as far as books and other print sources go, were it not for facsimile copies, there would be no trace. The Internet, in effect, rescued the Preamble to the Bill of Rights from oblivion.
Hopefully, the resurgence of interest in the Constitution will rescue the Ninth Amendment from oblivion as well.
© 2010 Sarah Foster - All Rights Reserved
Sarah Foster is a political researcher and freelance writer in Sacramento, Calif. She holds a B.A. in anthropology from U.C., Berkeley and a M. A in folklore-mythology from U.C.L.A. A regular contributor to NewsWithViews.com, her writings have also appeared in WorldNetDaily, Reason Magazine, Orange County Register, and other libertarian/conservative publications.
Sarah can be reached at: firstname.lastname@example.org.