The Ninth Amendment to the United States Constitution
Construction of Constitution.
Ratified 12/15/1791.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
It is clear that the first eight amendments classify a list of clearly “enumerated rights”; rights that are identified and at least, basically described. The Ninth Amendment recognizes that man posses more rights and liberties than those contained in the eight preceding amendments. The Ninth Amendment provides a general protection of those unnamed rights by prohibiting the Federal government from enacting legislation that would deny any other rights simply because they were unnamed.
The Bill of Rights were crafted and added to the Constitution as a concession to the anti-Federalists that did not support the creation of a strong central authority without absolute constraints on its powers. Federalists argued that there was no need to add amendments to protect State and civilian rights since the Federal government would not be allowed to hold powers sufficient to impede those rights. Fortunately, the anti-Federalists won the day and judging by the number of challenges that the Supreme Court has faced over the years on the denial of Constitutional rights, the anti-Federalists have been vindicated in their fear of that power.
There were a number of unresolved issues during the forming of this nation, including slavery, which would nearly destroy the United States as we descended into a bloody Civil War to determine once and for all, the moral course of the country. As we discussed in earlier posts, the Declaration of Independence was nearly scrapped because of the allusions to the barbarous practice of slavery. The Southern States would have let it die then and there if the “offending” remarks were not stricken. The crafters of the Declaration withdrew what the Southern States considered “offensive remarks” knowing that a nation had to exist first and that the opportunity to correct this issue would present itself at a later date if they were diligent in the preparation of the Constitution that would govern this new nation.
The abolition of Slavery was really an eventuality because once the conscience of the nation recognized that the slaves were indeed men and women and not merely property, the Federal government would have to confer and guarantee the same protection of the enumerated rights upon them that the rest of the nation enjoyed. The Ninth Amendment will come into play almost exactly 100 years after the Civil War as the Civil Rights Act of 1964 clarified some of the rights there were not “enumerated” within the first eight Amendments.
In our discussions of some of the previous Amendments we saw that the Supreme Court had been charged with deciding the specifics details of some of the provisions of the Bill of Rights. What is a speedy trial? What is cruel and unusual punishment? And so on. Those decisions also fall under the Ninth Amendment protection of non-enumerated rights. While those decisions were based primarily on definitions of existing rights the legalists could have easily argued that those provisions were never written into the Amendments and therefore had no basis in law. It is only because the Constitution includes language that prohibits the government from denying unwritten rights that allows us the ability to argue in the cause of common sense, decency and justice. Without the Ninth Amendment there would be no basis for many of the challenges to the Constitution that have already taken place as those who were in control at the moment would have the discretion to adjust the criteria for things such as “cruel and unusual” and Speedy” to suit the prevailing social climate.
Prior to the Civil Rights Act of 1964, we saw situations where the justice system of an entire State endorsed and allowed all manner of illegal behaviors only because those acts were perpetrated against blacks. Segregation was the rule, reprisals were encouraged, investigations were thwarted and murderers, when finally apprehended, were released through mock trials. Not that the Civil Rights Act put an end to these practices overnight, but it did provide the Federal government the tools to place the full weight of the nation’s resources against those crimes and to prosecute the responsible under new Federal Statutes free from the interference of local politics.
The Ninth Amendment may become even more important as no less that 33 States have either proposed or passed legislation that reaffirms the sovereignty of the State as it appears in the Tenth Amendment. This is being done in the face of proposed Federal legislation that would place increasing financial burdens on States to fund mandatory programs that are only partially funded by the Federal government or in some cases, not funded at all. Also, if the healthcare bill passes there is the Constitutional question as to whether or not the Federal has the authority to impose fines to force individuals to purchase healthcare insurance as they plan to do or if one or more of our un-enumerated rights are being violated as our choices for healthcare are impeded by Federal programs.
Then there is the real insult of Cap and Trade that is designed to force behavioral changes in the area of personal energy consumption through the use of punitive taxes. I would think that any government program designed to effect behavioral changes in the personal consumption of anything should be considered a violation of our un-enumerated rights. If passed, I am sure this will meet the criteria for a challenge based on those rights.
As though the insult of cap and trade was not enough, then let’s look at the proposals for a new tax on “sugary beverages”. In the effort to find more play money for Congress, they are considering placing a penny per ounce tax on any beverage that contains sugar. Of course this is cleverly disguised as a weapon in the war on obesity, but we can see the real intent when the proponents have dollars and cents figures in mind of what this tax will generate in revenue while they have a hard time establishing actuarial figures, what the expected health benefits will be over the same period of time. Again, a tax disguised as a tool to modify our behavior, the Constitutionality of which is in serious question.
Do you see the course this nation is taking? We used to fund education programs so that people could make informed decisions about how they will live their own lives. Now we are using the tax structure to force behavioral changes simply because the think tanks in Washington believe you are incapable of making reasonable choices on your own. You know, when the punitive cigarette taxes came into play; the smoking opponents cheered. I agree it’s a nasty, filthy habit but provided smokers were courteous and businesses were willing to construct separate and filtered smoking areas, it should have remained a nasty, filthy personal choice.
I warned those that cheered that this was just the beginning. I recognized then that this was about the revenue and not the cigarette. After all then as now, the dollars were added up and spent before the heath risk benefits were still being debated. If it was not just about the money then why are the States crying that cigarette tax revenues are drying up as people quit and they may have to cut the programs that benefited from that tax money. No one believed me then but now that they want to tax your kids “Hi C”, what do you think of me now? The tax will add roughly fifty-cents to a two liter bottle of soda and a dollar fifty to a 12 pack case of cans. Curiously diet soda will be exempt even though the heath impact of artificial sweeteners is still hotly debated. If this one get’s past us the “Big Mac and Fries Act” can’t be that far behind.
Construction of Constitution.
Ratified 12/15/1791.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
It is clear that the first eight amendments classify a list of clearly “enumerated rights”; rights that are identified and at least, basically described. The Ninth Amendment recognizes that man posses more rights and liberties than those contained in the eight preceding amendments. The Ninth Amendment provides a general protection of those unnamed rights by prohibiting the Federal government from enacting legislation that would deny any other rights simply because they were unnamed.
The Bill of Rights were crafted and added to the Constitution as a concession to the anti-Federalists that did not support the creation of a strong central authority without absolute constraints on its powers. Federalists argued that there was no need to add amendments to protect State and civilian rights since the Federal government would not be allowed to hold powers sufficient to impede those rights. Fortunately, the anti-Federalists won the day and judging by the number of challenges that the Supreme Court has faced over the years on the denial of Constitutional rights, the anti-Federalists have been vindicated in their fear of that power.
There were a number of unresolved issues during the forming of this nation, including slavery, which would nearly destroy the United States as we descended into a bloody Civil War to determine once and for all, the moral course of the country. As we discussed in earlier posts, the Declaration of Independence was nearly scrapped because of the allusions to the barbarous practice of slavery. The Southern States would have let it die then and there if the “offending” remarks were not stricken. The crafters of the Declaration withdrew what the Southern States considered “offensive remarks” knowing that a nation had to exist first and that the opportunity to correct this issue would present itself at a later date if they were diligent in the preparation of the Constitution that would govern this new nation.
The abolition of Slavery was really an eventuality because once the conscience of the nation recognized that the slaves were indeed men and women and not merely property, the Federal government would have to confer and guarantee the same protection of the enumerated rights upon them that the rest of the nation enjoyed. The Ninth Amendment will come into play almost exactly 100 years after the Civil War as the Civil Rights Act of 1964 clarified some of the rights there were not “enumerated” within the first eight Amendments.
In our discussions of some of the previous Amendments we saw that the Supreme Court had been charged with deciding the specifics details of some of the provisions of the Bill of Rights. What is a speedy trial? What is cruel and unusual punishment? And so on. Those decisions also fall under the Ninth Amendment protection of non-enumerated rights. While those decisions were based primarily on definitions of existing rights the legalists could have easily argued that those provisions were never written into the Amendments and therefore had no basis in law. It is only because the Constitution includes language that prohibits the government from denying unwritten rights that allows us the ability to argue in the cause of common sense, decency and justice. Without the Ninth Amendment there would be no basis for many of the challenges to the Constitution that have already taken place as those who were in control at the moment would have the discretion to adjust the criteria for things such as “cruel and unusual” and Speedy” to suit the prevailing social climate.
Prior to the Civil Rights Act of 1964, we saw situations where the justice system of an entire State endorsed and allowed all manner of illegal behaviors only because those acts were perpetrated against blacks. Segregation was the rule, reprisals were encouraged, investigations were thwarted and murderers, when finally apprehended, were released through mock trials. Not that the Civil Rights Act put an end to these practices overnight, but it did provide the Federal government the tools to place the full weight of the nation’s resources against those crimes and to prosecute the responsible under new Federal Statutes free from the interference of local politics.
The Ninth Amendment may become even more important as no less that 33 States have either proposed or passed legislation that reaffirms the sovereignty of the State as it appears in the Tenth Amendment. This is being done in the face of proposed Federal legislation that would place increasing financial burdens on States to fund mandatory programs that are only partially funded by the Federal government or in some cases, not funded at all. Also, if the healthcare bill passes there is the Constitutional question as to whether or not the Federal has the authority to impose fines to force individuals to purchase healthcare insurance as they plan to do or if one or more of our un-enumerated rights are being violated as our choices for healthcare are impeded by Federal programs.
Then there is the real insult of Cap and Trade that is designed to force behavioral changes in the area of personal energy consumption through the use of punitive taxes. I would think that any government program designed to effect behavioral changes in the personal consumption of anything should be considered a violation of our un-enumerated rights. If passed, I am sure this will meet the criteria for a challenge based on those rights.
As though the insult of cap and trade was not enough, then let’s look at the proposals for a new tax on “sugary beverages”. In the effort to find more play money for Congress, they are considering placing a penny per ounce tax on any beverage that contains sugar. Of course this is cleverly disguised as a weapon in the war on obesity, but we can see the real intent when the proponents have dollars and cents figures in mind of what this tax will generate in revenue while they have a hard time establishing actuarial figures, what the expected health benefits will be over the same period of time. Again, a tax disguised as a tool to modify our behavior, the Constitutionality of which is in serious question.
Do you see the course this nation is taking? We used to fund education programs so that people could make informed decisions about how they will live their own lives. Now we are using the tax structure to force behavioral changes simply because the think tanks in Washington believe you are incapable of making reasonable choices on your own. You know, when the punitive cigarette taxes came into play; the smoking opponents cheered. I agree it’s a nasty, filthy habit but provided smokers were courteous and businesses were willing to construct separate and filtered smoking areas, it should have remained a nasty, filthy personal choice.
I warned those that cheered that this was just the beginning. I recognized then that this was about the revenue and not the cigarette. After all then as now, the dollars were added up and spent before the heath risk benefits were still being debated. If it was not just about the money then why are the States crying that cigarette tax revenues are drying up as people quit and they may have to cut the programs that benefited from that tax money. No one believed me then but now that they want to tax your kids “Hi C”, what do you think of me now? The tax will add roughly fifty-cents to a two liter bottle of soda and a dollar fifty to a 12 pack case of cans. Curiously diet soda will be exempt even though the heath impact of artificial sweeteners is still hotly debated. If this one get’s past us the “Big Mac and Fries Act” can’t be that far behind.
As our choices are slowly being steered by the heavy hand of government to implement another Federal grab for the few dollars we have left, I implore you to learn about your rights and fight fiercely to preserve them. Is it a stretch of the imagination to suggest that if Washington feels totally justified in taxing us into compliance with their idea of what a healthy American should be, that they may eventually use the same tactics to gain compliance for other more radical ideas? Maybe what things American’s should “think” are important? Something to consider, huh? Big brother is watching and if you don’t squeal soon, the intrusions will just get worse as your silence convinces them that they can do damned near anything.
Paul
Great post! I am so glad I found your blog randomly, thanks to Twitter. It's refreshing to read some in-depth analysis on the Constitutional issues surrounding current events, and not just the same old partisan rhetoric from both sides.
ReplyDeleteSeriously, I will be bookmarking the blog and following it. Thanks again!