Sunday, May 16, 2010

The Forgotten Amendments


How did our Federal Government get so big? It’s unconstitutional…literally!

The Constitution of the United States – when’s the last time you read it? I admit that until last night, I’m not sure I had ever read the whole thing. I’m sure I read a few little parts in grade school, and I probably read more in High School while taking the class “American Government,” but I’m still not sure I ever read the whole thing.

While reading it last night, I was literally surprised. There were so many things in there I had never known. When I read the 9th amendment, I suddenly had a flashback to my favorite T.V. show.

My favorite show for years has been “The West Wing.” And one of my favorite episodes concerns the Bill of Rights. In this particular episode the white House staffers are trying to determine the best nominee for the Supreme Court. They have one main concern; the current front-runner (Judge Harrison) doesn’t believe in the right to privacy.

The judge states “Judges are bound to interpret the Constitution within the strict parameters of the text itself. The Constitution doesn’t provide for a right of privacy. The right doesn’t exist.”

A white house staffer states that the 3rd, 4th, and 5th amendments all guarantee privacy – soldiers can’t be quartered in private homes, we are free from unreasonable search and seizure, and from self-incrimination. Doesn’t the right to Privacy live in those passages?

The judge replies “the fact that the framers enumerated those specific protections is all the more reason to believe that they had no intention of making privacy a de facto right.”

Then comes my favorite quote from the white house staffer. “In 1787, there was a sizable block of delegates who were initially opposed to the Bill of Rights. One member of the Georgia delegation had to say by way of opposition: “If we list the set of rights, some fools in the future are going to claim that people are entitled only to those rights enumerated”

Well the judge gets mad about being called a fool by the staffer (and by the state of Georgia,) and they end up appointing another judge to the Supreme Court – but my point is that last quote. I thought it was genius. I started searching for this delegate from Georgia who had talked about “some fools in the future.” I searched high and low until I discovered – it never happened. Aaron Sorkin – the creator of “The West Wing” - made it up. I thought to myself; that’s so sad, it was such a great quote. That’s because it was written for Hollywood. It sounds great as a punch line, because that’s what it was written for.

I forgot about it until last night. I was reading the Constitution. To my surprise I came across almost the exact same phrase right there in the constitution itself, without the “fools” part.

It’s called the 9th amendment:

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

There it is, plain as day. Just because the right isn’t in the constitution, doesn’t mean it doesn’t exist. I was even more amazed when I read the 10th 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.”

Right there it says (in essence) – If we haven’t given a power to the Federal government, or specifically taken it away from the states – then the power belongs to the states and the people.

HOLY COW! I just read the constitution, and guess what I never found – about 90% of all the things the Federal Government is involved in – aren’t there. They are taking powers that are not given to them, and according to the Constitution – that’s illegal. Most recently I am thinking of the huge health care bill that was passed by the Democrats. Whether you think it’s good or bad – there is nothing in the constitution that gives that right to the federal government. The states should decide! Massachusetts did; and they have mandatory health insurance coverage – they required it by law. Because the STATE has that right, not the federal government. I could sit here and type for weeks about things the federal government is involved in that are not listed in the constitution. The framers said explicitly that if they didn’t list a specific right of the citizens – the right still existed. If they didn’t list a power given to the federal government – it DID NOT exist, and was reserved for the States and the people.

For those of you who think I must be ridiculously bored to read the Constitution, it takes about 1 hour. The document is not very long, and it’s written it fairly plain language. It is beautiful in its simplicity.

If only our citizens ever read it – they would be shocked at how much of it is being ignored every day.

6 comments:

Unknown said...

Just in case that last comment didn't make it, here's a list of the documents that changed the world and continue to be a guiding light:

Declaration of Independence

the Constitution of the United States of America

Constitutional Amendments 1-10 (Bill of Rights)

Read them... you will like them.

Unknown said...

You would probably do well to read Supreme Court rulings showing why You are wrong.

Anonymous said...

If this country is of the people and for the people and by the people then the 10th guarantees us the right to have a government responsive to the needs of the people. The preamble sets out a number of clauses that the constitution will address and those include establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare. If the people want something then who is to say that the constitution does not allow it when the 10th absolutely says the people have the right?

Mark@cogley.us said...

Show where the court has the right to change the law

huecmpm said...

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Blaise said...

Thank you for posting this. I agree that our most precious documents are amazing to read and explore. And while I appreciate and respect your point of view, I do not agree with your conclusion.

Consider the 9th and 10th amendments - looking at them together, they would seem to be contradictory. The 9th says, in effect, that the enumerated rights are not to be the only rights we have, while the 10th seems to say that the ones not enumerated are left to "the states", or to "the people".

The first part of that is considered to be the basis for "Federalism". But what do you make of the second part, "the people". How are the people to express their desire to have or enjoy a right that is not enumerated in the constitution? In a republic, I imagine that it is done through the people we elect to represent us.

Put that together with, as Anonymous correctly notes, the ideals set in the preamble, i.e., to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare. I have to conclude that rights to privacy, to love and marry whom ever we want, and so on, all fall under this category.

Lastly, I think it is important to consider what "establish justice" means in a practical sense. I think that it partly means that rights enjoyed by any must be enjoyed by all - something reinforced, I think, by the 14th amendment (“equal protection of the laws”). Doesn't "justice" demand, for example, that if interracial marriage is a right, should not all of our citizens enjoy that right? To me, this notion limits Federalism - the power of states - such that "equal justice under the law" is maintained in all states, for everyone.

Just my $0.02 ...